Earlier this month, I reported ( The Estate of Mary Fischer in December 9th’s New York Law Journal) a case where a dishonest home health aide was compelled to return stolen assets to the her former employer’s estate. Well, there seems to be a lot more of that sort of thing going around lately as may be seen in The Estate of Martin Neary which was decided by Surrogate Tomei in Kings County (Brooklyn) and reported in the December 19th New York Law Journal (p.40).Martin Neary , an 88 year old attorney had died without a spouse or children . A month earlier, he had executed a will leaving most of his nine hundred thousand dollar estate to his home health attendant, Ava Baker. Objections to the will were filed both by the decedent’s cousin and the Public Administrator and ultimately, a trial was held to determine the issues that had been raised.

Because the will had been executed under the supervision of its attorney-draftsman, there was a presumption that it had been properly executed. The court found that there had been no evidence to contradict this. Furthermore, it was determined that the testimony of the attorney draftsman that the decedent possessed testamentary capacity was sufficient to establish this fact.

Having cleared these primary hurdles, however, Ms. Baker ran into serious trouble once the nature of her relationship with the decedent came to light. The court found that a highly confidential relationship had existed between her and her employer to the extent that she virtually controlled all aspects of his life. The court opined that “the relationship of caregiver and elderly is one in which the greedy and corrupt may find considerable gain”. It was further stated that such a relationship requires ” close scrutiny and extreme vigilance” in order to insure that the transaction was understood and that there was no fraud or undue influence.

The court further emphasized that where -as here-the attorney-draftsman was associated with the beneficiary of the will , an explanation of this relationship is called for. Surrogate Tomei found that the attorney-draftsman here had not acted appropriately in that his answers were evasive and he failed to establish through contemporaneously-taken notes that he had fully discussed the will with the testator or that the testator had understood what was taking place. Also, the court noted that Ms. Baker had failed to offer a reasonable explanation of the decedent’s largesse towards her. Unable to come to a conclusion that Mr. Neary had understood the nature of the will that he executed and that his confidential relationship with his health aide had not been exploited to loot his estate, the court found that will should not be admitted to probate because it had been the product of undue influence.