Supreme Court, Suffolk County

Decided on April 13, 2026

Index No. 621721/2025

Chris Ann Kelley, J.

[*1]

FACTUAL BACKGROUND:

On August 14, 2025, a Verified petition was filed by LE and RR, seeking appointment of a Personal Needs and Property Management Guardian for their mother NS, under Mental Hygiene Law Article 81. The petition alleged, inter alia, the following:

"Our mother has typical health issues for someone her age, but does most of her activities of daily living herself. This case is not about our mother having physical functional limitations. This case is about our mother having a major functional limitation with regard to her daughter, [MS]. She has allowed her to undermine everything that she and our father did for the past several decades. Our mother is in danger because she cannot [*2]stop [MS] from negatively impacting her life. We believe it is [MS]'s undue influence that is affecting our mother's ability to act rational." (Petition, §7)

The thrust of the petition is that NS is both susceptible to the undue influence of her third child MS and that MS has actually overborne the will of NS to the detriment of her personal needs and property management needs.

On August 18, 2025, this Court signed an Order to Show Cause, setting the matter down for a hearing on October 6, 2025 at 2:15pm. The Order appointed Lisa Perillo, Esq. as Court Evaluator, and Robin Burner Daleo, Esq. as counsel to NS, the Alleged Incapacitated Person (hereafter "AIP").

MS filed a cross-petition seeking dismissal, or in the alternative to be appointed guardian of NS. She was permitted to intervene as a cross-petitioner.

The parties attempted, unsuccessfully, to mediate their dispute utilizing a Court-house mediation program. Thereafter, on several dates (January 12, 2026, January 13, 2026, January 14, 2026, February 24, 2026, and February 25, 2026), this Court conducted a hearing on the Verified petition. The AIP was present, and was ably represented by Robin Burner Daleo, Esq. The following individuals testified: 1) MS (Cross-Petitioner), 2) RR (Co-Petitioner), 3) NK (sibling of AIP), 4) FE (Son-in-law of AIP), 5) LE (Co-Petitioner), 6) JR (Son-in-law of AIP), and 7) Lisa Perillo (Court Evaluator). On the application of Counsel to the AIP and with consent of all parties, this Court also conducted two in-camera interviews of the AIP, which were sealed.

Court Evaluator Lisa Perillo's written report was received in evidence and the credible testimony of the Court Evaluator established that the AIP can perform all activities of daily living and can make her needs known. The AIP prepared and executed advance directives and was able to explain her reasoning for doing so and for her decisions. According to Court Evaluator Perillo, there is no demonstrated need for guardianship given the functional abilities of the AIP and Court-ordered guardianship would not be appropriate.

CONCLUSIONS OF LAW :

Based upon the credible evidence adduced at the within hearing, this Court finds that it has subject matter and personal jurisdiction of the AIP, who lives at [Address redacted] in Suffolk County and therefore Suffolk County is the proper venue of this proceeding. MHL §81.04(a)(1), MHL §81.05(a).

FUNCTIONAL LIMITATIONS

The petition filed in this case seeks relief under Mental Hygiene Law Article 81. Pursuant to that provision, this court may only appoint a guardian if it makes the following findings:

"(a) The court may appoint a guardian for a person if the court determines:

1. that the appointment is necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety and/or to manage the property and [*3]financial affairs of that person; and

2. that the person agrees to the appointment, or that the person is incapacitated as defined in subdivision (b) of this section. In deciding whether the appointment is necessary, the court shall consider the report of the court evaluator, as required in paragraph five of subdivision (c) of section 81.09 of this article, and the sufficiency and reliability of available resources, as defined in subdivision (e) of section 81.03 of this article, to provide for personal needs or property management without the appointment of a guardian. Any guardian appointed under this article shall be granted only those powers which are necessary to provide for personal needs and/or property management of the incapacitated person in such a manner as appropriate to the individual and which shall constitute the least restrictive form of intervention, as defined in subdivision (d) of section 81.03 of this article." (MHL §81.02)

Pursuant to MHL §81.02(a)(2), appointment of a guardian may only take place where EITHER: 1) the AIP agrees to the appointment of a guardian, or 2) the AIP is proven incapacitated by clear and convincing evidence.

Here, the AIP vehemently opposes the appointment of a guardian. Moreover, the AIP has sent text messages (particularly Exhibits 21 and 22) which were received in evidence showing that the AIP strongly opposes the appointment of a guardian.

Thus the only remaining route to appointment of a guardian is a finding that the AIP is "incapacitated" as defined in MHL §81.02(b). Under MHL §81.02(b), the determination of incapacity shall be based upon clear and convincing evidence and shall consist of a determination that a person is likely to suffer harm because: 1) the person is unable to provide for personal needs and/or property management; and 2) the person cannot adequately understand and appreciate the nature and consequences of such inability.

Finally, MHL §81.02(c), requires that the court, in considering whether the AIP is incapacitated to:

"give primary consideration to the functional level and functional limitations of the person. Such consideration shall include an assessment of that person's: 1. management of the activities of daily living, as defined in subdivision (h) of section 81.03 of this article; 2. understanding and appreciation of the nature and consequences of any inability to manage the activities of daily living; 3. preferences, wishes, and values with regard to managing the activities of daily living; and 4. the nature and extent of the person's property and financial affairs and his or her ability to manage them. It shall also include an assessment of (i) the extent of the demands placed on the person by that person's personal needs and by the nature and extent of that person's property and financial affairs; (ii) any physical illness and the prognosis of such illness; (iii) any mental disability, as that term is defined in section 1.03 of this chapter, alcoholism or substance dependence as those terms are defined in section 19.03 of this chapter, and the prognosis of such disability, alcoholism or substance dependence; and (iv) any medications with which the person is being treated and their effect on the person's behavior, cognition and [*4]judgment. (d) In addition, the court shall consider all other relevant facts and circumstances regarding the person's: 1. functional level; and 2. understanding and appreciation of the nature and consequences of his or her functional limitations." (Emphasis added)

As the Court is directed to give "primary consideration" in large part to the AIP's abilities to perform activities of daily living, the Court has examined the record for the AIP's abilities in this area.

ACTIVITIES OF DAILY LIVING

The AIP can drive. (Hearing Transcript, 01/12/26, 100:7-10) (Hearing Transcript, 01/12/26, 118:8-13) (Hearing Transcript, 01/14/26, 92:19-93:12) (Hearing Transcript, 01/14/26, 111:15-18) (Hearing Transcript, 02/24/26, 121:7-14) (Hearing Transcript, 02/25/26, 70:12-17) (Hearing Transcript, 02/25/26, 100:11-13).

The AIP can bathe. (Hearing Transcript, 01/12/26, 100:1-2)

The AIP can go shopping. (Hearing Transcript, 02/25/26, 70:18-20) (Hearing Transcript, 01/12/26, 124:19-21) (Hearing Transcript, 01/13/26, 100:5-14) (Hearing Transcript, 01/14/26, 67:15-21) (Hearing Transcript, 01/14/26, 97:19-23) (Hearing Transcript, 02/24/26, 119:6-15)

The AIP can dress herself. (Hearing Transcript, 01/12/26, 99:24-25) (Hearing Transcript, 01/14/26, 97:19-23) (Hearing Transcript, 02/25/26, 70:25-71:1)

The AIP can toilet. (Hearing Transcript, 01/14/26, 97:19-23)

The AIP can walk by herself. (Hearing Transcript, 01/12/26, 99:10-23)

The AIP can cook meals for herself. (Hearing Transcript, 01/12/26, 100-3-4)

The AIP is generally in good physical health. (Hearing Transcript, 01/12/26, 99:16-19)

The AIP can feed herself. (Hearing Transcript, 02/25/26, 70:21-22)

Importantly, each of her three daughters concedes that the AIP can perform activities of daily living independently.

As Co-Petitioner LE testified:

"Q: I believe it also noted that she doesn't suffer from any physical functional limitations; is that right?

A: Yes.

Q: And that she handles her own activities of daily living?

A: Yes." (Hearing Transcript, 02/25/26, 66:1-6)

As Co-Petitioner RR testified:

"Q: Okay. Your petition makes it clear that you were aware that your mother handles all of her own activities of daily living; is that right?

A. Correct. [ . . . ]

Q. In your petition you can see that your mother doesn't have any physical functional limitations; is that correct?

A. That's correct." (Hearing Transcript, 01/14/26, 97:4-18)

As Cross-Petitioner MS testified:

"Q. Your mother, does she handle all of her own activities of daily living, meaning the simple things that one must do in their day-to-day lives, that refers to everything from getting dressed, bathing, using the toilet, etc? Does she handle those things by herself?

A: Yes. My mother is one hundred percent independent." (Hearing Transcript, 01/13/26, 86:14-19)

The analysis of the AIP's abilities to perform activities of daily living do not support a finding of incapacity. In arriving at that decision, this court gives (as is required by MHL §81.02(c)) "primary consideration to the functional level and functional limitations of the person," of which the ability to perform activities of daily living is fundamental (See MHL §81.02(c)(1), (2), and (3) — quoted above). The evidence indicates that the AIP can independently perform almost all activities of daily living

This Court notes that the petition in this case seeks guardianship not based upon a failure to perform activities of daily living, but rather it asserts the AIP's functional limitations are susceptibility to undue influence:

"This case is not about our mother having physical functional limitations. This case is about our mother having a major functional limitation with regard to her daughter, [MS]. She has allowed her to undermine everything that she and our father did for the past several decades. Our mother is in danger because she cannot stop [MS] from negatively impacting her life. We believe it is [MS]'s undue influence that is affecting our mother's ability to act rational." (Petition, ¶7)

UNDUE INFLUENCE

To assess the facts of this case through the filter of undue influence as raised by the petition, this Court has examined the seminal New York Court of Appeals case on undue influence of In Re Will of Walther (6 NY2d 49, 51 [1959]), which expounded on the contours of this doctrine at length:

"The concept of undue influence does not readily lend itself to precise definition or description. But this court, long ago, had established the criteria by which undue influence is to be determined: "It must be shown that the influence exercised [*5]amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist. It must not be the promptings of affection; the desire of gratifying the wishes of another; the ties of attachment arising from consanguinity , or the memory of kind acts and friendly offices, but a coercion produced by importunity, or by a silent resistless power which the strong will often exercises over the weak and infirm [ . . . ]." In re Will of Walther, 6 NY2d 49, 53-54, 188 N.Y.S.2d 168, 172, 159 N.E.2d 665, 668 (1959) (Emphasis added)

Moreover, that case also suggests that undue influence cannot be established when the evidence is equally consistent with the assumption of voluntary intent by the subject:

"While the evidence in this case may be consistent with the hypothesis that the chief beneficiary induced the will by undue influence, the evidence is equally consistent with the assumption that the will expressed the decedent's own voluntary intent. An inference of undue influence cannot be reasonably drawn from circumstances when they are not inconsistent with a contrary inference." In re Will of Walther, 6 NY2d 49, 54 (1959)

While Article 81 of the Mental Hygiene Law does not define the term "undue influence" the New York legislature provided a definition in the Supported Decision Making statute of Article 82. Under MHL §82.02(l) ("Definitions"), the term "undue influence" is defined as follows:

"'undue influence' means moral or mental coercion that leads someone to carry out the wishes of another instead of their own because they are unable to refuse or resist." NY Mental Hyg. Law §82.02(l)

This Court also considers the New York Pattern Jury Instructions on the general rule related to undue influence in will contests, which is reproduced below in relevant part:

"A will must be a true expression of the testator's wishes. If, instead, it reflects the desires of some person who controlled the testator's thoughts or actions, the will is invalid because of undue influence. To be "undue", the influence exerted must amount 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, passions, fears, 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.

The word "undue" should be emphasized, because the law does not condemn all influence. It condemns only that degree of influence that destroys the testator's own judgment and free will. Accordingly, the will is not invalid merely because a testator was influenced by affection, gratitude, family and personal relationships, or ordinary advice [*6]and argument. These factors commonly enter into a testator's consideration and are proper, because they do not deprive the testator of (his, her) own free will.

Direct evidence of undue influence is seldom available. Accordingly, the law permits undue influence to be shown by facts and circumstances leading up to and surrounding execution of a will. However, it is not enough that you find that motive and opportunity to exercise undue influence existed. You must also find additional facts that satisfy you that such influence was actually exercised. Further, the facts upon which a claim of undue influence is based must be proved. In other words, you 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 proved, and that any other explanation is fairly and reasonably excluded. If the facts proved would reasonably support an inference that undue influence was exercised, as well as the contrary inference that it was not exercised, then undue influence has not been proved. [ . . . ]

Plaintiff asserts that MS stands in a confidential relationship with the AIP, her mother, and that such relationship deserves heightened scrutiny. But on this issue, familial relationships counterbalance any potential toward undue influence. As the Pattern Jury Instruction commentary to "7:56 Will Contests — Undue Influence, Confidential Relationship" notes:

"Note, however, that the question of confidential relationship ordinarily should not be submitted to the jury in a case involving parent and child , brother and sister, husband and wife, since the close family relationship in most instances will counterbalance any contrary inference of undue influence, Matter of Walther's Will, 6 NY2d 49, 188 NYS2d 168, 159 NE2d 665 (1959) (sisters); Matter of Martin, 98 NY 193 (1885) (parent and child); Matter of Herlihy's Estate, 18 AD2d 716, 236 NYS2d 105 (2d Dept 1962), aff'd, 13 NY2d 816, 242 NYS2d 346, 192 NE2d 223 (1963) (parent and child); Matter of Brand, 185 App Div 134, 173 NYS 169 (3d Dept 1918), aff'd, 227 NY 630, 125 NE 913 (1919) (husband and wife); Matter of Camac, 300 AD2d 11, 751 NYS2d 435 (1st Dept 2002) (parent and child); Matter of Thompson's Will, 121 App Div 470, 106 NYS 111 (2d Dept 1907) (brothers); see Matter of Estate of Rella, 105 AD3d 607, 963 NYS2d 253 (1st Dept 2013); Matter of Estate of Antoinette, 238 AD2d 762, 657 NYS2d 97 (3d Dept 1997); Matter of Dunn, 184 App Div 386, 171 NYS 1056 (3d Dept 1918); Matter of Stapleton's Will, 71 App Div 1, 75 NYS 657 (1st Dept 1902); but see Matter of Neumann, 231 AD3d 548, 218 NYS3d 322 (1st Dept 2024) (notwithstanding that question of confidential relationship ordinarily not submitted to jury in cases involving parent and child, under specific facts of case question of fact raised on issue of undue influence to submit to jury issue whether mother and daughter in confidential relationship)." NY PJI 7:56 (Emphasis added)

Further commentary states:

"To speak of relationships confidential as a matter of law is somewhat misleading, because even in the case of guardian and ward or attorney and client, a close family relationship "counterbalances any contrary legal presumption ", Matter of Walther's [*7]Will, 6 NY2d 49, 188 NYS2d 168, 159 NE2d 665 (1959) (committee and ward were sisters); see Matter of Moskowitz' Will, 279 App Div 660, 107 NYS2d 853 (2d Dept 1951), aff'd, 303 NY 992, 106 NE2d 68 (1952) (attorney and client were son and father); see Matter of Camac, 300 AD2d 11, 751 NYS2d 435 (1st Dept 2002) (physician and patient were daughter and mother), and explanation by the beneficiary is not required. In such a case, PJI 7:55 should be used, notwithstanding the confidential relationship." NY PJI 7:56 (Emphasis added)

It has been established in the record that the AIP took several actions that have favored MS, including: 1) Executing a Power of Attorney naming MS as agent on July 21, 2025, 2) Executing a Health Care Proxy naming MS as agent on July 21, 2025, 3) Changing the Ownership of the Palm Beach property to a "Lady-Bird" deed, creating ownership interest in MS, while retaining a life estate for the AIP on July 25, 2025, 4) paying $10,000 per month for companion services to MS, 5) Executing a new last will and testament on July 21, 2025 in which MS would receive 50% of the estate, while the other two daughters would each receive 25% of the estate.

While the above list reveals MS's enhanced economic position and position of trust by the AIP relative to her sisters, none of the testimony or evidence received in this case conclusively suggests that the AIP's actions were the result of undue influence, or that MS exercised influence amounting "to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the [AIP] to do that which was against [her] free will and desire, but which [she] was unable to refuse or too weak to resist." See In Re Will of Walther (6 NY2d 49, 51 [1959]).

As shown above, the motive of the subject is a central element of undue influence. To establish undue influence, it must be shown that the subject experienced such pressure as might be created by force or fear such that free will is overcome by the overwhelming force of the influencer. In this case, evidence has been introduced which reveals the AIP's motivation to act and her feelings toward the parties. Text messages received in evidence reveal the AIP's reasoning and rationale for her advance directives, gifts and testamentary grants and explain her feelings about the petitioner daughters.

On or about June 13, 2025 at 7:14pm, the AIP sent a text message to her three daughters (Hearing Transcript, 01/12/26, 99:11-23). This text message expressed her feelings about the plaintiff daughters and about MS:

"[LE], listen and listen good.

Those are my accounts-not yours.

You have lost your mind closing my account and locking us out.

You are no longer in charge.

[MS] lives with me full-time and has been wonderful in handling all of my business and banking.

She is now in [sic] now charge with my direction.

This is not up for discussion." (Exhibit 15, page 3)

On or about June 29, 2025 at 4:20pm, the AIP, assisted by MS, sent a text message to her three daughters (Hearing Transcript, 01/12/26, 105:16-107:17). This text message expressed her feelings about the plaintiff daughters and about MS:

"Effective immediately, you are NOT to exclude [MS] on any calls or correspondence regarding my finances or business.

She is my live-in companion as well as entrusted business and financial advisor overseeing all of my affairs.

We are not interested in your "balance sheet" as we need to be able to access & review all of our bank accounts personally.

I am hereby forbidding any transactions on my accounts until we have reviewed all of my financials for a baseline. Let us know when you are available to provide us with the necessary info as was previously agreed upon." (Exhibit 17, page 3)

On or about July 17, 2025 at 8:56am, the AIP sent a text message to her three daughters (Hearing Transcript, 01/12/26, 135:15-136:14). This text message expressed her feelings about the plaintiff daughters and about MS:

"Hi guys . . . I read your texts and your false opinion [sic] abt your sister [MS] . . . don't say she is evil . . . she loves me, stays with me, and removes my loneliness . . . she is selfless and does so much to help me and our family . . . it was good to see both of you . . . I love you all, no matter what . . . you all my daughters, we will always [sic] will be a family, God bless us and protect us amen." (Exhibit 20, page 3)

On or about July 17, 2025 at 10:57am, the AIP sent a text message to her three daughters (Hearing Transcript, 01/12/26, 136:19-137:8). This text message expressed her feelings about the plaintiff daughters and about MS:

"I don't appreciate all false accusations of [MS] . . . none of what you wrote is true . . . stop this nonsense..

Stop creating drama and problems, I will not tolerate this harassment, leave me alone." (Exhibit 20, page 5)

On or about August 23, 2025 at 2:05pm, the AIP, assisted by MS, sent a text message to her three daughters (Hearing Transcript, 01/12/26, 145:21-146:4). This text message expressed her feelings about the plaintiff daughters and about MS:

"[LE],

How dare you steal $900,000 cash from my Bank of America account after how generous I have been with you and [RR]?!?!

You are a thief and a filthy liar.

You know good and damn well that those funds were intended for [MS] by the check that I had written for $1MM in her name.

You and [RR] each received your $1MM already and you have both caused immeasurable undue stress & harm to both of us.

If the full stolen funds of $900K are not returned to my BOA account immediately today (electronically since they have early hours & you have your own BOA account) you will have the police at your house making a scene, I will press full charges and have you both put in jail for fraud, elder abuse & grand theft.

I have a wonderful attorney and have already legally appointed [MS] as my Durable Power of Attorney which would not have been able to be accomplished if I was "mentally incapacitated" and in need of you and [RR] as abusive, deceitful bogus "guardians"!

[MS] handles everything beautifully in addition to being the best companion ever!" (Exhibit 21, pages 2-4)

On or about August 28, 2025 at 7:56am, the AIP, assisted by MS, sent a text message to her three daughters (Hearing Transcript, 01/13/26, 185:6-15). This text message expressed her feelings about the plaintiff daughters and about MS:

"Hi tibby..can you text me instead of calling..tell me why you want to take me to court!!!I am extremely upset, annoyed and disgusted [sic] abt what you are doing . . . don't tell me: we are trying to do what is best for you..bullshit, if you don't stop this court order..i am going to think of both [sic] it you as my enemies not my daughters..i am fine with [MS]..she is also mad as hell, calling lawyers and calling, very upset as well..Again if you don't stop the court order I am going to disown you..think about it and let me know..hoping you can resolve this problem..and tell me: mom..we love you..and we shall do what you want and need: DROP YOUR COURT ORDER.." (Exhibit 22, pages 2)

On or about September 13, 2025 at 10:16am, the AIP, sent a text message to her three daughters (Hearing Transcript, 01/13/26, 186:10-17). This text message expressed her feelings about the plaintiff daughters and about MS:

"I am fine..i don't want to get together with you or [LE],,since you decided to take me to court..that is disrespectful and disgusting,,and it costing us tons of money for lawyers—my true daughters don't do that..unless you stop immediately dragging me to court..I disown you both." (Exhibit 25, pages 2)

Beyond these text messages, upon the application of the AIP's counsel, and upon the consent of all other parties to do so, the Court engaged in two sealed in-camera discussions with the AIP. Without divulging the content of these sealed discussions, the AIP provided reasons for her disparate treatment of her daughters, and for her current feelings about each of her children. Neither those reasons, nor the text messages quoted above, suggest that the AIP was either susceptible to nor afflicted by undue influence, and they certainly do not provide clear and convincing evidence of undue influence such as would justify appointment of a guardian over the AIP.

Thus, as the petitioner has failed to prove the element of incapacity required under MHL §81.02 (a)(2) by clear and convincing evidence, the application for appointment of a guardian is DENIED.

Additionally, MS currently serves as the AIP's agent under a Power of Attorney and Health Care Proxy. In the absence of any wrongdoing or finding of undue influence by MS, it has not been established that there are any property management or personal needs are currently being unaddressed such that guardianship would be the least restrictive alternative available to address those needs.

Thus, as the petitioner has failed to prove the element of necessity required under MHL §81.02 (a)(1) by clear and convincing evidence, the application for appointment of a guardian is DENIED.

Dated: April 13, 2026

Hon. CHRIS ANN KELLEY, A.J.S.C.