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Court determined that the issue of undue influence was a triable  issue of  fact. In re Gobes, 2020 N.Y. Slip Op. 7887 (N.Y. App. Div. 2020)  


In a contested probate case, the court considered whether there was an triable issue of fact with respect to whether the decedent had been subjected to undue influence at the time that he executed his will.

On December 22, 2016, the decedent died after a terminal illness. He left a will dated December16, 20216. He was survived by three children. One of his children is the objectant. The petitioner submitted the for probate and the objectant filed objections.  The grounds for the will contest  include lack of  testamentary capacity and undue influence. The petitioner moved for summary judgment dismissing the objections.  The Surrogate’s Court granted the petitioner’s motion dismissing the objections and admitting the will to probate. The objectant appealed.

Lack of testamentary capacity
The Appellate Division first considered the issue of lack of testamentary capacity. New York law requires that for a will to be valid, the testator must have been of sound mind and memory at the time they executed the will. EPTL §3-1.1.  If they were of sound mind and memory, they had the mental capacity to make a will.  Note that testamentary capacity is determined at the time the will is executed.

Testamentary capacity means that the testator did not suffer from a mental incapacity such that they did not understand the import of making a will.  Courts look at three factors in considering whether a testator had testamentary capacity:

  • Did the testator understand the nature and consequences of executing a will?
  • Did the testator know the nature and extent of the property they were disposing of?
  • Did the testator know the natural objects of their bounty?

Matter of Slade, 106 AD2d 914 (1984)

When it comes to a challenge to testamentary capacity, the proponent of the will had the burden of proof.  While the court found that the petitioner made a prima facie showing that at the time of the will’s execution, the decedent could affirmatively respond to the three testamentary capacity questions, the objectant responded by raising a triable issue of fact.

The objectant submitted evidence that the decedent’s health was steadily declining, was on opioid medications, and was being encouraged to enter hospice care. In addition, the objected submitted evidence that the decedent’s caregiver, who was also a beneficiary, refused to allow the decedent to enter hospice care until after the will was executed.

Undue influence
The Appellate Division next considered the issue of undue influence. Undue influence occurs when someone makes a concerted effort to manipulate a testator to make a will they would not otherwise have made.  Undue influence can be gleaned from a review of the facts and circumstances surrounding the testator, the nature of the will, and the testator’s family relations. Typically, there will only be circumstantial evidence of undue influence.  For the court to conclude that undue influence occurred based on circumstantial, the circumstantial evidence must be substantial.

The court found some of the circumstances surrounding the execution of the will troubling. First, the will was prepared and its execution was supervised by an attorney for one of the will’s beneficiaries.  Second, two of the decedent’s three children were disinherited by the will.  Third, the petitioner submitted contradictory evidence as to whether and to what extent the beneficiaries were involved in the drafting of the will.  Fourth, the will was prepared while the decedent was in the final stages of a terminal illness and dependent on his companion and caregiver for “everything.”

As required, the Appellate Court viewed the evidence in a light most favorable to the objectant because they are the party opposing summary judgment. It concluded that there was enough circumstantial evidence regarding the suspected undue influence sufficient to raise a triable issue of fact.






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