In re the Purported Will of Andrews

VAUGHN, Judge. The issue to be determined on this appeal is whether caveator presented sufficient evidence of undue influence exerted by Mrs. Andrews to withstand propounders’ motions for a directed verdict. “[U]ndue influence which justifies setting aside the testator’s will is an influence which controls or coerces the mind of the testator so as to induce him to make a will which he would not have made otherwise. Influence is also spoken of as being undue when it destroys the testator’s free agency.” 1 N. Wiggins, Wills and Administration of Estates in North Carolina § 55 at 133 (1964). The burden of proof lies upon the propounder to prove that the instruments in question were executed with the proper formalities required by law. In re Will of West, 227 N.C. 204, 41 S.E. 2d 838 (1947). Once this has been established, the burden shifts to the caveator to show by the greater weight of the evidence that the execution of the will was procured by undue influence. In re Will of Simmons, 268 N.C. 278, 150 S.E. 2d 439 (1966); In re Will of West, supra. Proof of undue influence is, necessarily, circumstantial. “ ‘Experience has shown that direct proof of undue or fraudulent influence is rarely attainable, but inferences from circumstances must determine it.’ It is ‘generally proved by a number of facts, each one of which standing alone may have little weight, but taken collectively may satisfy a rational mind of its existence.’ ” (Citation omitted.) In re Mueller’s Will, 170 N.C. 28, 29, 86 S.E. 719 (1915). [92] Factors to be considered on the issue of undue influence include: “1. Old age and physical and mental weakness. 2. That the person signing the paper is in the home 'of the beneficiary and subject to his constant association and supervision. 3. That others have little or no opportunity to see him. 4. That the will is different from and revokes a prior will. 5. That it is made in favor of one with whom there are no ties of blood. 6. That it disinherits the natural objects of his bounty. 7. That the beneficiary has procured its execution.” In re Mueller’s Will, supra, at 30. If there is sufficient evidence of undue influence, the issue should be presented to the jury. In re Will of Beale, 202 N.C. 618, 163 S.E. 684 (1932). The question is, therefore, did caveator present sufficient evidence to go to the jury. We first note the pattern of distributions in the prior wills and codicils. The 1974 will and 1975 codicil do not materially differ from the 1962 will. The main distinction is that under the later devise, testator’s stepson takes a vested interest in part of the estate whereas in the former his interest was contingent. Mrs. Andrews receives a greater interest because she receives the personal property and the life estate in the trust for Karl Andrews, Jr., after his death. The codicils to the 1962 will do, however, remove Mrs. Andrews as executrix. Although the 1966 codicil to the 1962 will implies that testator and his wife were at odds, the provisions in that codicil do not appear in the 1970 will. The 1974 will and its codicil differ from the 1970 will in that Mrs. Andrews takes her interest outright rather than a life estate. She also receives the personal property and is appointed executrix. Nevertheless, we must note that Mr. Pollock, testator’s local attorney, testified that the 1974 will takes advantage of the marital deduction provisions whereas the 1970 will does not. Use of this provision can result in substantial tax savings. Mr. Pollock also testified that he never knew the extent of testator’s holdings. There was evidence which showed, however, that the estate was [93] worth over one million dollars. There was further testimony which showed that testator had read a book on avoiding probate and that this was the impetus to write the 1974 will. We also cannot ignore the testimony of Mr. Wyche who drafted the 1974 will. He indicated that all of his important conversations were with testator alone. He discussed at length the drafting of the 1975 codicil when he went to Pinehurst in July, 1975. He stated that although Mrs. Andrews was present, she did not take part in any material discussions. The import of his testimony was that testator acted freely and knowingly in executing this will and codicil. Based on the testimony concerning the execution of the 1974 will and the 1975 codicil, we cannot say that the provisions differing from past wills indicate that these instruments were procured by undue influence. The differences apparently resulted from an intent to avoid a heavy estate tax. There was no evidence which showed that the procurement of this will was made by Mrs. Andrews. The beneficiaries under the will were the natural objects of testator’s bounty and were the same beneficiaries who took under the prior wills. Furthermore, no evidence was presented which showed that testator was in such a physical and mental condition that he was susceptible to domination and influence by his wife. Testator had some physical problems and was prone to depression. Two people testified that testator suffered from a lapse of memory on two occasions. Some people had problems contacting testator. One witness testified that, on one occasion, testator became fearful and nervous in his wife’s presence. Nevertheless, the evidence shows that he personally continued his business dealings up until his death, over a year after the codicil was executed. We conclude that the evidence presented at trial was insufficient to submit to the jury on the question of undue influence. There is no evidence that such influence was exerted on testator as to control his mind and force him to execute a will which he otherwise would not have executed. We, therefore, reverse. [94] Reversed. Judge CLARK concurs. Judge Carlton dissents.