Sometime ago, I reported here about the case of Ava Baker, a Brooklyn home health aide who had maneuvered her way into the will of her  88 year old charge, causing him to thoroughly abandon an established testamentary scheme. Now, the Supreme Court’s Appellate Division has agreed with and upheld Kings County Surrogate Tomei in the Matter of Martin Neary, deceased 843 N.Y.S.2d 689 (A.D.2 Dept 2007)  affirming the Surrogate’s finding that the will should be set aside by reason of undue influence.

The appeals court found that the evidence adduced was enough to support a finding that the will was the product of undue influence. The court noted that Ms. Baker took advantage of a confidential relationship using "a subtle, but pervasive, form of coercion and influence by which (the proponent) overwhelmed and manipulated decedent’s volition to advance her own interests". In making its determination, the court stressed that the case had come on for a hearing before the Surrogate who had the opportunity to observe the witnesses as they testified. Because the case "hinges on the credibility of witnesses", the determination of the Surrogate "who presided at the trial and heard all of the testimony , is entitled to great weight."