Objections to Probate: Undue Influence and Duress

Objections to Probate: Undue Influence and Duress

Undue influence occurs when a wrongdoer exerts influence over a testator sufficient to overcome the testator's free will and cause the testator to make a bequest that would not otherwise have been made.  Matter of Walther, 6 N.Y.2d 49, 188 N.Y.S.2d 168, 159 N.E.2d 665 (1959) [enhanced version available to lexis.com subscribers]; New York Pattern Jury Instruction (2d) 7:55.  The New York Pattern Jury Instruction and New York courts tend to include duress within the definition of undue influence, blurring any distinction between the two concepts, and do not mention duress as a separate ground for contesting a Will.  One New York case has recognized that there are two separate categories of undue influence:  first, the gross type of undue influence, which prevents the intent of the testator from being exercised by the use of force or the threat of harm; and the second, the insidious, subtle form which mentally coerces the testator in his mind to believe that another person's intent is his own.  Matter of Kaufman, 20 A.D.2d 464, 482-483, 247 N.Y.S.2d 664 (1st Dep't 1964) [enhanced version], aff'd, 15 N.Y.2d 825, 257 N.Y.S.2d 941, 205 N.E.2d 864 (1965) [enhanced version].  That first category is what is also known as duress.  The latter category has sometimes been called "classic" undue influence.

In Matter of Rosasco, 31 Misc. 3d 1214A, 927 N.Y.S. 2d 819 (Sur. Ct. New York County 2011) (Glen) [enhanced version], the Surrogate undertook an extensive examination of the concept of duress as a separate ground to invalidate a Will.  Surrogate Glen ruled upon proponent's motion for summary judgment in the probate contest and granted summary judgment on all the objections, including classic undue influence, but denied summary judgment on the claim of duress.  The court held that issues of fact were raised as to whether the decedent felt threatened by the proponent such that she feared making a new Will that favored the objectants.

Surrogate Glen found that fact issues existed as to whether the testator's great-nephew (the proponent) had exercised duress over his great-aunt with respect to her Will when he berated her and her sisters loudly and often, struck and pushed his own sister in his aunts' presence, punched his own sister in the stomach, and tried to intimidate the decedent and her sisters physically.  Proponent had been thrown out of his parents' apartment and was living in an apartment with decedent and his other aunts.  The court found that the great-nephew's violent behavior had a keen effect on the testator and took note of testator's state of mind in testimony that she had stated she was afraid to change the executor of her Will from the proponent to one of the objectants because she was afraid that proponent would find out about it and hurt the niece, proponent's sister.  The offered Will gave her $2.8 million estate all to proponent, her sisters having predeceased her.

The Surrogate noted that while New York has tended to blur the distinction between undue influence and duress, the Restatement (Third) of Property has distinguished a bequest procured by undue influence from one procured by duress.  Restatement (Third) Property, § 8.3(b) and 8.3(c).  The court went on to explain that duress and undue influence are really separate concepts, supported by separate forms of evidence and brought about by totally different forms of persuasion.  In the case of undue influence, there is exertion by the wrongdoer of influence that overcomes free will.  Duress is procured by the threat or the performance of a wrongful act that coerces the testator.

Classic undue influence is a form of psychological or mental coercion, where the motive of the wrongdoer is an element of the proof; it is often proven by circumstantial evidence, by an inference created by a confidential relationship and the result of a slow and gradual gaining of control of the testator by a play on the emotions, fears and hopes of a person often too weak, mentally and physically, to resist.  (NY PJI 7:55).

"Duress," as the Restatement (Third) Property and the Rosasco court indicate, does not depend upon the motive of the wrongdoer, but rather upon the subjective fears of the testator, and is often proven by the doing of a wrongful act of violence and/or the menace or the threat that the act will be repeated.  While there is some historical support for the concept that classic undue influence arose out of force and duress (Rosasco at n.14), they are clearly distinct concepts requiring different proof. 

Duress as a separate ground for an attack on a Will or any other donative instrument is likely to proliferate.  Inheritance disqualification on the grounds of spousal abuse, elder abuse and dependent adult abuse is now enacted in several states.  Financial exploitation, physical or mental abuse and neglect of the elderly and persons with disabilities bars inheritance under these statutes, analogizing it to the so-called slayer rule of disqualification.  Spivak, Let's Get Serious:  Spousal Abuse Should Bar Inheritance, 90 Oregon Law Rev. 247 (2011).

California, Illinois, Maryland and Oregon have statutes which bar inheritance based upon some form of abuse.  Duress is the best doctrine under existing probate contest laws to address the situation where the proponent of a Will has engaged in a pattern of coercive conduct.

Rosasco opens the door to the expansion of the duress objection to all donative transactions.

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