DECISION/ORDER Before the court are two contested proceedings. The first, a contested probate proceeding where an instrument dated May 23, 2019, has been offered for probate as the last will and testament of the above named decedent. The second, a miscellaneous proceeding seeking to invalidate the Philip A. Mantia Irrevocable Trust Agreement dated May 23, 2019. A trial on these matters was held before the court as finder of fact, with the parties agreeing to consolidate the two matters into one trial. Background Philip A. Mantia (“decedent” or “Philip”) died on September 29, 2019 survived by his wife, Patricia A. Mantia. Patricia died on August 14, 2021, survived by two children from a prior marriage, Gary Anderson and Leanne Wilson. On May 23, 2019, Philip executed two instruments, 1) a Last Will and Testament and 2) the Philip A. Mantia Irrevocable Trust Agreement. Pursuant to the terms of the propounded will, decedent disinherited his wife “to the fullest extent permitted by law” and directed that any portion of his estate given to his wife be given to a Supplemental Needs Trust for her benefit. Decedent made a specific bequest of his cooperative apartment in Hampton Bays, New York to his wife’s son, Gary Anderson, granted his wife exclusive use and occupancy of his home in Port Jefferson for her lifetime, specifically devised his automobile to his nephew, Augustus Mantia, and his paintings to his niece, Rosemay Casey. Decedent then left the residuary of his estate 50 percent to his niece Rosemary Casey, 25 percent to his nephew Augustus Mantia, and 25 percent to his niece Marie Elanie Swiderski. Objections to the probate petition were filed by Gary Anderson, the executor of the estate of Patricia Mantia, alleging inter alia that at the time of execution, decedent lacked testamentary capacity, and that the execution of the propounded instrument was the result of fraud, constructive fraud, mistake, duress, and undue influence. Pursuant to the terms of the Philip A. Mantia Irrevocable Trust Agreement, upon Philip’s death, Patricia was given the use and occupancy of Philip’s Port Jefferson home, Gary Anderson was given a Hampton Bays Coop after Patricia dies, and the residuary of the trust was given 50 percent to his niece Rosemary Casey, 25 percent to his nephew Augustus Mantia, and 25 percent to his niece Marie Elaine Swiderski. Gary Anderson, as executor of the estate of Patricia Mantia, seeks to invalidate the trust on the grounds that it was procured through the exercise of undue influence, that at the time it was executed, decedent was not capable of understanding the nature and consequences of entering into a trust agreement or conveying his assets into the trust; that the trust was procured by fraud or constructive fraud exercised by Rosemary and/or others upon decedent; and that the trust was a mistake, in that decedent’s understanding of the contents of the trust was inaccurate. The parties agreed on two separate Statements of Issues, which were “So Ordered” by the court. The agreed upon issues in the contested probate petitioner are as follows: 1. At the time of execution of the propounded Last Will and Testament, dated May 23, 2019, was Philip A. Mantia of sound mind and memory and competent to dispose of his estate by Will? Burden of Proof: Petitioner Quantum of Proof: Preponderance of the credible evidence. 2. Was the propounded Last Will and Testament of Philip A. Mantia, dated May 23, 2019, a product of undue influence? Burden of Proof: Objectant Quantum of Proof: Preponderance of the credible evidence. 3. Was the propounded Last Will and Testament of Philip A. Mantia, dated May 23, 2019, a product of fraud and/or constructive fraud? Burden of Proof: Objectant Quantum of Proof: Clear and convincing evidence. 4. Was the propounded Last Will and Testament of Philip A. Mantia, dated May 23, 2019, executed by mistake? Burden of Proof: Objectant Quantum of Proof: Preponderance of the credible evidence. The agreed upon issues in the trust proceeding are as follows: 1. Was the Trust agreement dated May 23, 2019, a product of undue influence? Burden of Proof: Petitioner Quantum of Proof: Preponderance of the credible evidence. 2. At the time of execution of the Trust agreement dated May 23, 2019, did Philip A. Mantia have the legal capacity necessary to execute the agreement? Burden of Proof: Petitioner Quantum of Proof: Preponderance of the credible evidence. 3. Was the propounded Trust agreement dated May 23, 2019, a product of fraud and/or constructive fraud? Burden of Proof: Petitioner Quantum of Proof: Clear and convincing evidence. 4. Was the propounded Trust agreement dated May 23, 2019, executed by mistake? Burden of Proof: Petitioner Quantum of Proof: Preponderance of the credible evidence. At the trial, the court heard testimony from Rosemary Casey, Augustus Mantia, Gary Anderson, Leanne Wilson, John Wilson (husband of Leanne), Thomas Flannery (Patricia’s brother), Nicole Zuvich, Esq. (the attorney who supervised the will signing), Marilyn Hall (who assisted in drafting the insturments), a Medicaid expert, and the two witnesses to the will: Andrea Kotas and Caryn Bigus. In addition, there were over sixty exhibits offered as evidence. For purposes of consistency in this decision, the court shall, from henceforth refer to the parties in terms of their roles in the Probate proceeding, i.e. Rosemary Casey as “petitioner” and Gary Anderson as “respondent.” Trial Testimony Rosemary Casey, the petitioner in the probate proceeding, and beneficiary under the will and trust, was the first witness. Ms. Casey testified as follows: she was very close to her uncle, and lived in the same condominium complex as decedent since 2017; she is a nurse and worked in the rehabilitation center where both Patricia and Philip were residents. Towards the last few years of his life, decedent’s health deteriorated, but he took care of Patricia, who was in and out of the hospital several times during the period between 2016-2019. She stated that she observed decedent and his wife together over the years and they did not always have a loving relationship. Rosemary further testified that the Natale Tartamella, Esq. a friend and neighbor of decedent (who was involved in the preparation of the will and trust and referred decedent to Nicole Zuvich, Esq. the attorney who drafted the will and trust at issue), represented her on several occasions. She did not speak to decedent about his trust, but did speak to Mr. Tartamella about it. She was present at a meeting in March of 2019 with an estate planning/Medicaid attorney who drafted the propounded will and trust at issue, Nicole Zurich, Esq. Ms. Casey testified that she was present at that meeting because decedent had asked that she attend. It was at this meeting that she became aware she would be inheriting the Port Jefferson house. Rosemary testified that she did not see decedent’s will until after he died, but saw his trust sometime in June of 2019. She stated she was not present when these documents were executed, she only became aware of the will’s existence on the day that they were executed, but that she signed the trust as trustee in June of 2019. The next witness was Andrea Kotas, one of the witnesses to the will. She testified that she remembers the will signing which took place at decedent’s house on May 23, 2019 wherein decedent and his wife Patricia both executed estate planning documents. At this signing, Ms. Kotas recalls, decedent executed a will, trust, health care proxy, power of attorney and living will. An attorney from Ms. Zuvich’s office, Karen Bigus, Esq., supervised the execution and reviewed the terms of the will with decedent page by page, summarizing each of the pages contents, and reading the witness affidavit out loud. The decedent initialed the bottom of each page. There were no interruptions, and before each spouse executed their respective documents, the other was asked to leave the room. She had been trained on the procedures of a will signing by Ms. Zuvich, and in her opinion, decedent was of sound mind at the time of the will’s execution. The next witness was the attorney, Nicole Zuvich, Esq. Ms. Zuvich testified that she has known Natale Tartamella, Esq. professionally, and that he referred clients to her that were in need of Medicaid planning. She was contacted by Mr. Tartamella regarding estate planning for the Mantias in January of 2019, and she had her first meeting with decedent on March 25, 2019, at his house. This meeting was arranged by Mr. Tartamella. Ms. Zuvich stated that Rosemary was at the home when she arrived, along with a health aide. She was told that Rosemary frequently stopped by to bring food, check on them and run errands. She asked Rosemary to leave after introductions were made. Ms. Zuvich further testified that the first meeting lasted about two hours. In that meeting decedent was alert and communicative and it was when he informed her he was a doctor. At this meeting, Ms. Zuvich assessed that decedent was mentally competent, well educated, alert and concerned about his wife’s medical issues. They discussed how to qualify for Medicaid, the nature of his assets, as well as the family dynamics. Decedent was clear in his wish that he wanted Patricia to come home, as visiting her was physically difficult for him and that the goal was to give Patricia the minimum amount so that she could qualify for Medicaid. Ms. Zuvich told decedent that her practice is to acknowledge the spouse’s right of election in a will, in case Medicaid asks for it. She discussed her retainer terms, and after the meeting sent a retainer agreement to decedent. The retainer agreement stated that the scope of work would be estate planning. Her understanding of decedent’s assets was that he had an individual retirement account with a value of about $1,600,000.00, and that Patricia was the beneficiary of that account; there was a coop in Hampton Bays; a home in Port Jefferson; and some other bank accounts. She testified that decedent told her that respondent was to inherit the Hampton Bays property and that Rosemary was to inherit the Port Jefferson property. Ms. Zuvich testified that Mr. Tartamella assisted her in obtaining information from decedent and his wife, serving as a liason, as he had a relationship with them, but that decedent informed her that he wanted his estate to go to his nieces and nephew, his blood relatives. Her staff assisted in drafting the subject documents for decedent. A second meeting took place on April 2, 2019 at the Smithtown Care Center, where Rosemary worked, and where Patricia was a patient. At that meeting Ms. Zuvich had the opportunity to speak to Patricia alone. Patricia told her that she had a strained relationship with her daughter and did not want to leave anything to her. Patricia told Ms. Zuvich that her son Gary was very communicative and would do the right thing. Gary Anderson and Rosemary were present at this meeting, but were asked to leave so that Ms. Zuvich and Mr. Tartamella could speak with Patricia alone. Ms. Zuvich testified that she did not have all of the information necessary to complete a Medicaid application, and that decedent was to provide her with additional information, but never did. She also testified that decedent allowed her to speak with Rosemary concerning the estate planning, although they did not speak outside of the two meetings. The next witness was Cary Bigus, the attorney that supervised the execution of the estate documents. Ms. Bigus testified that she did not prepare the original draft of the documents but that she was involved in making changes to subsequent drafts. The will signing took place at the Mantia’s house at the kitchen table. As was her customary practice, Ms. Bigus reviewed the provisions of the trust and will with decedent, she asked a series of questions to determine his capacity, she felt he understood what was in the documents and that they were drafted pursuant to his wishes. She did not discuss the particulars of Medicaid planning with either Patricia or decedent. The court notes that Ms. Bigus testified that decedent filed advanced directives on that day, but that none were produced during the course of CPLR Article 31 discovery. Petitioner’s last witness was Augustus Mantia. He testified that he is decedent’s nephew and about 10 years younger than decedent. He had always lived in close proximity to his uncle, who he has known his whole life, and they had a close relationship. He is a physician as was decedent, and they worked together in the same practice, and would see him almost daily. He stated that decedent retired in 2018 but was mentally competent after at the time of execution. He stated that decedent was a private person, took care of his own affairs and finances, and was a leader and caretaker for the family. On cross-examination, Augustus acknowledged that he was named as an agent under a power of attorney and successor agent under a health care proxy decedent executed in 2018, although he did not use this power of attorney. He also acknowledged that he had signed certain of decedent’s care plan documents. Respondent’s first witness was Jeffrey Albrant, Esq. who was qualified as an expert on Medicaid planning. Mr. Albrant testified that in his opinion, given the medical records and estate planning documents that he reviewed, the plan devised by Ms. Zuvich and her office would immediately disqualify both Patricia and Philip from nursing home care. This is because after the will and trust were executed, decedent transferred his home in Port Jefferson into the trust in June of 2019. This transfer, he testified, would immediately disqualify both decedent and Patricia from Medicaid for five years. He testified that he would have waited to create a trust, as both decedent’s and his wife’s medical conditions were volatile. To create a trust in the face of such uncertainty would have guaranteed that neither qualified for Medicaid for at least five years. His own personal practice is to create a trust, but not fund it. Further, the transfer of the house into the trust was not necessary as the home is an exempt asset if there is a spouse living in it. Mr. Albrant testified that the plan devised by Ms. Zuvich and her team looked to him to be poor planning. Respondent’s next witness was John Wilson, the husband of Patricia’s daughter, Leanne Wilson. Mr. Wilson testified that he had a close relationship with decedent, that decedent was a kind and caring man that decedent was his doctor, and that he was decedent’s handy man. After decedent retired due to poor health, his health deteriorated further, with heart problems, mobility issues and shortness of breath. Mr. Wilson testified that he would spend holidays with decedent and that they were a close family. Sometime in about 2018, he and his wife became concerned about decedent’s driving, as he had gotten into a couple of small accidents, and they shared their concerns with Augustus. Decedent found out and became enraged, asserting that his privacy had been violated, and on a phone call to him and Leanne in late 2018, decedent informed them that he would not be coming to Christmas dinner and asked for his Christmas china back. That was the last they heard from him until May of 2019. Mr. Wilson testified that he knew Rosemary as she would drop off dinners, give decedent rides, and ran errands for him. He stated that Rosemary helped with bills, although he did not observe her writing checks. He stated that Augustus took over as Patricia’s primary care physician in 2018. The next witness was Thomas Flannery, brother to Patricia. Mr. Flannery testified that he first met decedent prior to his marriage to his sister and that he and his wife had a close relationship with decedent and his wife. He stated that decedent had consulted him about the sale of his medical practice in the early nineties and that decedent was not very sophisticated about this process. He stated that he last saw decedent during a visit in 2017 and noticed at that time that decedent was driving erratically. He did not meet Rosemary until after decedent died. He knew that in the 1990s that decedent and Patricia had executed wills and living trusts. The next witness was Marilyn Hall, who worked for Nicole Zuvich and helped to draft the estate planning documents. She testified that the will and trust were a collaborative effort but that Ms. Zuvich was ultimately responsible for the documents that were executed. The next witness was Leanne Wilson, Patricia’s daughter. She testified that she was decedent’s step-daughter and that they had a loving wonderful relationship. She stated that decedent and Patricia had a loving caring relationship, and that they were best friends. She first met Rosemary in 2017, when Rosemary moved close to decedent, and that Rosemary was a constant, heavy presence at decedent’s house. She stated that Rosemary would always be at the house when she visited and would not leave, that Rosemary took Patricia to medical appointments, would pick up prescriptions, and at one time even took away Patricia’s credit cards. She testified that Augustus started taking over decedent’s medical care as his health began to decline, acting as decedent’s doctor. She testified that Augustus was also Patricia’s doctor. She would text with Augustus concerning decedent’s medical condition, and he would provide updates. She explained that when decedent found out she had expressed concerns about decedent’s driving that decedent became very upset. The final witness was respondent, Gary Anderson. Mr. Anderson testified that he considered decedent to be his father and they were very close. Decedent and Patricia would visit him often. In 2017-18 their health started to decline. He met attorney Natale Tartamella in the mid nineties, they were neighbors and Mr. Tartamella and his wife were good friends with decedent and Patricia. Mr. Tartamella was their attorney and took care of any of their legal work. Mr. Anderson testified that at the end of 2018 decedent got angry with Leanne, but he did not think that this would last long. He continued to speak to decedent and Patricia regularly. He attended the April 2, 2019 meeting at the rehabilitation center because Mr. Tartamella told him it was important to attend. Present at that meeting were Patricia, decedent, Mr. Tartamella, and Ms. Zuvich. At that meeting they discussed qualifying Patricia for Medicaid. Mr. Anderson recalled that there was not a lot of detail concerning the specifics of the estate plan at the meeting, but rather discussion of the expense of long term care. At some point Ms. Zuvich and Mr. Tartamella asked everyone to leave and then spoke with Patricia alone. After this meeting, Mr. Anderson continued to visit and call decedent and Patricia. Decedent’s death came as a surprise to him. Shortly after his death, Mr. Anderson spoke with Rosemary who suggested that they find Patricia a care facility close to where he lived. Relevant Law and Discussion Confidential Relationship As a threshold issue, the court shall consider whether a confidential relationship existed between decedent and his niece and nephew, Rosemary and Augustus, as a finding of the existence of such relationship would affect the burdens of proof. The finding of confidential relationship places the burden on the beneficiary of a gift under a will or a trust to explain the circumstances of the bequest (Matter of Bach, 133 AD2d 455) and prove that the transaction was fair, open, voluntary, and well understood, and free from fraud or undue influence (Gordon v. Bialystoker Center and Bikur Cholim, supra; In re Mazak, supra, Campbell v. Campbell, 50 AD3d 614; Matter of Connelly, 597 NYS2d 427). Further, under the doctrine of constructive fraud which is alleged herein, where a confidential relationship exists between two parties, the burden of proof with respect to allegations of undue influence will be shifted to the stronger party to show, by clear and convincing evidence, that no undue influence was used (see In re Estate of Nealon, 104 AD3d 1088, affd., 22 NY 3d 1045). The existence of a confidential relationship is ordinarily a factual determination based upon evidence of other facts or circumstances showing inequality or controlling influence (Matter of Nealon, 104 AD3d at 1089; Matter of Bonczyk v. Williams, 119 AD3d 1124). A confidential relationship is one that is “of such a character as to render it certain that [the parties] do not deal on terms of equality” (Matter of Gordon v. Bialystoker Ctr. & Bikur Cholim, 45 NY2d 692, 698-699). Such inequality may occur from a party’s “superior knowledge of the matter derived from a fiduciary relation, or from an overmastering influence” or from the other’s “weakness, dependence, or trust justifiably reposed” on the stronger party (Id. at 699; see Matter of Nealon, 104 AD3d 1088, affd 22 NY3d 1045). The essence of the confidential relationship is the disparate power of one party over another (see In re Zirinsky, 809 NYS2d 484, aff’d, 43 AD3d 946; Ten Eyck v. Whitbeck, 156 NY 341) where one party is in a position of weakness, dependence or trust (see Gordon v. Bialystoker Center and Bikur Cholim, supra; In re Mazak, supra). Certain relationships such as attorney and client, guardian and ward, physician and patient may be classified as confidential as a matter of law (Matter of Smith, 95 NY 516; Matter of Brand, 185 App Div 134, aff’d, 227 NY 630; see Gordon v. Bialystoker Center and Bikur Cholim, Inc., supra; Matter of Burke, 82 AD2d 260, Matter of Satterlee’s Will, 281 App Div 251). However, to speak of relationships as 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,” (see Matter of Walther’s Will, 6 NY2d 49; see Matter of Moskowitz’ Will, 279 App Div 660, aff’d, 303 NY 992; Matter of Camac, 300 AD2d 11). Other relationships may be determined to be confidential as a matter of fact (see Matter of Moskowitz, supra). The existence of a confidential relationship as a matter of fact may be shown by proof of a combination of facts such as the testator’s mental, physical or emotional dependence on the beneficiary or the beneficiary’s involvement in or control over the testator’s financial affairs (see Matter of Halsband, NYLJ, Feb. 15, 1994, at p. 25; see also Matter of Burke, 82 AD2d 260). The evidence concerning the relationship between decedent, Rosemary and Augusts reveals that Augustus was involved in decedent’s medical care, was decedent’s agent under a power of attorney and a health care proxy. Further it is clear that Rosemary was closely involved with decedent’s care towards the end of his life. Upon deeper review, however, the evidence is not sufficient to establish that either Rosemary or Augustus had a relationship of “disparate power and control over the decedent,” particularly in the face of the family relationship between all three. The testimony and evidence demonstrate that decedent had a close, long term working relationship with Augustus, but nothing in the record establishes that it was anything other than a relationship of peers, partners and family. The court recognizes that Augustus did have involvement in some medical decisions related to decedent, however this does not establish that his involvement with decedent rose to the level of a classic doctor patient relationship. Further, they were peer physicians with a longstanding professional relationship. The court also recognizes that Augustus was decedent’s agent under a power of attorney, yet there is no evidence that he ever used the power of attorney, nor that he was involved in decedent’s personal affairs such that decedent relied on him in a disparate and dependant manner. Accordingly, the court finds that there was no confidential relationship between Augustus and decedent (see Matter of Camac, supra). As to the evidence that Rosemary and decedent had a confidential relationship, the evidence as a whole failed to establish that decedent was so dependent on Rosemary that the relationship was one of inequality or controlling influence (In re Estate of Nealon, supra). The evidence demonstrates that Rosemary lived near decedent and was often present to assist decedent and his wife. However, as his niece, and closest living relative, this is not particularly unusual. The record also establishes that decedent was an intelligent professional, who throughout his life managed his own affairs. The testimony of the attorneys who met with him support this conclusion. Accordingly, the court finds that there was no confidential relationship between Rosemary and decedent. Capacity Pursuant to the statements of issues, the following were the issues to be decided with respect to capacity: At the time of execution of the propounded Last Will and Testament, dated May 23, 2019, was Philip A. Mantia of sound mind and memory and competent to dispose of his estate by Will? Burden of Proof: Petitioner (Rosemary Casey) Quantum of Proof: Preponderance of the credible evidence. At the time of execution of the Trust agreement dated May 23, 2019, did Philip A. Mantia have the legal capacity necessary to execute the agreement? Burden of Proof: Petitioner (Gary Anderson) Quantum of Proof: Preponderance of the credible evidence. Testamentary capacity requires that the testator be eighteen (18) years of age or older and be of sound mind and memory (EPTL 3- 1.1). Within the context of making a will, capacity is the ability to think with sufficient clarity to understand and carry out the business to be transacted; to hold in mind the extent and nature of his property, the natural objects of his bounty, and the relation of one to the other (see, In re Heaton’s Will, 224 NY 22). A testator enjoys the presumption of sanity and mental capacity (see, Matter of Hirschorn, 21 Misc3d 1113(A), citing Matter of Coddington, 281 AD 143, affd 307 NY 181). The burden of proving testamentary capacity and understanding is on the proponent of a will (see, Matter of Kumstar, 66 NY2d 691). Testamentary capacity may be established with evidence demonstrating that the decedent understood the nature and consequences of executing a will, knew the nature and extent of the property disposed of, and knew the identity and relation of those considered to be the natural objects of his bounty (see, Matter of Kumstar, supra), but a testator need not have precise knowledge of the size of his estate (see, Matter of Fish, 134 AD2d 44). Although ordinarily the opinion of a lay witness is not admissible for the purpose of determining soundness of mind, in a probate proceeding, the testimony of a subscribing witness may be used for such purpose (see, In re Noguiera’s Will, 32 Misc2d 446). In a proceeding to set aside a lifetime trust, the burden of proof is on the party seeking to invalidate the trust as to the issue of mental capacity (see Matter of DelGatto, 98 AD3d 975; Matter of McHale, 37 Misc3d 1204[A]; Matter of Aronoff, 171 Misc2d 172). A person is presumed to be competent and the burden is on the person alleging incapacity to establish that at the time the instrument was executed, the settlor lacked the requisite capacity to execute the document (Matter of Engstrom [Leonard B. Harmon 2003 Trust], 47 Misc3d 1212[A]). The law is clear that in order to set aside a contract or transfer of property on the grounds of lack of mental capacity, it is essential that the party did not understand the nature of the transaction at the time of the conveyance as a result of his or her mental disability” (Preshaz v. Przyziazniuk, 51 AD3d 752). As to the propounded will and the trust, through the testimony of the supervising attorney and the witness to the subject documents’ execution, petitioner has established that decedent had the requisite mental capacity to execute a will and trust. Respondent has failed to present sufficient evidence to establish that at the time the instruments were executed, the settlor/testator lacked the requisite capacity to execute the documents (Matter of Engstrom [Leonard B. Harmon 2003 Trust], 47 Misc3d 1212[A]; Matter of Kumstar, supra). Undue Influence Pursuant to the statements of issues, the following were the issues to be decided with respect to undue influence: Was the propounded Last Will and Testament of Philip A. Mantia, dated May 23, 2019, a product of undue influence? Burden of Proof: Objectant (Gary Anderson) Quantum of Proof: Preponderance of the credible evidence. Was the Trust agreement dated May 23, 2019, a product of undue influence? Burden of Proof: Petitioner (Gary Anderson) Quantum of Proof: Preponderance of the credible evidence. As the court has found the absence of a confidential relationship, the burden of proof on the issue of undue influence remains with respondent. Undue influence refers to moral coercion, which restrained independent action and destroyed free agency, or which, by importunity could not be resisted, constrained the testator to do that which was against the testator’s free will (see American Committee for the Weizmann Institute of Science v. Dunn, 36 AD3d 419, aff’d, 10 NY3d 82; Matter of Estate of Alibrandi, 104 AD3d 1175; Matter of Estate of Makitra, 101 AD3d 1579). It is not the prompting 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 rather a coercion produced by importunity, or by a silent resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear (see In Matter of Panek, supra, Matter of Walther, 6 NY2d 49). To demonstrate undue influence, a party must show by a fair preponderance of the evidence that a motive, an opportunity, and the actual exercise of influence subverted the mind of the testator at the time of the execution to the extent that, but for the influence, the decedent would not have executed the instrument (see Matter of Fiumara, 47 NY2d 845). Undue influence must be proven by evidence of a substantial nature (see Matter of Estate of Makitra, 101 AD3d 1579). Evidence of motive and opportunity without more does not establish a prima facie case or furnish the basis for inferring the necessary moral coercion, there must be additional evidence that such influence was actually exercised (see Matter of Walther’s Will, 6 NY2d 49; Matter of Chiurazzi, 296 AD2d 406; Matter of D’Agostino, 284 AD2d 857; Matter of Tognino, 87 AD3d 1153). While undue influence can rarely be shown by direct proof, there must be affirmative evidence of facts and circumstances from which the exercise of such undue influence can fairly and necessarily be inferred (see Matter of Malone, 46 AD3d 975). Although circumstantial evidence may be used, the circumstances must lead to it not only by fair inference but as a necessary conclusion; the party must show facts entirely inconsistent with the hypothesis of the execution of the will by any means other than undue influence (see In re Henderson’s Will, 253 AD 140). If circumstantial evidence is offered, it must be of a substantial nature and if the circumstantial evidence would support conflicting inferences, a conclusion of undue influence cannot be made (see Matter of Ryan, 34 AD3d 212; Matter of Walther, 6 NY2d 49). Critically, a circumstantial case of undue influence must include a demonstration of acts or circumstances showing that undue influence was actually exerted (see Matter of Estate of Antoinette, 238 AD2d 762; Matter of Panek, supra). Respondent’s claims of undue influence in relation to the propounded will and the trust are speculative and unsupported by the record. The circumstantial evidence presented by respondent, upon further examination does not support a finding that either Rosemary or Augustus exercised moral coercion, which restrained decedent’s independent action or constrained decedent to the extent that, but for their influence, he executed instruments that he otherwise would not have. The evidence establishes that decedent had a long career as a respected physician. Decedent consulted with his attorney Mr. Tartamella and expressed to him an interest in Medicaid planning for his wife, which Mr. Tartamella arranged. From there, he met with Ms. Zuvich, who met independently with decedent wherein he expressed his wishes with regards to his estate, particularly that he wanted his wife to qualify for Medicaid. From that meeting Ms. Zuvich devised what she thought was an appropriate plan, which resulted in the will and trust at issue herein. Additionally, there is no evidence that either Rosemary or Augustus had any direct or indirect involvement in the preparation or execution of the instruments (Matter of Henderson, 80 NY2d 388; Cordi v. Karnbad, 214 AD2d 476), or that decedent had not independently determined what his estate plan would be. While Rosemary was present at the meetings with the attorneys, she did not participate in any meaningful way, and she was in both instances, asked to leave. Further, given decedent’s close relationship, both familial and professional, with Augustus, it is not unreasonable to find that decedent would want to benefit his nephew. Accordingly, the court finds that neither the will or trust was a product of undue influence. Thus, respondent Gary Anderson has failed to meet his burden of proof. Fraud/Constructive Fraud Pursuant to the statements of issues, the following were the issues to be decided with respect to fraud and constructive fraud: Was the propounded Last Will and Testament of Philip A. Mantia, dated May 23, 2019, a product of fraud and/or constructive fraud? Burden of Proof: Objectant (Gary Anderson) Quantum of Proof: Clear and convincing evidence. Was the propounded Trust agreement dated May 23, 2019, a product of fraud and/or constructive fraud? Burden of Proof: Petitioner (Gary Anderson) Quantum of Proof: Clear and convincing evidence. Constructive fraud is defined as a “breach of duty, which irrespective of moral guilt and intent, the law declares fraudulent because of its tendency to deceive, to violate a confidence or injure public or private interests which the law deems worthy of special protection” (see Brown v. Lockwood, 76 AD2d 721; Matter of Klenk, 151 Misc2d 863). Unlike actual fraud, which requires knowledge on the part of the perpetrator of his false representation, constructive fraud emanates form the existence of a fiduciary or confidential relationship whereby the trusting party reposes a confidence in the guilty party and therefore the trusting party does not exercise the care and vigilance that ordinarily would be exercised in a given situation (see Matter of Klenk, supra). Constructive fraud has been applied in probate proceedings where the party has pleaded the necessity of the imposition of a constructive trust (see Matter of Artope, 144 Misc2d 1090). The doctrine of constructive fraud is predicated on the existence of a confidential relationship based on inequality due to weakness, dependence or trust justifiably reposed in another (see Matter of Estate of Nealon, 104 AD3d 1088; Oakes v. Muka, 69 AD3d 1139). Respondent must show, by clear and convincing evidence that the will and trust are the result of constructive fraud, which he has failed to do. Respondent’s seeks to establish that there was a constructive fraud because that the will and trust were poorly drafted instruments which would not have produced the results that decedent was anticipating, and that decedent could therefore not have know their effects is not supported by the evidence. Upon these facts, however, this court is unwilling to infer constructive fraud, particularly when the supervising attorney testified that she reviewed and explained the provisions of the trust and the will with decedent prior to his signing them and Ms. Zuvich testified that it was decedent’s intent to qualify his wife for Medicaid. Although respondent’s expert testified that he would have crafted a different estate/Medicaid plan for decedent, even he recognized the difficulty of such planning. As to claims of fraud, respondent must show by clear and convincing evidence that the wrongdoer knowingly made a false statement which altered the testamentary disposition that would otherwise have been made in the absence of the statement (Matter of Estate of Paigo, 53 AD3d 836; Matter of Clapper, 279 AD2d 730; Matter of Beneway, 272 AD 463). There record is devoid of any evidence of fraud with relation to the will or trust. Thus, respondent Gary Anderson has failed to meet his burden of proof. Mistake Pursuant to the statements of issues, the following were the issues to be decided with respect to the issue of mistake: Was the propounded Last Will and Testament of Philip A. Mantia, dated May 23, 2019, executed by mistake? Burden of Proof: Objectant (Gary Anderson) Quantum of Proof: Preponderance of the credible evidence. Was the propounded Trust agreement dated May 23, 2019, executed by mistake? Burden of Proof: Petitioner (Gary Anderson) Quantum of Proof: Preponderance of the credible evidence. To establish that an instrument was executed by mistake respondent must establish either that decedent did not understand the provisions of the will or trust, or that the attorney/draftsman erred in misinterpreting decedent’s instructions (see, e.g., Christman v. Roesch, 132 App Div 22, 116 N.Y.S. 348; Matter of Zimmerman, NYLJ, May 28, 1998, at 29, col. 4). The burden of showing decedent signed the instrument by mistake falls to the objectant (Matter of Bonifer, NYLJ, March 25, 1998, at 29, col. 4). As discussed above, the uncontroverted evidence establishes that terms of the will and trust were reviewed with decedent prior to his signing them and the attorney who oversaw the drafting of the documents testified that she developed the documents based on decedent’s stated wishes, which including disinheriting his wife so that she could qualify for Medicaid. Thus, respondent Gary Anderson has failed to meet his burden of proof. Conclusion After consideration of all issues, testimony, and evidentiary proof, and having had an opportunity to assess the credibility of the witnesses produced at trial, the court finds that petitioner has proven that at the time that the last will and testament and the trust which were executed on May 23, 2019, that decedent had the legal capacity to execute same. Further, objectant has failed to prove that these instruments were the result of undue influence, fraud, constructive fraud, or mistake, and thus the objections to probate are dismissed and the petition seeking to invalidate the trust is also denied. With the objections to the petition for probate having been dismissed, and the genuineness of the will and the validity of its execution having been proven to the satisfaction of the court, the petition seeking probate of the propounded will dated May 23, 2019 is hereby granted (SCPA 1408; EPTL 3-2.1). Letters testamentary shall issue to petitioner, upon due qualification Based on the foregoing, it is ORDERED, that the petition to invalidate the Philip A. Mantia Irrevocable Trust dated May 23, 2019, is dismissed; and it is further ORDERED, that petitioner, Rosemary Casey, shall settle a decree of probate in conformance with this decision within thirty days of the date hereof.
