One of the most frequent inquiries I get as an attorney involved in the area of contested estates involves issues of alleged undue influence. I say "alleged" because the public perception of  undue influence is often far removed from its true legal definition. Since many savvy trial lawyers often prepare their cases from the start with an eye to the charge which the judge will give a jury, it is useful to look at undue influence from that angle. One of the best ways to do that is by going directly to section 7:55 of the "Pattern Jury Instructions" (from which I am liberally quoting in this article) that courts rely upon to explain legal issues to the juries who must decide them.

Keep in mind that the Surrogate’s Court is always guided by the requirement that it determine the true intent and expression of the testator’s wishes — not always an easy task given that the testator is no longer with us to express these intentions on his or her own. A will is seen as the product of undue influence if it reflects the "desires of some person who controlled the testator’s thoughts or actions".

The problem here is that we are all influenced to one extent or another by the folks around us. To be undue, "the influence exerted must amount to mental coercion that led the testator to carry out the wishes of another instead of his or her own wishes because the testator was unable to refuse or too weak to resist.

Here is where it is easy to fall into a trap. The law does not "condemn all influence…but only that degree of influence that destroys the testators own judgment and free will." Where the testator is influenced by "affection, gratitude,family and personal relationships or ordinary advice and argument" the influence involved is not seen as undue".

In deciding questions of undue influence, a jury is instructed to take all of the facts and circumstances surrounding the will into account.Important factors include the testator’s mental and physical condition, level of isolation from family and friends and whether or not he or she actually knew and understand the provisions of the will. Also important is whether or not the testator had the chance to obtain independent legal advice and what action might have been taken by the primary beneficiary to get the will executed.( To this end, where a lawyer is a beneficiary of a will which he or she has drafted, a presumption of undue influence exists).

When dad leaves his whole estate to his favorite son and leaves eight other kids who are long absent from his life out of his will, or when a huge bequest goes to a next door neighbor who, for twenty years, was always there for a game of cards or a trip to the supermarket or the doctor or to shovel the snow, undue influence is hard to find and hard to prove. Fact patterns involving family members and long-standing friendships may be contrasted with the classic relationship between the pretty, young home health aide and the eighty five year old millionaire whose kids live in distant cities and who cannot be present to monitor the flattery and cunning with the focused purpose of becoming their father’s sole heir and beneficiary.

Undue influence is generally the first accusation leveled by an objectant to a will at the beginning of a bitter will contest. Once one examines the full range of circumstances surrounding the situation, often the easiest thing to realize is how hard it is to prove.