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The Will was not a product of undue influence – recent departure from prior testamentary scheme uphe

The facts are as follows,

  • The Trust provides that, upon the death of the grantors, the trust terminates and the trustees [sic] shall distribute the then remaining trust principal and undistributed income to "Settlor's [sic] grandchildren, in equal shares" (Trust Article SECOND(E)).

  • The grantors retained a special power of appointment, pursuant to which they could appoint the remainder "to or for any person, persons, or charitable entities…" (Trust Article SECOND(D)).

  • In the 2011 will, all personal property passes to Capra (Article II), the special power of appointment is exercised in Capra's favor (Article III), and the residuary of decedent's estate goes to the Trust (Article IV), which, as a result of the exercise of the power of appointment, passes to Capra.

At trial, the jury heard testimony that the 2011 instrument offered for probate provided for a radical departure from the prior testamentary scheme wherein the decedent's grandchildren were the ultimate beneficiaries. The jury also heard testimony that Capra's husband, Joseph Capra ("Joe"), made the appointment for decedent to meet with Nancy Burner, Esq., to make the changes to decedent's estate plan and prepare a new will; that Capra and Joe drove decedent to Burner's office on the date the 2011 will was executed; that the Capras met with Burner along with the decedent prior to the actual execution of the will; and that the bill for the new will was sent to Joseph Capra. The March 28, 2011 will was executed under the supervision of Robin Daleo, Esq., an attorney with Burner's office. Ms. Daleo and Angela McCarthy were the two witnesses to the execution of the will. Ms. Burner, Ms. Daleo, and Ms. McCarthy all testified at trial.

At the conclusion of the jury trial in this matter, the court reserved decision on Capra's motion to dismiss upon the grounds that objectant did not present a prima facie case, while preserving Capra's right to make such motion at the end of the trial. After deliberation, the jury returned a verdict in favor of Franey, finding that Linda Franey, the objectant, established by a fair preponderance of the evidence, that the propounded instrument "…was procured by undue influence exerted by Susanne Capra and/or Joseph Capra."

Statute: “CPLR 4401 permits, at the close of evidence presented by an opposing party, any party to move for judgement with respect to a cause of action or issue upon the grounds that the moving party is entitled to judgment as a matter of law. CPLR 4404(a) governs post-trial motions for judgment and allows a court to set aside a jury verdict and direct that judgment be entered in favor of a party entitled to judgement as a matter of law, or a court may alternatively order a new trial where the verdict is contrary to the weight of the evidence, or in the interest of justice.”

Standard of Review: Where the proof submitted is so wholly insufficient to warrant a finding of fact by a jury, a directed verdict should be granted (In re Burke's Will, 250 AD 855; see also, In re Bennet's Will, 207 AD 388). "The standard in deciding a motion for directed verdict is whether the jury could find for the nonmoving party by any rational process" (Van Syckle v. Powers, 106 AD2d 711, 713; see also, Cohen v. Hallmark Cards, 45 NY2d 493). "The evidence is reviewed in a light most favorable to the nonmoving party, as are all questions of witness credibility" (Van Syckle v. Powers, supra at 713). In order to direct a judgment in favor of a party as a matter of law, "the trial court must determine from the evidence presented…whether any rational basis exists for the conclusion…reached by the jury" (Matter of Tokarz, 199 AD2d 400, 401, quoting Cohen v. Hallmark Cards, supra at 499). A verdict should not be set aside as against the weight of the evidence and a new trial ordered, "unless the evidence so predominated in favor of the moving party that the verdict could not have been reached on any fair interpretation of the evidence" (Matter of Cavallo, 31 AD3d 443, quoting Matter of Driscoll, 266 AD2d 288, 289). "The court will not set aside a verdict as against the evidence or against the weight of evidence, when the jury has been confronted by a fair conflict of evidence" (In re Chapman, 99 Misc 183, at 184).

Law: “As discussed in Estate of Malone, 46 AD3d 975, "While undue influence can rarely be shown by direct proof, 'there must be affirmative evidence of facts and circumstances from which the exercise of such undue influence can fairly and necessarily be inferred,' (citing Matter of Bundy, 217 AD 607). Simple "conclusory allegations and speculation" without specificity as to times, dates, and places are insufficient to raise an issue of fact as to undue influence (Matter of Young, 289 AD2d 725; see Matter of Ruparshek, 36 AD3d 998, 1000). Furthermore, if the circumstantial evidence offered would support conflicting inferences, a conclusion of undue influence cannot be made (see, Matter of Fiumara, 47 NY2d 845; Matter of Walther, 6 NY2d 49, at 54).”

Conclusion: “After a three day trial, presentation of both parties' witnesses and evidence, and due deliberation, the jury returned its verdict. Given the extensive trial record, the court finds that the jury was presented with a fair conflict of evidence, that there exists a rational basis for the conclusion reached by the jury, and that the verdict reached could have been so reached by a fair interpretation of the evidence

The case is Will of Congedo, 2012-220, NYLJ 1202673168686, at *1 (Sup., SUF, Decided September 30, 2014).

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