The Appellate Division has reversed a decision of New York County Surrogate Nora Anderson in the Will of Robin Moles reported at  933 N.Y.S.2d 685 (A.D. 1Dept 2011). She had originally granted the proponent’s motion for summary judgment , dismissing the objections of the decedent’s nephew who claimed undue influence and a lack of testamentary capacity.The Will disinherited the longstanding beneficiaries of the decedent’s longstanding earlier will.

In reversing, the Appellate Division noted issues of fact as to whether or not the decedent actually understood that the new will would result in the disinheritance of those she had long favored. It was further determined that there was substantial circumstantial evidence which surrounded the will signing . These issues included the condition of the decedent’s health, family relationships and events indicating that there might have been undue influence exerted upon her. An earlier report of the Adult Protective Services had also found that decedent’s judgment had been "impaired" and a guardianship proceeding was recommended to "safeguard her".

The court found that circumstantial evidence may demonstrate undue influence in executing a will , provided that the evidence is substantial.In reviewing this case, however, it should be kept in mind that proving undue influence is the legal equivalent of climbing a mountain. It is always a difficult challenge. There is almost  always influence involved in the making of a will but that does not mean that it is "undue" influence. It is always necessary to show that the intention and will of another was substituted for the free will of the decedent. That may be possible to do in cases where ample medical evidence exists to show a diminished capacity coupled with a testator who was visibly under the control of a person benefiting from the new will which has substantially altered an established testamentary scheme.

This case has been remanded to the Surrogate for trial. If there is no settlement, we may get to learn of the outcome sometime later this year.