258 Wis. 587 | Wis. | 1951
No serious claim is made that Joseph Dobson lacked testamentary capacity. The will was attacked principally upon the ground that it was the result of undue influence exercised upon the testator by his son, Milburn Dobson. The contestants rely heavily upon the fact that the will gives Milburn the bulk of the residue of his estate. We might, without great difficulty, conclude that in equity the instrument provides an unjust distribution of the estate. However, we may not consider it in the light of what we may deem just or unjust. If it was made by Joseph Dobson with full testamentary capacity, expresses his desires, and is
“The ultimate facts necessary to be proven in order to establish undue influence have been frequently stated. We shall state them briefly without comment or citation of authority as it facilitates the discussion of the issues. (1) A person unquestionably subject to undue influence. (2) Opportunity to exercise such influence and effect the wrongful purpose. (3) A disposition to influence unduly for the purpose of procuring improper favor. (4) A result clearly appearing to be the effect of the supposed influence.” Will of Faulks (1945), 246 Wis. 319, 361, 17 N. W. (2d) 423.
Undue influence in the execution' óf;-;a‘ will must be established by clear, convincing, and satisfactory evidence. Will of Grosse (1932), 208 Wis. 473, 243 N. W. 465. The trial court found that the proof offered by contestants did not meet this requirement. We may not disturb the finding unless it is against the great weight and clear preponderance of the evidence. Will of Schaefer, supra.
The trial judge might properly have suspected that three of the elements necessary to establish undue influence existed in this case.
Milburn’s almost constant association with his father during a number of weeks preceding the execution of the will afforded him ample opportunity to exercise influence.
His disposition to influence may be suspected from his participation in his father’s effort to settle accounts with Harold, regarding which there does not seem to have been any difficulty prior to Harold’s arrival upon the scene after an absence of a number of years; by his presence with his father when conferences with the attorney regarding the will were had, although he was not actually in the same room with them when the terms of the will were discussed; by the fact that he arranged these conferences; by the fact that on
The result might also have appeared to the trial court to have indicated that the will was produced by Milburn’s influence. Milburn, who showed no more interest in his father’s welfare than did his brothers until during the last few months of his father’s life, was given the major portion of the estate.
These circumstances might tend to support the conclusion that three of the necessary elements have been established. But the trial court did not so determine and, as we have pointed out, we may not disturb that conclusion unless it is against the great weight and clear preponderance of the evidence. Appellants have not met that burden.
“But in order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with the contrary hypothesis.” Armstrong v. Armstrong (1885), 63 Wis. 162, 172, 23 N. W. 407.
The real weakness of the contestants’ case lies in the fact that they failed to show that Joseph Dobson was unquestionably subject to influence when he executed the will. Pie may be urged, he may even be convinced by argument and persuasion to dispose of his estate in a manner suggested by a person standing in close relation to him, but if the instrument expresses his wish, he has testamentary capacity and is not at the time unquestionably susceptible to undue influence, effect must be given to his expressed desires. Will of Ball (1913), 153 Wis. 27, 141 N. W. 8.
We are unable to say that the trial judge was wrong in his conclusion that Joseph Dobson was not unquestionably
Susceptibility to undue influence has not-been established by the degree of proof required.
Contestants contend that the court erred in not permitting Attorney Speich to testify to a conversation had with the deceased in the presence of the son, Milburn; that the privilege was waived because of the presence of the son. They did not disclose the nature, purpose, or effect of the conversation. In the absence of such disclosure we are unable to determine that the refusal was prejudicial to them. Langer v. Chicago,
They contend, also, that the court erroneously excluded testimony of Harold Dobson offered with respect to a lease under which he operated his father’s farm. Assuming that the ruling was erroneous, which we do not, we cannot say that the error resulted in prejudice to their rights.
By the Court. — Judgment affirmed.