Failure To Mention Disinherited Children In Will Does Not Prove Undue Influence Or Lack Of Testamentary Capacity 

Although the decedent had four children, she left her entire estate to two of the children. However, the will did not mention her two omitted daughters, or the fact that they were being omitted.

One of the omitted daughters sued, claiming the will was the result of undue influence or lack of testamentary capacity. The trial judge dismissed the omitted daughter’s complaint following a summary hearing, and she appealed.

In affirming the trial court, the Appellate Division ruled that the failure to mention the omitted children was “at best, circumstantial evidence that the testator did not actually or freely intend to disinherit them.”

The scrivener of the will certified that the testator had not disclosed to him that she had children other than the two she benefited under her will, and that he did not believe her omission was the result of incapacity or undue influence. The two children named under the will also certified that the decedent was of sound mind at the time she executed the will.

The omitted daughter alleged that she maintained a loving relationship with her mother; that the sister named in the will was “strong-willed and opinionated,” and that there was no explanation for her disinheritance other than undue influence or lack of capacity. The appeals court disagreed:

Not all influence is “undue” influence… Persuasion or suggestions will not suffice. A will opponent must establish influence such as to destroy the testator’s free agency and to constrain her to do what she would not otherwise have done in the disposition of her worldly assets.

Although the heavy burden to establish undue influence may shift if the will beneficiary had a “confidential relationship” with the decedent and there are additional suspicious circumstances, the court noted that,

the mere existence of family ties does not create a “confidential relationship,” notwithstanding that among the most natural of confidential relationships is that of parent and child.

The Appellate Division concluded that,

to set aside the solemn directions of a testator, who cannot speak in defense of her wishes, a greater showing is required than [the omitted daughter] has presented here.

A copy of In the Matter of the Estate of Molinsky can be found here – In the Matter of the Estate of Molinsky

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