In a recent decision (August 10, 2012), In The Matter of the Estate of Antoinette Zarrillo, Superior Court of New Jersey, Chancery Division: Probate Part, Essex County, Docket No. ESX-CP-0108-2008, the Court dealt with the issue of undue influence with regard to the execution of the decedent’s Will and changes to beneficiary designations and co-owners of joint accounts.  The opinion also explains the different standards involved in proving undue influence with regard to Wills versus with regard to inter vivos transfers. 

   Here, the decedent died testate onJanuary 19, 2008and was survived by three sons.  The decedent’s Will, datedDecember 14, 2004, named her son, Joseph, as Executor.  Joseph was left the property and contents of decedent’s home as well as 45% of the residual estate.  Decedent’s other son, Nicholas, was left 45% of the residual estate and her other son, Michael, was left 10%.

   The Will also contained an in terrorem clause which is a no-contest clause. 

   Joseph and his wife moved in with decedent after her husband died in 2000.   When the decedent executed her Will in 2004, her health had begun to falter.  At this time, she also changed the ownership and beneficiary designations on several accounts to included Joseph as a joint owner or beneficiary. 

   Michael and Nicholas contested the admission to probate of the 2004 Will.  They allege that the 2004 Will and the inter vivos transfers were made as a result of undue influence. 

   A presumption of undue influence arises when a confidential relationship exists in conjunction with suspicious circumstances.  While the burden of proof initially lies with the proponent of undue influence, if it is proved that a confidential relationship existed with suspicious circumstances, the burden shifts to the proponent of the Will to establish the lack of undue influence.  In addition to a confidential relationship, the proofs must show that the parties did not deal on equal footing.  Cohabitation is a factor in determining if a confidential relationship exists.  A family relationship is also a factor, as is the granting of a power of attorney.

   Suspicious circumstances include the initiation of the preparation of the Will by the person; participation in the preparation of the Will; the presence of the person at the execution; efforts made by the person to exclude the natural objects of testator’s bounty from his society; and, concealing the making of the Will and/or taking possession of the will by the person.