A party claiming undue influence bears the burden of showing "'that the influencing party's actions are so pervasive that the will is actually that of the influencer, not that of the decedent'" (Matter of Prevratil, 121 A.D.3d 137, 142 [2014], quoting Matter of Malone, 46 A.D.3d 975, 977 [2007]). "Undue influence is seldom practiced openly, but it is, rather, the product of persistent and subtle suggestion imposed upon a weaker mind and calculated, by the exploitation of a relationship of trust and confidence, to overwhelm the victim's will to the point where it becomes the willing tool to be manipulated for the benefit of another" (Matter of Burke, 82 A.D.2d 260, 269 [1981]; accord Matter of Collins, 124 A.D.2d 48, 53 [1987]). For influence in creating a will to be considered undue, "[i]t 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, and which could not be resisted, so that the motive was tantamount to force or fear" (Matter of Walther, 6 N.Y.2d 49, 53-54 [1959] [internal quotation marks and citations omitted ]). "Although undue influence may be proven through circumstantial evidence, such evidence must be 'of a substantial nature'" (Matter of Prevratil, 121 A.D.3d at 142, quoting Matter of Walther, 6 N.Y.2d at 54).

ess credibility unless such findings are contrary to a fair interpretation of the evidence" ( Mazza v. Fleet Bank, 16 A.D.3d 761, 762, 790 N.Y.S.2d 730 [2005] ; seeMatter of Jewett, 145 A.D.3d 1114, 1116, 42 N.Y.S.3d 443 [2016] ). A party claiming undue influence bears the burden of showing " ‘that the influencing party's actions are so pervasive that the will is actually that of the influencer, not that of the decedent’ " (Matter of Prevratil, 121 A.D.3d 137, 142, 990 N.Y.S.2d 697 [2014], quoting Matter of Malone, 46 A.D.3d 975, 977, 846 N.Y.S.2d 782 [2007] ). "Undue influence is seldom practiced openly, but it is, rather, the product of persistent and subtle suggestion imposed upon a weaker mind and calculated, by the exploitation of a relationship of trust and confidence, to overwhelm the victim's will to the point where it becomes the willing tool to be manipulated for the benefit of another" ( Matter of Burke, 82 A.D.2d 260, 269, 441 N.Y.S.2d 542 [1981] ; accordMatter of Collins, 124 A.D.2d 48, 53, 510 N.Y.S.2d 940 [1987] ). For influence in creating a will to be considered undue, "[i]t 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, and which could not be resisted, so that the motive was tantamount to force or fear" ( Matter ofWalther, 6 N.Y.2d 49, 53–54, 188 N.Y.S.2d 168, 159 N.E.2d 665 [1959] [internal quotation marks and citations omitted]).

With respect to undue influence, the burden of proof generally lies with the party asserting undue influence ( see Matter of Walther, 6 N.Y.2d 49, 53, 188 N.Y.S.2d 168, 159 N.E.2d 665;Matter of Caruso, 70 A.D.3d 937, 895 N.Y.S.2d 481). However, where there is a confidential relationship between the beneficiary and the grantor, “[a]n inference of undue influence” arises which requires the beneficiary to come forward with an explanation of the circumstances of the transaction (Matter of Neenan, 35 A.D.3d 475, 476, 827 N.Y.S.2d 164;see Matter of Bach, 133 A.D.2d 455, 519 N.Y.S.2d 670;Matter of Collins, 124 A.D.2d 48, 54, 510 N.Y.S.2d 940;see also Matter of Henderson, 80 N.Y.2d 388, 391, 590 N.Y.S.2d 836, 605 N.E.2d 323). In the absence of an explanation, the beneficiary has the burden of proving by clear and convincing evidence that the transaction was fair and free from undue influence ( see Matter of Gordon v. Bialystoker Ctr. & Bikur Cholim, 45 N.Y.2d 692, 412 N.Y.S.2d 593, 385 N.E.2d 285;Hearst v. Hearst, 50 A.D.3d 959, 857 N.Y.S.2d 596;Sepulveda v. Aviles, 308 A.D.2d 1, 11, 762 N.Y.S.2d 358;Matter of Connelly, 193 A.D.2d 602, 603, 597 N.Y.S.2d 427).

A party claiming undue influence bears the burden of showing "'that the influencing party's actions are so pervasive that the will is actually that of the influencer, not that of the decedent'" (Matter of Prevratil, 121 A.D.3d 137, 142 [2014], quoting Matter of Malone, 46 A.D.3d 975, 977 [2007]). "Undue influence is seldom practiced openly, but it is, rather, the product of persistent and subtle suggestion imposed upon a weaker mind and calculated, by the exploitation of a relationship of trust and confidence, to overwhelm the victim's will to the point where it becomes the willing tool to be manipulated for the benefit of another" (Matter of Burke, 82 A.D.2d 260, 269 [1981]; accord Matter of Collins, 124 A.D.2d 48, 53 [1987]). For influence in creating a will to be considered undue, "[i]t 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, and which could not be resisted, so that the motive was tantamount to force or fear" (Matter of Walther, 6 N.Y.2d 49, 53-54 [1959] [internal quotation marks and citations omitted ]). "Although undue influence may be proven through circumstantial evidence, such evidence must be 'of a substantial nature'" (Matter of Prevratil, 121 A.D.3d at 142, quoting Matter of Walther, 6 N.Y.2d at 54).

the defendant nursing home's complete control and care for her very livelihood and existence and where the nursing home recipient of the bequest was not a natural object of the decedent's bounty. Thus, cases following Matter of Gordon ( 45 NY2d at 698-699) have applied the doctrine of constructive fraud and the inference of undue influence where the circumstances showed that such scrutiny was mandated due to the unequal footing of the donor and donee, particularly where the donor would not be naturally disposed to make such a gift, such as where the donee was "a nice man" the donor met at the bank ( Sepulveda v. Aviles, 308 AD2d 1, 3), a friend upon whom the decedent was dependent for all of the essentials of daily living ( Matter of Mazax, 288 AD2d 682, 684), the donor's home health aide ( JML Investors Corp. v. Hilton, 231 AD2d 493, 494), the donor's attorney ( Keating v. Weinberger, 160 AD2d 675, 675), or the draftsman of the will and the donee's accountant and financial advisor ( Matter of Collins, 124 AD2d 48, 55). On the other hand, the inference of undue influence, requiring an explanation of a gift, does not generally arise from the confidential relationship between close family members, such as a father and daughter since "'[the] sense of family duty is inexplicably intertwined in this relationship which, under the circumstances, counterbalances any contrary legal presumption'" ( Matter of Swain, 125 AD2d 574, 575, quoting Matter of Walther, 6 NY2d at 56; see also 39 NY Jur 2d, Decedents' Estates § 532).

The burden is on the contestant to establish undue influence, In re Will of Klitgaard, supra at 591, and that burden does not shift. In re Estate of Collins, 124 A.D.2d 48, 510 N.Y.S.2d 940, 944 (1987). The court permitted an inference of undue influence in Estate of Collins but it was not based solely on the existence of a confidential relationship between the proponent and the testatrix.

Indeed, the Code of Professional Responsibility suggests that an attorney who accepts a substantial gift from a client "is peculiarly susceptible to the charge that he [or she] unduly influenced or overreached the client" (Code of Professional Responsibility EC 5-5). Since Putnam was decided, the lower courts of this State have applied its theory to situations involving doctors (Matter of Satterlee, 281 App. Div. 251), dentists (Estate of Sackett, NYLJ, Mar. 28, 1988, at 55, col 3), nurses (Matter of Rudge, NYLJ, May 13, 1983, at 16, col 6; see also, Hazel v Sacco, 52 A.D.2d 1042), clergy (Matter of Jones, NYLJ, Dec. 16, 1986, at 12, col 6; see also, Matter of Eckert, 93 Misc.2d 677, 680) and accountants (Matter of Collins, 124 A.D.2d 48). However, there are no decisions of this Court applying the Putnam theory to situations such as this one, where the attorney-legatee did not actually draft the testamentary instrument.

The burden of proving undue influence generally rests with the party asserting its existence (see Matter of Walther, 6 NY2d 49, 53-54; Matter of DelGatto, 98 AD3d 975, 977; Matter of Caruso, 70 AD3d 937, 938). "However, where there is a confidential relationship between the beneficiary and the grantor, [a]n inference of undue influence' arises which requires the beneficiary to come forward with an explanation of the circumstances of the transaction" (Matter of DelGatto, 98 AD3d at 978, quoting Matter of Neenan, 35 AD3d 475, 476; see Matter of Bach, 133 AD2d 455, 456; Matter of Collins, 124 AD2d 48, 54; see also Matter of Henderson, 80 NY2d 388, 391). "In the absence of an explanation, the beneficiary has the burden of proving by clear and convincing evidence that the transaction was fair and free from undue influence" (Matterof DelGatto, 98 AD3d at 978; see Matter of Gordon v Bialystoker Ctr. & Bikur Cholim, 45 NY2d 692, 698; Hearst v Hearst, 50 AD3d 959, 962; Sepulveda v Aviles, 308 AD2d 1, 11; Matter of Connelly, 193 AD2d 602, 603).

The burden of proving undue influence generally rests with the party asserting its existence ( see Matter of Walther, 6 N.Y.2d 49, 53–54, 188 N.Y.S.2d 168, 159 N.E.2d 665; Matter of DelGatto, 98 A.D.3d 975, 977, 950 N.Y.S.2d 738; Matter of Caruso, 70 A.D.3d 937, 938, 895 N.Y.S.2d 481). “However, where there is a confidential relationship between the beneficiary and the grantor, ‘[a]n inference of undue influence’ arises which requires the beneficiary to come forward with an explanation of the circumstances of the transaction” (Matter of DelGatto, 98 A.D.3d at 978, 950 N.Y.S.2d 738, quoting Matter of Neenan, 35 A.D.3d 475, 476, 827 N.Y.S.2d 164; see Matter of Bach, 133 A.D.2d 455, 456, 519 N.Y.S.2d 670; Matter of Collins, 124 A.D.2d 48, 54, 510 N.Y.S.2d 940; see also Matter of Henderson, 80 N.Y.2d 388, 391, 590 N.Y.S.2d 836, 605 N.E.2d 323).

Furthermore, although an attorney was minimally involved in the process, that attorney was procured by petitioner, was from the law firm of which she is the office manager and decedent received no independent advice concerning the execution of his will and the disposition of his estate ( see Matter of Henderson, 80 NY2d 388, 394). On this record, we note that the presumption which would arise in similar circumstances involving an unrelated fiduciary or beneficiary ( see Matter of Putnam, 257 NY 140, 143 [1931]; Matter of Neenan, 35 AD3d 475, 476; Matter of Collins, 124 AD2d 48, 54-55) is counterbalanced by petitioner's familial relationship with decedent ( see Matter of Walther, 6 NY2d at 53-54; see also Matter of Antoinette, 238 AD2d at 764). We further find that the circumstances attending decedent's execution of his will, including the questions regarding his competency, merit the careful scrutiny that can only be obtained by a full airing of the matter before a trier of fact ( see Matter of Henderson, 80 NY2d at 394; Matter of Elmore, 42 AD2d at 241-242).