Undue Influence as a Ground for Contesting a Will

Proving undue influence in contesting a will in New York can result in a will being set aside and declared to be void. The key is that mere “influence” is not enough to overturn a will. The influence has to rise to the extent of being “undue.”

Undue influence occurs when a person exerts influence that overcomes a testator’s free will and judgment. You are more likely to establish undue influence when

1. the person who made a will had a weakness (physical, mental, or financial) that made him susceptible to influence
2. the wrongdoer had access to the person who made the will and an opportunity to exert influence
3. the wrongdoer actively participated in drafting the will, and
4. there is an unnatural (unexpected) result

A common law presumption of undue influence is established if

1. a confidential relationship existed between the testator and the wrongdoer
2. the wrongdoer actively participated in the drafting the will and
3. there is an unnatural result

Undue influence can typically be established if a person makes a donative transfer to

1. the person who drafted the will
2. a care custodian of a testator who is a “dependent adult”
3. a person in a fiduciary relationship with the testator
4. a person who is a spouse, domestic partner, employee, or related by blood to a person in the one of the previous three circumstances OR
5. a partner, shareholder, or employee of the law firm in which a person who drafted the will or one in a fiduciary relationship with the testator has an ownership interest

The dictionary definition of “undue” is “unwarranted or inappropriate because excessive or disproportionate.”

The concept of undue influence does not readily lend itself to precise definition or description. But the case law set forth by New York courts has established some criteria by which undue influence can be distinguished from benign influence:

• a moral coercion, which restrained independent action and destroyed free agency
• A coercion produced 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
• a coercion produced 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

New York courts also established what is not undue influence but benign influence:

• the promptings of affection
• the desire of gratifying the wishes of another
• the ties of attachment arising from consanguinity
• the memory of kind acts and friendly offices

New York courts state that lawful influences which arise from the claims of kindred and family or other intimate personal relations are proper reasons 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.

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 a willing tool to be manipulated for the benefit of another.

The two categories of undue influence

There are two principal categories of undue influence in the law of wills, the forms of which are circumscribed only by the ingenuity and resourcefulness of man.

Gross undue influence. One class is the gross, obvious and palpable type of undue influence which does not destroy the intent or will of the testator but prevents it from being exercised by force and threats of harm to the testator or those close to him.

Subtle undue influence. The other class is the insidious, subtle and impalpable kind which subverts the intent or will of the testator, internalizes within the mind of the testator the desire to do that which is not his intent but the intent and end of another.

While undue influence most often is not the subject of direct proof, it may be proved by circumstantial evidence. It can be shown by all the facts and circumstances surrounding the testator, the nature of the will, his family relations, the condition of his health and mind, his dependency upon and subjection to the control of the person supposed to have wielded the influences, the opportunity and disposition of the person to wield it, and the acts and declarations of such person.

Secrecy in making the will, i.e. not telling other family members and hiding the fact of the will from them, can be a factor in pointing to undue influence.

Confidential relationship

Normally, the burden of proving such influence rests with the party asserting its existence. However, if a confidential relationship exists, the burden is somewhat shifted to the beneficiary of the transaction to prove the transaction fair and free from undue influence.

If a will favors a person in the position of influence over the decedent, then the court is likely to presume that the person exercised that influence unless the person in the position of influence can prove otherwise. To the court, “if it quacks like a duck, it’s a duck.”

An inference of undue influence, requiring the beneficiary to explain the circumstances of the bequest, arises when a beneficiary under a will was in a confidential or fiduciary relationship with the testator and was involved in the drafting of the will. Although the inference does not shift the burden of proof on the issue of undue influence, it places the burden on the beneficiary to explain the circumstances of the bequest. The adequacy of the explanation presents a question of fact for the jury.

We are referring to a person who had a “fiduciary or confidential relationship” with the decedent, meaning that they had control, care and responsibility for the decedent. This is usually the case where the decedent is vulnerable and depends on the person for care, advice and even companionship.

Examples of fiduciaries who can be presumed to be in a position of influence:

• nursing home
• aide
• caretaker relative
• attorney
• accountant

Where those relations exist there must be clear proof of the integrity and fairness of the transaction, or any document obtained will be set aside or held as invalid between the parties.

The more mentally weak and physically infirm the decedent, the bigger chance there is that the beneficiary of their will will be presumed to be in a fiduciary position and will have to prove that the undue influence did not occur as opposed to the will challenger having to prove the occurrence of undue influence.

Whether or not there this burden shift applies depends on the circumstances and can be different from case to case. Mere speculation that opportunity and motive existed to exert such influence will not suffice to raise a triable issue as to whether the will reflected the intent of the testator.

Beneficiary Interfering in the Will Drafting

If the beneficiary of the will is the person who found the attorney, drove the decedent to the attorney, or was in any other way involved in the will drafting process, that fact is considered a factor in an undue influence claim.

A good way to look at how courts view undue influence is to examine how courts typically react to different family dynamics and to look at the factors that the courts consider important.

If you are interested in how undue influence is actually carried out, you can’t miss this great article from the American Bar Association that looks at the psychological factors of how undue influence – what they call the predisposing factors, vulnerability enhancers and execution variables.

Relatives vs. Non-Relatives

In our experience, all things being equal, there is a preference for a relative over a non-relative. When the decedent left their estate to a friend and cut out a relative, the courts will take a close look at what happened. The closers the consanguinity, the more favor with the court.

The courts have looked at caretakers who are not relatives with suspicion. This is especially true of aides and nursing homes. This is because aides have the most access to the decedent and there have been cases where aides acted unprofessionally and took advantage of their position of access to have a sick and elderly person sign documents they did not even want to sign or did not know they were signing, or to convince a frail mind of an elderly and mentally diminished person that they want to sign such a document. Although the vast majority of those who so care for the aged are honest and dedicated professionals, the relationship is one from which the greedy and the corrupt may find considerable gain.

Courts pay careful attention if the aide or nursing home is isolating the decedent’s family or prior trusted advisors. False accusations and restriction of physical and phone access are viewed by the courts as isolating a vulnerable senior from their sources of emotional support and making them more susceptible to undue influence.

Courts Favor Relatives Who Were Involved With and Were Close to the Decedent

Court typically favor relatives who were involved with the decedent during their lifetime. Those are relatives who have to spend time with the decedent, were attentive to them and assisted them in their health and well-being. We are talking about relatives who were close to the decedent.

We’ve discussed above that persons who are in a confidential relationship with the decedent are presumed to be in a position to influence them. But the fact that the proponent may have been in a confidential relationship with the decedent is counterbalanced in this case by the closeness of the family, so no inference of undue influence would arise in those circumstances.

People can fight and have disagreements and still love each other deeply. This is why evidence of fighting and animosity between relatives does not necessarily mean that the court will admit a will where they are cut out.

Here’s more information on undue influence standards in New York.

Will challenges based on undue influence are very subtle and challenging, both to prosecute and to defend. If you would like to discuss your situation with a York City estate attorney, call the Law Offices of Albert Goodwin at (212) 233-1233.