In 1990 fossil hunters made the incredible discovery of a near perfectly complete and intact set of Tyrannosaurus Rex bones and skull which has since come to be endearingly known as Sue. The discovery was made on a South Dakota parcel of land which happened to be owned by Maurice and Darlene Williams. Maurice and Darlene, were a husband and wife with four children.
Once word spread of Sue, the 40 foot long, perfectly petrified, Tyrannosaurus Rex standing 15’ tall many collectors were more than happy to make a bid at auction for the complete set of fossils. Sue who currently stands beneath the atrium of the Chicago Field Museum fetched $7.6 million dollars at auction, the largest amount ever bid for a dinosaur. The moneys were recovered by Maurice and Darlene Williams as the owners of land where Sue was discovered.
Maurice who predeceased Darlene in 2011 left a will leaving everything to his wife. Darlene passed away during the pandemic in 2020 leaving behind four children and several grandchildren. In 2017 Darlene had her estate lawyer draft her will leaving the bulk of her inheritance equally to her four children with other bequests going to her grandchildren in lesser amounts. However just two weeks before her death in 2020, while dying in hospice care Darlene’s daughter Sandra Luther had her execute a different will. This 2020 will was typed out by Sandra or at Sandra’s direction as the decedent was not capable of dictating her will at the time due to her afflictions. This alleged will which coincidentally leaves nearly all of the $8 million fortune to Sandra Luther, the same daughter who orchestrated the document’s creation and execution. Additionally due to Covid restrictions at the hospice care facility no visitors were permitted to enter Darlene’s room. This means the witnesses to the purported instrument were not allowed in the room at the time of its alleged execution. So who will inherit Darlene Williams’s $8 million dollar fortune from the sale of Sue her Tyrannosaurus Rex?
Undue Influence
While two of the grounds for contesting a NY will drafted by a NY estate lawyer are undue influence and due execution, undue influence is the tool most often utilized to attack a NY will. Undue influence being a showing that the propounded instrument resulted from influence from an individual that “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 . . . .” Children’s Aid Society v Loveridge, 70 NY 387, 394 [1877]. Motive, opportunity and the actual exercise of undue influence must be demonstrated Matter of Walther, 6 NY2d 49, 159 N.E.2d 665, 188 N.Y.S.2d 168 [1959]). Undue influence “may . . . be proved by circumstantial evidence, but this evidence . . . must be of a substantial nature”. This means that undue influence can be extremely difficult to prove as undue influence is seldom practiced ostensibly in the open but it is more often the product of persistent and subtle suggestion imposed upon a testator fostered by the exploitation of a relationship of trust and confidence Matter of Burke, 82 AD2d 260, 441 N.Y.S.2d 542 [2d Dept 1981]. Without a showing that undue influence was actually exerted upon the decedent, mere speculation that opportunity and motive to exert such influence existed is insufficient. As such successfully contesting a NY will drafted by a NY estate lawyer on the basis of undue influence alone can seem nearly impossible. Therefore, NY estate lawyers should always attack a NY will on the basis of due execution whenever possible.
Due Execution
Due execution is preferable as the proponent, party offering the NY will for probate, has the burden of proving that the instrument offered by him was duly executed as a NY will and that all the writing formed a single instrument which was subscribed to and published by testatrix. It must be established that all the writing formed a single instrument which the testatrix subscribed her name to and which she published as her will in the presence of the attesting witnesses ( Matter of Allen, 282 N. Y. 492, 496). This means that for Darlene William’s to have properly executed her 2020 will, both witnesses would have had to be in the room while she executed the document. We know based on Covid protocols in place at the time within the hospice facility where she resided, the alleged witnesses were not allowed inside Darlene’s room. Under the circumstances the court in this matter should not be satisfied that the 2020 instrument offered for probate was properly executed, or that it is genuine. As such, the 2020 instrument purporting to be the Last Will & Testament of Darlene Williams should be denied probate and her 2017 Will should be offered for probate in its place.
As an experienced NY will contest lawyer I can tell you it is almost never easy to prove undue influence when challenging an attorney drafted will. However if you think a family member or friend was coerced into executing a NY will it never hurts to ask the opinion of an experienced NY estate lawyer to see if it amounts to undue influence. Feel free to call the NY will contest lawyers at The Law Offices of Jason W. Stern & Associates for a free consultation at (718) 261-2444. Our Queens estate lawyers have more than 60 years of combined NY estate law experience drafting and probating the wills for families like yours in the counties of Queens, New York, Kings, Bronx, Westchester, Rockland, Nassau, Orange, Dutchess and Richmond.
