Preview
FILED: KINGS COUNTY CLERK 07/01/2021 10:34 PM INDEX NO. 526061/2019
NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 07/01/2021
Exhibit 1
FILED: KINGS COUNTY CLERK 07/01/2021 10:34 PM INDEX NO. 526061/2019
NYSCEF PJI 7:55NO.
DOC. Will 108
Contests—Undue Influence—General Rule, N.Y. Pattern Pattern Jury Instr.--Civil...
Instr.--Civil... RECEIVED NYSCEF: 07/01/2021
N.Y.
N . Y.Pattern
Pattern Jury Instr.--Civil
Instr.--Civil 7:55
7:55
New York Pattern Jury Instructions--Civil D| eDecember
c e m b e r 2020 Update
Update
Committee on Pattern Jury Instructions Association
Association of Supreme Court Justices
Justices
Division 7. Will Contests
Contests
Influence
D. Undue Influence
1. General Rule
Rule
PJI 7:55 Will Contests—Undue Influence—General Rule Rule
A will must be a true expression of the testator's
testator's wishes. If,
If, instead,
instead, it reflects the desires
desires of some person
person who controlled the
testator's thoughts or actions, the will is invalid because of undue influence. To be "undue",
“undue”, the influence exerted must amount
amount
testator
to mental coercion that led the testator to carry out the wishes of another, instead of (his, her) own wishes, because the testator
was unable to refuse or too weak to resist. The undue pressure brought to bear may consist of a play on the testator's emotions,
emotions,
passions, fears, weaknesses
weaknesses or hopes. It may consist of an appeal to (his, her) prejudices or a continual course of flattery. The
exercise of undue influence may be slow and gradual, progressively gaining control over the testator.
testator.
The word
word "undue"
“undue” should
should be
be emphasized,
emphasized, because
because the
the law
law does
does not
not condemn
condemn all influence.
influence. It
It condemns
condemns only
only that
that degree
degree
of influence that
that destroys
destroys the
the testator's
testator's own
own judgment
judgment and
and free
free will.
will. Accordingly,
Accordingly, the
the will
will is
is not
not invalid merely
merely because
because aa
testator was influenced by affection, gratitude, family and personal relationships, or ordinary advice and argument. These factors
factors
commonly enter into a testator's consideration and are proper, because they do not deprive the testator of (his,
(his, her) own free will.
Direct evidence
evidence of undue influence
influence is
is seldom
seldom available. Accordingly,
Accordingly, the
the law permits undue influence
influence to
to be shown by facts
facts
and circumstances leading up to and surrounding execution of a will.
will. However, it is not enough that you find that motive and
and
opportunity to exercise
exercise undue influence existed.
existed. You must also find additional facts that satisfy you that such influence was
actually exercised. Further,
Further, the
the facts
facts upon
upon which aa claim of undue influence
influence is
is based
based must
must be
be proved. In
In other words,
words, you
reasonably
may not guess or speculate. It must appear that the inference of undue influence is the only one that can fairly and reasonably
be drawn from the facts
facts proved,
proved, and that any other explanation is fairly and reasonably excluded. If facts proved would
I f the facts
reasonably support an inference that undue influence was exercised, as well as the contrary inference that it was not exercised,
exercised,
then undue influence has not been proved.
proved.
You must answer the following question: "Was
“Was the execution of the will of [state date] by the testator, AB, the result of undue
undue
influence by CD?"
CD?” To answer
answer that
that question,
question, you
you must
must determine
determine what
what were the facts
facts and
and circumstances
circumstances leading
leading up
up to
to and
and
surrounding execution of this will, taking into consideration such testimony as you deem true concerning ([here list the factors
on which
which evidence
evidence has been
been adduced,
adduced, such
such as
as:—]
:] condition; AB's
AB's physical and mental condition; AB's contact with, or isolation from,
AB's
(his, her) family and friends; AB'sknowledge and awareness of thewill'sprovisions and whether (he, she) was satisfied with
them; the opportunity that AB
AB had to obtain independent advice; AB's dependence, if any, upon CD; CD's control during AB's
will; CD's whereabouts and
lifetime over AB's property and affairs; the action, if any, taken by CD to obtain execution of the will;
actions at the time the will was executed; by whom the will was drafted; the presence or absence of independent counsel at the
the
time the will
will was executed;
executed; the
the naturalness
naturalness of the will's provisions; the
the relation of the will's contents
contents to the contents of AB's
prior wills;
wills; the
the size
size of the provision
provision for CD in relation to the total estate
estate left by AB;
AB; the
the explanation
explanation offered by CD for the
provision made for (him, her) in the will).
will).
The burden is on the contestant to establish by a fair preponderance
preponderance of the evidence that the will in
in question
question was the result of
undue influence by CD. If AB
If you are not satisfied by a fair preponderance of the credible evidence that, in executing this will, AB
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NYSCEF PJI 7:55NO.
DOC. Contests—Undue Influence-General
Will 108
Contests-Undue Influence—General Rule,
Rule, N.Y. Pattern Jury Instr.-Civil...
Instr.--Civil... RECEIVED NYSCEF: 07/01/2021
gave in to the wishes of CD, contrary to (his, her) own free will and desires, or if the credible evidence on that issue weighs
so evenly that you are unable to say that there is a fair preponderance on either side, you will answer the question: "No".
“No”. If,
If,
however, you are satisfied by a fair preponderance of the credible evidence that, in executing this will, the testator gave in to
the wishes of CD, contrary to (his, her) own free will and desires, you will answer the question: "Yes".
“Yes”.
Comment
Comment
Based on Matter of Walther's
Walther's Will, 6 NY2d 49, 188 NYS2d 168, 159 NE2d 665 (1959); Matter of Anna's Estate, 248 NY 421,
162 473 (1928);
162 NE 473 (1928); Smith
Smith v Keller, 205
205 NY
NY 39, 98 NE 214 (1912); Children's
Children's Aid Soc.
Soc. of New York v Loveridge, 70 NY NY
387 (1877); Rollwagen v Rollwagen, 63 NY 504 (1876); Matter of Kaufmann's Will, 20 AD2d 464, 247 NYS2d 664 (1st Dept
1964), aff'd, 15
1964), affd, 15 NY2d 825, 257 NYS2d
NYS2d 941, 205205 NE2d
NE2d 864 (1965); Matter
Matter of Herlihy's Estate,
Estate, 18
18 AD2d
AD2d 716, 236
236 NYS2d
105 aff'd, 13 NY2d 816, 242 NYS2d 346, 192
105 (2d Dept 1962), affd, 192 NE2d
NE2d 223
223 (1963);
(1963); Matter of Holly's Will, 16 AD2d 611, 226
aff'd, 13
NYS2d 174 (1st Dept 1962), affd, 13 NY2d
NY2d 746, 241241 NYS2d
NYS2d 870, 191191 NE2d
NE2d 920 (1963); Matter
Matter of Bach, 133
133 AD2d
AD2d 455,
519 NYS2d 670 (2d Dept 1987); Matter of Burke,
Burke, 82 AD2d 260, 441 NYS2d 542 (2d Dept 1981); Matter of Henderson's
Henderson's Will,
App Div 140, 11 NYS2d
253 App NYS2d 871 (4th
(4th Dept 1937); Matter of Connor's Will, 230 App Div 163, 244 NYS 221 221 (3d
(3d Dept 1930);
Matter of Thomas' Estate, 140 Misc
Misc 446, 251
251 NYS 726 (Sur 1931); Matter of Rose's Estate, 138 Misc 630, 246 NYS 718 (Sur
1930);
1930); see Matter of Henderson,
Henderson, 80 NY2d 388, 590 NYS2d 836, 605 NE2d 323 (1992); Matter of O'Donnell's
O'Donnell's Estate, 91 AD2d
698, 457 NYS2d 609 (3d Dept 1982); Prince, Richardson, Evidence (Farrell 11th ed) § 3-214; 2A Warren's Heaton, Surrogates'
Surrogates'
Courts (6th ed) § 42.07.
The pattern charge states the general rules governing undue influence. When the evidence establishes or the jury could find that
aa confidential relationship existed between AB
AB and CD, PJI 7:56 or the alternate charge set forth in the
the Comment to PHPJI 7:56
should be substituted for the last two paragraphs
paragraphs of the pattern charge. When
When the evidence establishes
establishes or the jury could find
that CD was the drafter-beneficiary of the will, PJI 7:57 or an adaptation of the alternate charge set forth in the Comment to PJI
7:56 should be substituted for the last two paragraphs of the pattern charge.
charge.
Undue influence
influence refers
refers to
to moral
moral coercion,
coercion, which
which restrained
restrained independent
independent action
action and
and destroyed
destroyed free
free agency,
agency, or
or which,
which, by
by
importunity could
could not
not be
be resisted,
resisted, constrained
constrained the
the testator
testator to
to do
do that
that which
which was
was against
against the
the testator's
testator's free
free will,
will, American
American
Committee for the Weizmann Institute of Science v Dunn, 36 AD3d 419, 827 NYS2d 134 (1st Dept 2007), aff'd, affd, 10 NY3d 82,
854 NYS2d 89, 883 NE2d 996 (2008); Matter of Estate
Estate of Alibrandi, 104 AD3d 1175, 960 NYS2d 760 (4th Dept 2013); Matter
101 AD3d
of Estate of Makitra, 101 AD3d 1579, 956 NYS2d 780 780 (4th
(4th Dept 2012); see
see Matter of Estate of Stafford, 111
111 AD3d
AD3d 1216,
975 NYS2d
NYS2d 810 (3d Dept 2013). The criteria by which undue influence is determined
determined were stated in Children's Aid Soc. ooff
New York v Loveridge, 70 NY 387 (1877); see also Estate of Kumstar,
Kumstar, 66 NY2d 691, 496 NYS2d 414, 487 NE2d 271 (1985);(1985);
Matter of Estate of Makitra,
Makitra, supra; Matter of Estate of Malone,
Malone, 46 AD3d 975, 846 NYS2d 782 (3d Dept 2007); Matter of Will Will
of Ryan, 34 AD3d 212, 824 NYS2d 20 (1st Dept 2006) (citing PJI); Matter of Camac, 300 AD2d 11, 751 NYS2d 435 (1st Dept Dept
2002); Matter of Estate
Estate of Collins,
Collins, 124 AD2d 48, 510 NYS2d 940 (4th Dept 1987); Matter of Burke,
Burke, 82 AD2d 260, 441 NYS2d
542 (2d
(2d Dept
Dept 1981); Matter
Matter of Estate of Bacon, 169
169 Misc2d 858, 645 NYS2d 1016 (Sur 1996) (the three essential
essential elements
elements
are motive, opportunity and exercise of the influence), and restated in Matter of Walther's Will, 6 NY2d 49, 188 NYS2d 168,
159
159 NE2d 665 (1959), as follows:
“It be shown
"It must be shown that
that the
the influence
influence exercised
exercised amounted
amounted to aa moral coercion,
coercion, which restrained
restrained
independent action and destroyed free agency, or which, by importunity which could not be resisted,
resisted,
constrained the testator to do that which was against his free will and desire, but which he was unable
unable
to refuse or too weak to resist. It must not be the promptings of affection; the
the desire of gratifying
the wishes of another;
another; the ties of attachment
attachment arising from consanguinity, or the memory of kind
kind acts
acts
and friendly offices, but a coercion produced by importunity, or by a silent resistless power which
exercises over the weak and infirm, and which could not be resisted, so that
the strong will often exercises
was tantamount to force or fear
the motive was fear ….
.... Lawful influences which arise from the claims of
kindred and family or other intimate personal relations are proper subjects for consideration in the
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Will 108
Contests-Undue Influence—General Rule, N.Y. Pattern
Pattern Jury Instr.--Civil...
Instr.--Civil... RECEIVED NYSCEF: 07/01/2021
disposition of estates, and if allowed to influence a testator in his last will, cannot be regarded
regarded as
as
illegitimate or as furnishing cause for legal condemnation.”
condemnation."
Undue influence must be proven by evidence of a substantial nature, Matter of Estate of Makitra, AD3d 1579, 956 NYS2d
Makitra, 101 AD3d
Dept
780 (4th Dept 2012). Evidence
Evidence of motive and opportunity without more does
does not establish a prima case or furnish
facie case furnish the
basis for inferring the necessary moral coercion; there must be additional evidence that such influence was actually exercised,
exercised,
Matter of Walther's Will, 6 NY2d 49, 188 NYS2d 168, 159 NE2d 665 (1959); Cudney v Cudney, 68 NY 148 (1877); Matter of
Vukich's Will, 53 AD2d 1029, 385 NYS2d 905 (4th Dept 1976), affd,aff'd, 43 NY2d 668, 400 NYS2d 817, 371371 NE2d
NE2d 535 (1977);
Matter of Haggart's Will, 33 AD2d 124, 307 NYS2d 18 (4th Dept 1969), aff'd,
affd, 27 NY2d 900, 317 NYS2d 370, 265 NE2d 779
(1970); Matter of Holly's
Holly's Will, 16 AD2d 611, 226 NYS2d 174 (1st Dept 1962), aff'd,
affd, 13 NY2d 746, 241 NYS2d 870, 191 NE2d
920 (1963);
(1963); Matter
Matter of Estate of Alibrandi, 104
104 AD3d
AD3d 1175, 960 NYS2d 760 (4th Dept 2013);2013); Matter
Matter of Estate of Makitra,
supra; Matter of Estate of Malone,
Malone, 46 AD3d 975, 846 NYS2d 782 (3d Dept 2007); Matter of Mildred
Mildred M.J., 43 AD3d 1391, 844
NYS2d 539 (4th Dept 2007); Matter of Chiurazzi,
Chiurazzi, 296 AD2d 406, 744 NYS2d 507 (2d Dept 2002); Matter of D'Agostino,
D'Agostino, 284
AD2d 857, 728 NYS2d 234 (3d Dept 2001); see see Matter of Tognino, 87 AD3d 1153, 930 NYS2d 46 (2d Dept 2011) (question
of fact where decedent was 8181 and
and 83 when
when she
she executed
executed two living trust
trust amendments,
amendments, had
had a number
number of health problems,
was living with respondents, had discussed her affairs with an attorney at the house, was aware of threats by one
one respondent
respondent
[daughter-in-law] to
to leave
leave her
her disabled
disabled son if
i f trust was not amended,
amended, was
was intimidated
intimidated by daughter-in law and was agitated
agitated
by threats); Matter
Matter of Estate of Johnson, 6 AD3d
AD3d 859, 775 NYS2d 107 (3d Dept 2004) (question
(question of fact presented where, in
motive and
addition to motive and opportunity, evidence
evidence indicated that decedent was "very
“very naive, gullible and
and easily manipulated",
manipulated”, that
proponent of will,
will, who ignored decedent prior to the death of decedent's wife,
wife, and proponent's boyfriend moved into decedent's
decedent's
home following death of decedent's wife, that decedent was dependent upon proponent for his medicine, and that proponent,
proponent,
who was
was not mentioned in decedent's
decedent's prior will, was
was named
named executrix and
and primary beneficiary in will offered for probate);
Matter of Pennino, 266
266 AD2d 293, 698
698 NYS2d 265 (2d Dept 1999) (question
(question of fact presented where, in addition to motive
and opportunity, evidence
evidence established that proponent of will kept her marriage to testator a secret from
from the
the testator's
testator's children
and played a role in expediting execution of new will three days after wedding and one month before testator's death). Absent
Absent
specificity as
as to times,
times, dates
dates and places, conclusory allegations and speculation are insufficient to raise an issue of fact as
as to
acts of undue influence or fraud, Matter of Estate of Colverd,
Colverd, 52 AD3d 971, 860 NYS2d 254 (3d Dept 2008). The will may not
be set aside unless the trier of fact finds that undue influence was actually exercised, Matter of Herlihy's Estate, 18 AD2d 716,
236 NYS2d 105 (2d(2d Dept 1962), affd,
aff'd, 13
13 NY2d 816, 242
242 NYS2d 346, 192 NE2d 223 223 (1963); Matter
Matter of Connor's Will,
Will, 230
230
App Div 163, 244 NYS 221 (3d (3d Dept 1930). Moreover, the influence must have been exercised over the very will in question,
question,
Matter of Kaufmann's Will,
Will, 14 AD2d 411, 221 NYS2d 601 (1st(1st Dept 1961).
1961).
As to claims of fraud, it must be shown that the wrongdoer knowingly made a false statement which altered the testamentary
testamentary
disposition that would otherwise have been made in the absence of the statement, Matter of Estate of Paigo, 53 AD3d 836, 863
NYS2d 508 (3d Dept 2008); Matter of Clapper, 279 AD2d 730, 718 NYS2d 468 468 (3d Dept 2001). In a case involving a claim
of fraud, the charge should be modified to reflect that standard.
standard.
The references
references in the pattern charge to "this
“this will"
will” and “the
"the will in question"
question” should make the latter point sufficiently clear to
the jury, but it may be desirable, in a case involving incidents and events remote in time from the making of the will,
will, to add
at the end of the pattern charge:
charge:
PJI 7:55.1 Will Contests-
Contests—Undue Influence—General Rule [Supplemental Instruction]
U n d u e Influence-General
You may not answer the question “Yes”,
"Yes", however, unless you find
fmd that the influence was exercised over the making of the very
will in question, the will of [state date]
date]..
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DOC. Contests—Undue Influence-General
Will 108
Contests-Undue Influence—General Rule,
Rule, N.Y. Pattern Jury Instr.-Civil...
Instr.--Civil... RECEIVED NYSCEF: 07/01/2021
The coercion that constitutes undue influence may be outright fraud or duress, Matter of Schillenger's Will, 258 NY 186, 179
NE 380 (1932); Smith v Keller, 205 NY 39, 98 NE 214 (1912); Matter of Smith,
Smith, 95 NY 516 (1884), but may also consist solely
of subtle suggestion or insidious subversion of the testator's mind, Matter of Kaufmann's Will, 20 AD2d 464, 247 NYS2d 664
(1st Dept 1964), aff'd,
affd, 15 NY2d 825, 257 NYS2d 941, 205 NE2d 864 (1965); Heath v Koch, 74 App Div 338, 77 NYS NYS 513 (1st
Dept 1902), aff'd,
affd, 173 NY 629, 66 NE 1110 (1903); Buchanan v Belsey, 65 App Div 58, 72 NYS 601 (1st Dept 1901); Matter of
Whitmarsh's Estate, 133 Misc 858, 234 NYS 505 (Sur 1929); see generally Matter of Burke, 82 AD2d 260, 441 NYS2d 542 (2d
Dept 1981). How
Preview
FILED: KINGS COUNTY CLERK 07/01/2021 10:34 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 108 RECEIVED NYSCEF: 07/01/2021 Exhibit 1 FILED: KINGS COUNTY CLERK 07/01/2021 10:34 PM INDEX NO. 526061/2019 NYSCEF PJI 7:55NO. DOC. Will 108 Contests—Undue Influence—General Rule, N.Y. Pattern Pattern Jury Instr.--Civil... Instr.--Civil... RECEIVED NYSCEF: 07/01/2021 N.Y. N . Y.Pattern Pattern Jury Instr.--Civil Instr.--Civil 7:55 7:55 New York Pattern Jury Instructions--Civil D| eDecember c e m b e r 2020 Update Update Committee on Pattern Jury Instructions Association Association of Supreme Court Justices Justices Division 7. Will Contests Contests Influence D. Undue Influence 1. General Rule Rule PJI 7:55 Will Contests—Undue Influence—General Rule Rule A will must be a true expression of the testator's testator's wishes. If, If, instead, instead, it reflects the desires desires of some person person who controlled the testator's thoughts or actions, the will is invalid because of undue influence. To be "undue", “undue”, the influence exerted must amount amount testator to mental coercion that led the testator to carry out the wishes of another, instead of (his, her) own wishes, because the testator was unable to refuse or too weak to resist. The undue pressure brought to bear may consist of a play on the testator's emotions, emotions, passions, fears, weaknesses weaknesses or hopes. It may consist of an appeal to (his, her) prejudices or a continual course of flattery. The exercise of undue influence may be slow and gradual, progressively gaining control over the testator. testator. The word word "undue" “undue” should should be be emphasized, emphasized, because because the the law law does does not not condemn condemn all influence. influence. It It condemns condemns only only that that degree degree of influence that that destroys destroys the the testator's testator's own own judgment judgment and and free free will. will. Accordingly, Accordingly, the the will will is is not not invalid merely merely because because aa testator was influenced by affection, gratitude, family and personal relationships, or ordinary advice and argument. These factors factors commonly enter into a testator's consideration and are proper, because they do not deprive the testator of (his, (his, her) own free will. Direct evidence evidence of undue influence influence is is seldom seldom available. Accordingly, Accordingly, the the law permits undue influence influence to to be shown by facts facts and circumstances leading up to and surrounding execution of a will. will. However, it is not enough that you find that motive and and opportunity to exercise exercise undue influence existed. existed. You must also find additional facts that satisfy you that such influence was actually exercised. Further, Further, the the facts facts upon upon which aa claim of undue influence influence is is based based must must be be proved. In In other words, words, you reasonably may not guess or speculate. It must appear that the inference of undue influence is the only one that can fairly and reasonably be drawn from the facts facts proved, proved, and that any other explanation is fairly and reasonably excluded. If facts proved would I f the facts reasonably support an inference that undue influence was exercised, as well as the contrary inference that it was not exercised, exercised, then undue influence has not been proved. proved. You must answer the following question: "Was “Was the execution of the will of [state date] by the testator, AB, the result of undue undue influence by CD?" CD?” To answer answer that that question, question, you you must must determine determine what what were the facts facts and and circumstances circumstances leading leading up up to to and and surrounding execution of this will, taking into consideration such testimony as you deem true concerning ([here list the factors on which which evidence evidence has been been adduced, adduced, such such as as:—] :] condition; AB's AB's physical and mental condition; AB's contact with, or isolation from, AB's (his, her) family and friends; AB'sknowledge and awareness of thewill'sprovisions and whether (he, she) was satisfied with them; the opportunity that AB AB had to obtain independent advice; AB's dependence, if any, upon CD; CD's control during AB's will; CD's whereabouts and lifetime over AB's property and affairs; the action, if any, taken by CD to obtain execution of the will; actions at the time the will was executed; by whom the will was drafted; the presence or absence of independent counsel at the the time the will will was executed; executed; the the naturalness naturalness of the will's provisions; the the relation of the will's contents contents to the contents of AB's prior wills; wills; the the size size of the provision provision for CD in relation to the total estate estate left by AB; AB; the the explanation explanation offered by CD for the provision made for (him, her) in the will). will). The burden is on the contestant to establish by a fair preponderance preponderance of the evidence that the will in in question question was the result of undue influence by CD. If AB If you are not satisfied by a fair preponderance of the credible evidence that, in executing this will, AB 'NESTLAW ©© 2021 2021 Thomson Thomson Reuters. Reuters. No No claim to original U.S. U.S. Government Works. Works. 1 FILED: KINGS COUNTY CLERK 07/01/2021 10:34 PM INDEX NO. 526061/2019 NYSCEF PJI 7:55NO. DOC. Contests—Undue Influence-General Will 108 Contests-Undue Influence—General Rule, Rule, N.Y. Pattern Jury Instr.-Civil... Instr.--Civil... RECEIVED NYSCEF: 07/01/2021 gave in to the wishes of CD, contrary to (his, her) own free will and desires, or if the credible evidence on that issue weighs so evenly that you are unable to say that there is a fair preponderance on either side, you will answer the question: "No". “No”. If, If, however, you are satisfied by a fair preponderance of the credible evidence that, in executing this will, the testator gave in to the wishes of CD, contrary to (his, her) own free will and desires, you will answer the question: "Yes". “Yes”. Comment Comment Based on Matter of Walther's Walther's Will, 6 NY2d 49, 188 NYS2d 168, 159 NE2d 665 (1959); Matter of Anna's Estate, 248 NY 421, 162 473 (1928); 162 NE 473 (1928); Smith Smith v Keller, 205 205 NY NY 39, 98 NE 214 (1912); Children's Children's Aid Soc. Soc. of New York v Loveridge, 70 NY NY 387 (1877); Rollwagen v Rollwagen, 63 NY 504 (1876); Matter of Kaufmann's Will, 20 AD2d 464, 247 NYS2d 664 (1st Dept 1964), aff'd, 15 1964), affd, 15 NY2d 825, 257 NYS2d NYS2d 941, 205205 NE2d NE2d 864 (1965); Matter Matter of Herlihy's Estate, Estate, 18 18 AD2d AD2d 716, 236 236 NYS2d 105 aff'd, 13 NY2d 816, 242 NYS2d 346, 192 105 (2d Dept 1962), affd, 192 NE2d NE2d 223 223 (1963); (1963); Matter of Holly's Will, 16 AD2d 611, 226 aff'd, 13 NYS2d 174 (1st Dept 1962), affd, 13 NY2d NY2d 746, 241241 NYS2d NYS2d 870, 191191 NE2d NE2d 920 (1963); Matter Matter of Bach, 133 133 AD2d AD2d 455, 519 NYS2d 670 (2d Dept 1987); Matter of Burke, Burke, 82 AD2d 260, 441 NYS2d 542 (2d Dept 1981); Matter of Henderson's Henderson's Will, App Div 140, 11 NYS2d 253 App NYS2d 871 (4th (4th Dept 1937); Matter of Connor's Will, 230 App Div 163, 244 NYS 221 221 (3d (3d Dept 1930); Matter of Thomas' Estate, 140 Misc Misc 446, 251 251 NYS 726 (Sur 1931); Matter of Rose's Estate, 138 Misc 630, 246 NYS 718 (Sur 1930); 1930); see Matter of Henderson, Henderson, 80 NY2d 388, 590 NYS2d 836, 605 NE2d 323 (1992); Matter of O'Donnell's O'Donnell's Estate, 91 AD2d 698, 457 NYS2d 609 (3d Dept 1982); Prince, Richardson, Evidence (Farrell 11th ed) § 3-214; 2A Warren's Heaton, Surrogates' Surrogates' Courts (6th ed) § 42.07. The pattern charge states the general rules governing undue influence. When the evidence establishes or the jury could find that aa confidential relationship existed between AB AB and CD, PJI 7:56 or the alternate charge set forth in the the Comment to PHPJI 7:56 should be substituted for the last two paragraphs paragraphs of the pattern charge. When When the evidence establishes establishes or the jury could find that CD was the drafter-beneficiary of the will, PJI 7:57 or an adaptation of the alternate charge set forth in the Comment to PJI 7:56 should be substituted for the last two paragraphs of the pattern charge. charge. Undue influence influence refers refers to to moral moral coercion, coercion, which which restrained restrained independent independent action action and and destroyed destroyed free free agency, agency, or or which, which, by by importunity could could not not be be resisted, resisted, constrained constrained the the testator testator to to do do that that which which was was against against the the testator's testator's free free will, will, American American Committee for the Weizmann Institute of Science v Dunn, 36 AD3d 419, 827 NYS2d 134 (1st Dept 2007), aff'd, affd, 10 NY3d 82, 854 NYS2d 89, 883 NE2d 996 (2008); Matter of Estate Estate of Alibrandi, 104 AD3d 1175, 960 NYS2d 760 (4th Dept 2013); Matter 101 AD3d of Estate of Makitra, 101 AD3d 1579, 956 NYS2d 780 780 (4th (4th Dept 2012); see see Matter of Estate of Stafford, 111 111 AD3d AD3d 1216, 975 NYS2d NYS2d 810 (3d Dept 2013). The criteria by which undue influence is determined determined were stated in Children's Aid Soc. ooff New York v Loveridge, 70 NY 387 (1877); see also Estate of Kumstar, Kumstar, 66 NY2d 691, 496 NYS2d 414, 487 NE2d 271 (1985);(1985); Matter of Estate of Makitra, Makitra, supra; Matter of Estate of Malone, Malone, 46 AD3d 975, 846 NYS2d 782 (3d Dept 2007); Matter of Will Will of Ryan, 34 AD3d 212, 824 NYS2d 20 (1st Dept 2006) (citing PJI); Matter of Camac, 300 AD2d 11, 751 NYS2d 435 (1st Dept Dept 2002); Matter of Estate Estate of Collins, Collins, 124 AD2d 48, 510 NYS2d 940 (4th Dept 1987); Matter of Burke, Burke, 82 AD2d 260, 441 NYS2d 542 (2d (2d Dept Dept 1981); Matter Matter of Estate of Bacon, 169 169 Misc2d 858, 645 NYS2d 1016 (Sur 1996) (the three essential essential elements elements are motive, opportunity and exercise of the influence), and restated in Matter of Walther's Will, 6 NY2d 49, 188 NYS2d 168, 159 159 NE2d 665 (1959), as follows: “It be shown "It must be shown that that the the influence influence exercised exercised amounted amounted to aa moral coercion, coercion, which restrained restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, resisted, constrained the testator to do that which was against his free will and desire, but which he was unable unable to refuse or too weak to resist. It must not be the promptings of affection; the the desire of gratifying the wishes of another; another; the ties of attachment attachment arising from consanguinity, or the memory of kind kind acts acts and friendly offices, but a coercion produced by importunity, or by a silent resistless power which exercises over the weak and infirm, and which could not be resisted, so that the strong will often exercises was tantamount to force or fear the motive was fear …. .... Lawful influences which arise from the claims of kindred and family or other intimate personal relations are proper subjects for consideration in the WESTLAW ©© 2021 2021 Thomson Thomson Reuters. Reuters. No No claim to to original original U.S. U.S. Government Works. Works. 2 2 FILED: KINGS COUNTY CLERK 07/01/2021 10:34 PM INDEX NO. 526061/2019 NYSCEF PJI 7:55NO. DOC. Contests—Undue Influence-General Will 108 Contests-Undue Influence—General Rule, N.Y. Pattern Pattern Jury Instr.--Civil... Instr.--Civil... RECEIVED NYSCEF: 07/01/2021 disposition of estates, and if allowed to influence a testator in his last will, cannot be regarded regarded as as illegitimate or as furnishing cause for legal condemnation.” condemnation." Undue influence must be proven by evidence of a substantial nature, Matter of Estate of Makitra, AD3d 1579, 956 NYS2d Makitra, 101 AD3d Dept 780 (4th Dept 2012). Evidence Evidence of motive and opportunity without more does does not establish a prima case or furnish facie case furnish the basis for inferring the necessary moral coercion; there must be additional evidence that such influence was actually exercised, exercised, Matter of Walther's Will, 6 NY2d 49, 188 NYS2d 168, 159 NE2d 665 (1959); Cudney v Cudney, 68 NY 148 (1877); Matter of Vukich's Will, 53 AD2d 1029, 385 NYS2d 905 (4th Dept 1976), affd,aff'd, 43 NY2d 668, 400 NYS2d 817, 371371 NE2d NE2d 535 (1977); Matter of Haggart's Will, 33 AD2d 124, 307 NYS2d 18 (4th Dept 1969), aff'd, affd, 27 NY2d 900, 317 NYS2d 370, 265 NE2d 779 (1970); Matter of Holly's Holly's Will, 16 AD2d 611, 226 NYS2d 174 (1st Dept 1962), aff'd, affd, 13 NY2d 746, 241 NYS2d 870, 191 NE2d 920 (1963); (1963); Matter Matter of Estate of Alibrandi, 104 104 AD3d AD3d 1175, 960 NYS2d 760 (4th Dept 2013);2013); Matter Matter of Estate of Makitra, supra; Matter of Estate of Malone, Malone, 46 AD3d 975, 846 NYS2d 782 (3d Dept 2007); Matter of Mildred Mildred M.J., 43 AD3d 1391, 844 NYS2d 539 (4th Dept 2007); Matter of Chiurazzi, Chiurazzi, 296 AD2d 406, 744 NYS2d 507 (2d Dept 2002); Matter of D'Agostino, D'Agostino, 284 AD2d 857, 728 NYS2d 234 (3d Dept 2001); see see Matter of Tognino, 87 AD3d 1153, 930 NYS2d 46 (2d Dept 2011) (question of fact where decedent was 8181 and and 83 when when she she executed executed two living trust trust amendments, amendments, had had a number number of health problems, was living with respondents, had discussed her affairs with an attorney at the house, was aware of threats by one one respondent respondent [daughter-in-law] to to leave leave her her disabled disabled son if i f trust was not amended, amended, was was intimidated intimidated by daughter-in law and was agitated agitated by threats); Matter Matter of Estate of Johnson, 6 AD3d AD3d 859, 775 NYS2d 107 (3d Dept 2004) (question (question of fact presented where, in motive and addition to motive and opportunity, evidence evidence indicated that decedent was "very “very naive, gullible and and easily manipulated", manipulated”, that proponent of will, will, who ignored decedent prior to the death of decedent's wife, wife, and proponent's boyfriend moved into decedent's decedent's home following death of decedent's wife, that decedent was dependent upon proponent for his medicine, and that proponent, proponent, who was was not mentioned in decedent's decedent's prior will, was was named named executrix and and primary beneficiary in will offered for probate); Matter of Pennino, 266 266 AD2d 293, 698 698 NYS2d 265 (2d Dept 1999) (question (question of fact presented where, in addition to motive and opportunity, evidence evidence established that proponent of will kept her marriage to testator a secret from from the the testator's testator's children and played a role in expediting execution of new will three days after wedding and one month before testator's death). Absent Absent specificity as as to times, times, dates dates and places, conclusory allegations and speculation are insufficient to raise an issue of fact as as to acts of undue influence or fraud, Matter of Estate of Colverd, Colverd, 52 AD3d 971, 860 NYS2d 254 (3d Dept 2008). The will may not be set aside unless the trier of fact finds that undue influence was actually exercised, Matter of Herlihy's Estate, 18 AD2d 716, 236 NYS2d 105 (2d(2d Dept 1962), affd, aff'd, 13 13 NY2d 816, 242 242 NYS2d 346, 192 NE2d 223 223 (1963); Matter Matter of Connor's Will, Will, 230 230 App Div 163, 244 NYS 221 (3d (3d Dept 1930). Moreover, the influence must have been exercised over the very will in question, question, Matter of Kaufmann's Will, Will, 14 AD2d 411, 221 NYS2d 601 (1st(1st Dept 1961). 1961). As to claims of fraud, it must be shown that the wrongdoer knowingly made a false statement which altered the testamentary testamentary disposition that would otherwise have been made in the absence of the statement, Matter of Estate of Paigo, 53 AD3d 836, 863 NYS2d 508 (3d Dept 2008); Matter of Clapper, 279 AD2d 730, 718 NYS2d 468 468 (3d Dept 2001). In a case involving a claim of fraud, the charge should be modified to reflect that standard. standard. The references references in the pattern charge to "this “this will" will” and “the "the will in question" question” should make the latter point sufficiently clear to the jury, but it may be desirable, in a case involving incidents and events remote in time from the making of the will, will, to add at the end of the pattern charge: charge: PJI 7:55.1 Will Contests- Contests—Undue Influence—General Rule [Supplemental Instruction] U n d u e Influence-General You may not answer the question “Yes”, "Yes", however, unless you find fmd that the influence was exercised over the making of the very will in question, the will of [state date] date].. WESTLAW ©© 2021 2021 Thomson Thomson Reuters. Reuters. No No claim to to original original U.S. U.S. Government Works. Works. 3 FILED: KINGS COUNTY CLERK 07/01/2021 10:34 PM INDEX NO. 526061/2019 NYSCEF PJI 7:55NO. DOC. Contests—Undue Influence-General Will 108 Contests-Undue Influence—General Rule, Rule, N.Y. Pattern Jury Instr.-Civil... Instr.--Civil... RECEIVED NYSCEF: 07/01/2021 The coercion that constitutes undue influence may be outright fraud or duress, Matter of Schillenger's Will, 258 NY 186, 179 NE 380 (1932); Smith v Keller, 205 NY 39, 98 NE 214 (1912); Matter of Smith, Smith, 95 NY 516 (1884), but may also consist solely of subtle suggestion or insidious subversion of the testator's mind, Matter of Kaufmann's Will, 20 AD2d 464, 247 NYS2d 664 (1st Dept 1964), aff'd, affd, 15 NY2d 825, 257 NYS2d 941, 205 NE2d 864 (1965); Heath v Koch, 74 App Div 338, 77 NYS NYS 513 (1st Dept 1902), aff'd, affd, 173 NY 629, 66 NE 1110 (1903); Buchanan v Belsey, 65 App Div 58, 72 NYS 601 (1st Dept 1901); Matter of Whitmarsh's Estate, 133 Misc 858, 234 NYS 505 (Sur 1929); see generally Matter of Burke, 82 AD2d 260, 441 NYS2d 542 (2d Dept 1981). How