In re the Will of Gardner

PHILLIPS, Judge. The caveators’ first contention, that the trial judge erred in refusing to submit the undue influence issue to the jury, has no merit and we overrule it. The evidence stated above, when viewed in the light most favorable to the caveators, tends to show only that Mr. Gardner’s health was failing and that Mrs. Gardner had the opportunity to influence him in the making of his will. It does not tend to show that she ever influenced him, unduly or otherwise, or that she was capable of substituting her will for his, which is the essence of undue influence. In re Will of Harris, 218 N.C. 459, 461, 11 S.E. 2d 310, 310-11 (1940). According to the evidence the testator’s failing health caused him to be suspicious and quarrelsome, rather than pliable and submissive. No prior will was revoked; his 1962 will in favor of the children was revoked by the law when he married Mrs. Gardner the next year. The final disposition that Mr. Gardner made of his property — to the wife that had looked after his needs and comfort during many years of declining health —was completely natural. Though the testator lived with Mrs. Gardner, he was not under her constant control or supervision; the caveators and other relatives had unrestricted access to him, telephoning and visiting him whenever they saw fit. And the testator, rather than Mrs. Gardner, arranged for the execution of the will and for aught that the record shows she played no part in it. Thus, the evidence failed to raise the undue influence issue and the court correctly directed verdict thereon. The cases of In re Will of Andrews, 299 N.C. 52, 261 S.E. 2d 198 (1980) and In re Will of Beale, 202 N.C. 618, 163 S.E. 684 (1932), which caveators rely upon, involved factual situations quite unlike the one here. But the caveators’ other contention, that the court erred to their prejudice by refusing to receive certain evidence bearing on the testamentary capacity issue, is well taken. The evidence that the court refused to receive was an inventory of Mr. Gardner’s [458] assets made by his court-appointed guardian a few months after the will was executed. According to the inventory, Mr. Gardner had savings amounting to nearly $100,000; whereas, when the will was drafted he told the drafter, according to the latter’s testimony, that his savings amounted to about $50,000. This evidence should have been received. It tends to indicate that Mr. Gardner did not know the extent and value of his property, one of the cardinal requisites of testamentary capacity under our law. In re Will of Shute, 251 N.C. 697, 111 S.E. 2d 851 (1960). Since the testamentary capacity issue was so strongly contested the rejection of this evidence could have deprived the caveators of a verdict and a new trial is required. New trial. Judges Webb and Johnson concur.