Litigating Issues Involving Wills And Other Assets Taking Advantage Of The Elderly and Infirm – Part II

probate litigation on Long IslandUndue Influence

Undue influence occurs in situations involving emotional or physical coercion. Threats, flattery and excessive action to persuade an individual to the point where that person no longer has a freedom or will on their own to make decisions as to who should receive their assets, are all examples of undue influence. When the beneficiary, either through a will or of a joint account, is an individual who had power of attorney, was the actual attorney for the individual, or was in a position of trust or confidence such as a caregiver, a presumption of undue influence can arise with regard to transactions which enrich these individuals.


The basic test for incompetence was whether at the time the individual wrote the will or changed the bank account, he or she understood the nature of the document or transaction which was involved and who the actual beneficiary would be. As individuals grow older, situations involving dementia and Alzheimer’s disease are more common. Sometimes an individual’s memory fails due to age, Alzheimer’s disease or dementia. These individuals can have days where they know what they are doing and days when they don’t. In these cases, it is necessary to obtain the medical records of the individuals who have made the will or transferred the joint bank accounts and sometimes hire expert witnesses to testify in court proceedings with regard to the level of competence the individual had at the time the will provisions were made or the bank accounts were transferred. In addition to medical witnesses, friends, family members and others who interacted with the senior can testify as to their experiences concerning the mental competence of this individual. The law in New York presumes everyone is competent to make a will, a trust, or to put another individual on their bank accounts or other investment accounts. The individuals challenging the transaction have the burden of proof to convince the court to set the transaction aside due to the incompetence of the individual undertaking the litigation attorney