A lady testator co-owned an apartment building in New York with her two sisters. The bulk of her estate came from her share in the rent income she derived from the apartments and the value of the apartment building and its premises. She executed a will on September 16, 1997 naming her two sisters as co-executors with their neighbor. She gave legacies to her seven nephews and nieces, the children of her two sisters but she provided that the remainder of her estate will be shared equally by the three executors and in the event that her sisters die ahead of her, the estate will go to their neighbor.
As it turned out, the testator’s two sisters died ahead of her. The testator herself lived until she was 93. She died on June 18, 2006. Their neighbor brought the petition for probate of her will.
The nephews and nieces of the testator all object to the probate of the will on the grounds that it was not genuine; it was not validly executed; it was executed by mistake; it was executed without testamentary capacity; it is the product of their aunt’s neighbor’s undue influence on her; it is the product of duress exercised by their aunt’s neighbor on her; and it was procured by the neighbor’s fraud.
A New York Probate Lawyer said the neighbor filed a motion for summary judgment asking that the objections be dismissed. The Surrogate’s Court granted the summary judgment on the objection that the will was procure through fraud and mistake because the nephews and nieces failed to adduce evidence of fraud and mistake.
The court also granted the motion for summary judgment on the ground that the will was not validly executed or that the will presented for probate was not genuine. The Surrogate’s Court found that the neighbor presented the affidavits of the attesting witnesses; he presented the attestation clause of the will; and he also offered proof that a lawyer supervised the execution of the will.
The only remaining issue is whether or not the neighbor exerted undue influence and duress on the testator. This is the same issue before the Supreme Court.
The testator, her sisters and their families all lived in apartments in the apartment owned by the testator’s family. A Staten Island Probate Lawyer said one of the lessees in the apartment building threw out their teen-aged son. The sisters took pity on the young boy and allowed him to live in one of the empty apartments. This boy grew up and became the indispensable helper of the three elderly ladies. He was their neighbor who was made the executor of the testator’s will.
The neighbor had a sister whom the elderly ladies also took pity on. They gave her financial support from time to time so she could finish her studies. The neighbor hated her sister and he often got angry with his sister whenever she came to visit the ladies in the apartment. He also got angry with the elderly ladies, especially with the testator whenever she gave his sister money. He yelled at them and threatened his own sister with bodily harm in front of the elderly ladies.
On three occasions, the neighbor punched his sister in front of the testator and told his sister that he would kill her if he asked any more money from the testator.
The sister testified against her own brother during the probate and noted how the testator was lightly built and was crippled with polio while her own brother was muscular and knew martial arts.
The neighbor’s sister testified that she remembered one particular afternoon in September 1997 when the testator told her that she had done something stupid. She told her that she had named her brother (the neighbor) as the testator’s executor. When the neighbor’s sister learned that, she told the testator to go back to her lawyer and change her will but she refused saying that the neighbor might kill her and kill the sister, too. The testator said that she couldn’t change her will without the neighbor knowing and that she was afraid that he might hurt her. The neighbor’s sister said that she would contact the lawyer for the testator but the testator wouldn’t let her lest the neighbor hurt his sister as well.
The Court held that the issue of whether or not undue influence or duress was exerted on the testator by the actual threats made by the neighbor; or by the threat with bodily harm that he exhibited himself capable of inflicting on others, even his own sister; all these issues are issues of fact that have to be tried by a jury.
For this reason, the Supreme Court remanded this sole issue to be tried by the Surrogate’s Court. But in remanding the issue of undue influence and duress, the Supreme Court explained what constituted undue influence and duress.
The Supreme Court has held that it is that kind of influence that destroys the free agency of the testator. New York City Probate Lawyer said the amount of undue influence must be judged on the basis of the circumstances of the strength or weakness of the mind of the testator, the impairment of the mind or the body of the testator due to age, sickness, disease or any other cause. There must be proof that the testator had a dependency on the person who exerted the undue influence.
There must be proof that the testator was under a moral coercion which restrained her action and that the coercion could not be resisted or that the testator was too weak to resist the coercion. The moral coercion cannot be motivated by love, affection or the desire to gratify the wishes of another. It cannot arise from attachment arising from consanguinity or from kind acts. The motive of the person unduly influencing the testator must be shown to stem from force or fear.
It must also be a mental coercion that led the testator to carry out the wishes of another instead of her own because the testator was too weak to refuse or to resist. The undue pressure on the testator may consist of playing with the testator’s emotions, passions, fears, weaknesses or hopes. It may consist in appeals to the testator’s prejudices or it may consist of flattering the testator. Whatever the way the undue influence began, it slowly and gradually caused the testator to be controlled by the person influencing her.
In this case, the testator was not alienated from other people in her life by the neighbor. The neighbor was constantly in her apartment and assisted her and made arrangements for her daily but there were many others in the testator’s family that she depended upon for support. The testator was not so weakened in mind or body so as to be controlled by the neighbor.
But there is evidence of duress. The neighbor committed illegal acts of violence against his own sister in the presence of the testator. The neighbor threatened his own sister with further violence and even threatened to kill her, all in the presence of the testator. There is evidence that the testator was afraid to change the terms of her will to favor the neighbor’s sister because of what the neighbor might do to his sister. This testimonial proof points to the existence of duress which must be properly tried and established in a trial before a jury.
Contesting a will involves evidence of circumstances that show undue influence or duress on the testator. A New York Will Contest Lawyer can help you present testimonial and documentary proof to substantiate your objection of undue influence and duress. At Stephen Bilkis and Associates, an experienced legal team is ready to stand with you and argue your objections.