Los Angeles Orthopaedic Foundation v. Miller

DORAN, J. The present appeal is concerned with the validity of a codicil executed by Elizabeth M. Johnson, deceased, the probate of which was set aside by the trial court on the ground of incompetency and undue influence. The salient facts of the case, as stated in the appellant’s brief, are as follows: “From 1902 until the death of George C. Johnson on April 26, 1932, ... E. A. Miller, whose widow and executrix brings this appeal, was attorney for George C. [761]Johnson .... Mr. Miller probated his estate for his widow . . . and acted as her attorney until her death 12 years later on July 29, 1944, she being at that time 87 years of age. She had no relatives. On June 25, 1936, when 79 years of age, she executed a Will leaving her residuary estate to two charities, to wit: the Contestants-Respondents herein. . . . On December 18, 1940, . . . Elizabeth M. Johnson executed a Codicil to her said Will, by which she left the residuary estate to said E. A. Miller (attorney), who passed away shortly after the judgment herein appealed from was entered. Testatrix lived for approximately three and one-half years after this Codicil was executed. This Codicil was probated together with the Will, and thereafter the said charities . . . brought this proceeding to set aside the probate of the Codicil on the double ground of incompetency and undue influence.” The case was tried without a jury and resulted in a judgment setting aside probate of the codicil.

The trial court was “of the opinion (that) Mrs. Elizabeth M. Johnson at the time of the execution of the purported codicil was not of sound and disposing mind and memory and that she was at that time acting under fraud and undue influence of E. A. Miller.” In reference to undue influence the trial judge relied upon Estate of Witt, 198 Cal. 407, 419 [245 P. 197], holding that “where the relation of attorney and client existed between testatrix and the beneficiary under the will, the burden of proof is upon the defendant (attorney) to overcome the presumption of fraud and unfair dealing. All dealings between an attorney and his client for the benefit of the former are not only closely scrutinized but are presumably invalid on the ground of conscious fraud; and such presumption is to be overcome only by the clearest and most satisfactory evidence that the transaction was fair and equitable and no advantage was taken .by the attorney, and that the client was fully informed of all matters relative to the transaction and was so placed as to be able to act understandingly and to deal with the attorney at arm’s length. A presumption of undue influence arises from proof of the existence of a confidential relation between the testatrix and the beneficiary coupled with the activity on the part of the latter in the preparation of the will. ’ ’