Law of Wills, 2016A

“The burden is on the contestant to establish by a fair preponderance of the evidence that the will
in question was the result of undue
influence....”
(PJI2d 7:55 at 1429–1430 [2011]).
This “classic” type of undue influence is difficult to prove. It tends to be practiced in secret (a “silent
resistless power”) on an individual who is enfeebled, isolated and moribund, someone susceptible to
the effects of subtle importuning who, after executing her will, either loses capacity or dies while
subject to the undue influence. On its face, it would not appear applicable to the instant case.
Decedent here, at the time she executed her will, suffered no mental infirmity, lived communally
with her sisters and survived an additional eight-and-three-quarter years. During that period, she was
connected to, and received assistance from, many people other than proponent.
The burden of proving this “classic” form of undue influence is eased if objectants can establish that
the testator was in a relationship of trust and dependence with a person who exploited that
relationship (see PJI2d 7:56.1 at 1442–1444 [2011]). Such facts permit an inference of undue
influence that obligates the person charged with undue influence to explain the bequest (Matter of
Katz, 15 Misc.3d 1104[A][Sur Ct, New York County, 2007] ).
Unsurprisingly, objectants claim that decedent was in a relationship of trust and dependence with
proponent; however, their non-specific and conclusory allegations fail to establish the existence of
such relationship. Objectants claim that proponent was “a regular presence at [decedent’s]
apartment, a participant in her daily life,” that he “assist[ed] her and [made] arrangements for her
daily life” and that he “supervised her care.” These allegations, inadequate in themselves to describe
a confidential relationship, are based on the affidavits of Zoe Maher and Mayra Rajeh which, along
with proponent’s own deposition testimony, undercut any claim of isolation or exclusive
dependence. At most, proponent was part of decedent’s support system.
In the absence of evidence of actual exercise of undue influence on a weakened mind or abuse of a
confidential relationship, proponent, under the “classic” definition of undue influence, would be
entitled to summary judgment. Yet, “classic” undue influence is not the only ground on which to
determine whether a propounded instrument expresses testator’s unconstrained choice. Although it
is seldom discussed in New York cases, the First Department has noted:
“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 Kaufmann, 20 A.D.2d 464, 482-483 (1 st Dept 1964), affd 15 N.Y.2d 825 (1965)
The former category is also known as “duress.”
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