The issue of undue influence was revisited recently by the Appellate Division in the Matter of Thaddeus Klingman 875 N.Y.S. 2d(A.D. 2 Dept 2009). Mr. Klingman learned the terrible news that he was suffering from terminal lung cancer and then proceeded to rescind a separation agreement, change the beneficiary of his life insurance and pension and execute a new will favoring his wife. His son’s objections to the will which were based upon  undue influence and fraud were dismissed upon motion prompting an appeal. The Appellate Division affirmed the Orange County Surrogate ‘s decision.

Once more, the courts have reminded us that "An objectant seeking to establish undue influence regarding a will must show that ‘the influence exercised 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 free will and desire, but which he was unable to refuse or too weak to resist.’ ". The court additionally warned that "an objectant seeking to establish fraud must show, but clear and convincing evidence , that the proponent of the will ‘knowingly made false statements to [the decedent] to induce [him] to execute a will that disposed of [his] property in a manner contrary to that in which [he] otherwise would have disposed of it."

Here it is easy to see how the decedent’s son would have been hard put to accept such a sudden and radical departure from a testamentary scheme in favor of a wife from whom the decedent was legally separated. However, it is important to keep in mind that New York has little patience for leaps of faith. This can often make things difficult since so much of  what is often used to show undue influence and fraud is, of necessity, circumstantial. In the absence of hard evidence to establish the elements of undue influence and fraud, it may well be impossible to prove that which is abundantly clear to anyone with knowledge of the situation.