Examples of Undue Influence in Families for Purposes of a Will Contest

Let’s look at some examples of undue influence in families as it occurs in every day life.

Change of Testamentary Plan – The decedent makes a prior will, trust or beneficiary designation. He then changes it and leaves someone out. Or gives his money away before his death, making the will, trust or beneficiary form ineffective. Why would he do such a thing?

It is possible that the decedent had a change of heart, or had a reason to leave out a person he’s previously wanted to be his heir. For example, the person might have upset him in some way, which can be a myriad of things – marriage, religion, personal relationship, filing a guardianship, financial issues, drug abuse, etc. But changing the testamentary plan can also point to undue influence by the people who had an inventive to meddle in the estate plan.

Significant Change of Intention – Let us say that the decedent had two children and was fine with them inheriting his property. He then made a will, leaving one of the children out. No estate plan is an estate plan as well. So one can argue that making an estate plan that leaves out someone who would have inherited by default is a significant change of intention. That’s a potential indicator of undue influence.

Deteriorating Physical or Mental Condition – A person who made a will while being very sick and medicated can be said to be in a deteriorating physical or mental condition. This decrease in mental ability makes a person more likely to be susceptible to undue influence. When we look at a decedent’s neurology progress notes from their hospital stay, we can see entries like “Awake and alert; inattentive, oriented to place and month, not year, Fluent speech with normal naming, repetition and comprehension, appears confused with agitated delirium,” as we see in Vermylen v. Genworth Life Ins. Co. of NY. If the document in question was made close to that time, we can use the medical notes as evidence of diminished capacity. Hospital and doctor’s notes can also tell us if the decedent had Alzheimer’s or Dementia during the time period when the document was signed.

The Proponent of the Will Took an Active Role in Procuring the Will – If the proponent is the one who did all the legwork in preparing a will, it can be argued that at some point the will stops being the decedent’s will, since they’re not the ones who arranged it. Instead, it becomes the will of the person who applied undue influence. The following factors point to the proponent’s significant role in procuring the decedent’s will:

• the proponent found the estate attorney
• the attorney is the proponent’s attorney who did some work for them in the past
• the proponent arranged the meeting between the estate lawyer and the decedent
• the proponent drove the decedent to the meeting with the lawyer

The Testator Acted Without Independent Advice and In Secret – the new estate plan was not known to the beneficiaries who were left out. If the decedent had an attorney, financial advisor or accountant, those advisers not involved and did not know about the new estate plan.

The undue influence factors are well-applied in the opinion of New York County Surrogate’s Court Judge Rita M. Mella. Judge Mella is my contemporary, I’ve had the honor of appearing in her court on many occasions. See Matter of Kotick, 2014 NY Slip Op 51953 – NY: Surrogate’s Court, 2014.

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

Evidence of any of the factors does not automatically mean that undue influence occurred. But those factors can go a long way in showing the existence of undue influence. If you look at the above examples of undue influence in families, you may find that it’s a familiar pattern that occurred in your own family.

It is easier to establish undue influence if the following factors are present:

1. Susceptibility. The testator had a weakness (physical, mental, or financial) that made them susceptible to influence;
2. Opportunity. The wrongdoer had access to the testator and an opportunity to exert influence; (e.g. taking care of testator, excluding everyone else, cutting off testator’s communication with their family and friends so that the wrongdoer can have total control of the testator)
3. Active participation. The wrongdoer actively participated in drafting the will; and
4. Unnatural disposition. There is an unnatural (unexpected) result.

A common law presumption of undue influence can possibly be established if:

1. Confidential relationship. A confidential relationship existed between the testator and the wrongdoer;
2. Active participation. The wrongdoer actively participated in the drafting the will; and
3. Unnatural disposition. There is an unnatural result.

There is a strong presumption of undue influence if the testator makes a donative transfer to

1. Drafter. The person who drafted the will;
2. Care custodian. A care custodian of a testator who is a “dependent adult”;
3. Fiduciary. A person in a fiduciary relationship with the testator, like an accountant, banker, lawyer or financial adviser.

You can call the Law Offices of Albert Goodwin at 212-233-1233, and make an appointment to discuss your undue influence claim with a New York undue influence lawyer.