In New York, a deed can be set aside if it can be shown that the deed is a the product of undue influence. As Judge Ingram explains in Matter of Lewis, undue influence can apply not only to a will or a trust, but also to a deed. When undue influence is practiced, the mind of the decedent must be so overpowered that the will of another is substituted for that of the testator. Undue influence usually involves a course of conduct. Undue influence is rarely proven by direct evidence and is usually proven by circumstantial evidence (Matter of Walther, 6 NY2d 49 [2d Dept 1981]; Matter of Burke, 82 AD2d 260, 269 [2d Dept 1981]).
The testator’s physical and mental condition are critical factors in determining whether the pressure exerted amounts to undue influence (Matter of O’Brien, 182 AD2d 1135 [4th Dept 1992]). Similarly, the nature of grantor’s relationship with the beneficiary is relevant to whether undue influence was exercised (Matter of Burke, supra).
To establish undue influence, objectant must establish that (1) the perpetrator had the motive to exercise undue influence; (2) the perpetrator had the opportunity to exercise undue influence, and (3) undue influence was actually exercised (see Matter of Burke, supra). The objecting party must show that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the decedent to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist (see Matter of Capuano, 93 AD3d 666 [2d Dept 2012]).
Other factors that have been held to indicate the exercise of undue influence are the physical and mental condition of the decedent (Children’s Aid Society v Loveridge, 70 NY 387 ; Matter of Woodward, 167 NY 28, 30 ; Matter of Callahan, 155 AD2d 454 [2d Dept 1989]; Matter of Gnirrep, 2 AD2d 404 [3d Dept 1956]; Matter of Streb, 247 AD 556 [4th Dept 1936]); whether the attorney who drafted the document was the decedent’s attorney (Matter of Elmore, 42 AD2d 240 [3d Dept 1973]); whether the person who allegedly wielded undue influence was in a position of trust (Matter of Elmore, 42 AD2d 240, 241 [3d Dept 1973]), and whether the decedent was isolated from the objects of his natural affection (Matter of Burke, 82 AD2d 260 [2d Dept 1981]; Matter of Kaufman, 20 AD2d 464 [1st Dept 1964], affd 15 NY2d 825 ).
If you are having an issue with undue influence in a New York deed, call attorney Albert Goodwin, Esq. at (212) 233-1233.