- within Cannabis & Hemp topic(s)
When a petitioner offers a will for probate, and the propounded instrument's validity is contested, objectants oftentimes raise undue influence as an objection to the admission of the will to probate. By alleging undue influence, an objectant essentially contends that the propounded will resulted from another person's influence on the testator, and, therefore, reflects the wishes of the alleged undue influencer, rather than the testator. In this blog post, I write to explain the substantive and procedural considerations that are relevant to an undue influence objection in a probate contest.
Undue influence has been described as "a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his [or her] free will and desire, but which he [or she] was unable to refuse or too weak to resist" (Children's Aid Soc'y v Loveridge, 70 NY 387, 394 [1877]). "To establish undue influence, an objectant [generally] must demonstrate, by a preponderance of evidence, a motive, opportunity and the actual exercise of influence so strong as to subvert the mind of the testator at the time of execution to the extent that, but for the 'undue' influence, the testator would not have executed the instrument" (Matter of Hirschorn, 21 Misc3d 1113[A], at *7-8 [Sur Ct, Westchester County 2008]; Matter of Burke, 82 AD2d 260, 270 [2d Dep't 1981]; Matter of Roberts, 34 Misc3d 1213[A] at *6-9 [Sur Ct, New York County 2011]).
Motive and opportunity generally are not difficult for an objectant to establish. Courts have concluded that "motive is generally present simply by virtue of the benefit conferred on [a] beneficiary of [a] bequest" (Matter of Bender, NYLJ, Apr. 12, 2010, at 39 [Sur Ct, Kings County]). Similarly, opportunity generally arises from an alleged undue influencer's access to a testator, which oftentimes is relatively easy to establish.
In contrast, the actual exercise of undue influence is often difficult to prove, as undue influence "is seldom practiced openly" (Burke, 82 AD2d at 269; Matter of Zirinsky, 10 Misc3d 1052[A], at *7-12 [Sur Ct, Nassau County 2005], aff'd, 43 AD3d 946[2d Dep't 2007], leave den., 9 NY3d 815 [2007]). Rather, it is 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" (Burke, 82 AD3d at 269).
Consequently, undue influence is "rarely proven by direct evidence; [instead], it is usually proven by circumstantial evidence of a substantial nature" (Hirschorn, 21 Misc3d 1113[A], at *7-8; Matter of Moles, 90 AD3d 473, 473-74 [1st Dep't 2011]). Undue influence can be gleaned from "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, and a variety of other factors, including the opportunity to exercise such influence" (Matter of Elmore, 42 AD2d 240, 241 [3d Dep't 1973] [internal quotation marks omitted]). Factors for consideration include:
(1) the testator's physical and mental condition; (2) whether the attorney who drafted the instrument was the testator's attorney or was associated with the beneficiary; (3) whether the beneficiary had any direct involvement in the preparation or execution of the instrument; (4) whether the propounded instrument deviates from the testator's prior dispositive plan; (5) whether the person who allegedly wielded undue influence was in a position of trust; and (6) whether the testator was isolated from the natural objects of his affection (Roberts, 34 Misc3d 1213[A], at *6-9).
Applying the foregoing factors, in Matter of Powers, Suffolk County Acting Surrogate James F. Quinn determined that issues of fact necessitated a trial concerning whether the propounded will resulted from the petitioner's undue influence upon the testator (Matter of Powers, File No. 2021-4681/B, Short Form Order, dated Jan. 2, 2025 [Sur Ct, Suffolk County]). In doing so, Acting Surrogate Quinn noted the following:
- "The testimony of the [testator's] live in aides, and the police reports, confirm that [the testator] was in a weakened physical state around the time that the propounded instrument was executed";
- The petitioner's testimony "establishes that he was very involved in provid[ing] for [the testator's] personal and financial needs, that he managed [the testator's] finances, and that he used [a] power of attorney to accomplish same";
- "The propounded will disinherits [the testator's] adult daughters in contrast to prior estate plans"; and
- The petitioner "had a prior relationship with the attorney draftsman and was present at [the testator's] home on the day that the propounded instrument was executed" (id.).
In addition to the traditional undue influence analysis (involving motive, opportunity, and the actual exercise of undue influence) described above, courts oftentimes consider the existence of a confidential relationship and the permissive inference of undue influence that may arise therefrom in determining whether a viable undue influence objection exists. Consequently, I write to provide background about how the existence of a confidential relationship between a testator and an alleged undue influencer may impact a probate contest.
"[W]here persons, standing in a confidential relation, make bargains with, or receive benefits from, the persons for whom they are counsel, attorney, agent or trustee[,] the transaction is scrutinized with the extremest vigilance, and regarded with the utmost jealousy" (Nesbit v Lockman,34 NY 167, 169 [1866]). "Broadly speaking, confidential relationship is synonymous with fiduciary relationship" (Sachs v Cluett Peabody & Co., Inc., 265 AD 497, 500 [1st Dep't 1943], aff'd, 291 NY 772 [1944]). A relationship is deemed confidential "either as a matter of law, if the evidence concerning the relationship is clear, or as a matter of fact" (NY PJI 7:56). Such a relationship exists where the parties are "dealing on unequal terms due to one party's weakness, dependence or trust justifiably reposed upon the other and unfair advantage is rendered probable" (Matter of Nealon, 104 AD3d 1088, 1089 [3d Dep't 2013], aff'd, 22 NY3d 1045 [2014]).
Certain relationships are deemed confidential as a matter of law, including the relationship "between trustee and cestui que trust, guardian and ward, attorney and client, principal and agent or employer and employee" (Sachs, 265 AD at 500). "In these confidential relations, the situation of the parties is regarded as unequal and as conferring upon one a certain control or domination, over the will, conduct, and interests of the other" (Doheny v Lacy, 168 NY 213, 222 [1901]).
"[O]ther relations of trust, confidence, or inequality" can be deemed confidential, where there is "some previous proof of the trust and confidence, or of the superiority on one side and of the weakness on the other" (Doheny, 168 NY at 222). While "the law will not presume it from the ordinary relations between persons, in the business world, or in the family connection," the existence of a confidential relationship as a matter of fact is "dependent upon the circumstances" (id. at 222-223). "In order to demonstrate the existence of a confidential relationship [as a matter of fact], there must be evidence of circumstances that demonstrate inequality and a controlling influence" (Matter Albert, 137 AD3d 1266, 1268 [2d Dep't 2016]). Indeed, the existence of a confidential relationship as a matter of fact has been shown by proof of a combination of facts, including the testator's mental, physical, or emotional dependence upon the beneficiary; the beneficiary's involvement in or control of the testator's affairs; and the beneficiary's isolation of the testator from the outside world (Matter of Halsband, NYLJ, Feb. 15, 1994, at 25 [Sur Ct, New York County 1994]; Matter of Bender, NYLJ, Apr. 12, 2010, at 39 [Sur Ct, Kings County 2010]).
When a confidential relationship between a testator and an alleged undue influencer exists, an inference of undue influence can arise. "An inference of undue influence, requiring the beneficiary to explain the circumstances of the bequest, arises when a beneficiary under a will was in a confidential or fiduciary relationship with the testator and was involved in the drafting of the will" (Matter of Neenan, 35 AD3d 475, 476 [2d Dep't 2006]; Matter of Bartel, 214 AD2d 476, 477 [1st Dept 1995]). "[T]he inference . . . of undue influence [] places the burden on the beneficiary to explain the circumstances of the bequest" (id.; Matter of Smith, 95 NY 516, 523 [1884]). Notably, the "adequacy of the explanation [oftentimes] presents a question of fact for [a] jury" at a trial (Neenan, 35 AD3d at 476).
"Although close family ties may negate the [inference] of undue influence that would otherwise arise from a confidential or fiduciary relationship," that is not necessarily true when the evidence establishes that the alleged undue influencer has acted "not out of family duty, but rather cupidity" (Matter of Antoinette,238 AD2d 762, 764 [3d Dept 1997]). Thus, even where a testator shares a close family relationship with his or her alleged undue influencer, a "close family relationship [may] not negate" the inference of undue influence that arises from a confidential relationship (Matter of Mary, 202 AD3d 1418, 1420-22 [3d Dept 2022]). This is because a "factfinder could still decide that the stronger party 'acted not out of family duty,' but rather out of greed" when a confidential relationship exists (id.; Neenan, 35 AD3d at 475-76).
In Powers, bearing the aforementioned confidential relationship principles in mind and the evidence of the actual exercise of undue influence proffered in dispositive motion practice, Acting Surrogate Quinn wrote: "[t]he question of whether [the] petitioner stood in a confidential relationship with [the testator] such that he must demonstrate that the execution of the propounded instrument was free from undue influence shall be determined at trial" (Powers, supra). In doing so, Acting Surrogate Quinn denied the petitioner's motion for summary judgment dismissing the objectants' undue influence objections (id.).
Given the frequency with which undue influence objections arise in contested probate proceedings, it is worthwhile to review the factors that courts oftentimes apply to undue influence objections. Hopefully, this blog post will assist parties and practitioners in analyzing those factors as well.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
