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The Line Between Influence and Undue Influence

wills Oct 02, 2019

In a time that should be allocated to grieving over the loss of a loved one and celebrating their life before passing, the friends and family of Brooke Astor were thrown in a legal battle that lasted almost 7 years after her death in 2007.

The Astor fortune was said to be around $100 million at the time of Brooke Astor’s death, and as a well known philanthropist, Mrs. Astor left much of that to charity, while still providing very generous legacies to her many friends and family members. Of particular importance to this cautionary blog is her bequest to her son, Anthony Marshall, from her second marriage. She had left him a sum of approximately $31 million in her 2002 Will. In the years leading up to Mrs. Astor’s death, Marshall and his lawyer, Francis Morrissey, had the ailing Mrs. Astor sign three (3!) codicils changing her original Will to give less and less to charity each time, and more and more control and money to Marshal. In the end the two attempted to cheat Mrs. Astor and the many charities out of $60 million. The court battle after Mrs. Astor’s death at the age of 105 was lengthy and brought to light many unfortunate aspects of the life of Brooke Astor as she neared death. The Will contest reached a settlement, giving Marshall half of what he was given in the 2002 Will (minus the codicils), which still totalled a whooping $14.3 million. The criminal charges laid against Morrissey and Marshal were taken to as many appeals as possible, but in 2013 the State Appeal Court upheld the 2009 sentence and the two men began serving their jail time.

This story brings to light an important lesson in Estate Planning: what is undue influence? For poor Mrs. Astor it seems quite obvious that her three codicils, done at a time when she was losing capacity due to her dementia, were a result of undue influence. There was even testimony that after the second codicil Mrs. Astor could be heard asking her health care provider what had happened and who the people in the room were! But it is not always so obvious when the line between influence and undue influence is crossed. Typically, courts find that “undue” exists when there is a mental or physical issue that impairs the ability of an individual to exercise free will and judgement. The fear is the testator has done something either for the sake of peace or because they have been coerced.

To prove there existed undue influence, a contestant will need to establish that there existed suspicious circumstances at the time of the Will and that there existed a confidential relationship between the testator and the beneficiary. It is usually clear when the circumstances are suspicious. When trying to prove a confidential relationship look to whether or not the parties were dealing on terms of equality: was their overpowering influence on one side? Was one side dependent on the other? These are important questions to ask when establishing the components of undue influence. Other factors that are often considered in determining if there has been undue influence include, but are not limited to:

  • whether the beneficiary was present at the execution of the Will, or made recommendations or arrangements for the attorney to draft the will,
  • whether the beneficiary reviewed the Will or was in charge of safe keeping the Will
  • whether assets were changed shortly before the testator’s death or the allocation of assets is different from historical distribution of assets
  • whether the testator had a mental or physical impairment or required another to care for her or him

If you or someone you know have concerns about a will, please call our office to speak with our Estate Litigation Team. Remember we are here to help.


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