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Undue Influence Standards in New York

The objectants to a will or irrevocable trust have the burden of proof on this issue (Matter of Bustanoby, 262 AD2d 407 [1999]; Matter of Gross, 242 AD2d 333 [1997], lv denied, 90 NY2d 812 [1997]). To establish the undue influence claim, objectants must show by a preponderance of the credible evidence: (1) the existence and exercise of undue influence; (2) the effective operation of undue 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 occurred. The three elements of undue influence have also been described as motive, opportunity, and the actual exercise of undue influence (Matter of Walther, 6 NY2d 49 [1959]). In order for objectants to carry their burden with respect to this issue, they must demonstrate not only the existence of opportunity and motive but the actual exercise of undue influence (Matter of Fiumara, 47 NY2d 845 [1997]; Matter of Walther, 6 NY2d 49 [1959]; Matter of Holly, 16 AD2d 611 [1962], affd, 13 NY2d 746 [1963], Matter of Foranoce, NYLJ, August 7, 2000, at 25). As to what actions constitute undue influence, this classic formulation still resonates in the case law:

“[i]t must be shown that the influence exercised amounted to a moral coercion which restrained independent action and destroyed free agency…[i]t must not be the promptings of affection; the desire of gratifying the wishes of another; the ties [*8]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.”

(Children’s Aid Society v Loveridge, 70 NY 387, 394 [1877]; see also Matter of Kumstar, 66 NY2d 691 [1985]; Matter of Weltz, 16 AD3d 428 [2005]. In fact, much of this language has been adopted by the New York Pattern Jury Instructions as the model for the statement of the law [PJI 7:56].)

The court recognizes that undue influence is rarely proven by direct evidence and is usually proven by circumstantial evidence (Matter of Walther, 6 NY2d 49 [1959]; Rollwagen v Rollwagen, 63 NY 504 [1875]; Matter of Burke, 82 AD2d 260 [1981]). Among the factors that have been held to indicate the exercise of undue influence are:

  1. the physical and mental condition of the testatrix (Children’s Aid Society v Loveridge, 70 NY 387 [1877]; Matter of Woodward, 167 NY 28 [1901]; Matter of Callahan, 155 AD2d 454 [1989]; Matter of Gnirrep, 2 AD2d 404 [1956]);
  2. whether the attorney who drafted the will was the testatrix’s attorney (Matter of Elmore, 42 AD2d 240 [1973]);
  3. whether the propounded instrument deviates from the testator’s prior testamentary pattern (Matter of Kruszelnicki, 23 AD2d 622 [1965];
  4. whether the person who allegedly wielded undue influence was in a position of trust (Matter of Elmore, 42 AD2d 240 [1973]); and
  5. whether testator was isolated from the objects of his natural affection (Matter of Burke, 82 AD2d 260 [1981]; Matter of Kaufman, 20 AD2d 464 [1964], affd15 NY2d 825 [1965]).

With all this in mind, it is also important to remember that in order to defeat a motion for summary judgment, the objectant must demonstrate that there is a genuine triable issue by allegations which are specific and detailed, substantiated by evidence in the record and that mere conclusory assertions will not suffice (Matter of O’Hara, 85 AD2d 669, 671 [1981]).


This was a typical parent-child relationship. It is clear that Ruth Zirinsky lived an independent life and that Robert’s involvement with her affairs was no more than incidental, given their particular circumstances and the facts attendant to a typical mother-son relationship. This fact should be kept in mind, because the objectants’ efforts to portray the relationship as “confidential,” as that term is defined in this context, is belied by the family relationship, not to mention the facts themselves. The law recognizes that a close family relationship “counterbalances any contrary legal presumption; and explanation by the beneficiary is not required” (NY PJI 7:56, citing Matter Of Walther, 6 NY2d 49 [1959], Matter of Moskowitz, 279 AD 660 [1951]). A confidential relationship may be inferred if one party has disparate power over the other (Ten Eyck v Whitbeck, 156 NY 341 [1898]), such as the power of an attorney, guardian, clergymen, doctor or nursing home director. Generally, no presumption of [*9]undue influence can be drawn solely from the relationship between the decedent and her child because a sense of family duty is inexplicably intertwined in this relationship (Matter of Walther, 6 NY2d 49 [1959]).


The objectants point to several instances of Robert’s active involvement in his mother’s financial affairs, including her generosity to him regarding gifts, and his assistance with her bills and income. Moreover, there is some indication that Ruth may have asked Robert for some input during the Will-drafting process. However, none of these facts, assumed to be true for purposes of this motion, rise to the level of showing Robert actually exercised undue influence over his mother or that he defrauded her. Therefore, while it is clear that a close family relationship operates to negate an inference of undue influence, even if the court applied such an inference, the record is devoid of any fact whatsoever that Robert’s conduct “amounted to a moral coercion, which restrained independent action and destroyed free agency”( Children’s Aid Society v Loveridge, 70 NY 387, 394-395 [1877]).

The final two factors in this part of the analysis may be considered together, i.e., whether [*11]the person who allegedly exercised undue influence was in a position of trust (Matter of Elmore, 42 AD2d 240 [1973]) or whether the testatrix was isolated from the objects of her natural affection (Matter of Burke, 82 AD2d 260 [1981]; Matter of Kaufman, 20 AD2d 464 [1964], affd 15 NY2d 825 [1965]).

Call the Law Offices of Albert Goodwin at (212) 233-1233, New York estate, guardianship, wills, trust, medicaid and probate lawyer, and make an appointment to discuss your will contest.