By Victor M. Metsch, Esq.
This article was originally published by Thomson Reuters.
The Legal Framework
“Constructive trust” was just one of many mind-numbing “ancient” remedies dissected in my first year of law school. The applicability of such relief, at the time, seemed purely academic and clearly remote from the real world. Given that introduction to the remedy, I am surprised how often the doctrine is invoked in connection with circumstances that our predecessors-in-law could never have foreseen. Continue reading
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.