Undue Influence: Motive, Opportunity, Evidence and Burden of Proof

undue influence

Undue influence is a widely used ground for contesting a will. To contest a will means to object and oppose it because the will is not authentic. In undue influence, one contests the will because the will does not reflect the testator’s intent. Undue influence occurs when the testator’s intent has been constrained by a force so strong that such force has overcome the testator’s free will to assert his own dying wishes, possibly due to the testator’s weakened state. This undue influence amounts to moral coercion, destroying the testator’s independent action, making the testator unable to refuse or too weak to resist.

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.

Elements of Undue Influence

In New York, the three elements of undue influence are motive, opportunity, and actual exercise of undue influence. Each of these elements have to be proven in order to successfully contest a will based on undue influence.


Motive is easy to prove. One just needs to compare how much the undue influencer would receive with the will, as opposed to without that will. This would show whether the undue influencer had motive to influence the testator to write the will. This is a simple matter of presenting the will or wills and the law to prove what the undue influencer would have received without the will. But motive is not the only element to prove undue influence.


The objectant must also show that the undue influencer had the opportunity to influence the testator. This can be proven by testimonial evidence on the instances when the objectant had “alone time” or just time with the testator to have that opportunity to exercise undue influence. When a caretaker or a relative, like a sibling, has substantial time to be with the testator without the presence of the one being cut off from the will, this shows opportunity that the undue influencer could have influenced the testator. Unfortunately, this is also not enough. The last element, actual exercise, is the most important element, that has to be proven in undue influence.

Actual Exercise of Undue Influence

Undue influence is not just about showing motive and opportunity. It is very important that the undue influencer actually exercise such influence that would amount to moral coercion and that would overcome the will of the testator. In New York, jurisprudence has shown that when the undue influencer was the one who helped prepare the will, the one who chose the witnesses, and the one who chose the attorney who would draft the will, coupled with the fact that the testator was operating on diminished mental capacity, then there would be an actual exercise of undue influence.

In Matter of Paigo, 53 A.D.3d 836 (2008), the Court held that the sister of the decedent exerted undue influence upon him based on the following facts: (a) the decedent signed the will after surgery and one day after his release from intensive care; (b) ) the sister was the only person present when the decedent expressed his desires regarding the disposition of his estate; (c) the sister prepared the will; (d) the sister chose the three witnesses; (e) the sister was named executor of the will; (f) the sister was a substantial beneficiary, together with her parents and two other siblings; and (g) the children of the decedent were cut out from the will.

In Re Estate of Carpenter, 253 So.2d.697 (Fla. 1971), the Court provided several criteria to be considered in determining the beneficiary’s active procurement of the will as undue influence: (a) presence of the beneficiary at the execution of the will; (b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will; (c) recommendation by the beneficiary of an attorney to draw the will; (d) knowledge of the contents of the will by the beneficiary prior to execution; (e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; and, (f) securing of witnesses to the will by the beneficiary; and (g) safekeeping of the will by the beneficiary subsequent to execution.


To prove the elements of undue influence, one must discover medical records to prove mental illnesses, medicines taken to prove diminished mental capacity, and testimonial witnesses to prove the undue influencer’s opportunity and the actual exercise of undue influence, to name a few.

Fortunately, in New York, SCPA 1404(4) allows the examination, before the filing of an objection to contest the will, of any or all of the attesting witnesses, the person who prepared the will, the nominated executors, the proponents, and any person whose examination the court determines may provide information with respect to the validity of the will and related to the objections to the will.

SCPA 1404 discovery allows potential objectants to gather documents relating to their grounds to contest the will, such as medical records, before even filing an objection. It allows the potential objectant the opportunity to see if he has enough evidence to support an objection. The results of SCPA 1404 will show whether the potential objectant has a strong case and will aid in the negotiation of a compromise and settlement.

Under SCPA 1410, if an examination has been requested under SCPA 1404, the potential objectant generally has 10 days after completion of the examinations to file his objection.

For this reason, a potential objectant, before making that decision to actually go through a will contest, can discover evidence that would aid him in making such an important decision.

Shift in a Burden of Proof

Just because the alleged undue influencer and the testator are family members does not make their relationship a position of trust and confidence. Clearly, there is trust and confidence among family members because of the fraternal and familial relationship. What is contemplated under confidential relationship that shifts the burden of proof to the undue influencer is the presumption of a confidential relationship that arises from the roles of the parties, such as the testator and his guardian, the testator and his attorney, the testator and his trustee, the testator and his doctor, or the testator and his nursing home director. If you see the testator leave a substantial bequest to his attorney who is not his relative, it would be wise to contest such provision, because the burden of proof is upon the attorney to prove that no undue influence was exercised.


To contest a will, one must have standing. To have standing, one must be an interested party. To be an interested party, one must suffer financial damage if the will being offered for probate is admitted. This person is generally a beneficiary of a prior, current or later will or an intestate heir (also called distributee).

Grounds to Contest a Will in General

There are several grounds we can raise such as lack of testamentary capacity, revocation, duress, fraud, forgery, and undue influence. Undue influence is one of the more popular grounds of contesting a will. Unfortunately, it is also one of the more difficult grounds to prove due to the fact that undue influence cannot be proven by simply presenting one document as evidence, but by presenting to the court proof of occurrence of a series of circumstances that prove that undue influence was present when the testator signed his will. Generally, this series of circumstances occurs in private between the undue influencer alone and the testator. For this reason, undue influence is normally proven by circumstantial evidence. The burden of proving undue influence is upon the objectant. However, when the “undue influencer” enjoys a position of trust and confidence with the testator, the burden shifts to the undue influencer.


When one makes the decision to contest a will, one must make sure, not only that he has the financial resources, but he has the heart to go through this with his family. SCPA 1404 allows a potential objectant the opportunity to discover evidence before making this decision.

Should you feel that you were cut off from the will due to undue influence, we, at the Law Offices of Albert Goodwin, are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or email at [email protected].

Attorney Albert Goodwin

Law Offices of
Albert Goodwin, PLLC
31 W 34 Str, Suite 7058
New York, NY 10001

Tel. 212-233-1233

[email protected]

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