Kilkeary v. Mary (In re Mary)

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Garry, P.J.
• Citation: Kilkeary v. Mary (In re Mary), 202 A.D.3d 1418, 163 N.Y.S.3d 691 (N.Y. App. Div. 2022)
• Decision Date: 24 February 2022
• Docket Number: 532934
• Parties: In the MATTER OF the ESTATE OF Virginia A. MARY, Deceased. Tina M. Kilkeary, as Executor of the Estate of Virginia A. Mary, Deceased, Respondent; v. Raymond L. Mary Jr., Appellant.

202 A.D.3d 1418

163 N.Y.S.3d 691

In the MATTER OF the ESTATE OF Virginia A. MARY, Deceased.

Tina M. Kilkeary, as Executor of the Estate of Virginia A. Mary, Deceased, Respondent;

v.Raymond L. Mary Jr., Appellant.

532934

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 6, 2022

Decided and Entered: February 24, 2022

Niles & Bracy, PLLC, Plattsburgh (Evan F. Bracy of counsel), for appellant.

Law Offices of Stephen A. Johnston, Plattsburgh (Stephen A. Johnston of counsel), for respondent.

Before: Garry, P.J., Clark, Aarons and Colangelo, JJ.

MEMORANDUM AND ORDER

Garry, P.J. Appeal from an order of the Surrogate's Court of Clinton County (Wait, S.), entered August 6, 2020, which, among other things, denied respondent's application for a decree admitting to probate an instrument purporting to be the last will and testament of decedent.

In March 2008, Virginia A. Mary (hereinafter decedent) purportedly executed a will in which she bequeathed all her property and assets, in equal shares, to her three children: petitioner, respondent and their sister (hereinafter the third sibling). In March 2018, decedent executed a new will, leaving her financial accounts to her three children in equal shares but leaving her home and its contents to respondent and his wife. Following decedent's death, petitioner sought to admit a copy of the 2008 will to probate, asserting that the original could not be located. Respondent objected and sought a decree admitting the 2018 will to probate. Following a bench trial, Surrogate's Court determined that decedent possessed testamentary capacity to execute the 2018 will but denied respondent's objections and his request to admit that will to probate, concluding that the 2018 will was the result of undue influence. The court also declined to admit a copy of the 2008 will to probate. Respondent appeals.

In reviewing a determination rendered after a nonjury trial, "this Court independently assesses the weight of the evidence and grants judgment warranted by the record, giving due deference to the trial court's determinations of witness credibility unless such findings are contrary to a fair interpretation of the evidence" ( Mazza v. Fleet Bank, 16 A.D.3d 761, 762, 790 N.Y.S.2d 730 [2005] ; see Matter of Jewett, 145 A.D.3d 1114, 1116, 42 N.Y.S.3d 443 [2016] ). A party claiming undue influence bears the burden of showing " ‘that the influencing party's actions are so pervasive that the will is actually that of the influencer, not that of the decedent’ " (Matter of Prevratil, 121 A.D.3d 137, 142, 990 N.Y.S.2d 697 [2014], quoting Matter of Malone, 46 A.D.3d 975, 977, 846 N.Y.S.2d 782 [2007] ). "Undue influence is seldom practiced openly, but it is, rather, the product of persistent and subtle suggestion imposed upon a weaker mind and calculated, by the exploitation of a relationship of trust and confidence, to overwhelm the victim's will to the point where it becomes the willing tool to be manipulated for the benefit of another" ( Matter of Burke, 82 A.D.2d 260, 269, 441 N.Y.S.2d 542 [1981] ; accord Matter of Collins, 124 A.D.2d 48, 53, 510 N.Y.S.2d 940 [1987] ). For influence in creating a will to be considered undue, "[i]t must not be the promptings of affection; the desire of gratifying the wishes of another; the ties of attachment arising from consanguinity, or the memory of kind acts and friendly offices, but a coercion produced by importunity, or by a silent resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear" ( Matter of Walther, 6 N.Y.2d 49, 53–54, 188 N.Y.S.2d 168, 159 N.E.2d 665 [1959] [internal quotation marks and citations omitted]). "Although undue influence may be proven through circumstantial evidence, such evidence must be ‘of a substantial nature’ " ( Matter of Prevratil, 121 A.D.3d at 142, 990 N.Y.S.2d 697, quoting Matter of Walther, 6 N.Y.2d at 54, 188 N.Y.S.2d 168, 159 N.E.2d 665 ). Where the circumstantial evidence would support conflicting inferences that the will was executed based on either undue influence or the decedent's own volition, a conclusion of undue influence cannot reasonably be drawn (see Matter of Walther, 6 N.Y.2d at 54, 188 N.Y.S.2d 168, 159 N.E.2d 665 ; Matter of Malone, 46 A.D.3d at 978, 846 N.Y.S.2d 782 ).

"Where there is a confidential relationship between parties to a transaction, ... the burden shifts to the stronger party in such a relationship to prove by clear and convincing evidence that a transaction from which he or she benefitted was not occasioned by undue influence" ( Matter of Bonczyk v. Williams, 119 A.D.3d 1124, 1125, 990 N.Y.S.2d 304 [2014] [internal quotation marks, brackets and citations omitted]; accord Matter of Giaquinto, 164 A.D.3d 1527, 1530, 83 N.Y.S.3d 728 [2018], affd 32 N.Y.3d 1180, 94 N.Y.S.3d 244, 118 N.E.3d 906 [2019] ; see Matter of Connelly, 193 A.D.2d 602, 603, 597 N.Y.S.2d 427 [1993], lv denied 82 N.Y.2d 656, 602 N.Y.S.2d 805, 622 N.E.2d 306 [1993] ). "Although close family ties may negate the presumption of undue influence that would otherwise arise from a confidential or fiduciary relationship," a factfinder could still decide that the stronger party "acted not out of family duty," but rather out of greed ( Matter of Antoinette, 238 A.D.2d 762, 764, 657 N.Y.S.2d 97 [1997] ; see Matter of Giaquinto, 164 A.D.3d at 1532, 83 N.Y.S.3d 728 ).

The third sibling lived in Maine but visited decedent several times each year. Petitioner cleaned decedent's house every weekend and arranged and transported decedent to all her medical appointments. Petitioner handled decedent's finances for 40 years, including balancing decedent's bank accounts and writing checks to pay bills. Respondent lived next door to decedent and would spend time at her house each day to check on her and make sure that she had regular meals. Thus, decedent depended on petitioner and respondent, each of whom provided increased care for her during her final months.

In the four months prior to the execution of her 2018 will, decedent was in declining physical and mental health, including a potential diagnosis of dementia, and spent half that time in medical facilities. During that time, respondent contacted an attorney to draft a new will for decedent and conveyed a sense of urgency. All correspondence with the attorney's office regarding the will was channeled through respondent, who was present throughout the initial meeting and the execution of the will. Although the 2008 will divided decedent's assets equally among her children, the 2018 will differed from that testamentary plan by bequeathing the house and its contents to respondent and his wife. Petitioner, who had power of attorney and handled decedent's financial matters, was not informed regarding the new will until after its execution. When petitioner was made aware of the new will by decedent a few days afterward and read it to decedent, decedent stated that she did not understand and disputed the contents of the will; when respondent confirmed the meaning of the 2018 will, decedent stated immediately, and a few times thereafter, that "[w]e've got to fix this." Petitioner did not attempt to obtain another will because she questioned decedent's capacity to execute one.

Bank records show that, the day after the 2018 will was executed, someone withdrew a large amount of money from decedent's joint bank account with petitioner. Petitioner denied having made that withdrawal. The record indicates that decedent had not driven in years and, during that time period, she left the house only for medical appointments. The same day as the withdrawal, an equal amount was placed into a certificate of deposit (hereinafter CD) that listed all three children as beneficiaries, the same as decedent's other CDs. Bank records reflect that, a few weeks later, the third sibling's name was removed from the beneficiary designations on decedent's two largest CDs. Respondent testified that he brought decedent to the bank and she signed the CD documents; petitioner disputed that decedent would have left the house at that time. Petitioner testified that, when she...