Estate of Lewis

California Court of Appeal May 24, 1944 No. Civ. No. 14419Published

Before: York

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Holding. The court held that the trial court properly granted a nonsuit because the contestants failed to produce evidence of activity by the beneficiary in the procurement of the will, which is required to establish a presumption of undue influence.

Issues

Whether the trial court erred in granting a nonsuit against contestants who failed to provide evidence of undue influence in the procurement of a will.
Whether a presumption of undue influence arises from a confidential relationship alone without evidence of active participation in the preparation of the will.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The burden of showing freedom from undue influence in the execution of a will is not cast upon a beneficiary who sustained no confidential relationship toward the deceased, and who did not participate in any way in procuring the execution of the will.”

64 Cal.App.2d 480 (1944) Estate of FLORA V. LEWIS, Deceased. LOUIS B, FRANC et al., Appellants,

BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION (a National Banking Association), as Executor, etc., et al., Respondents.

Civ. No. 14419. California Court of Appeals. Second Dist., Div. One.

May 24, 1944. Albeck and Albeck for Appellants.

Irwin M. Fulop and S. Ward Sullivan for Respondents.

YORK, P. J.

This is an appeal by contestants from an order dismissing their petition for revocation of the probate of the last will and testament of Flora V. Lewis, deceased, after motion for nonsuit made on behalf of respondents was granted by the trial court at the close of contestants' case.

The record herein reveals that on June 5, 1942, immediately following the death of her husband, Flora V. Lewis executed a will in which she appointed appellant Louis B. Franc, a friend of long standing, as executor thereof, and after making bequests to relatives and friends, she provided that appellants Louis B. Franc and Mary A. Franc should each receive 25 per cent of her residuary estate. This first will was destroyed at the direction of testatrix by attorney Edward Hervey, who drew it for her, and on June 15, 1942, Mrs. Lewis executed a new will in which she reduced the disposition to appellants by 2 1/2 per cent respectively, which percentage was added to the disposition made by testatrix to another legatee.

On August 1, 1942, Mrs. Lewis executed another will bequeathing sums of money to relatives and friends, devised her home to respondent Sadie Lou Kramer, who was also made [482] residuary legatee, and appointed respondent Bank of America as executor. No mention was made in said will of contestants and appellants Louis B. Franc and Mary A. Franc.

Mrs. Lewis died on September 28, 1942, and on October 2, 1942, respondent banking association filed its petition for probate of the will of August 1st. Thereafter, Amelia O. Kramer, sister of testatrix, filed her petition in opposition to probate and on December 10, 1942, a stipulation for a dismissal with prejudice of the contest of said Amelia O. Kramer was filed; the said will of August 1, 1942, was admitted to probate, and letters testamentary were issued to respondent bank.

Estate of Lewis

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YORK, P. J.

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