In an effort to provide a better understanding for what undue influence expert psychologists look for when forming opinions about whether undue influence occurred in the execution of a will, trust, beneficiary designation, or other contractual document, I am highlighting the statutes, case law, and jury instructions specific to all 50 states. Each will be in its own blog post. Thirty-second up, New York.

Matter of Zirinsky, 43 AD3d 946, 947-948 (2007):

For a will to be invalidated based on undue influence, it must be shown 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 (citing Matter of Walther, 6 NY 2.d 49,53).

Undue influence may be proved by circumstantial evidence, but this evidence must be of a substantial nature (citing Matter of Walther, 6 NY 2.d 49,53).

Matter of Walther, 6 NY 2.d 49 (NY 1959):

Undue influence is established as motive, opportunity, and the actual exercise of undue influence:

The existence and exercise of undue influence;
The effective operation of undue influence as to subvert the mind of the testator at the time of the execution of the will; and
The execution of a will that, but for undue influence, would not have occurred.

Undue influence is not the promptings of affection; the desire of gratifying the wishes of another; the ties of attachment arising from consanguinity, or the memory of kind acts and friendly offers.

An inference of undue influence cannot be reasonably drawn from circumstances when they are not inconsistent with a contrary inference (citing Matter of Ruef, 180 App. Div. 203, 204).

A mere showing of opportunity and even of a motive to exercise undue influence does not justify a submission of that issue to the jury, unless there is in addition evidence that such influence was actually utilized (citing Cudney v. Cudney, 68 NY 148, 152).

Children’s Aid Society v Loveridge, 70 NY 387 [1877]; Matter of Woodward, 167 NY 28 [1901]; Matter of Callahan, 155 AD2d 454 [1989]; Matter of Gnirrep, 2 AD2d 404 [1956]:

One factor that might indicate the exercise of undue influence is the physical and mental condition of the testator.

Matter of Elmore, 42 AD2d 240 [1973]:

Two factors that might indicate the exercise of undue influence are whether the attorney who drafted the will was the testator’s attorney and whether the person who allegedly wielded undue influence was in a position of trust.

Matter of Kruszelnicki, 23 AD2d 622 [1965]:

One factor that might indicate the exercise of undue influence is whether the contested will deviated from the testator’s prior testamentary wishes.

Matter of Burke, 82 AD2d 260 [1981]; Matter of Kaufman, 20 AD2d 464 [1964], affd15 NY2d 825 [1965]:

One factor that might indicate the exercise of undue influence is whether the testator was isolated from the objects of his natural affection.

In re: the Estate of Neenan, 35 A.D.3d 475, 827, N.Y.S.2d 164 (2006):

An inference of undue influence, requiring the beneficiary to explain the circumstances of the bequest, arises when a beneficiary under a will was in a confidential or fiduciary relationship with the testator and was involved in drafting the will (citing Matter of Putnam, 257 NY 140; Matter of Collins, 124 AD2d 48, 1987). Although the inference does not shift the burden of proof on the issue of undue influence, it places the burden on the beneficiary to explain the circumstances of the bequest.