Before there is imposed upon the proponent of a will the obligation of presenting evidence of volition, and before the question as to undue influence becomes one of fact for determination by a jury, there must be evidence, the probative force of which establishes (1) the relations between the one charged with exercising the undue influence and the decedent affording the former an opportunity to control the testamentary act; (2) that the decedent's condition was such as to permit of a subversion of his freedom of will; (3) that there was activity on the part of the person charged with exercising undue influence; and (4) that such person unduly profited as beneficiary under the will. Estate of Graves, 202 Cal. 258, 262, 259 P. 935; Estate of Hampton, 39 Cal.App.2d 488, 498, 103 P.2d 611. It is also the law that evidence must be produced that pressure was brought to bear directly upon the testamentary act. Estate of Arnold, 16 Cal.2d 573, 577, 107 P.2d 25.
Respondents emphasize the fact that prior to 1942 appellant took very little, if any, interest in his brother William or the latter's affairs, and was not associated in either a business or social way with the Llewellyn family group which included respondents, at the family home on Berkeley Square. That it was not until the death of the sister, Mrs. Milner, that appellant took much, if any, interest in his brother the decedent. That he then became a frequent visitor to his brother and commenced a systematic campaign to unduly influence the latter against respondents and to obtain the property and estate of decedent. We perceive nothing sinister in the active interest appellant took in his brother after 1942. Here was a family, closely associated in the development and maintenance of a large industrial concern. Appellant married and thereafter did not reside with the other members of the family. When death removed all the members thereof save and except decedent and his brother, appellant herein, it seems only natural to us that as sole survivors of a once large family the relations between these two brothers should become closer. The right of courts and juries to draw inferences is not arbitrary and unrestrained. An inference must not only be founded on a fact legally proven, but on such a deduction from that fact as is warranted by a consideration, among other things, of the propensities of people and the course of nature (Code Civ.Proc.Sec.1960). The foregoing proven facts do not warrant a natural inference of perfidy but on the contrary, under the ci here present, reflect the natural propensities of one brother toward another. Furthermore, in the absence of evidence, it cannot be assumed that a person is guilty of wrong doing. On the other hand, it must be presumed in the absence of evidence to the contrary, that one is innocent of crime or wrong doing (Sec.1963, Subdiv. 1, Code Civ.Proc.)
In re Llewellyn’s Estate (1948) 83 Cal.App.2d 534, 561, 562-564.
Showing posts with label evidence. Show all posts
Showing posts with label evidence. Show all posts
Monday, October 8, 2007
Thursday, October 4, 2007
Evidence of Incapacity Before and After
If the evidence shows incapacity before and after a date, there is an inference and "perhaps there is even a legal presumption" that the incapacity existed on the in-between date:
The evidence above recited is more than adequate to sustain the finding that decedent lacked testamentary capacity at the time the purported holographic will was executed. As stated In Re Estate of Fosselman, 48 Cal.2d 179, 185-186, 308 P.2d 336, 340: 'Testamentary incompetency on a given day, * * * may be proved by evidence of incompetency at times prior to and after the day in question. In re Estate of Perkins, supra, 195 Cal. 699, at page 703, 235 P. 45; In re Estate of Lingenfelter, supra, 38 Cal.2d at page 580, 241 P.2d 990; see Vitale v. Vitale, 147 Cal.App.2d 665, 669-670, 305 P.2d 690. Once it is shown that testamentary incompetency exists and that it is caused by a mental disorder of a general and continuous nature, the inference is reasonable, see In re Estate of Baker, 176 Cal. 430, 437-438, 168 P. 881; Vitale v. Vitale, supra, perhaps there is even a legal presumption (Code Civ.Proc., § 1963, subd. 32; see In re Estate of Schwartz, 67 Cal.App.2d 512, 521, 522, 155 P.2d 76; Byrne v. Fulkerson, 254 Mo. 97, 123, 162 S.W. 171; Bever v. Spangler, 93 Iowa 576, 601, 61 N.W. 1072, that the incompetency continues to exist.'
In re Wolf's Estate,(1959) 174 Cal.App.2d 144, 148. While the inference is not conclusive evidence of incapacity, it is substantial evidence:
There was direct and circumstantial evidence that decedent's mental condition had not materially changed in the interval between the execution of the purported holographic will and the appointment, less than a month later, of proponent as guardian of the person of decedent. Such an adjudication would not conclusively establish lack of testamentary capacity (In re Estate of Jamison, supra, 41 Cal.2d 1, 13, 256 P.2d 984; see In re Estate of Worrall, 53 Cal.App.2d 243, 247-248, 127 P.2d 593), but it would constitute substantial evidence on which a finding of testamentary incapacity may rest. Cf. In re Estate of Krause, 71 Cal.App.2d 719, 725, 163 P.2d 505.
Id., at p. 149.
The evidence above recited is more than adequate to sustain the finding that decedent lacked testamentary capacity at the time the purported holographic will was executed. As stated In Re Estate of Fosselman, 48 Cal.2d 179, 185-186, 308 P.2d 336, 340: 'Testamentary incompetency on a given day, * * * may be proved by evidence of incompetency at times prior to and after the day in question. In re Estate of Perkins, supra, 195 Cal. 699, at page 703, 235 P. 45; In re Estate of Lingenfelter, supra, 38 Cal.2d at page 580, 241 P.2d 990; see Vitale v. Vitale, 147 Cal.App.2d 665, 669-670, 305 P.2d 690. Once it is shown that testamentary incompetency exists and that it is caused by a mental disorder of a general and continuous nature, the inference is reasonable, see In re Estate of Baker, 176 Cal. 430, 437-438, 168 P. 881; Vitale v. Vitale, supra, perhaps there is even a legal presumption (Code Civ.Proc., § 1963, subd. 32; see In re Estate of Schwartz, 67 Cal.App.2d 512, 521, 522, 155 P.2d 76; Byrne v. Fulkerson, 254 Mo. 97, 123, 162 S.W. 171; Bever v. Spangler, 93 Iowa 576, 601, 61 N.W. 1072, that the incompetency continues to exist.'
In re Wolf's Estate,(1959) 174 Cal.App.2d 144, 148. While the inference is not conclusive evidence of incapacity, it is substantial evidence:
There was direct and circumstantial evidence that decedent's mental condition had not materially changed in the interval between the execution of the purported holographic will and the appointment, less than a month later, of proponent as guardian of the person of decedent. Such an adjudication would not conclusively establish lack of testamentary capacity (In re Estate of Jamison, supra, 41 Cal.2d 1, 13, 256 P.2d 984; see In re Estate of Worrall, 53 Cal.App.2d 243, 247-248, 127 P.2d 593), but it would constitute substantial evidence on which a finding of testamentary incapacity may rest. Cf. In re Estate of Krause, 71 Cal.App.2d 719, 725, 163 P.2d 505.
Id., at p. 149.
Evidence of Subsequent Capacity
Can evidence of the decedent’s capacity after the time of making the will be admitted to prove capacity at the time of making the will?
In (In re Bright’s Estate) Willard v. Bright (Sp. Ct. Mt. 1931) 89 Mont. 394; 300 P. 229, the court found that such evidence was "clearly admissible".
In April 1928, the decedent made out a will. In November 1928, she suffered a broken hip. At that time, Frances Goozee attended to the decedent until her death in February 1929. Certain putative heirs of the decedent were unhappy with the will and argued that the decedent was incompetent at the time she executed the will in April 1928.
The proponents of the will countered with Ms. Goozee, who testified that during the final four months of her life, the decedent was competent.
The trial court found the decedent competent and the contestants appealed, in part arguing that the evidence from Ms. Goozee was inadmissible because it was after the fact. The Supreme Court for Montana found the evidence was "clearly admissible":
"The evidence was offered in rebuttal of numerous declarations made by witnesses in support of contestants' allegation, denied by contestants, that for 2 ½ years or more, prior to her death, Mrs. Bright was ‘mentally unable to understand or transact her ordinary business affairs,’ and in that condition was unduly influenced by these contestees, and further numerous statements that during all of that period she was mentally incompetent to make a will. The testimony was clearly admissible." Id., at p. 397.
Point of application: If the nature of incompetency was an alleged degenerative condition, then proof that the decedent was competent after the time in question would be inconsistent with the alleged degenerative condition. Therefore, the evidence would be admissible. Are there circumstances in which the (alleged) incompetency could be ameliorated? Would the subsequent evidence be admissible in those cases? And, if so, to what purpose?
In (In re Bright’s Estate) Willard v. Bright (Sp. Ct. Mt. 1931) 89 Mont. 394; 300 P. 229, the court found that such evidence was "clearly admissible".
In April 1928, the decedent made out a will. In November 1928, she suffered a broken hip. At that time, Frances Goozee attended to the decedent until her death in February 1929. Certain putative heirs of the decedent were unhappy with the will and argued that the decedent was incompetent at the time she executed the will in April 1928.
The proponents of the will countered with Ms. Goozee, who testified that during the final four months of her life, the decedent was competent.
The trial court found the decedent competent and the contestants appealed, in part arguing that the evidence from Ms. Goozee was inadmissible because it was after the fact. The Supreme Court for Montana found the evidence was "clearly admissible":
"The evidence was offered in rebuttal of numerous declarations made by witnesses in support of contestants' allegation, denied by contestants, that for 2 ½ years or more, prior to her death, Mrs. Bright was ‘mentally unable to understand or transact her ordinary business affairs,’ and in that condition was unduly influenced by these contestees, and further numerous statements that during all of that period she was mentally incompetent to make a will. The testimony was clearly admissible." Id., at p. 397.
Point of application: If the nature of incompetency was an alleged degenerative condition, then proof that the decedent was competent after the time in question would be inconsistent with the alleged degenerative condition. Therefore, the evidence would be admissible. Are there circumstances in which the (alleged) incompetency could be ameliorated? Would the subsequent evidence be admissible in those cases? And, if so, to what purpose?
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