New York Appellate Lawyers Blog

Sunday, January 15, 2012

Appellate attorneys discuss New York's law on undue influence as a basis for challenging a decedent's will.

          Undue influence is proved by a preponderance of the credible evidence to demonstrate motive, opportunity, and the actual exercise of undue influence. See Matter of Walther, 6 N.Y.2d 49 [1959]. 

Undue influence is seldom practiced openly, but it is, rather, the product of persistent and subtle suggestion imposed upon a weaker mind and calculated, by the exploitation of a relationship of trust and confidence, to overwhelm the victim's will to the point where it becomes the willing tool to be manipulated for the benefit of another.  Matter of Burke, 82 AD2d 260, 269 [2nd Dept. 1981]

          The burden of establishing undue influence rests upon the objectant to a Will.  However, where there is a confidential relationship between the decedent and the beneficiary of the Will, the mere bequest alone permits an inference of undue influence.  Matter of Bach, 133 AD2d 455, 456 [2nd Dept. 1987]

The 2nd Department further elaborated on the tactic utilized by one accused of exercising undue influence upon a testator.

There are two principal categories of undue influence in the law of wills, the forms of which are circumscribed only by the ingenuity and resourcefulness of man. One class is the gross, obvious and palpable type of undue influence which does not destroy the intent or will of the testator but prevents it from being exercised by force and threats of harm to the testator or those close to him. The other class is the insidious, subtle and impalpable kind which subverts the intent or will of the testator, internalizes within the mind of the testator the desire to do that which is not his intent but the intent and end of another [citations omitted].  Matter of Burke, 82 AD2d 260, 270 [2nd Dept. 1981]

Thus, in In Re Elmore’s Will, 42 A.D.2d 240 [2nd Dept. 1973] the Second Judicial Department in a New York appeal, affirmed the Surrogate’s dismissal of the proponent’s petition for probate.  Citing the Court of Appeals the Court stated,

[U]ndue influence can be shown by all the facts and circumstances surrounding the testator, the nature of the will, his family relations, the condition of his health and mind, and a variety of other factors including the opportunity to exercise undue influence.

          In finding for the objectant, the Court considered facts’ including the decedent’s failing health due to a terminal illness and the radical change in testamentary intent that diametrically opposed the testator’s wishes in a prior Will.  The Court ruled that since the Will was prepared by an attorney associated with the beneficiary, an explanation is called for, “and it is a question of fact for the jury as to whether the proffered explanation is adequate.”  In Re Elmore’s Will, 42 A.D.2d 240 [2nd Dept. 1973].

          In Matter of Bach, 133 A.D.2d 455 [2nd Dept. 1987], in reversing the Surrogate Court, the Second Department held that where a confidential relationship exists between the beneficiary/drafter of the Will, the mere bequest creates an inference of undue influence.  In Bach, the jury could have found that a confidential relationship existed between the deceased and the proponent.  The deceased was of advanced age, ceded control of her assets to the proponent, and although the proponent offered an explanation regarding being named the beneficiary, his testimony merely created a question of fact.

          Similarly, in Matter of Pollock, 64 N.Y.2d 1156 [1985], the Court of Appeals affirmed a lower court ruling finding triable issues of fact in light of disputed affidavits and testimony regarding the decedent’s condition and the circumstances surrounding the Will and Codicil.  Again in Matter of Estate of Delyanis, 252 A.D.2d 585 [2nd Dept. 1998], this Court reversed the Surrogate in finding that the proponents of the Will had both the motive and opportunity to unduly influence the testator and the matter should be submitted to the fact finder for final determination.

          In Matter of Estate of Delyanis the testator moved in with her daughter and promptly disinherited her son by altering a prior testamentary instrument.  This Court held that the testator living with her daughter, provided the daughter with ample opportunity to change the testator’s mind.  This threadbare showing was sufficient to submit the question of undue influence to the jury to determine whether undue influence was actually exercised.

Marzano Lawyers PLLC Appellate Attorneys assist clients in New York and Connecticut. We serve all of New York City and the surrounding area, including but not limited to Manhattan, Brooklyn, Queens County, Kings County, Bronx, Yonkers, Staten Island, Westchester County, New York County, Hudson County, Suffolk County, & Nassau County.

© 2020 Marzano Lawyers PLLC | Disclaimer
1120 Ave of the Americas, Hippodrome Building – 4th Floor, New York, NY 10036
| Phone: 212.655.9561
Via Nazionale, 69, Roma, IT 00184
| Phone: +39 089.224.842
Via Torretta, 4, Salerno, IT 84122
| Phone: +39 089.224.842

Appellate Law Overview | New York Appeals | Civil Appeals | Criminal Appeals | Matrimonial Appeals | Estate Appeals | Commercial Appeals | Real Estate Appeals | Appellate Trial Support | Important Links & Forms


Attorney Website Design by
Zola Creative