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Petitioner Raises Issue of Undue Influence


In this Will Contest action, the objectants move for reargument of the Court’s decision. Petitioners cross move for summary judgment dismissing the objections.

A New York Probate Lawyer said that decedent died in July 1992. Petitioners, as nominated co-executors, seek to admit to probate an instrument executed sometime in June 1981 and two codicils. The sole residuary beneficiary began acting as accountant and financial advisor for decedent and her husband in 1970.

The issue to be resolved before the Court is whether this fact, without more, raises an inference of undue influence.

A New York Will Lawyer said the decedent’s distributees, all first cousins once removed, filed objections to probate alleging lack of due execution, lack of testamentary capacity, and fraud and undue influence. In July, 1993 petitioners moved for summary judgment dismissing the objections. That motion was denied, with leave to renew upon completion of discovery. Discovery has now been completed.

Queens Probate Lawyers said the objectants move to reargue the earlier decision to the extent that it permitted petitioners to renew their summary judgment motion upon completion of discovery. Petitioners’ cross motion is, in essence, a renewal of their prior summary judgment motion.

Although summary judgment is rarely granted in probate proceedings, such relief should not be withheld where the proponent has established a prima facie case in favor of probate and the objectant makes mere conclusory allegations which fail to raise triable issues of fact. On these motions objectants have apparently abandoned their objections based on lack of due execution and testamentary capacity. Summary judgment dismissing those objections is therefore granted.

As for the objection alleging undue influence, objectants argue that the mere existence of the confidential and fiduciary relationship between the beneficiary and the testator gives rise to an inference of undue influence, creating a question of fact sufficient to submit this case to a jury.

A Long Island Probate Lawyer said the Court disagrees, for the reasons set forth below.

It is well settled that where a beneficiary under a will was in a confidential or fiduciary relationship with the testator, and was involved in the drafting of the will, an inference of undue influence arises. Although the inference does not shift the burden of proof on the issue of undue influence, it places the burden on the beneficiary to explain the circumstances of the bequest. The adequacy of the explanation is a question of fact for the jury.

There is no evidence whatever in the present record that the beneficiary had any direct or indirect involvement in the drafting of decedent’s will. His deposition testimony and the affidavits of the draftsman, state that the beneficiary played no role in choosing the draftsman; that the latter met with decedent to ascertain her wishes prior to drafting her will; and that the draftsman and the beneficiary had never met or communicated with each other prior to preparation of the will. These assertions are uncontradicted. Objectants, after conducting extensive discovery, are unable to offer an iota of proof that beneficiary had any input into decedent’s testamentary plan or the drafting of her will.

The Court is unaware of any case which has held that an inference of undue influence exists where there is no evidence that the fiduciary-legatee had some involvement in the drafting of the will. The Court of Appeals held that the inference does not automatically apply where an attorney-legatee did not draft the testamentary instrument, stating:

“There exist sound reasons for avoiding a per se rule that would create an inference of undue influence any time a testamentary disposition is made to an attorney who has had a professional relationship with the testator in the past. A basic tenet of our system is that ‘[a] person of sound mind, acting with full knowledge of her affairs, competent to understand her relations to those whom she wished to benefit, may bestow her bounty as she likes.’

The same rationale applies to non-attorney fiduciaries and confidants who are named as beneficiaries. There must be some evidence, even if it is only circumstantial, that the confidential relationship was utilized to influence the testator’s wishes or the will drafting process, before the inference of undue influence arises and the beneficiary is put to the test of explaining the bequest to a jury. In the absence of such evidence here, the Court concludes that there is no inference that the beneficiary exercised undue influence.

The party alleging undue influence has the burden of proof. Without an inference of undue influence, there is no evidentiary support for objectants’ conclusory allegations. The Court therefore finds that objectants have failed to sustain their burden on these motions to demonstrate that triable questions of fact exist.

Accordingly, petitioners’ cross motion for summary judgment dismissing the objections is granted in all respects. Objectants’ motion for reargument is denied.

Drafting a last will and testament is not drafting it in accordance with the last wishes of the deceased, it must also conform to what the law requires and allows. Here in Stephen Bilkis and Associates, our New York Estate lawyers when drafting the last will and testaments for our clients consider what the law allows and disallows. For probate of a will, you can contact our New York Probate attorneys for a competent advice.

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