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Undue Influence in the making of a Will

by | Sep 30, 2021 | Firm News |

Objections to a Will generally take one of several forms. the most common of these are Lack of Testamentary Capacity, Improper Execution and Undue Influence. These materials consider Undue Influence.

Undue Influence in New York

Undue influence occurs when the testator is unduly compelled or coerced to execute a will as a result of improper pressure exerted on him or her.  This improper pressure is typically exerted by a relative, friend, trusted advisor, or health care worker.

Burden of Proof

It must be shown that the influence exercised amounted to a moral coercion which restrained independent action and destroyed free agency…it must not be the promptings of affection; the desire of gratifying the wishes of another; the ties 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.

Elements of Undue Influence

The elements required to prove undue influence in a New York will challenge are “motive, opportunity, and the actual exercise of that undue influence.”


Under New York law, motive is required to support a case for undue influence.  The classic example of motive is a financial benefit to the undue influencer.  The undue influence benefits because of the challenged will.  Motive can be determined by examining the size of the testator’s estate and what the undue influencer stands to inherit.


Opportunity to exercise undue influence must also be shown.  Did the undue influencer have access to the testator?  Was the testator susceptible to undue influence, perhaps because of a weakened mental state, old age, infirmities, isolation, or depression?  Did the undue influencer have a confidential relationship with the testator, such that the testator reposed trust and confidence in the undue influencer?

Actual Exercise of Undue Influence

In order to successfully prove undue influence, it is not enough to demonstrate the existence of motive and opportunity.  The actual exercise of undue influence must be shown.  Common factors demonstrating the actual exercise of undue influence include the undue influencer’s involvement in the preparation and execution of the will, suggesting the changes to the will, and keeping the originals of the will after execution by the testator.

Undue influence is rarely proven by direct evidence.   Instead, undue influence cases are largely circumstantial.  The testimony of friends and family, the drafting attorney, medical records, and experts, all combine to prove an undue influence case.

Confidential Relationship Alone enough to establish question of fact

A confidential relationship raises an inference of the exercise undue influence (see Matter of Putnam , 257 NY 140 [1931] ; Matter of DelGatto , 98 AD3d 975, 978 [2d Dept 2012] ; Matter of Collins , 124 AD2d 48 [4th Dept 1987] ; Matter of Hirschorn , 21 Misc 3d 1113[A] [Sur Ct, Westchester County 2008] ) and casts upon him the burden of explaining the circumstances of his bequest, the adequacy of which presents a question of fact for determination by a jury (see Matter of Neenan , 35 AD3d 475, 476 [2d Dept 2006] ; Matter of Bach , 133 AD2d 455, 457 [2d Dept 1987] ; Matter of Burke , 82 AD2d 260 [2d Dept 1981] ).

In re Gobes

2018-11859, at *1 (N.Y. App. Div. 2020)

The granting of summary judgment in a contested probate proceeding is rare” (Matter of Christie, 170 AD3d 718, 719). “While summary judgment may be available in probate proceedings, that remedy is inappropriate in any case where there are material issues of fact” (Matter of Pollock, 64 NY2d 1156, 1158). For the petitioner in a contested probate proceeding to demonstrate prima facie entitlement to judgment as a matter of law, the petitioner must present evidence that the will was duly executed, that the decedent possessed testamentary capacity, and that no undue influence was exercised upon the decedent (see Matter of Sabatelli, 161 AD3d 872, 873-875; Matter of Shui Yuk Mak Chin, 153 AD3d 628, 628; Matter of Zirinsky, 43 AD3d 946, 947). If the petitioner establishes a prima facie case, then the objectant must raise a triable issue of fact in opposition (see Matter of Sabatelli, 161 AD3d at 875; Matter of Greenberg, 34 AD3d 806, 807).

It is the indisputable rule in a will contest that ‘[t]he proponent has the burden of proving that the testator possessed testamentary capacity and the court must look to the following factors: (1) whether she [or he] understood the nature and consequences of executing a will; (2) whether she [or he] knew the nature and extent of the property she [or he] was disposing of; and (3) whether she [or he] knew those who would be considered the natural objects of her [or his] bounty and her [or his] relations with them'” (Matter of Kumstar, 66 NY2d 691, 692, quoting Matter of Slade, 106 AD2d 914, 915; Matter of Martinico, 177 AD3d 882, 884). “Testamentary capacity need only be shown at the time the will was executed” (Matter of Martinico, 177 AD3d at 884).

The objectant raised a triable issue of fact. The objectant demonstrated, among other things, that, in the days immediately preceding and following the will’s execution, the decedent, terminally ill, was “steadily declining,” had prescriptions for opioid medications, and was being encouraged by medical providers to enter hospice care, which the decedent, or the decedent’s companion and primary caregiver, who also was a beneficiary of the will, refused for the decedent to do until only a few days after the will’s execution ceremony (see Matter of Raskas, 213 AD2d 718, 719).

Moreover, the petitioner failed to eliminate all triable issues of fact with respect to undue influence . “Undue influence can be shown ‘by all the facts and circumstances surrounding the testator, the nature of the will, his [or her] family relations, the condition of his [or her] health and mind, his [or her] 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'” (Matter of Bullock, 172 AD3d 853, 855, quoting Matter of Henig, 11 AD3d 614, 615). “‘Although undue influence may be established through circumstantial evidence, such evidence must be of a substantial nature, and an inference of undue influence cannot be reasonably drawn from circumstances when they are not inconsistent with a contrary inference'” (Matter of Bullock, 172 AD3d at 855, quoting Matter of Cianci, 165 AD3d 655, 657). “Where a will has been prepared by an attorney associated with a beneficiary, an explanation is called for . . ., and it is a question of fact for the jury as to whether the proffered explanation is adequate” (Matter of Elmore, 42 AD2d 240, 241 [citation omitted]; see Matter of Raskas, 213 AD2d at 718-719).

Here, the evidence demonstrates that the will was prepared and its execution was supervised by the attorney for one of the will’s beneficiaries, the decedent’s nephew, who also participated in the preparation and execution of the will (see Matter of Raskas, 213 AD2d at 719; Matter of Elmore, 42 AD2d at 241). Two of the decedent’s three children, including the objectant, were disinherited by the will. The petitioner submitted contradictory evidence as to whether and to what extent the beneficiaries participated in the preparation of the will, which, as demonstrated above, was accomplished while the decedent was in the final stages of a terminal illness and dependent on his companion and caregiver for “everything.” Therefore, “viewing the evidence in a light most favorable to the objectant, as the party opposing summary judgment, there was circumstantial evidence regarding the alleged undue influence sufficient to raise a triable issue of fact” (Matter of Katz, 63 AD3d 836, 838 [citation omitted]; see Matter of Bullock, 172 AD3d at 855).

In re Will of Djavaheri-Saatchi

File No. 2015-384378/A (N.Y. Surr. Ct. 2018)

Undue influence may be proved by circumstantial evidence but the evidence must be substantial (Matter of Walther, 6 NY2d 49 [1959]). Among the factors that are considered are: (1) the testator’s physical and mental condition (Matter of Woodward, 167 NY 28 [1901]; Matter of Callahan, 155 AD2d 454 [2d Dept 1989]); (2) whether the attorney who drafted the will was the testator’s attorney (see Matter of Lamerdin, 250 App Div 133 [2d Dept 1937]; Matter of Elmore, 42 AD2d 240 [3d Dept 1973]); (3) whether the propounded instrument deviates from the testator’s prior testamentary pattern (Children’s Aid Socy. v Loveridge, 70 NY 387 [1877]); and (4) whether the person who allegedly wielded undue influence was in a position of trust (Matter of Burke, 82 AD2d 260, 270 [2d Dept 1981]).

In the instant proceeding, petitioner, objectant, Stephen Block and Pat Caroleo testified in their examinations before trial that at some point in 2010, they became aware that a woman named Sandy was influencing the decedent to transfer money to herself. This was the precipitating event that caused the petitioner to take the decedent to the attorney-drafter where he drafted a will, revocable trust and power of attorney. In her examination before trial, the petitioner testified:

“Q: Well, as of the date that your father signed the trust in July of 2010 – –

A: Yes.

Q: – – didn’t you believe that since your father and Sandy were still together, that she was exerting a negative or undue influence over him through and part of the use of drugs and alcohol?

A: Um, as I said, I don’t know what exactly I was thinking. Um, I’m not sure. I was thinking a lot of things. I don’t like undue influence. That’s a legal term but, yes, she was definitely influencing him for sure.

Q: Did you feel that your father was under the spell of Sandy?

A: Yes. For sure” (Parisa Djavaheri tr at 166, lines 6-22).

The “amount of undue influence which will be sufficient to invalidate a will must of course vary with the strength or weakness of the mind of the testator” (Matter of Woodward, 167 NY 28, 30 [1901] [internal citations omitted]). There are clearly questions of fact regarding the testator’s mental condition, whether he was susceptible to undue influence and the behavior of the petitioner in relation to the decedent which makes the granting of summary judgment on this issue inappropriate. For this reason, the petitioner’s motion for summary judgment dismissing the objection on the issue of undue influence is DENIED.

In re Estate of Davidovich

2018 N.Y. Slip Op. 31017 (N.Y. Surr. Ct. 2018)

Certain objective factors raise questions as to proponent’s prima facie case. First, there is proponent’s role in the genesis of the will, from accompanying decedent to “We the People” at the outset to filling out the worksheet that identified her as his sole beneficiary and executor. Second, the Power of Attorney and Health Care Proxy naming her as decedent’s agent are evidence that proponent occupied a position of special trust. However, there is no need at this time to determine whether proponent occupied a “confidential relationship” which would impose a special evidentiary burden at trial (see Matter of Butta, 3 AD3d 347 [1st Dept 2004]). It is sufficient to note that proponent’s formal link to decedent was as his paid employee. Furthermore, there was the synagogue that he attended regularly and that decedent had expressed a charitable intent toward. These factors are enough to create a question of fact as to undue influence.

In re Singer

File No.: 2013-1950/B, at *16 (N.Y. Surr. Ct. 2018)

The evidence on which Objectants rely raises issues of material fact that require a trial. This evidence shows that Pellegrini had motive (his desire to receive a larger gift under decedent’s will) and opportunity (he had unlimited access to decedent and spent a significant amount of time with her, and she relied on him for assistance with important matters) to exercise undue influence on decedent. It also shows that Pellegrini may have actually exercised such influence (through the control that he allegedly had over her and his statements to decedent about her family’s inattentiveness at a time in which he knew that decedent had executed a will that left most of her estate to her sisters).

Accordingly, Mazzola’s motion for summary determination concerning the objection relating to undue influence is denied.

In re Chin

58 Misc. 3d 1212 (N.Y. Surr. Ct. 2018)

A confidential relationship raises an inference that undue influence (was) exercised. (see Matter of Putnam , 257 NY 140 [1931] ; Matter of DelGatto , 98 AD3d 975, 978 [2d Dept 2012] ; Matter of Collins , 124 AD2d 48 [4th Dept 1987] ; Matter of Hirschorn , 21 Misc 3d 1113[A] [Sur Ct, Westchester County 2008] ) and casts …. the burden of explaining the circumstances of [the]  bequest, the adequacy of which presents a question of fact for determination by a jury (see Matter of Neenan , 35 AD3d 475, 476 [2d Dept 2006] ; Matter of Bach , 133 AD2d 455, 457 [2d Dept 1987] ; Matter of Burke , 82 AD2d 260 [2d Dept 1981] ). Matter of Elmore 42 A.D.2d 240 1973

Matter of Gnirrep

2 A.D.2d 404, 406 (N.Y. App. Div. 1956)

In deciding the question of undue influence , the question of the strength of testator’s mind is an important factor. ( Matter of Streb, 247 App. Div. 556.) Undue influence may be proved by the contestants like any other fact . It may be proved by circumstantial evidence. In addition to the circumstances surrounding the execution of the will and the susceptibility of decedent to improper persuasion, there is evidence that about a year prior to his death proponent attempted to obtain a deed of decedent’s real property; that decedent complained that his friends were looking for his money and that proponent had previously attempted to have an attorney draw a will for decedent. The issue of undue influence should also be decided as a question of fact.

The order should be reversed, upon the law and the facts , and a new trial ordered on the questions of mental capacity and undue influence , with costs to appellant payable from the estate.

Barnard v. Gantz

35 N.E. 430 (N.Y. 1893

[T]he settlor’s advanced age at the time the trust was created and the fact that she was being advised by her son-in-law, who was a trustee and beneficiary of the trust, … raised questions of undue influence.

“”Undue influence, which is a species of fraud, when relied upon to annul a transaction inter partes, or a testamentary disposition, must be proved, and cannot be presumed. But the relation in which the parties to a transaction stand to each other is often a material circumstance, and may of itself, in some cases, be sufficient to raise a presumption of its existence. Transactions between guardian and ward, attorney and client, trustee and cestui que trust, or persons one of whom is dependent upon and subject to the control of the other, are illustrations of this doctrine. Dealings between parties thus situated, resulting in a benefit conferred upon, or an advantage gained by the one holding the dominating situation, naturally excite suspicion, and when the situation is shown, then there is cast upon the party claiming the benefit or advantage, the burden of relieving himself from the suspicion thus engendered, ”