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 ), 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.