185 Wis. 407 | Wis. | 1925
Since we have come to the conclusion that the judgment of the county court must be reversed, we have given the main features of the testimony at considerable length. This is especially true as to the evidence offered by the contestants. We appreciate the weight which should be given to the findings of the trial court and we have given careful consideration to those findings and the rule which prevails in such cases, but we are forced to the conclusion that there was not sufficient evidence to establish undue influence.
As appears from the statement of facts, a large amount of testimony was given for the purpose of proving the incompetence of the testatrix. Most of this testimony related to events while the testatrix was on the farm, while there were evidently dissensions among the children calculated to create more or less mental anxiety and confusion. There was practically no such testimony relating to the period after she had removed to her daughter’s home. During the former period she was in- poor health and nearly blind. All who have observed the infirmities of age can well Understand' that when one is the victim of old age, poor health, and partial blindness, the senses may temporarily fail in their natural
No thing reveals more strikingly the eccentricities of the human character than a contest over a will. In such contests the peculiarities of the testator during many years are sometimes brought to the public view and often in exaggerated form. Cases which have come before this court in former years well illustrate the kind of testimony relied on in such contests. They contain proof that the testator cherished visionary plans; that he made vain pursuits of wealth or game or mines; that he fancied that he held converse with departed spirits or consulted with and relied on the advice of clairvoyants and fortune tellers or believed in witchcraft; that he was the victim of hysteria or epilepsy; that there was a defective memory as to names and events; that there had been at times abnormal mental elation or depression, unfounded prejudice, and strange suspicion of best friends or false accusations against others; that the testator had held absurd opinions and indulged in wild vagaries or entertained insane delusions. These are a few of the many similar facts which in other cases have been proven to establish lack of testamentary capacity. Not all of these facts, but many of them, will appear in a single case. Such facts as these are relevant not only on this issue but as bearing on the susceptibility of the testator to undue influence.
It is elementary that the question of competency is to be determined as of the time of the execution of the'wiil. While evidence of former mental condition is relevant, it may relate to times so remote as to have little weight. The same is true if the testimony relates to a time when there was ill health from which there had been recovery before the execution of the will. In this case Mrs. Wegner had only one
We gather from the evidence that Minnie and her husband remained in the room during the conference, but it is undisputed that neither of them participated in the conversation respecting the will. In our opinion it is the better practice, and the one generally followed by attorneys, to conduct such conferences with the testator in the preparation of wills when persons who are deeply interested are not present. Such a practice is more conducive to elicit perfect frankness and freedom in the expression of the testator’s real wishes. We are satisfied, however, that in this case the actual and well settled purpose of the testatrix was expressed in her will.
It is claimed by counsel for the respondents that the will is unnatural and not in accordance with natural justice. In
By the Court. — Judgment reversed, and cause remanded with directions to admit the will to probate.