It is a classic concept in New York law that one who wrongfully takes the life of another is not allowed to profit from his wrong and inherit from his victim’s estate.1 However, violence and the threat of violence, short of causing death, are generally not recognized as a bar to inheritance rights. Yet in our time there has come to be a greater appreciation of the extent of domestic violence in the form of spousal abuse, elder abuse and dependent adult abuse. Courts have been increasingly concerned with the physical and mental abuse of the elderly and the infirm, neglect of the elderly and persons with disabilities, and related financial exploitation of these victims.2 The remedy for these forms of abuse in a will contest is the separate and distinct objection of duress.
Unfortunately, an objection to probate on the grounds of duress has been entangled with that of undue influence. In American law generally, the concepts of undue influence and duress are intertwined.3 The concept of duress is explained only in connection with undue influence. The New York Pattern Jury Instructions fails to include a separate instruction for a challenge to a will on the grounds of duress.4 One court has combined duress into what it defines as “the gross, obvious and palpable type of undue influence.”5 That court went on to entangle duress with undue influence by stating the common understanding that:
There are two principal categories of undue influence in the law of wills, the forms of which are circumscribed only by the ingenuity and resourcefulness of man. One class is the gross, obvious and palpable type of undue influence which does not destroy the intent or will of the testator but prevents it from being exercised by force and threats of harm to the testator or those close to him. The other class is the insidious, subtle and impalpable kind which subverts the intent or will of the testator, internalized within the mind of the testator the desire to do that which is not his intent but the intent and end of another.6
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