3 Wash. App. 1015 | Wash. Ct. App. | 1970
Mrs. Travelli died on March 29, 1967. Her last will, executed on January 26, 1967, was admitted to probate on March 31, 1967. Copies of two wills dated July 6, 1960 and July 1, 1963, executed after a marriage and a divorce, a will prepared in 1964 but not executed and a letter which she intended as a holographic will, were identified as exhibits. In addition she had on one occasion conferred with a lawyer about her desire to leave one half of her estate to a sea captain who was then a friend of hers. In every instance she furnished a copy of the will to at least one of the named beneficiaries (including the will prepared in 1964 which she never executed).
She left surviving two sisters and a brother who were mentioned in her wills of 1960 and 1963 and the 1964 unex-
Review on appeal is limited to a determination of whether there is sufficient evidence to support the finding of the trial court or whether the trial court erred in applying the law to the facts as it found them to be. We cannot substitute our judgment. See In re Estate of Martinson, 29 Wn.2d 912, 190 P.2d 96 (1948),
The trial court found that the testatrix was mentally competent to execute the will of January 26, 1967, and that the petitioners failed to demonstrate by clear, cogent and convincing evidence that the will had been produced by undue influence or coercion. The record supports this finding.
The burden of showing undue influence is a heavy one.
[T]he influence must have destroyed the free will of the testator so that the will spoke the intent and desire of the one exerting the influence, and not the intent and desire of the testator.
In re Estate of Martinson, supra at 914. Here, the record
“To vitiate a will on the ground of undue influence, the evidence must show that the testator’s volition at the time of the testamentary act was controlled by another, and that the will was not the result of a free exercise of judgment and choice.
In re Estate of Soderstran, 35 Wn.2d 448, 460, 213 P.2d 949 (1950).
There is sufficient evidence to support the finding of the trial court and we find no error in the application of the law.
Affirmed.
Horowitz, A. C. J., and Williams, J., concur.
Petition for rehearing denied February 23, 1971.
Review denied by Supreme Court March 25, 1971.