In addition to the foregoing there was in the present case active participation on the part of the proponent in the execution of the will. He drew the will, prepared it in his own handwriting, and presented it to the decedent and the subscribing witnesses for execution. It has been said that the drawing of the will by a beneficiary thereunder who was at the time the attorney for the testator, coupled with the latter's age, suffering, and disease, raised the implication or presumption that the will was procured by the undue influence of the attorney. Estate of Morey, 147 Cal. 495, 508, 82 P. 57. Here we have no sufficient showing that the decedent was mentally weak or incapable of performing the testamentary act, but we have the active participation on the part of the beneficiary in the execution of the will. Where one who unduly profits by a will sustains a confidential relationship to the testator and actively participates in procuring the execution of the will, the burden is upon him to show that the will was not induced by his undue influence. Estate of Shay, 196 Cal. 355, 363, 237 P. 1079; Estate of Gallo, 61 Cal. App. 163, 214 P. 496. This is but another way of saying that upon the concurrence of the elements just mentioned, a presumption of undue influence has arisen which must be overcome by the proponent.
In re Lances' Estate (1932) 216 Cal. 397, 403-404
Showing posts with label presumption. Show all posts
Showing posts with label presumption. Show all posts
Friday, November 16, 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.
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