When a Will is offered for probate that either treats certain family members disparately or completely disinherits one or more siblings in favor of another, the claim of undue influence is quick to be injected into the family feud which invariably results (assuming it has not been percolating for some time prior to the decedent’s death). However, as shown by a recent Appellate Division decision in the Estate of Dorothy Greenwald 849 N.Y.S.2d346(A.D.3rd Dept 2008) , it is much easier to claim undue influence than to prove it.

It seems that in Greenwald,  the objectant’s claims that the will was the product of undue influence centered about the assertion that his sister had taken their mother to a lawyer in order to make a will. The will itself did little to alter the long-standing testamentary scheme of the decedent other than to provide that the petitioner would be the sole contingent executor (after her father who predeceased the decedent) rather than have all three siblings serve as co-contingent executors. Additionally, in a  subsequent codicil,Mrs Greenwald left all of her furniture and personal items to her daughter rather than divide it among her children. Interestingly enough, the new will also contained an in terrorem , or "no contest" clause.

After extensive discovery, the daughter filed a motion for summary judgment which was augmented by affidavits of disinterested witnesses establishing that all she had done was to facilitate her mother’s making a will and that her mother had acted voluntarily. The court found that her brother had failed to meet his burden of proof to demonstrate that there was a level of undue influence which amounted to a "moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted , constrained the testator to do that which was against his or her free will and desire, but which he or she was unable to refuse or too weak to resist."  The sole argument advanced by the objectant was that since his sister and her husband had resided with his mother  when the documents were drafted, that she must be found to have exercised undue influence because it was she who contacted the attorney-drafter for the purpose of having the wills made. This conclusory argument in and of itself fell far short of any measure of proof needed to uphold the objection.

And then there is the matter of that  in terrorem clause…….