United States District Court, W.D. New York
February 10, 2004.
NORRINE M. HALVORSEN, Plaintiff
ELLEN A. SHEIVE, Defendants
The opinion of the court was delivered by: MARIAN W. PAYSON, Magistrate Judge
DECISION & ORDER
Plaintiff, Norrine Halvorsen, a resident of New York, has filed suit
against her sister, Ellen Sheive, a legal resident of Nevada, seeking
recovery of the proceeds of an Individual Retirement Account ("IRA")
established by their deceased father, Ivar Halvorsen, Pursuant to
28 U.S.C. § 636(c), the parties have consented to have a United States
magistrate judge conduct all further proceedings in this case, including
the entry of final judgment. (Docket # 9).*fn1 Currently before this
Court is defendant's motion for summary judgment. (Docket # 16), For the
reasons discussed below, defendant's motion is granted in part and denied
Based upon a careful review of the record before this Court, the
following facts appear undisputed.*fn2 Plaintiff and defendant are
siblings and the adult daughters of Ivar Halvorsen, who died on December
9, 1999. At the time of his death, Ivar*fn3 was the owner of three real
properties and several investment accounts, including a First Albany
Corporation IRA that was worth approximately $240,000. From the date of
the IRA's inception until April 1997, plaintiff was named as the sole
beneficiary of the IRA. On April 21, 1997, Ivar Halvorsen executed a
change of beneficiary form, substituting defendant as beneficiary of the
IRA. (Docket ## 1, 16).
During the period 1998 through June 1999, plaintiff lived with Ivar in
his home. (Docket # 17, Ex. A at 4, 14). She moved in with her father
after having lived for several years with her mother following the
foreclosure of her own home. (Id. at 4-5, 25-26). Although they
lived together during Ivar's later years, plaintiff admittedly had "very
little contact" with him and "didn't interact with him routinely,"
(Id. at 13, 15). She did act as his power of attorney during his
final months in a nursing home. (Id. at 19-20).
Defendant describes her relationship with her father, variously, as
having been "at best, cordial" (Docket # 16, Sheive Aff. at ¶ 8) and
a "pleasant adult, friendly relationship." (Docket #17, Ex. B at 5-6).
Defendant explained that she had moved out of her father's house in
1964 at the age of eighteen, married her husband and eventually
established residence in San Diego, California. (Docket # 17, Ex. B at
5-6; Docket # 16, Sheive Aff. at ¶ 3). For the following thirty
years, defendant's contact with her father was infrequent and irregular,
consisting of sporadic visits (approximately six in twenty-one years) and
infrequent telephone calls and letters. (Docket # 17 at 7-10; Docket #
16, Sheive Aff. at ¶¶ 4-7). Her last visit with her father occurred in
June 1999 when she and her husband moved her father into a nursing home
following his discharge from a hospitalization in Albany. (Docket # 17,
Ex. B at 13-18), Defendant testified that it was during this visit that
she first learned from, her father's broker that she was the beneficiary
of Ivar's IRA and certain annuities he owned.*fn4 (Docket # 17 at 18).
This testimony directly and disquietingly conflicts with the statement in
her attorney's reply affirmation that defendant "did not know at any time
prior to her father's death, that she was to be the beneficiary of the
IRA funds." (Docket # 26 at ¶ 6).
Eleven months before he died, Ivar Halvorsen executed a new will.
(Docket # 23, Ex. G). The will named defendant as executor and bequeathed
to her all of his real and personal property. (Id.) In addition,
the will provided that 60% of his residuary estate was to be distributed
to defendant, with 40% left in trust for the benefit of plaintiff, with
defendant named as trustee. (Id.). The residuary estate trust
was Ivar's sole bequest to plaintiff under his will. (Id.)
The will specifically defined the residuary estate to "includ[e]
[Ivar's] investments at Brighton Securities Corp." (Docket # 23, Ex, G at
¶ 4), At the time of his death, Ivar held various investment accounts
through Brighton Securities, which included the IRA, six annuities (as to
which defendant and her daughter were the named beneficiaries) and a
money market fund. (Decision of Hon. Edmund Calvaruso, Surrogate's Court
Judge, dated August 21, 2001 (hereinafter referred to as "Surrogate Court
Decision") at 2, submitted herewith by plaintiff), While the record is
not entirely clear on this point, it appears that the value of the IRA
and other annuities which passed outside his estate
totaled in excess of $300,000. (Docket # 23, Affidavit of Jeffrey Weiss,
Esq. at ¶ 22). The value of the money market fund, by contrast, which
constituted the principal asset making up the residuary estate, totaled
only approximately $5,000. (Surrogate Court Decision at 2). Defendant
subsequently renounced her interest under the will, thus leaving
plaintiff to inherit the real properties, the personal property and
defendant's interest in the residuary estate, (Docket #17, Ex, B at 28).
Both plaintiff and defendant testified that Ivar's decision, to
establish a trust for the benefit of plaintiff grew out of his concern
over plaintiffs perceived inability to manage finances.*fn5 (Docket # 1
at 15-16, 24; Docket #17, Ex, B at 31-32). According to
defendant, Ivar told her that he intended to leave his estate to her
because he trusted her to manage it well and to "bail" out plaintiff with
the funds "if she needed it." (Docket # 17, Ex. B at 31-32). As defendant
testified at her deposition:
[Ivar] felt that to leave [plaintiff] the money
was to doom her to eventually being out of money
again, and on the street. He felt that she
couldn't handle the dealing with principal or
being responsible for principal. So he gave it to
me. He said also, I have never given you
any money, I never helped you with anything in
your life. He said, I would like to give it to
you, you would be able to manage it well. I trust
that . . . if your sister needs bailing, this
will help you to bail her. That's basically what
he wanted, her to be bailed if she needed it. But
he didn't feel like she had proven herself capable
of handling the inheritance.
(Docket #17, Ex. B at 31-32). Similarly, the attorney who drafted
Ivar's will testified that it had been Ivar's intent to leave plaintiffs
share in trust because of his concern that "she was not capable of
managing her money." (Docket #17, Ex. D at 7-8).
With respect to the IRA, both plaintiff and defendant stated that they
did not discuss the IRA beneficiary change specifically with Ivar, At her
deposition, defendant stated that she understood that Ivar's intention
was that the IRA proceeds be used "to help take care of [plaintiff]"
(Docket #17, Ex. B at 30) a statement which she argues in no way
constitutes an admission that she understood that they were left in trust
for the benefit of plaintiff. (Id. at 32). Indeed, whether Ivar
left the IRA funds in trust, as he did with the assets in his residuary
estate, is the very essence of the parties* dispute. Plaintiff contends
that he did; defendant disagrees.
In claiming entitlement to the IRA proceeds, plaintiff relies on two
legal theories. First, plaintiff contends that Ivar created a
constructive trust with respect to the IRA. According to plaintiff, Ivar
intended that the proceeds of the ERA be used to "bail" her out, and, to
effectuate that intent, he changed the beneficiary upon defendant's
assurance that she would use the IRA to take care of and provide for her
sister. (Docket # 1). While defendant concedes that such an
understanding existed with respect to the residuary estate, she
disputes that such an. understanding existed with respect to the IRA.
Second, plaintiff claims that defendant exerted undue influence over
her father in order to compel him to change the beneficiary of his IRA.
According to the complaint, Ivar's mental capabilities had been
diminished as the result of age and illness, making him particularly
susceptible to the influence of family members. Defendant preyed on that
susceptibility, plaintiff maintains, by promising him that the proceeds
from the IRA would be used to benefit plaintiff after his death.
Plaintiff contends that defendant's influence was so great as to override
Ivar's intentions and decision-making ability, (Docket #1).
Defendant now moves this court for summary judgment on both of
I. This Court's Jurisdiction
This Court's jurisdiction over this case is based upon the parties'
diversity of citizenship.*fn6 For this Court to exercise diversity
jurisdiction, the plaintiff and defendant must be domiciled in different
and the amount in controversy must exceed $75,000. 28 U.S.C. § 1332.
In the instant case, plaintiff, Norrine Halvorsen, resides in Rochester,
New York.(Docket # 17, Ex, A). Defendant, Ellen Sheive, is a legal
resident of Nevada, but states that she
is currently a foil-time traveler and does not own a primary
residence. Prior to becoming itinerant, defendant resided in San Diego,
California, where she lived from 1975 to 1998. (Docket # 17, Ex, B).
Thus, the parties are domiciled in different states. Moreover, the amount
in controversy $240,000, which represents the amount of the IRA
at the time of Ivar's death exceeds the jurisdictional limit.
In cases arising under the Court's diversity jurisdiction, the court
must apply federal procedural law and the substantive law of the state in
which it sits. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
Thus, this Court must apply the substantive law of the state of New York.
See Schiavone Constr. Co. v. City of New York, 99 F.3d 546 (2d
II, Defendant's Motion for Summary Judgment
Defendant has moved for summary judgment on both plaintiffs
constructive trust claim and her undue influence claim. According to
defendant, summary judgment is warranted because plaintiff cannot
establish, upon the undisputed material facts, the required elements of
A. Standard for Summary Judgment: Summary Judgment
is appropriate "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c). In reaching this determination, the court must assess
whether there exists any disputed material facts and, in so doing, must
resolve all ambiguities and draw all reasonable inferences against the
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49
(1986); Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162,
166-67 (2d Cir. 1991).
A fact is "material" only if it has some effect on the outcome of the
suit. Anderson, 477U.S, at 248; Catanzaro v. Weiden,
140 F.3d 91, 93 (2d Cir. 1998), A dispute regarding a material fact is
genuine "if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson, 477 U.S, at 248;
see also Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.),
cert. denied, 502 U.S, 849 (1991).
The moving party bears the initial burden of demonstrating the absence
of a genuine issue of material fact, after which the nonmoving party must
come forward with sufficient evidence to support a jury verdict in its
favor; the motion will not be defeated based upon conjecture, surmise or
the existence of "metaphysical doubt" concerning the facts.
Bryant, 923 F.2d at 982 (citing Matsushita Elec. Indus, Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). The party seeking
to avoid summary judgment "must do more than make broad factual
allegations and invoke the appropriate statute. The [party] must also
show, by affidavits or as otherwise provided in Rule 56 . . ., that
there are specific factual Issues that can only be resolved at trial."
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); see also
Driscoll v. Tawnsend, 60 F. Supp.2d 78, 80 (W.D.N.Y. 1999).
As the Second Circuit has explained:
[T]he trial court's task at the summary judgment
motion stage of the litigation is carefully limited
to discerning whether there are any genuine issues
of material fact to be tried, not to deciding them.
Its duty, in short, is confined at this point to
issue-finding; it does not extend to
issue-resolution. . . . It must be kept in mind
that only by reference to the substantive law can
it be determined whether a disputed fact is
material to the resolution of the dispute.
Gallo v, Prudential Residential Serv. P'ship, 22 F.3d 1219
(2d Cir. 1994).
B. Plaintiff's Constructive Trust Claim: As stated
above, plaintiffs first claim, alleges that a constructive trust for her
benefit should be imposed on her father's ERA, According to plaintiff,
her father intended that the money in the IRA be used for the benefit of
plaintiff, and defendant understood and acquiesced in this understanding.
Defendant contends that she is entitled to summary judgment on this claim
because the undisputed material facts make clear that plaintiff cannot
establish the required elements of her claim.
"Generally, a constructive trust may be imposed `when property has been
acquired in such circumstances that the holder of the legal title may not
in good conscience retain the beneficial interest."' Sharp v.
Kosmalski, 40 N.Y.2d 119, 121 (1976) (quoting Beatty v,
Guggenheim Exploration Co., 225 N.Y. 380, 386 (1919)), In order to
establish a constructive trust, the following four elements must be
satisfied: "(1) a confidential or fiduciary relation, (2) a promise, (3)
a transfer in reliance thereon, and (4) unjust enrichment." Id.
(citations omitted). These elements are not rigid requirements, but are
flexible considerations for the court in deciding whether to grant such
an equitable remedy. Bankers Sec. Life Ins. Soc'y v, Shakerdge,
49 N.Y, 2d 939, 940 (1980). While defendant disputes plaintiffs ability
to prove each of the elements, the first two elements are most vigorously
1. Confidential Relationship; The first element to be
considered when determining whether to impose a constructive trust is the
existence of a confidential or fiduciary
relationship between the transferor and the transferee.*fn7 In
fact, "[m]ost frequently, it Is the existence of a confidential
relationship which triggers the equitable considerations leading to the
imposition of a constructive trust." Sharp v. Kosmalski, 40
N.Y.2d at 121. A confidential relationship exists where the transferee
was "morally bound to act in [the transferor's] best interest and [the
transferor] was justified in reposing a special trust and confidence in
[the transferee's] fidelity so pregnant with opportunity for abuse and
unfairness as. to require equity to intervene and scrutinize the
transaction." Mendel v. Hewitt, 555 N.Y.S.2d 899, 900 (N.Y.
App. Div. 1990) (internal quotations omitted). In other words, the remedy
exists to compel fidelity by the transferee to the trust and confidence
reposed in him or her by the transferor. Sharp v. Kosmalski, 40
N.Y.2d at 121-22.
Here, defendant contends that plaintiff cannot establish the existence
of a confidential relationship because defendant had, at best, only a
cordial relationship with her father. On this basis, defendant maintains
that summary judgment on the constructive trust claim should be granted
in her favor. This Court, however, disagrees. To be entitled to summary
judgment, defendant must show the absence of any genuine Issues of
material fact relating to the alleged constructive trust. Fed, R. Civ. P.
56(c), The existence of a confidential relationship, however, is itself
"a factual issue which can only be resolved at  trial." Crown
Realty Co. v. Crown Heights Jewish Cmty Council, 572 N.Y.S.2d 38,
39 (N.Y. App, Div. 1991); see Mendel v.
Hewitt, 555 N.Y.S.2d at 900 (existence of confidential
relationship "is a factual issue which can only be resolved upon a
Plailnliff argues that a confidential relationship must be presumed
from the fact that Ivar and defendant were parent and child. See
Djamoos v. Djamoos, 545 N.Y.S.2d 596, 597 (N.Y. App. Div. 1989)
(relationship between parent and child will support the imposition of a
constructive trust) (citing Farano v. Stephanelli, 133 N.Y.S.2d
at 711). I find that in this case, however, the existence of a biological
relationship is relevant but not itself determinative of a confidential
relationship. Indeed, plaintiff admitted that she never witnessed a
conversation between defendant and their father. (Docket #17, Ex. A at
19). Moreover, as stated above, defendant avers that she had a distant
relationship with her father, that her contact with him. was infrequent
and that they never discussed financial matters (Docket #16, Sheive Aff.
at ¶ 10) a representation apparently at odds with her
deposition testimony that she and her father had discussed his desire
that she use the funds bequeathed to her to "bail out" her sister as
needed. (Docket# 17, Ex. B at 10).
While the above-referenced facts appear to support defendant's position
that Ivar and she did not enjoy a confidential relationship, sufficient
undisputed facts exist supporting the existence of such a relationship as
to make judgment as a matter of law inappropriate. For example, defendant
concedes that in 1999 Ivar asked her to serve as the executor of his
will, and she agreed to do so. (Docket # 17, Ex. B at 11). In addition,
when questioned at her deposition, she admitted that Ivar had advised her
that he did not believe plaintiff was capable of managing fiances and
told defendant, "if your sister needs bailing, this will help you bail
her. That's basically what he wanted, her to be balled out if she needed
it." (Id. at p. 31-32). Even with
respect to the IRA, defendant testified that she understood that her
father's Intent was for those funds to be used to "help" take care of
plaintiff. (Docket # 23, Ex, C at 30). Ivar's request that defendant
serve as executor of his will, as well as his discussions with defendant
about his intentions concerning the use of his funds following his death,
constitutes, at the very least, some evidence that Ivar reposed a
"special trust and confidence" in defendant. Mendel v, Hewitt,
555 N.Y.S.2d at 900.
Filially, it is undisputed that Ivar named defendant as the trustee of
a trust under Ms will created for the benefit of plaintiff. The apparent
existence of a confidential relationship at the time of the will's
execution in 1999, coupled with the familial relationship and existence
of conversations concerning Ivar's desire that certain of his funds be
used by defendant to bail out plaintiff, suffices to create a question of
fact as to whether such a relationship existed at the time of the IRA's
beneficiary designation change in 1997. Mindful of my responsibility to
resolve all ambiguities against the moving party, Anderson v. Liberty
Lobby, Inc., 477 U.S, at 248, I find that defendant has failed to
establish the absence of a triable issue on this element.
2. Promise: I find that defendant likewise has failed to
demonstrate that no triable issue of fact exists as to whether defendant
promised her father that she would use the IRA funds for plaintiffs
benefit. While plaintiff admitted during her deposition that she did not
personally witness any conversations between defendant and Ivar Halvorsen
(Docket # 17, Ex. A at 19), plaintiff need not provide evidence of a
direct promise by defendant. Sinclair v. Purdy, 235 N.Y. 245,
254 (1923); Sharp v. Kosmalski, 40 N.Y.2d at 122. Rather, such a
promise may be "inferred from the very transaction itself."
Sharp, 40 N.Y.2d at 122. In the oft-cited words of Justice
Cardozo, "Though a promise in words [may be] lacking, the whole
transaction . . . [may
be] instinct with an obligation imperfectly expressed."
Sinclair v. Purely, 235 N.Y. at 254 (internal quotation
omitted). Indeed, such an implied promise may be properly inferred from
the circumstances, such as those presented here, surrounding the transfer
of property in reliance upon a confidential relationship of one family
member to another. Sharp, 40 N.Y.2d at 122; Sinclair,
235 N.Y. at 254 ("Even if we were to accept . . . that there was no
distinct promise . . ., the exaction of such a promise, in view of
the relation, might well have seemed to be superfluous").
Here, plaintiff has offered the circumstantial testimony of several
family members as evidence that defendant understood her father's intent
to establish, a trust for the benefit of plaintiff. Arthur Halvorsen,
Ivar's brother, affirmed:
In my conversations with Ivar, he did indicate that
he needed to find a new way to handle any bequests
to Norrine as he was afraid that she would spend
the money quickly and irresponsibly, During our
conversations, I mentioned to him `that he should
consult with an attorney regarding placing assets
for Norrine in a trust for her benefit. After some
discussions, Ivar agreed this was a good idea. In
later conversations when I had asked Ivar what he
had done with respect to his estate, he indicated
that his goal was to have Norrine's share placed
in trust so someone could assist her in the
management of the assets. When I later asked him if
he had consulted with an attorney regarding which
assets were to be placed in trust., he advised me
that he did not believe there was enough time, but
had worked it out with Ellen who would manage the
money for Norrine's benefit.
(Docket # 23, Ex. D at ¶ 6).
In addition, Arthur Halvorsen also alleged:
In January or February of 2000, after Ivar had
died, Ellen Sheive visited my wife Margaret and
myself at our winter home in Florida, . . .
During our visit with Ellen, I talked with her
about her sister Norrine's needs. On more than one
occasion, Ellen told me "I will do right by my
sister." She insisted that Norrine would be taken
care of from her father's assets. Ellen said that
she would carry
through on her father's wishes as they were
expressed to her that she [would] use the
funds she received to take care of Norrine.
(Docket # 23, Ex. D at ¶ 8 (emphasis added)).
Marie Halvorsen, Arthur Halvorsen's wife, also attested to
conversations she and her husband had with Ivar relating to his concern
over plaintiffs financial well-being. (Docket # 23, Ex. E at ¶ 6).
According to her, "[o]n more than one occasion, Ivar told my husband and
myself that he was going to leave Corrine's of his estate to Ellen, and
that Ellen had promised that she would use the funds to take care of
Norrine," (Id.). Following Ivar's death, Marie Halvorsen and her
husband expressed concerns to defendant regarding plaintiffs well-being.
In response, defendant assured them "that she had advised her father that
she would receive Corrine's share of his assets and that she would manage
it for the benefit of Norrine," (Id. at ¶ 8).
Similarly, Eunice McKie, mother of both plaintiff and defendant, states
that Ivar advised her that he desired to establish a trust for plaintiff.
(Docket # 23, Ex. F at ¶ 7). According to McKie,
Several months after Ivar's death, while speaking
to my daughter Ellen concerning Ivar's estate,
Ellen stated to me that "I was not to worry as dad
had provided for Norrine . . . Norrine will be
well taken care of . . ."
The above affidavits do not, of course, conclusively establish the
existence of a promise by defendant to accept the IRA funds in trust for
the benefit of her sister. The affidavits must be considered, however, in
the context of the following undisputed facts: (a) prior to his death,
Ivar was concerned that plaintiff was financially irresponsible; (b) he
concern, to defendant, among others; (c) he intended that following
his death certain of his funds be used for the benefit of plaintiff; (d)
defendant was aware of and discussed with Ivar his intention that she
would use those funds "to bail out" plaintiff; (e) Ivar created a trust
under Ms will for the benefit of plaintiff; (f) the corpus of the trust
was his residuary estate, specifically defined to "includ[e] [his]
investments at Brighton Securities Corp.;" (g) his residuary estate
consisted principally of one Brighton Securities money market fond
amounting to only $5,000. The incongruity between Ivar's decision to
create a trust for the benefit of plaintiff and his failure to fund its
corpus in a meaningful way is another factor weighing in favor of
plaintiff on this issue.
On these facts, I conclude that there exists a triable issue of fact as
to whether Ivar's transfer of the beneficial ownership of his IRA from
plaintiff to defendant was conditioned upon her promise, either direct or
implied, that she would use those funds for the benefit of plaintiff.
While defendant admittedly promised her father that she would use funds
she received at his death to "bail out" plaintiff, the disputed question
is whether those funds were intended by Ivar, and promised by defendant,
to include the non-estate IRA proceeds. It is precisely this lack of
clarity that necessitates a trial.
Finally, this Court concludes that plaintiff has adduced sufficient
evidence to withstand summary judgment on the remaining two issues
a `transfer in reliance on the promise and unjust enrichment. It
is undisputed that on April 21, 1997, Ivar changed the beneficiary
designation form, thus transferring the future beneficial ownership of
his IRA from plaintiff to defendant. Had Ivar's transfer been conditioned
upon defendant's promise to use the IRA for
plaintiffs benefit, distribution of those proceeds to defendant
plainly would represent an unjust enrichment of defendant.
C, Plaintiffs Claim of Undue Influence: Plaintiffs second
claim alleges that Ivar changed the beneficiary of his IRA account under
undue influence and that plaintiff, as the original benefactor, is
entitled to the proceeds, Defendant contends that the record is entirely
devoid of any evidence that Ivar was unduly influenced to change the
beneficiary of his IRA, This Court agrees.
In order to establish a claim of undue influence, plaintiff must show:
(1) the existence and exertion of an influence; (2) the effective
operation of such influence as to subvert the mind of the testatrix at
the time of the execution of the will; and (3) the execution of a will
that, but for undue influence, would not have been executed. In re
Estate of Bacon, 645 N.Y.S, 2d 1016, 1019 (N.Y. Sur. Ct. 1996). "The
three essential elements are motive, opportunity and the exercise of the
influence." Id. (citing In re Will of Walther, 6 N.Y.2d 49
(1959); In re Estate of Gearin, 517 N.Y.S.2d 339 (N.Y.
The New York Court of Appeals has long held that for undue influence to
It must be shown that the influence exercised
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
exercise over the weak and infirm, and which could
not be resisted, so that the motive was tantamount
force or fear . . . lawful influences which
arise from the claims of kindred and family or
other intimate personal relations are proper
subjects for consideration in the disposition of
estates, and if allowed to influence a testator in
his last will, cannot be regarded as illegitimate
or as furnishing cause for legal condemnation.
In re Will of Walther, 6 N.Y, 2d at 53-54 (quoting
Children's Aid Soc'y of New York v. Loveridge, 70 N.Y,
387, 394-95 (1877)). A claim of undue influence challenges the validity
of the instrument, and thus the burden of proof remains on the party
asserting its existence. In re Will of Wharton, 62 N.Y.S.2d 169,
172 (N.Y. App. Div. 1946).
In essence, plaintiff contends that the facts which warrant the
equitable imposition of a constructive trust also demonstrate that Ivar
was subjected to defendant's undue influence. Devoting only four
sentences in her memorandum of law to this issue, she argues:
Through her promises to her father that she would
use the proceeds of the IRA as he intended,
Defendant exerted an influence over Ivar Halvorsen
sufficient to subvert his original intention of
setting up a trust to benefit his daughter Norrine,
and thereby directly caused the execution of a will
that would not have been executed but for Ellen's
assurances that it would be unnecessary to use the
will to create a trust as she would essentially
hold the funds in question as a trustee for
(Docket #22 at 14).
This Court rejects plaintiffs efforts to conflate the two claims.
See In re Will of Wharton, 62 N.Y.S.2d at 172 (undue influence
not established by confidential relationship standing alone). The
elements of a constructive trust, as discussed above, contemplate a
mutual understanding between the transferor and the transferee.
Conversely, a claim for undue influence
requires an exertion of influence sufficiently strong to convert
the transferee's desires into those of the transferor.
In the instant matter, plaintiff has not offered any evidence to
support her claim that Ivar's mind was subverted by defendant's
influence.*fn9 Indeed, when questioned about whether plaintiff ever
observed "dominating" or "over-zealous" behavior by defendant towards
Ivar, plaintiff stated that she could not answer "any of those questions"
because she was unaware of any contact between defendant and Ivar.
(Docket # 17, Ex. A at 18-19). Moreover, the record contains no evidence
to suggest that it was defendant's idea that Ivar should change the
beneficiary of his IRA. His broker testified that "Ivar was Ms own man,"
that Ivar came to his office alone on the occasion that he completed the
beneficiary change forms, just as he had on every other occasion (other
than the week before he died), appeared competent and steady and said
nothing to that anyone had influenced his decision to effectuate the
change. (Docket # 17, Ex. C at 32-34, 39-41). Indeed, as the broker
testified, the form could not be completed until his secretary called
defendant who was living in California to obtain her
social security number. (Id. at 30-31).
On this record, there is simply no evidence to indicate that defendant,
who lived thousands of miles away, exerted arty influence over her father
to cause him to substitute her as the beneficiary of Ms ERA. At most,
there exists evidence disputed by defendant that she
promised to use the IRA proceeds for plaintiffs benefit. I find that this
promise, standing alone,
is insufficient to show that an otherwise competent testator or
grantor*fn10 was unduly influenced to make the challenged. IRA
beneficiary change. See In re Bogardus' Will, 190 N.Y.S. 535,
538 (N.Y. App, Div. 1921) (even if appellants could establish that
testatrix had promised her mother, years before the testatrix's death,
that she would use her inheritance from her mother to provide for her
sister, such promise does not establish undue influence over testatrix's
execution of a will leaving her estate to her sister). See also In re
Will of Walther, 6 N.Y.2d at 54 (directed verdict rejecting claim of
undue influence was warranted where "record [was] devoid of any direct
evidence that the proponent interfered with the making of the will. [She]
did not draft the document; she did not dictate it; she was not present
when its proposed contents were discussed; she was not present when the
will was executed,"); In re Estate of Branovacki, 723 N.Y.S.2d 575,
577 (N.Y. App. Div. 2000) (summary judgment was justified dismissing
petitioner's undue influence claim where petitioner "failed to submit
evidence, circumstantial or otherwise, sufficient to raise issue of fact
whether respondent actually wielded undue influence" in changing the
beneficiaries of his IRA).
Summary judgment is also warranted on the independent grounds that
Ivar's decision to change the beneficiary of his MA even if it
could be viewed, as the product of undue influence is equally
consistent with the alternative theory that it reflects his intention
not to leave funds directly to plaintiff because of concerns that she
was financially irresponsible. See In re Wilt of Walther, 6
N.Y.2d at 54 ("an inference of undue influence cannot be reasonably
from circumstances when they are not inconsistent with a contrary
inference") (quotation omitted); In re Estate of Branovacki, 723
N, Y.S.2d at 577 (same). Because defendant has shown that there are no
genuine issues as to any material fact regarding plaintiffs claim of
undue influence, defendant is entitled to judgment as a matter of law on
For the foregoing reasons, it is my Decision and Order that defendant's
motion for summary judgment (Docket # 16) is DENIED
as to plaintiffs claim for a constructive trust and GRANTED as
to plaintiffs claim of undue influence.
IT IS SO ORDERED.