THE PERILS OF EXTENSIVE INVOLVEMENT IN A DECEDENT’S AFFAIRS

First published in the February 2007 issue of Suffolk County Women’s Bar Association Newsletter

In Matter of Kathryn M. Neenan, 2006 NY Slip Op 09250 (Dec. 5, 2006), the Second Department reversed a decision of the Rockland County Surrogate’s Court and ordered a new trial on the issue of undue influence. A niece of the decedent offered the decedent’s will for probate. The will designated the niece as executrix and divided the probate estate between the niece and the niece’s son. The children of a predeceased niece of the decedent objected based on allegations of undue influence by the son.

Evidence at trial showed that the son acted as the decedent’s accountant, assisted her with her financial affairs, chose an attorney for her and was directly involved in the preparation of the decedent’s will. Despite the objectants’ request that the Surrogate instruct the jury that there was an inference of undue influence based upon the son’s involvement in the decedent’s affairs, the Surrogate declined to give such an instruction. The Second Department made it clear that while the inference does not shift the burden of proof on the issue of undue influence from the objectants, it does require the beneficiary to explain the circumstances that led to the bequest being made. Since no explanation was given by the son, and the jury was not advised of the inference, the Second Department ordered a new trial on the issues of undue influence.

Back to the "In The News" Index