Bar review deja vu: Duress and undue influence

By Victor M. Metsch

I had trouble enough staying awake in the over-heated ballroom at the Roosevelt Hotel (in 1969) where I took the New York bar review course – and I am sure that I was fast asleep when the lecturer droned on about the procedures and formalities of will execution.  Be that as it may, buried deep within some synapse is the word “duress” and the phrase “undue influence.”

My recollection of cases relating to the signing of wills conjures up anecdotes from the past, rather than real time disputes.  Under those circumstances, I was surprised to see that two consecutive editions of the New York Law Journal featured, as cases of interest, litigation relating to the validity of a last will and testament.

When a testator favor one family member over another, or favors a stranger over the next of kin, the challenges to a purported will by disappointed relatives would most likely include allegations of duress and undue influence.  Often, the favored family member or stranger is a caregiver with a close relationship to the testator and, as testator’s physical and mental capacity begins to deteriorate, the caregiver is in position to exert improper influence on the testator.

While favoring a caregiver may simply reflect the testator’s gratitude, on occasion, the courts find that an instrument  was not the product of the testator’s free volition.  The Court’s inquiry into the allegation of duress and undue influence invariably is factual.  However, the stories of the recent cases not only delve into factual details but also demonstrate that when a testator consciously makes a choice to favor someone at the expenses of next of kin, steps can be made to ensure that the testator’s wishes are respected and the will withstands attack.

Estate of Mildred Rosasco

In Estate of Mildred Rosasco, No. 4050/2006, (Surrogate Kristin Booth Glen), 31 Misc.3d 1214(A), 927 N.Y.S.2d 819 (Table) (N. Y. Sur. Ct. , N.Y. County, Apr. 5, 2011), John Cella, the preliminary executor of the estate of his great-aunt Mildred, was the proponent in a proceeding to probate her will.  Objectants (four of Mildred’s nieces and nephews, including the proponent’s mother) opposed the motion.  Surrogate Kristen Booth Glen noted that “[t]he facts of this case and the objections asserted present an opportunity to reexamine the tangled relationship in New York law between undue influence and duress as grounds for invalidating a will.”

Aunt Mildred’s will left her entire probate estate to her two sisters and, in the event neither survived her, to the proponent, John Cella.  The nieces and nephews submitted a virtual cornucopia of objections to probate, “alleging that the instrument: (1) is not genuine; (2) was not duly executed; (3) was executed by mistake; (4) was executed without testamentary capacity; (5) is the product of proponent’s undue influence; (6) is the product of duress exercised by proponent on decedent; and (7) was procured by proponent’s fraud.”

Cella moved for summary judgment.  Surrogate Glen found that “[o]bjectants have articulated a basis for their allegations of undue influence and duress but produced no evidence to support any other ground.” Accordingly, “[t]he only remaining issue [was] whether objectants’ allegations of undue influence and duress warrant[ed] a trial.”

As to the claim of “duress”, the proponent testified, in substance, that he was infuriated by the decedent’s financial support of his sister, Kate; that he berated decedent and his sisters “loudly and often”; and “[h]is anger incited him to violence” – including striking and pushing Kate to the floor in 1997.

The Court noted that “decedent was crippled from polio.  In 1997, according to proponent’s deposition testimony, decedent was 5’7″ and “skinny”, weighing approximately 100 pounds, while proponent was 5’11” tall, weighing 190 pounds.

Sister Kate also testified as to other acts of violence against her in the presence of Aunt Mildred; and that “[p]roponent’s violence and other intimidating behavior had a keen effect on decedent.”

Surrogate Glen found “evidence decedent believed that, even if she were to make a new will – and expose herself and Kate to the risk of proponent’s violence – proponent, nevertheless, would thwart her intent.”

The Court accepted as falling within the state of mind exception to the hearsay rule “[d]ecedent’s declarations to Kate that: (1) if she were to contact her lawyer about making a new will, proponent would “hurt me”, (2) if Kate were to contact the lawyer on decedent’s behalf, proponent’s “going to hurt you”, and (3) regardless of the terms of her will, proponent would “find a way to steal” the assets of her estate.”

Accordingly, the Surrogate found that “[t]he credibility of Kate’s testimony, as to “the fact that such a declaration was made by the decedent”, and, if credible, the significance of such declarations, would be for a trier of fact to decide.”

In analyzing the issue of undue influence, the Court’s point of departure was the New York State Pattern Jury Instructions that provides that:

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.

While the objectants had the burden of proving undue influence, Surrogate Glen noted that:

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 accused of such a charge to explain the bequest. citing Matter of Katz, 910 N.Y.S.2d 762 (Surr. Ct. New York Co., 2007).

While the objectants “claim[ed] that decedent was in a relationship of trust and dependence with proponent”, because he was “a regular presence at [decedent’s] apartment, [and] a participant in her daily life,” the Court found those allegations inadequate to establish a confidential relationship.

Accordingly, “[i]n 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.”

Quoting Matter of Kaufman, 247 N.Y.S.2d 664 (1st Dep’t 1965), affd 15 N.Y.2d 825 (1965), Surrogate Glen nevertheless noted that:

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 of 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].

The Court concluded that “[o]bjectants here have established a prima facie case for duress.”  Based upon “[t]he evidence adduced by objectants, if believed by the trier of fact,”  it could be establish that:

(1) To decedent, proponent’s wrongful act – his violence toward Kate – posed a threat of repeated violence.  (2) That threat induced fear in decedent.  (3) Decedent feared that, if she were to make a new will that favored Kate, not only would proponent harm decedent, if he were to learn of the new will during decedent’s lifetime, but also, more significantly, upon decedent’s death, proponent would physically harm Kate (and convert for himself any assets intended for Kate).  And (4) Such fear precluded decedent from exercising her free will and judgment and naming Kate, a natural object of her bounty, a legatee.”

Will of Robin Moles 

InWill of Robin Moles, No.1057/2009, (Surrogate S. Anderson)  NYLJ 1202489936090, at *1 (N.Y. Sur. Ct., N.Y. County, Apr. 6, 2011) [NYLJ 4/15/11], Robin Moles died on February 28, 2009, survived by four sisters and two nephews – and leaving an estate valued at in excess of $8 million (consisting of a stock portfolio and a New York City cooperative apartment).  Another nephew who was the beneficiary of a will executed thirty years prior to Moles’ death, objected to probate of the will and alleged that the propounded instrument “was not validly executed, that decedent lacked testamentary capacity, and that the will [was] the product of fraud or undue influence exercised by decedent’s long-time companion, Elsie McCarthy.”

The propounded instrument nominated “decedent’s companion as her sole beneficiary and named her along with the attorney-draftsperson as co-executors.”

The decedent:

had a history of alcohol abuse for which she was hospitalized in 1988 at Lenox Hill Hospital in New York City.  She was then admitted to a rehabilitation Center in Minnesota … Upon completion of her rehabilitation in 1988, decedent returned to New York City and moved into her cooperative apartment, where she lived until her death in 2009.  She appointed Darla Keller, the head of a Minnesota based investment company, as her attorney-in-fact to manage her investments and finances.  She also hired Ms. McCarthy, as her personal aide.

McCarthy continued in the decedent’s employ until Moles’ death twenty years later and “[d]uring that time, decedent experienced severe, sometimes debilitating intestinal symptoms attributed to chronic Crohn’s Disease.  Decedent underwent a colostomy and several other surgical procedures and hospitalizations arising from her Crohn’s disease.”

Surrogate Anderson found that:

Ms. McCarthy’s duties included assisting decedent with daily colostomy care and accompanying her to her doctor’s appointments.  She also visited decedent whenever she was hospitalized for flare-ups of her Crohn’s disease.  It is also not disputed, that as time went on, the two women became inseparable, spending every day together, socializing, traveling domestically and internationally, and even staying on occasion with Ms. McCarthy’s family in Ireland.  Meanwhile, the objectant lived in Minnesota, and visited once or twice a year.

According to the Court:

Proponents assert[ed] that at the time decedent executed the propounded instrument she possessed the required testamentary capacity, and that the will was properly executed and was not the product of undue influence or fraud.  Proponents further claim that decedent’s will was the natural expression of her wishes in that it reflected twenty years of friendship with Ms. McCarthy. They further contend that this was a friendship that resulted in a bond that was stronger than any relationship decedent had with objectant or any of her family members, whom she saw infrequently at best.  Finally, proponents argue that objectant supports his position by intertwining irrelevant smoke screens with allegations that are merely conclusory and speculative, and that objectant has failed to present any triable issue of fact.

And according to Surrogate Anderson, objectant “allege[d] that decedent lacked testamentary capacity when she executed the will, and claims the instrument was the result of undue influence exerted by Ms. McCarthy, whom objectant accuses of taking advantage of decedent, wrongfully accepting money from her during their 20 year relationship, and unduly influencing her to execute the instrument in favor of proponent.”

The Surrogate dismissed the objection as to due execution of the will.  Turning to the objectant’s claim of undue influence, the Court found that:

Objectant has failed to submit any evidence Ms. McCarthy compelled or constrained decedent to do anything against her free will.  Objectant [did] not dispute the fact that he saw decedent at most one or two times a year, and that decedent’s family rarely if ever visited with her over the last twenty years of her life.  Nor has he produced evidence that Ms. McCarthy prevented him or any other family member from visiting decedent.  Finally, he has not disputed decedent’s affection for Ms. McCarthy.

The attorney-draftsman testified that he discussed the details of the estate plan solely with decedent, without the involvement of Ms. McCarthy.  The will was executed under the supervision of another attorney in the firm and the execution ceremony was videotaped.

Accordingly, finding that “[o]bjectant has offered only conclusory allegations and speculation that Ms. McCarthy or someone else actually exercised undue influence over the decedent,” the Court dismissed that objection.

The Surrogate Anderson then turned to “the allegation that the will was a product of ‘fraud’” noting that “[t]o substantiate such a claim, objectant is required to demonstrate that someone knowingly made a false statement to the decedent which caused her to dispose of her property in a manner materially different from the disposition she would have chosen in the absence of that statement[.]”

Finding that “[o]bjectant has failed to produce a modicum of proof that anyone induced decedent to execute her will based on a false statement”, the Court dismissed the objection.

Estate of Marcel Carter 

In Estate of Marcel Carter, No. 4336/2008, (Surrogate Lopez Torres), 31 Misc.3d 1236(A), 2011 WL 2183177 (Table), (N.Y. Sur. Ct., Kings County, Mar. 31, 1011),Marcel Carter died on September 25, 2008, at the age of 94, survived by her sister, Blanche Battle.

The decedent’s will dated September 12, 2006 nominated William E. Frazier, Jr., as executor, and bequeathed to Frazier the residuary of her estate and directed him to give Blanche 25 percent of cash due and owing to her (with the 25 percent due to Frazier in the event that Blanche was admitted to a nursing home).

Surrogate Torres originally noted that:

The proponent, Frazier, who was approximately 40 years the decedent’s junior, was not related to her, was her self-described care provider, [was] the primary beneficiary of the decedent’s estate, and was the driving force behind the execution of the propounded instrument.  These factors clearly raise an inference of undue influence.  This inference is further buttressed by the emergence of an unsettling pattern.  Frazier’s own testimony and a review of the Court’s records have revealed that Frazier was the fiduciary in the states of a number of women significantly older than he, to whom he was not related and whose circumstances bore a striking resemblance to those of the decedent herein.  A hearing was therefore held to determine whether the proffered instrument was the product of overreaching or undue influence and whether it was duly executed.

Accordingly, the Court directed a so-called “Saterlee Hearing” at which Surrogate Torres found that:

The portrait that emerged from that testimony is of a man who systematically took over the personal and financial affairs of an elderly, frail woman whom he knew to have been afflicted with dementia.  What had once been hers alone progressively over time became his.  He moved into her home, put his name on her bank accounts, listened to her phone calls, put her under surveillance, and had her health care proxy – nothing that concerned the decedent eluded his reach.  Moreover, both his testimony and court records reveal that this was not the first time he became the nominated executor of the estate of a significantly older woman with property to whom he was not related.  The scenarios he describes as leading to his myriad fiduciary appointments are consistent:  the woman are cast as elderly and alone, prey to abusers and thieves who are then saved by Frazier, and who, in gratitude, name him executor of their estates.  In short, the testimony did not serve to put the court at ease concerning the legitimacy of the propounded instrument.

According to the Court, “[Frazier] ha[d] a B.A. degree in criminal justice, [was] a candidate for a masters in divinity, was self-employed as a consultant in financial matters, including estate planning.”

The testimony at the Saterlee Hearing established that Frazier’s relationship with decedent began in mid-1985 when Carter and her sister, Sally, started attending the church where he taught Sunday school; the decedent started buying him small gifts “and the relationship deepened over time”; and,  “[a]round 1987, after the death of decedent’s sister Betty McMillan, the decedent and her sister Sally asked him several times to recommend an attorney who could draft a will for decedent.  Frazier and the decedent discussed her testamentary plan, and he suggested that she establish a foundation or use her money to fund education.”

In July 1987, after church services, decedent told Frazier that: “she intended to designate him as a legatee in her will[;]” and “[t]heir relationship was growing steadily closer. “

 Surrogate Torres said that:

By 1989, he was her friend as well as her Sunday school teacher, and he visited her weekly.  The decedent and her sister Sally shared Thanksgiving dinner with Frazier and his family at his home, and they attended some social gatherings together.  That same year, he began organizing the decedent’s mail, paying her bills because she was experiencing difficulty remembering to pay them, and preparing both her Mitchell Lama Housing income affidavit and her income taxes. Decedent’s social security benefits, her pension, and her husband’s pension were being deposited directly to her bank accounts.  Frazier arranged for her cooperative maintenance payments to be automatically deducted from her bank account.

In 1995, Marcel was diagnosed with dementia; she asked Frazier to move in with her but he declined to do so; however:

In 1999, though he knew of the diagnosis, Frazier allowed the decedent to execute a power of attorney that he then used to transfer all of decedent’s money into a joint account bearing both their names, as well as an account in decedent’s name in trust for himself.  He testified that on occasion he wrote checks to himself as gifts from these checking accounts.  Shortly thereafter, he began escorting the decedent to her doctor for monthly examinations and ‘vitamin B complex shots for memory’ because en route she would become ‘distracted’ and fail to arrive at her appointments.  By this time, Frazier was seeing the decedent two or three times a week.”

In 2002, Marcel asked Frazier to recommend an attorney who could draft a will for her; and, in December, Frazier escorted the decedent to Claude D. Tims, Esq.

Frazier told Tims that “he had consulted with the decedent’s doctor and that the doctor had assured him that the decedent could make her own decisions.”  Several days later, Frazier saw a draft of a will in which he was nominated as executor.

Asserting that “he was concerned that two men were trying to extort money from the decedent and that he was unable to check on the decedent daily”, Frazier installed a video camera system in the decedent’s house by which “[h]e was able to monitor her remotely and listen to her telephone conversations.”

In 2005, “at the decedent’s request, Frazier moved in with her.  He testified that by that time he was taking care of all the decedent’s personal needs – including bathing her.”

Attorney Tims had passed away and, according to Frazier, in 2006 “on the decedent’s behalf, Frazier approached several attorneys concerning drafting a will but none were willing to do so for decedent because of her age.  At the time, she was over 90.”

The 2002 will drafted by Tims “appeared to have missing pages and contained the decedent’s handwritten additions.”  According to Frazier:

Concluding that he could not have the decedent sign it in that condition, but determined nonetheless to accede to the decedent’s wish to have a will drafted, he retyped the will Tims had drafted, inserting the handwritten changes, but otherwise neither adding nor deleting anything. He then contacted the decedent’s doctor regarding her ability to execute a will because he was concerned with the appearance of the decedent executing a will at his behest since she had been diagnosed with dementia, and because he was concerned that people in the community had observed the decedent sometimes acting oddly.

Frazier escorted Carter to the doctor’s office where decedent executed the will in the presence of Frazier, her doctor and her doctor’s secretary.  “[T]he doctor read the will and then asked the decedent if she knew what the document was, to which she replied yes.  He and his secretary then signed as witnesses.”

The Attorney General objected to probate of the will and:

[t]he Court agree[d] that the proffered instrument contain[ed] inconsistencies that undermine[d] Frazier’s claims concerning its genuineness.  As noted above, Frazier is made the residuary legatee yet is directed to make further distributions under specified circumstances.  Most troubling of all, however, is the fact that this instrument, which grants Frazier the lion’s share of the decedent’s estate, was drafted by Frazier himself.  All the evidence seems to point to the fact that Frazier was the driving force behind the proffered instrument – its conception, its drafting, and its execution.”

According to the Court:  “[t]he record and the evidence adduced at the hearing make it clear that the proffered instrument was not duly executed, was not the product of the decedent’s own volition, and that the decedent lacked the capacity independently to execute a will.”

With respect to undue influence, Surrogate Torres found that:

Frazier’s uncorroborated testimony establishes that he completely insinuated himself into the decedent’s life and controlled every aspect of the decedent’s personal and financial affairs.  His dominion over her continued until her death.  Focusing only on some of his more striking testimony, Frazier testified that some years after the decedent had been diagnosed with dementia, he had her execute a power of attorney giving him authority to make decisions concerning her finances and health care.  He testified also that he used this power of attorney to deposit all of the decedent’s funds into two accounts:  one account which was held jointly in both their names, and one which was in decedent’s name in trust for himself.  He acknowledged that he made gifts to himself from these accounts.  He testified also that he redrafted her will and arranged for its execution at her doctor’s office.  He testified that, before actually moving into the decedent’s residence, he installed a video camera in her apartment, by which he kept the decedent under constant surveillance.  Finally, his testimony clearly demonstrates the decedent’s complete dependence upon him for her most basic needs – including bathing, and to her mental confusion, such that she often mistook him for her deceased husband.

Surrogate Torres concluded that:

Frazier’s testimony persuade[d] the court that he overpowered decedent’s will and that the instrument she executed was a product of his volition and not hers …[t]he facts presented evince the exercise of undue influence by a trusted confidant over a weak and confused elderly woman. Given the totality of these circumstances, the court [was] not satisfied that the proffered instrument was solely a product of decedent’s own wishes, but [found] instead that it was the product of Frazier’s overreaching and undue influence.

Estate of Ralph Besdansky 

In Estate of Ralph Besdansky, No.520/2007, (Surrogate Diana D. Johnson), 31 Misc.3d 1210(A), 929 N.Y.S.2d 198 (Table)(N.Y. Sur. Ct., Kings County, Apr. 12, 2011), the petitioners, David J. Blatt and Tzila Goldberg, moved for an Order dismissing the objections of the Public Administrator and admitting to probate the April 26, 2004 will of Ralph Besdansky – who died on December 5, 2006, at the age of 92, while residing (since September 8, 2003) in an assisted living facility in Palm Beach, Florida.

The will bequeathed Besdansky’s entire $500,000 estate to Blatt and Goldberg.  The Public Administrator objected to probate on the grounds of lack of testamentary capacity “and/or that the purported will was the product of undue influence practiced upon Decedent by Petitioners.”  Extensive discovery followed.

After finding that “[t]he conflicting expert medical opinions regarding  Decedent’s mental capacity created a triable issue of fact concerning decedent’s testamentary capacity[,]” Surrogate Johnson turned to the issue of undue influence.  The Court recited the traditional mantra that:

Undue influence is defined as influence that amounts to a moral coercion, which restrains independent action and destroys free agency, or which by insistence cannot be resisted, constraining the individual to do that which is against his/her free will and desire, but which he/she is unable to refuse or too weak to resist. Matter of Caruso, 895 N.Y.S.2d 481 (2d Dep’t 2010), citing Matter of Walther, 6 N.Y.2d 49 (1959).

Undue 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, his dependency upon and subjection to the control of the person supposed to have wielded the influences, the opportunity and disposition of the person to wield it, and the acts and declarations of such person. ” quoting Matter of Bach, 519 N.Y.S.2d 670 (2d Dep’t 1987).

The Court found, as petitioners apparently conceded, that Blatt and Goldberg “were in a confidential relationship with [Besdansky] because “Blatt was the Administrator, and Goldberg the Director of Community Relations and Resident Care at the facility where Decedent resided.”  In such circumstances of “substantial disparity in power between the parties involved in a transaction, the law may impute the existence of a confidential relationship.”

The Court noted that “[w]hile the vast majority of those who care for the aged are honest and dedicated professionals, the relationship [was] one which unfortunately, the greedy and the corrupt may find considerable gain.” In the instant case “Petitioners each received a ‘gift’ of $250,000.00 from Decedent within several months of his taking up residency at Palm Beach”.

Surrogate Johnson also found that:

 Decedent had lived a very solitary life for many years before coming to Palm Beach.  During Dr. Hashemi’s examination, Decedent indicated that his life basically consisted of watching TV and listening to the radio.  He stated he was a bachelor because he didn’t make enough money.  He complained of the cost of his hospital stay at Maimonides Medical Center just the prior month declaring, ‘they charge a lot of money, I won’t go there anymore.”  Then suddenly a month or so later he gives away $500,000 ($250,000.00 each) to two individuals who admittedly never invited him to their home or participated in any other social engagement with him other than speaking to him or doing that which was part of their regular duties at Palm Beach.

And, accordingly, Surrogate Johnson concluded that “[t]his drastic change ‘in decedent’s dedication to these lifelong penurious practices’ (seeMatter of Brandon, 436 N.Y.S.2d 329 [2d Dep’t 1981]), clearly constitute[d] sufficient circumstantial evidence of undue influence to raise a triable issue of fact as to whether Petitioners exerted undue influence over Decedent.”

Accordingly, because issues of fact were raised, Blatt and Goldberg’s motion for summary judgment dismissing the objections of the Public Administrator based on mental capacity and undue influence was denied.


As demonstrated in the Will of Robin Moles, involvement of an attorney may protect the wishes of the testator and minimize the vulnerability of the will against objections to the validity of instrument.  Recognizing the potential for an attack against the client’s estate plan, the attorney-draftsman took special precautions.  The attorney dealt directly with the testator concerning the details of the estate plan, ascertaining the reasons why his client wanted to leave her assets to a non-family member.

Representing an elderly client involves special challenges.  Often the attorney’s first contact might not with the testator but with a family member or caregiver, contacting the attorney on the behalf of the testator.  The caregiver might be accompanying the client to the attorney’s office.  The client might be asking for drastic changes of his or her estate plan, greatly inconsistent with prior plan.  The attorney must have a keen eye to recognize whether the client might be showing the signs of improper influence by someone else, and possible precluding the exercise of the client’s own volition.

Victor M. Metsch is a senior litigation partner at Hartman & Craven LLP

This Article was originally published by Thomson Reuters.

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