Estate of Fraser

California Court of Appeal Jun 25, 1946 No. Civ. No. 13006Published

Before: Nourse

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Holding. The court affirmed a judgment of nonsuit, holding that the contestant failed to produce sufficient evidence of undue influence to overcome the testatrix's clear, independent, and voluntary testamentary intent.

Issues

Whether the evidence presented by the contestant was sufficient to support a claim of undue influence in the execution of a will.
Whether the existence of a confidential relationship, without evidence of activity in the preparation of the will, shifts the burden of proof to the proponent.
Whether the appeal from the order denying the motion to set aside the decree of final distribution is moot.

Disposition. Affirmed and dismissed.

Quotations verified verbatim against the opinion

“Evidence must be produced that pressure was brought to bear directly upon the testamentary act; but this evidence itself need not be direct. Circumstantial evidence is sufficient. It must, however, do more than raise a suspicion.”

“The fact that the will was prepared from directions given by the testator to his attorney when no one else was present is very strong evidence that it was the testator's voluntary act.”

“Mere opportunity to influence the mind of the testator, even coupled with an interest or motive to do so, is not sufficient.”

75 Cal.App.2d 99 (1946) Estate of BERNICE B. FRASER, Deceased. RICHARD H. BEMIS, as Administrator,etc., Appellant,

HARRIET COOMBS, as Executrix, etc., Respondent.

Civ. No. 13006. California Court of Appeals. First Dist., Div. Two.

June 25, 1946. William Steinberg for Appellant.

Reginald E. Foster, John M. Thompson and Chellis Carpenter for Respondent.

NOURSE, P. J.

The contestant of a will appeals from a judgment of nonsuit and from an order denying his motion to set aside the decree of final distribution.

[1a] Bernice B. Fraser, a 63-year-old childless widow, died on March 27, 1944, at Carmel, leaving an estate consisting of real and personal property valued at $32,337.27. Her [101] last will and testament, dated January 4, 1944, was filed for probate in the Superior Court of Monterey County on March 30, 1944, by Harriet Coombs, executrix and principal beneficiary. Under the will Mrs. Coombs received all of the estate except $2,500 to Mrs. Jessie Joan Bever and $250 to Samuel R. Bemis, brother of the testatrix and contestant herein. The instrument was admitted to probate on April 10, 1944, and the decree of final distribution was granted on February 28, 1945. On October 2, 1944, Samuel R. Bemis instituted the present action contesting the will principally upon the ground that it was made and executed as a result of the undue influence of Mrs. Coombs. The contestant dies prior to the trial and his son, Richard H. Bemis, was substituted as special administrator of his estate. The evidence presented to the trial court by the contestant, which must be viewed in the light most favorable to him, showed the following facts:

Bernice B. Fraser resided in her Carmel home alone for some years prior to her death. She suffered from a cancerous condition known as carcinomatosis which finally resulted in her death. The testatrix operated a weaving business in Carmel and maintained bank accounts with the Carmel Bank for more than 22 years. Her nearest relative was her brother, Samuel R. Bemis, who lived in San Francisco. Mrs. Coombs, the principal beneficiary of the will and proponent herein, is a graduate nurse and was a close friend of the testatrix for the 15 years prior to the latter's death. She visited Mrs. Fraser frequently but never actually nursed her.

Estate of Fraser

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NOURSE, P. J.

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