Law of Wills, 2016A

destroyed free agency, or which, by importunity which could not be resisted,
constrained the testator to do that which was against his free will and desire, but
which he was unable to refuse or too weak to resist. 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. [Citations
omitted.]”
Children’s Aid Soc’y v. Loveridge, 70 N.Y. 387, 394 (1877).
Some 82 years later, the Court of Appeals, in Matter of Walther (6 N.Y.2d 49 [1959]), articulated the
elements of a prima facie case: (1) undue influence may be proven by circumstantial evidence,
provided such evidence is substantial (id. at 54); (2) there must be a showing, not only of opportunity
and motive to exercise undue influence, but also, of the actual exercise of undue influence (id. at 55);
and (3) evidence that equally gives rise to an inference of undue influence or an inference that no
undue influence was practiced, does not establish undue influence (id. at 54).
The New York State Pattern Jury Instructions provide:
“A will must be a true expression of the testator’s wishes. If, instead, it reflects the desires of some
person who controlled the testator’s thoughts or actions, the will is invalid because of undue
influence. To be undue’, the influence exerted must amount to mental coercion that led the testator
to carry out the wishes of another, instead of (his, her) own wishes, because the testator was unable
to refuse or too weak to resist. The undue pressure brought to bear may consist of a play on the
testator’s emotions, passions, fears, weaknesses or hopes. It may consist of an appeal to (his, her)
prejudices or a continual course of flattery. The exercise of undue influence may be slow and
gradual, progressively gaining control over the testator.
* * * * *
“Direct evidence of undue influence is seldom available. Accordingly, the law permits undue
influence to be shown by facts and circumstances leading up to and surrounding execution of a will.
However, it is not enough that you find that motive and opportunity to exercise undue influence
existed. You must also find additional facts that satisfy you that such influence was actually
exercised. Further, the facts upon which a claim of undue influence is based must be proved. In
other words, you may not guess or speculate. It must appear that the inference of undue influence is
the only one that can fairly and reasonably be drawn from the facts proved, and that any other
explanation is fairly and reasonably excluded. If the facts proved would reasonably support an
inference that undue influence was exercised, as well as the contrary inference that it was not
exercised, then undue influence has not been proved.
“You just answer the following question: Was the execution of the will... by the testator, AB, the
result of undue influence by CD?’ To answer that question, you must determine what were the facts
and circumstances leading up to and surrounding execution of this will, taking into consideration
such testimony as you deem true concerning ... AB’s physical and mental condition; AB’s contact
with, or isolation from, (his, her) family and friends....
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