SAMUEL MARKELL vs. PHYLLIS P. CUTLER.

Minnie G. Hey died on December 22, 1967, at the age of ninety-three. A probate judge ordered a jury issue framed concerning whether undue influence had been exercised by the petitioner, an attorney named as executor and principal beneficiary in a will executed November 14, 1967, and by Mrs. Kate Lewis, her closest friend. The attorney and his wife had been friends of Mrs. Hey for over twenty years. Although he had attended to legal affairs for Mrs. Hey, the will and a related trust amendment were drawn by an independent member of a well known law firm, a partner of which had drawn a will for Mrs. Hey in 1946 and a codicil in 1951. The judge heard testimony from the petitioner and received exhibits and statements concerning expected proof, all reported. We might give greater weight than did the judge to Mrs. Hey's representation by independent counsel and to her friendship with Mrs. Lewis. We cannot say, however, that there has been no presentation of facts giving rise to a reasonable expectation of a result favorable to the contestant, or that the judge was not justified in framing the issue, in view, first, of the petitioner's discussions with Mrs. Hey and somewhat ambiguous activity (apparently in her behalf) in the early summer of 1967, and second, of Mrs. Lewis's successful efforts to obtain greater benefits in the will offered for probate (and a related trust amendment) than she had been given by earlier instruments of August, 1967 (also drafted by independent counsel). The petitioner's 1967 activities included discussions with a Buffalo attorney of estate planning problems presented by the death in June, 1967, of Mrs. Hey's nephew, at whose behest she had executed a trust, partly for his benefit, in 1966, and later talks, apparently in behalf of Mrs. Hey, with an attorney for some of Mrs. Hey's next of kin.

Order granting jury issue affirmed.