JPMorgan Chase Bank, N.A.(JPMorgan), co-executor, has moved pursuant to CPLR §5015(a)(2) to vacate the decree admitting to probate decedent's will dated June 24, 2005 (2005 Will) due to newly discovered evidence. The United Jewish Appeal - Federation of Jewish Philanthropies of New York, Inc., American Society for Yad Vashem, Congregation Shearith Israel, and American Friends of Magen David Adom (Charities), residuary legatees under a prior instrument that are adversely affected by the 2005 Will, join in the application. Movants also seek removal of JPMorgan's co-executors and appointment of JPMorgan as sole preliminary executor.

Decedent died on September 12, 2005 at the age of 93, survived by two nephews, Martin Feldman (Martin) and Stephen Feldman (Stephen), and the issue of a predeceased nephew. The 2005 Will was admitted to probate by decree dated February 21, 2006, and letters testamentary thereupon issued to JPMorgan, Martin and Magdalena Efros (Magdalena).^[FN1]

In August 2006, Alan Lotito (Lotito), a legatee of a small bequest, discovered that decedent's testamentary plan had been revised significantly from her penultimate will ^[FN2] and, [*2]further, that decedent's long-time attorney, Lee A. Snow (Snow), had not supervised the 2005 Will's execution. As decedent's friend and investment advisor, Lotito had almost daily conversations with decedent and her home attendants in the months preceding execution of the 2005 Will. As he worked on an active trading floor, these telephone calls were recorded. Lotito recalled having had several conversations between March 2005 and May 2005, in the months after decedent had suffered a stroke and preceding execution of the 2005 Will, in which it seemed Martin and Stephen were assuming increased control over decedent's finances and were pressuring decedent to change her will. Lotito requisitioned the tapes of those calls and brought the transcripts to the attention of JPMorgan. The transcripts, including conversations directly with decedent, depict behavior by Martin and Stephen that supports an allegation of undue influence.^[FN3] [*3]

Upon reviewing the transcripts, in November, 2006, JPMorgan interviewed Snow, who revealed that he too had concerns about family members' undue influence; in fact, Snow revealed, he had consulted outside counsel after meetings with Martin and Stephen led him to believe that they were unduly pressuring decedent to change her 2001 Will, which Snow had drafted and which decedent had executed under his supervision. Snow's files, thereafter produced, provide some of the strongest evidence of undue influence and corroborate the transcripts provided by Lotito.^[FN4]

In January 2005, decedent suffered a stroke that affected her physical, but allegedly not her mental, faculties. Around this time, according to Snow, he began to receive repeated calls from Martin and Stephen, who suggested that decedent wanted to modify her will to increase dispositions to them and to Magdalena. Snow made four separate visits to decedent to discuss potential changes, but each time she stated unequivocally that she had no intention of changing her will.^[FN5] It was during this time that Snow, concerned that decedent's nephews had been [*4]"browbeating" her to make changes she did not desire, cautioned Martin and Stephen that their actions might constitute undue influence. Indeed, in a letter to Martin dated March 17, 2005, Snow wrote:

"Your aunt quite clearly indicated to me when we were alone and when you were present in the room that she did not wish to revise her Will. This is despite your urging that she do so. In my opinion, your aunt was quite lucid this week. However, I believe, and I told you explicitly, that your pressing her to revise her Will when she indicates that she does not want to do so could be viewed as undue influence and I cautioned you strongly in this regard."

On May 23, 2005, Snow again visited decedent. On this, Snow's fifth visit to decedent to discuss the subject, decedent indicated that she now wanted to change her will. Despite his grave concern about the issue of undue influence, Snow drafted a new will and mailed a copy to decedent. However, when Snow visited decedent on three subsequent occasions between May 23, 2005 and June 24, 2005, he determined that decedent was not able to freely execute the will. In a letter to Martin and Stephen on June 6, 2005, Snow wrote:

"After having met with and spoken to your aunt, I felt that I could not in good conscience act as a witness to your aunt's signing the new Will I had prepared for her because I did not believe that she was at that time able to freely make a Will."

Apparently anxious to have the new will executed, Martin and Stephen contacted a new attorney, Jill Kupferberg (Kupferberg), and arranged to have her preside over execution of the will drafted by Snow. Kupferberg supervised the will execution on June 24, 2005; decedent died, less than three months later, September 12, 2005.

Based on the evidence provided in the taped phone conversations and the statements by Snow, JPMorgan filed the instant application seeking to vacate the probate decree. As stated above, the Charities have joined in this application. Martin, Stephen and Magdalena have filed papers in opposition. Included in the responsive papers are Snow's files and an affidavit dated August 16, 2007, filed by Martin, in which he acknowledges his attempts to influence decedent's testamentary plan. Stating that he felt "insulted" by the bequest to him under the 2001 Will, [*5]Martin concedes his repeated entreaties that decedent increase his share.

STANDING

Respondents argue that JPMorgan does not have standing to seek vacatur as it would not be entitled to file objections to probate under SCPA 1410. JPMorgan asserts that as fiduciary, it has the obligation to ensure that only valid wills are offered for probate.

The Charities, as residuary beneficiaries of the 2001 Will adversely affected (SCPA 1410) by the probate of the 2005 Will, have subsequently joined in as co-movants in this proceeding;^[FN6] thus, the issue of standing is moot.

APPLICATION TO VACATE PROBATE DECREE

An application to vacate a probate decree must present a satisfactory showing of a substantial basis for contesting the will and a reasonable probability of success (Matter of American Committee for the Weizmann Institute of Science v. Weingarten, ___NE2d___, 2008 NY Slip Op 01257 [Feb. 14, 2008]).

SUBSTANTIAL BASIS FOR CONTESTING WILL

Movants contend that the basis for contesting the will is the discovery of new evidence, pursuant to CPLR 5015(a)(2), which suggests a strong probability that the respondents exerted undue influence on decedent, causing her to change her will. Movants further assert that such evidence could not have been found with due diligence prior to the will being admitted to probate (Matter of Andrasko, 13 Misc 3d 1245(A)[Sur Ct, Rockland County 2006, Berliner, S.]).

Respondents argue as a threshold matter that the recorded phone conversations with Lotito do not constitute newly discovered evidence because Lotito's knowledge of the recorded telephone conversations suggesting undue influence should be imputed to JPMorgan. Second, they contend both JPMorgan and Lotito failed to act in a timely manner in seeking vacatur. Finally, respondents argue that inasmuch as the Charities possessed information alleging a pattern of misbehavior, as described in their supporting affidavits, and failed to file timely objections to probate, they are precluded from challenging the probate decree at this late date.

Knowledge acquired by an agent acting within the scope of his agency is imputed to his principal, and the latter is bound thereby, even though the information is never actually communicated to it (Seward Park Housing Corp v Cohen, 287 AD2d 157 [1st Dept 2001]). Applying this standard, JPMorgan is not charged with knowledge of the nephews' alleged undue influence for two reasons. First, J.P. Morgan Securities, Inc. and JPMorgan are separate corporate entities; no evidence has been presented to suggest that an agency relationship exists between Lotito, an investment advisor for J.P. Morgan Securities, Inc. and JPMorgan. Second, even were Lotito an agent of JPMorgan, the relevant conversations between Lotito and decedent [*6]and her health care providers were clearly personal in nature and did not relate in any way to the investment services offered by the securities arm of the bank. At the time the 2005 Will was offered for probate, there was nothing to suggest that JPMorgan, as nominated executor, knew or should have known about the special relationship that had developed over time between decedent and her broker, or the existence of the recorded conversations that catalog the deeply personal concerns of decedent and her attendants about the pressure being brought to bear on decedent by her nephews. In short, the knowledge gained by Lotito falls outside the scope of his agency as an investment advisor for J.P. Morgan Securities, Inc. (See Credit Alliance Corp v Sheridan Theatre Co, 241 NY 216 [1925]).

Moreover, JPMorgan was not dilatory in bringing the new evidence to the Court's attention. It was only after the transcripts of the phone conversations came to light that JPMorgan had reason to question the attorney-draftsman, Snow, who confirmed his suspicions of undue influence. Within days after Snow filed the 2001 Will, when JPMorgan verified the dramatic changes in decedent's testamentary dispositions, it sought the drastic remedy of vacating the probate decree.^[FN7]

Nor were the Charities dilatory in failing to file objections when the 2005 Will was offered for probate. At that time, the 2001 Will, under which they received significantly larger bequests, had not been filed with the Court. Only after Snow filed the 2001 Will on June 1, 2007, a year after letters testamentary were issued, were the Charities aware of the extent to which their bequests had been reduced by the 2005 Will. See Matter of Musso, 227 AD2d 404 [2d Dept 1996]. In Musso, several charities had been notified only days before a will was admitted to probate that a penultimate will provided them substantially larger bequests. Eight months later, they moved to vacate the probate decree, alleging undue influence and lack of testamentary capacity. In granting the motion, the court observed that "while vacatur disrupts the orderly process of administration and creates... uncertainty and nonfinality... the Court should also be slow to say that an injustice may not be corrected" (id. at 405; internal citations omitted).

PROBABILITY OF SUCCESS

JPMorgan and the Charities bear the burden of proving a probability that undue influence can be established by a preponderance of the evidence (see PJI2d 7:55 [2006]). Proof of undue influence requires (1) motive, (2) opportunity and (3) actual undue influence (Estate of Bacon, 169 Misc 2d 858 [Sur Ct, Westchester County 1996, Emanuelli, S.]) such that the testator acts contrary to her wishes because she cannot refuse or is too weak to resist (Matter of Fellows, 16 AD3d 995 [3d Dept 2005], quoting Children's Aid Soc'y of City of NY v Loveridge, 70 NY 387 [1877]). The mere fact that a new will alters the testamentary scheme contained in a prior will does not by itself raise a presumption of invalidity (Matter of Herzenberg, NYLJ, Aug. 1, 1994, [*7]at 34, col 5 [Sur Ct, Nassau County, Radigan, S.]); however, a departure from a previously expressed intention along with other suspicious facts may raise an inference of moral coercion that amounts to undue influence (Estate of Weingarten, NYLJ, Dec. 23, 2005, at 28, col 2 [Sur Ct, New York County, Preminger, S.]); Matter of Anna, 248 NY 421 [1928]).

The taped conversations, along with the corroborating notes by Snow, provide sufficient evidence of motive, opportunity and actual undue influence to suggest a probability of success.^[FN8] Sadly, the facts presented here paint a picture of a 93 year old woman who believed she "had no choice"^[FN9] but to change her will to accord with the unremitting demands of her closest family members.

Despite respondents' claims to the contrary, the fact that the will was executed under the supervision of an attorney who affirmed the decedent's capacity does not overcome the evidence [*8]presented of undue influence. See Matter of Kaufmann, 20 AD2d 464, 485 [1st Dept 1964] (fact that instrument was prepared and the execution supervised by reputable attorneys, although relevant, does not preclude finding of undue influence).

While Kupferberg, the presiding attorney, memorialized her June 24, 2005 meeting with decedent in a memorandum concluding that decedent possessed the requisite testamentary competency, Kupferberg possessed few facts that would have caused her to question whether decedent was making a new will of her own volition. Indeed, she may not have known of the nature and extent of changes to the 2001 Will, including the significant reduction of bequests made to the Charities. Nor could she have known of the multiple visits by Snow in which decedent declined to make further changes to her 2001 Will, or of Snow's conclusion that decedent's nephews had sought to unduly pressure decedent to do so. Ms. Kupferberg may have been confident as to decedent's testamentary capacity, but the inquiry does not end there (In re Whitmarsh's Estate, 133 Misc 858 [Sur Ct, Albany County 1929, Schenck, S.]). A determination of testamentary capacity should not preclude an independent determination that a testator succumbed to undue influence (Estate of Donovan, 47 AD2d 923 [2d Dept 1975]). In sum, there is a reasonable probability that had the evidence now before this Court been produced in the form of objections to the probate of the 2005 Will, it would have resulted in a finding of undue influence.

COURT'S INHERENT ABILITY TO VACATE ITS OWN DECREE

Even were the parties unable to show compliance with CPLR 5105(a)(2), a determination to grant a motion to vacate a probate decree rests in the sound discretion of the court. "It is well established that, independent of statutory provisions, the court rendering a judgment, in its inherent power and control over its own proceedings, may vacate that judgment where it appears that substantial justice will be served and injustice prevented thereby" (F & C General Contractors Corp v Atlantic Mutual Mortgage Corp, 202 AD2d 629 [2d Dept 1994]).

Accordingly, under both the Weingarten ^[FN10]standard and the court's inherent power, the decree dated February 21, 2006 admitting the will of Romaine Efros to probate is vacated. Objections to probate of the 2005 instrument, if any, shall be filed within thirty days of notice of entry of this order.

REVOCATION OF LETTERS TESTAMENTARY

Upon vacatur of the probate decree, letters testamentary issued to JPMorgan, Martin and Magdalena are ipso facto revoked (SCPA 703). As the probate proceeding is to be reopened, the question arises as to which parties might be eligible for preliminary letters testamentary.

Based upon a bona fide allegation of undue influence or other wrongdoing, the court may deny the issuance of preliminary letters pursuant to SCPA 707 (Matter of Jurzykowski, 36 AD2d [*9]488 [1st Dept 1971]; Matter of Pullman, 89 AD2d 608 [2d Dept 1982]). The allegations against Martin are sufficient to deny him preliminary letters testamentary. There is, however, little evidence to support an allegation of undue influence by Magdalena. Although Magdalena may very well have acted to thwart efforts of co-executor JPMorgan by refusing to consent to the release of Snow's files, this does not in and of itself meet the standard required to deny preliminary letters. The courts should nullify a testator's choice of executor only upon a "clear showing of serious misconduct that endangers the safety of the estate" (Estate of Feelus, NYLJ, June 24, 1997, at 28, col 4 [Sur Ct, Bronx County, Holzman, S.]; quoting Matter of Israel, 64 Misc 2d 1035 [Sur Ct, Nassau County 1970, Bennett, S.]; see also Matter of Farber, 98 AD2d 720 [2d Dept 1983]).

Accordingly, preliminary letters testamentary shall issue to JPMorgan Chase Bank, N.A. and Magdalena Efros upon duly qualifying.

This decision constitutes an order of the court.

______KBG_______________

S U R R O G A T E

Dated: March 18, 2008