The decedent’s wife predeceased him. Thereafter, in 2009 the decedent executed a new will leaving his estate to his wife’s niece (the defendant). At the defendant’s suggestion, the decedent also executed a revocable living trust. Shortly thereafter, he became concerned about losing control of his assets, and he retained a new lawyer to draft a 2010 will. The lawyer had no prior relationship with any of the parties.

The lawyer ultimately prepared four wills for the decedent from 2010 to 2014. The 2014 will omitted the defendant. It named the plaintiffs, who had been friends of the decedent, as co-executors and equal beneficiaries of the estate.

Plaintiffs sought to admit the 2014 will to probate, and the defendant filed a caveat.

The estate lawyer testified based on notes he kept in connection with each will preparation. He testified that the decedent was elderly but actively managed his own stock portfolio. The lawyer had no concerns regarding the decedent’s capacity at any point during his representation, although he noticed that the decedent slowed down physically over the years. The lawyer testified that the decedent had told him that he had no blood relationship with the defendant, and wanted to divide his estate among his close friends.

The defendant herself conceded that, while she did not live near the decedent, the plaintiffs lived close to him, and assisted him regularly. The defendant claimed, however, that the plaintiffs exercised undue influence over the decedent, and that one of the plaintiffs, who was the decedent’s financial adviser, abused her position as such.

The defendant’s expert psychiatrist opined that, based on his review of the decedent’s medical records, it was likely that his “apparent history of several years of dementia” affected his capacity and “rendered him less able to resist undue influence, if it actually occurred, notwithstanding characterizations of him as firm, rigid, set in his ways, knowing what he wanted, and the like.”

The plaintiffs filed a motion to exclude the defendant’s expert. Trial judge granted the motion, based on the expert’s failure to identify specific facts in the record on which his opinions were based, and his failure to express an opinion within a reasonable degree of medical certainty. The judge found these deficiencies rendered the report unreliable and inadmissible.

Next, the trial judge ruled on the plaintiffs’ motion for summary judgment. He found nothing in the record to support a claim of dementia until more than a year after the 2014 will was executed. He also noted that the defendant conceded that she had no knowledge of the circumstances surrounding the 2014 will execution to contradict the attorney’s testimony, and that the plaintiffs were the decedent’s long-time friends. The trial judge found the defendant’s claim of lack of testamentary capacity to be belied by her later attempt to have the decedent execute a power of attorney in her favor just prior to his death.

With regard to the claim of undue influence, the trial judge also found nothing in the record to suggest that the plaintiffs occupied a dominant position over the decedent. Although one of the plaintiffs had served as the decedent’s “financial adviser,” the judge refused to find that this resulted in a “confidential relationship” because the record did not explain the term “financial advisor” or explain the plaintiff’s duties as such, and did not explain how the decedent may have relied on her. Even assuming that the defendant had presented sufficient evidence to shift the burden of proof to the plaintiffs, the judge concluded that any influence the plaintiffs had exerted was not “undue,” because,

Influence is not undue … unless it constitutes moral or physical coercion destructive of free agency. Even persuasion, much less mere suggestion, is not undue influence either in the legal or the moral sense if freedom of will remains intact.

Based on the trial judge’s reasoning, the Appellate Division affirmed his decision in full.

A copy of In re Estate of Kaczmarek can be found here – In the Matter of the Estate of Kaczmarek

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