Undue influence provides a basis to invalidate the entire will or a specific bequest. It occurs when a wrongdoer overcomes a decedent’s free will and causes the decedent to make a will or bequest that the decedent would not otherwise have made (see Restatement 3d Property [Wills and Other Donative Transfers], § 8.3 ). The influence may be forceful or alternatively subtle pressure (Matter of Edel, 182 Misc 2d 878, 885 [Surrogate’s Ct, Cattaraugus County 1999]). Look for instances of persuasion or pressure made by the wrongdoer, short of actual force, but stronger than mere advice (see 3-42 Warren’s Heaton on Surrogate’s Court Practice § 42.07 [Lexis 2017]).
To prove undue influence, a party must establish the existence of motive, opportunity, and the actual exercise of undue influence (Matter of Nofal, 35 AD3d 1132, 1134 [3d Dept 2006] [internal quotation marks omitted]). Motive is often financial. Look at the beneficiaries in the will and the dispositions made to them. Then, to establish opportunity, try to establish that the beneficiary, or another acting on the beneficiary’s behalf, had contact with the decedent or the drafting attorney and had prior knowledge about the will or bequest.
To prove the exercise of undue influence, a party may rely on direct evidence – such as testimony from a person who observed the wrongful act. However, as the only witnesses to undue influence are often the wrongdoers, parties generally must rely on circumstantial evidence to prove their case (see Matter of Kotick v Shvachko, 130 AD3d 472, 473 [1st Dept 2015]; Matter of Paigo, 53 AD3d 836, 839-840 [3d Dept 2008]).
Relevant factors to consider include: (1) the nature of the will; (2) the decedent’s family relations; (3) the decedent’s health and mind at the time of the execution of the will; (4) the decedent’s dependency upon and subjection to the control of the person charged with undue influence; (5) the opportunity and disposition of such person to wield it and his acts and declarations in doing so; and (6) the acts and declarations of such person (see Rollwagen v Rollwagen, 63 NY 504, 519-520 ; 9-117 Warren’s Heaton on Surrogate’s Court Practice§ 117.02  [b] [Lexis 2017]).
Additional relevant factors include the following, among others: (1) whether the primary beneficiary selected and/or was associated with the attorney draftsman; (2) whether the decedent was isolated from family and friends; (3) whether the provisions of the will were a departure from the decedent’s prior estate plan; (4) whether the decedent had knowledge of the will’s provisions and was satisfied with them; (5) whether the person(s) charged with undue influence controlled the decedent’s lifetime affairs; (6) whether the person(s) charged with undue influence benefited under the will disproportionately to other beneficiaries; (7) whether the donor received independent advice from an attorney; and (8) whether the will or will substitute was prepared in secrecy or in haste (see 9-117 Warren’s Heaton on Surrogate’s Court Practice § 117.02  [b]; New York State Estate Administration § 3.06 [d]  ; Restatement 3d Property, § 8.3, comment h; see e.g. Matter of Elmore, 42 AD2d at 240; Matter of Bach, 133 AD2d at 455).
Well in advance of the SCPA 1404 exam, you should have the client provide witness information, prior wills, and other documents and information relevant to the factors discussed above. You should also serve the preliminary executor with a demand for documents to obtain the estate file, the decedent’s papers, prior wills, and other relevant materials. Then, at the SCPA 1404 exam, you should question the drafting attorney about these documents and the circumstances and factors discussed above.
The decedent’s medical records, telephone records, emails, social media accounts, financial records and authorizations should also be requested from the preliminary executor and subpoenaed at some point, either before or after the 1404 exam. After objections are filed, the attorney should depose the beneficiaries and obtain documents from them to ascertain their involvement with the decedent.