As noted above, plaintiff argues for a different interpretation of New York law on the issue of burden shifting where undue influence is claimed. Plaintiff asserts that whenever there is an attorney/client or cestui que trust/trustee relationship between those that benefit from the trust and the settlor, the burden is always shifted to the defenders of the trust, citing Barnard v. Gantz, 140 N.Y. 249, 35 N.E. 430 (1893); In the Matter of the Will of Smith, supra, 95 N.Y. 516; Cowee v. Cornell, 75 N.Y. 91, 99-101 (1978); Hayes v. Union Trust Co. of New York, 27 Misc. 240, 57 N.Y.S. 801 (Sup. Ct. 1899); and Gibbes v. New York Life Insurance and Trust Co., 67 How. Pr. 207 (Sup. Ct. 1883).
However, even applying plaintiff's rule arguendo, the burden of proof remains with plaintiff both with respect to her children and Leonard. While Harrison was in a cestui que trust/trustee relationship with her children, a relationship that under plaintiff's view would per se shift the burden of proof to defendants, that relationship only began with the creation of the trust in question. The suspicion of undue influence that flows from the fiduciary relationship of trustee and trust beneficiary does not exist until the trust is executed. Therefore, the relationship between Harrison and her children must be considered simply that of parent and child for the purposes of the burden-shifting rule. Plaintiff's own cases make clear, however, that the burden does not shift to defendants without more where the relationship is merely that of parent and child. See Cowee, supra, 75 N.Y. at 101. Without the per se burden shifting, plaintiff must show some evidence of unequal dealing or coercion before the burden will be shifted to the defenders of the trust to show an absence of undue influence. In re Rogers' Will, supra, 293 N.Y.S. at 630; see also Feiden, supra, 542 N.Y.S.2d at 863 (existence of a family relationship is not sufficient to show undue influence; there must be other facts or circumstances showing inequality or controlling influence.).
Likewise with respect to Harrison's claim that Leonard subjected her to undue influence, even if the court applies plaintiff's view of New York law, the burden of proof remains with plaintiff. Leonard and Harrison were clearly in an attorney-client relationship, which plaintiff argues should shift the burden of proof to Leonard. Once again, however, plaintiff's own cases make clear that this rule is inapplicable here. The burden shifts only where the transaction in question "results in a benefit conferred upon, or an advantage gained by the one holding the dominant situation." In the Matter of the Will of Smith, supra, 95 N.Y. at 522. As observed above, the evidence in this case establishes that Leonard gained no benefit from the creation of the trust, and that in fact he forfeited the chance of earning a potentially substantial executor's fee. Under these circumstances, plaintiff's burden-shifting rule does not apply, and the burden of proof remains on plaintiff.
Finally, even if the burden of proof were shifted to defendants in this case, requiring them to demonstrate the absence of any exercise of undue influence on their parts in order to sustain the validity of the trust, the court finds that defendants have sustained their burden. As discussed above, there is no evidence of improper influence having been applied to Harrison by Alfred, Ruth, or Leonard. Moreover, there is convincing evidence that Harrison herself proposed the terms of the trust and was impatient to have it executed as quickly as possible. Thus, under both the view of New York law adopted by the court and that urged by plaintiff, the court rules that no undue influence tainted the creation of the trust in question.
As to Harrison's final claim, the unconscionability of the trust, there has been absolutely nothing put forward to support this claim. Harrison is provided for for life under the terms of the trust. The only change in her position after the trust was established is that she can no longer take unilateral action concerning the property governed by the trust. The unanimous consent of the other trustees will be required. Since this is what she wished and asked her lawyers to accomplish through the trust documents, she is in no position to claim unconscionability. Accordingly, that claim must be dismissed as unproved.
For all the reasons stated, the court concludes that plaintiff had legal capacity to execute the trust instruments on June 6 and the amendments she authorized on June 12. She was fully aware on those days of what she was doing, of the extent and nature of her property and of the natural objects of her bounty. She felt vulnerable because of the doctor's warning of the possibility of a second stroke. She wanted to be certain that her property was disposed of to her children and her husband in such a way that neither husband nor children could alter the disposition she desired. The creation of the trust in issue here accomplished that purpose. Apparently, for reasons not germane to the court's determination, she had a change of heart, but that change of heart comes too late.
Accordingly, the case is dismissed. Judgment and costs are awarded to defendants.
IT IS SO ORDERED.
Dated: New York, New York
April 20, 1992
Robert L. Carter