In Matter of Rosasco, 31 Misc3d 1214(A), the Surrogate's Court, New York County (Glen, S.) engaged in a thorough analysis of the theory of duress as it applied to Surrogate's Court practice, and more particularly, the validity of a propounded will. Notably, in denying petitioner's motion for summary judgment on this issue, the court relied on the distinction drawn between undue influence and duress as set forth in the Restatement [Third] Property: Wills and Other Donative Transfers, §8.3, as follows:

8.3(b). A donative transfer is procured by undue influence if the wrongdoer exerted such influence over the donor that it overcame the donor's free will and caused the donor to make a donative transfer that the donor would not otherwise have made.

8.3(c). A donative transfer is procured by duress if the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise have made.

Since that time, Surrogate's Court decisions on the question of duress, though sporadic, have utilized the approach taken by the court in Rosasco and the Restatement [Third] Property in analyzing the issue. Recently, the opinions in In re Young, N.Y.L.J., March 22, 2017, at 22 (Sur. Ct. New York County), and In re Alini, N.Y.L.J., March 31, 2017, at 47 (Sur. Ct. Richmond County) have followed suit, each addressing the question of duress, but with differing results.

'In re Young'

In Young, the Surrogate's Court was confronted with a contested probate proceeding, in which the petitioner moved for summary judgment dismissing the objections to probate based on lack of testamentary capacity, undue influence, duress, fraud and revocation. The decedent died survived by two sisters, one of whom was the petitioner, and the other, who was the objectant, as well as four nieces and nephews. The decedent was an attorney, and the draftsman of the propounded instrument, which was one page in length. Pursuant to its terms, he left $1 million to a long-time friend, and the residuary estate to his nephew, the petitioner's son.