Undue Influence or Duress?
In a recent decision in the Estate of Mildred Rosasco , Surrogate Glen carefully explains the difference between undue influence and duress, two legal concepts that have become conflated in Surrogate's Court practice.
If you speak with a trusts and estate's lawyer and ask her to define undue influence, you will hear something like “undue influence is moral coercion that destroys a testator’s will to act independently and leads the testator to act contrary to his own desires because he cannot refuse or is too weak to resist.” However confident that lawyer sounded in her recitation of this definition, understand that the Court of Appeals has stated, as Surrogate Glen tells us, that "[i]t is impossible to define or describe with precision and exactness what is undue influence . . ." In Rosasco, Surrogate Glen explains how courts have struggled with the concept of undue influence, citing to decisions dating back to the 19th Century, and how the Court of Appeals, in Matter of Walther (6 NY2d 49 [1959]), affirmed the explanation of undue influence cited above.
What is critical in a probate contest involving an objection on the grounds of undue influence is that a prima facie case of undue influence requires a showing, not only of opportunity and motive to exercise undue influence, but also, of the actual exercise of undue influence. Although undue influence can be proven by circumstantial evidence, as there is rarely direct proof of undue influence, it can only be proven by substantial circumstantial evidence. Undue influence is difficult to prove, but the burden of proving undue influence is eased where there is a showing that the testator was in a relationship of trust and dependence with proponent of the will, i.e., the existence of a confidential relationship. Surrogate Riordan’s decision in Matter of Zirinsky is a must read for anyone trying to get a handle on undue influence (Also review the Appellate Court decision on the appeal of the Zirinsky case).
As to duress, Surrogate Glen, citing the Restatement (Third) of Property, notes that duress is something different from undue influence. She explains that a will or a bequest is procured by duress if the wrongdoer threatened to perform or did perform a wrongful act that coerced the testator into doing something that she would not otherwise have done. A “wrongful act” in this definition means a criminal act or an act that the wrongdoer had no right to do.
One can understand how the two concepts differ by examining a three-year-old child’s threats. When a three-year-old has his mind set on eating a second piece of chocolate or on watching a cartoon that features incredible acts of violence, he might threaten to flush his father "down the toilet." In the alternative, he might repeatedly and sincerely state that he will not talk to his father until he receives his chocolate or is gratified by watching Spiderman deliver bone-crushing blows. Flushing another human being down the toilet would certainly constitute a crime. The three-year-old child’s father taking this threat seriously and acting on this threat could be said to be acting under duress. On the other hand, absent some legal relationship, such as that which a guardian has with his ward, a person is well within his rights to refuse and refrain from talking or associating with another. If the three-year-old child’s father is acting on the child’s threat to cut off all communication, he might be said to be acting as a result of undue influence.
Witness Beneficiary Rule Applicable to Instrument Executed Outside of New York?
An interesting issue recently arose in an uncontested probate proceeding before the Bronx County Surrogate’s Court, namely, whether the disqualifying provision of EPTL §3-3.2(a)(1) is applicable to an instrument executed outside of this jurisdiction.
In Estate of Alford, 2010 NY Slip Op 51707(U) (Sur Ct, Bronx County 2010), the sole beneficiary of the decedent’s estate was a Canadian citizen and was one of two attesting witnesses to the subject will. The execution of the instrument occurred in Ontario, Canada.
Pursuant to EPTL §3-3.2(a)(1),
(a) An attesting witness to a will to whom a beneficial disposition or appointment of property is made is a competent witness and compellable to testify respecting the execution of such will as if no such disposition or appointment had been made, subject to the following:
(1) Any such disposition or appointment made to an attesting witness is void unless there are, at the time of execution and attestation, at least two other attesting witnesses to the will who receive no beneficial disposition or appointment thereunder.
In other words, the statute mandates the invalidation of a bequest to the witness beneficiary if he or she is one of two attesting witnesses whose testimony would be required to probate the instrument. While a distributee, such as the beneficiary this case, remains entitled to his intestate share of the estate even if he is a witness to the execution of the will (EPTL §3-3.2(a)(3)), this beneficiary would inherit more under the will than his intestate share.
In making its determination, the court considered the following factors: (1) that EPTL § 3-5.1(c) provides that a will is valid in New York if it was validly executed in another jurisdiction; (2) that in Canada, a bequest to a witness beneficiary is void only if there was undue influence over the testator, which was not alleged here; and (3) in this particular case, no interested party contested the will or requested that the beneficiary testify. Thus, because it was determined that the instrument was validly executed pursuant to the laws of Ontario, Surrogate Holzman held that EPTL §3-3.2(a)(1) was inapplicable. Accordingly, the beneficiary’s devise was not reduced to his intestate share by statute.
The court’s analysis begs the question of whether the conclusion would have been the same if the probate proceeding had been contested. Although the witness’ testimony would be necessary if that were the case, the fact remains that absent a finding of undue influence, the will and the bequest itself would be valid pursuant to the laws of the jurisdiction in which it was executed. However, if any allegations of undue influence had been made, such claims would call into question the validity of the instrument in Ontario, Canada, and thus, undermine two of the bases for Surrogate Holzman’s decision.
Consequently, it appears that the applicability of EPTL §3-3.2(a)(1) in the case of wills executed outside of this jurisdiction is
highly fact sensitive and must be determined on a case by case basis.
Summary Judgment Granted, Dismissing Objections and Admitting Will to Probate
In recent years, Surrogate’s Courts have become increasingly inclined to grant motions for summary judgment in contested probate proceedings when warranted. A decision issued last week in Monroe County is yet another example of this trend. While the evidence presented by the objectants in this particular case appears to be exceptionally weak, the following analysis provides a cohesive illustration of the considerations and standards that Surrogates routinely utilize in analyzing typical objections.
In Matter of Feller, 2010 NY Slip Op 50001(U), eight of the decedent’s eleven known distributees filed objections to probate, alleging the customary lack of due execution, lack of testamentary capacity and undue influence. The decedent executed a last will and testament nine months prior to her death, leaving her estate to ten charities and four individuals in equal shares, and naming the attorney-draftsman as executor. The New York State Attorney General’s Office filed a motion for summary judgment, seeking to dismiss the objections.
Due Execution
The objectants contended that the will was not duly executed within the requirements of EPTL 3-2.1 because the attorney-draftsman/proponent, not the testator, requested that that the witnesses act. But the testimony of the attorney-draftsman demonstrated that the testatrix responded in the affirmative when questioned as to whether she wanted those present to witness the execution of the instrument. The Court opined that this conduct coupled with the circumstances surrounding the execution ceremony satisfied the due execution requirements of EPTL 3-2.1. Indeed, “[a]ttorneys routinely lead their clients through the will execution formalities in order to ensure that the requirements of EPTL 3-2.1 are satisfied . . . and . . . publication and instruction . . . is not required to be in any ‘ironclad ceremonial or ritualistic language’” (Matter of Feller, supra, citing In re Douglas’ Will 193 Misc 623, 631-632 [Sur Ct, Broome County 1948]).
Testamentary Capacity
With respect to testamentary capacity, the Court noted the presumption in favor of capacity when a will is drafted by, and the execution supervised by, an attorney. In this case, the Court held that the proponent established a prima facie case of the requisite capacity based upon the following facts:
· The decedent herself sought the services of the attorney-draftsman;
· The decedent personally met with the attorney-draftsman and brought detailed notes as to her desired estate plan;
· The decedent told the attorney-draftsman about her familial situation;
· The witnesses were aware of the decedent’s involvement in her estate planning, and testified that she appeared to have no visual, auditory or cognitive difficulties; and
· The decedent made specific and accurate changes to the draft of the will.
In fact, the only basis for the allegation of lack of capacity was one of the objectant’s observations that the decedent had appeared preoccupied, reserved and distracted during a visit that occurred around the time that the will had been executed. Citing holdings of the Appellate Division that evidence of sadness or confusion alone is insufficient to prove lack of capacity, the Court rejected this contention. The Court further explained that a diagnosis of dementia, Alzheimer’s, or simply old age, without more, would also be insufficient to override a prima facie showing of capacity (id., citing Matter of Nofal, 35 AD3d 1132 [3d Dept 2006]; Matter of Castiglione, 40 AD3d 1227 [3d Dept 2007]; Matter of Minasian, 149 AD2d 511 [2d Dept 1989]; Matter of Hedges, 100 AD2d 586 [2d Dept 1984]).
Undue Influence
Addressing the claims of undue influence, the court reiterated that it is an objectant’s burden to demonstrate by a preponderance of the evidence, (1) motive, (2) opportunity, and (3) actual undue influence. Undue influence must amount to “a moral coercion, which restrained independent action and destroyed free agency or which . . . constrained the testator to do that which was against his free will and desire . . .” (id.,quoting Children’s Aid Society of NY v Loveridge, 70 NY 387, 394 [1877])., The Court further noted that undue influence may proved by circumstantial evidence, “but the circumstances must lead to it not only by a fair inference but as a necessary conclusion” (id., quoting In re Will of Henderson, 253 AD 140 [4th Dept 1937]).
The objectants’ claim of undue influence alleged that the proponent persuaded the testator to change her funeral home of choice to one that was a client of the proponent. However, the proponent testified that he made no recommendations regarding the decedent’s testamentary plan, but tried to persuade her to choose another executor. In addition, the record demonstrated that every time the decedent met with the proponent regarding her estate plan, she was not accompanied by anyone. In view of these facts, the Court held that the Objectants failed to meet their burden in connection with their allegations of undue influence (see Matter of Feller, supra).
Interestingly enough, there was no discussion of a confidential relationship between the decedent and proponent in this case, and thus, the burden of proof did not shift. After all, an attorney-client relationship often gives rise to a confidential relationship, and a consequential presumption of undue influence (see e.g., Weber v Burman, 22 Misc 3d 1104[A] [Sup Ct, Nassau County 2008]; Estate of Olson, 5/16/2006 NYLJ 33 [col 4] [Sur Ct, Richmond County]). Perhaps this was not considered because the attorney-draftsman was not a beneficiary, but I would submit that such a relationship is arguably relevant here, in light of the allegations.
Discovery in Probate Contests
Discovery in a contested probate proceeding is generally governed by what Surrogate’s Court practitioners call the “three/two” rule (22 NYCRR 207.27). This rule limits discovery to the “three-year period prior to the date of the propounded instrument and two years thereafter, or to the date of the decedent’s death, whichever is the shorter period” (id.). It is a “pragmatic rule" intended to prevent the abuses associated with a “runaway inquisition” or “wild goose chase” (Estate of Das, NYLJ, 5/1/2009, at 31 [Sur Ct Nassau County]).
Notwithstanding that general rule, however, the time period for discovery may be extended by the Surrogate’s Court when “special circumstances” exist, such as when “a scheme of fraud or a continuing course of conduct of undue influence” is alleged (id.). For example, in Matter of Kaufman, the objectants sought discovery with respect to the entire period of cohabitation between the proponent of the decedent’s will and the decedent, which lasted from September 1948 until the decedent’s death in April 1959 (11 AD2d 759, 759-60 [1st Dept 1960]). The objectants argued that the departure from the three/two rule was warranted because the proponent’s long relationship with the decedent gave rise to testamentary capacity and undue influence concerns (id.). Although the Surrogate’s Court denied the objectants’ motion, the Appellate Division reversed, reasoning that a full examination of the decedent’s relationship with the proponent was warranted (id.).
However, conclusory allegations of “special circumstances” will not suffice. In Estate of Das, the Surrogate’s Court recently denied the objectant’s motion to depart from the three/two rule (Das, supra). There, the decedent died in July 2002, but the petitioner, the decedent’s son, did not offer the decedent’s will for probate until September 2006 (id.). The petitioner attempted to explain the delay by filing an affidavit of lateness stating that he had trouble locating the deed to real property the decedent owned in India (id.). Nevertheless, the objectant, another one of the decedent’s sons, filed objections to probate, alleging that the will was the product of fraud, duress, and undue influence, among other grounds (id.).
The objectant moved to expand the three/two rule for discovery, while the petitioner cross-moved for an order appointing him to act as Executor of the decedent’s estate (id.). In support of his motion, the objectant argued that “special circumstances” existed, justifying the requested departure from the three/two rule (id.). Specifically, the objectant asserted that: (1) “the petitioner and his wife sold property owned by the decedent during the decedent’s lifetime;” (2) “there was a delay in offering the will for probate;” (3) “the petitioner exercised a health care proxy ‘resulting in the decedent’s death’;” (4) “the petitioner failed to investigate injuries sustained by the decedent as the result of a fall in the hospital and did not bring a wrongful death action;” (5) “the purported will reflects a ‘fatal disregard for forced heirship laws of India’;” (6) “the proposed executor[] and his counsel ‘displayed conduct during the probate proceedings including but not limited to initial non-responsiveness followed by less than adequate disclosure’;” and (7) the “fact that [the] proposed executor’s wife has and continues to wield undue influence over the estate is further highlighted by her recent communiqué with an Indian attorney on the forced heirship laws of India” (id.).
Upon considering the objectant’s contentions, the court concluded that there were no special circumstances to justify departing from the three/two rule (id.). The court reasoned that there were “no allegations of a ‘scheme to defraud’ or a ‘continuing course of conduct of undue influence” (id.). As a result, the court denied the objectant’s motion to expand the three/two rule for discovery (id.).
While the three/two rule governs discovery in probate contests, it should not serve as an absolute bar to obtaining discovery of activities that occur outside of the permissible period when special circumstances exist.
