Galloway v. Wells Fargo Bank

MOLINARI, P. J. This is an appeal by the contestant from a summary judgment in favor of respondents in a will contest.

The will of George Walter Kerner, deceased, was admitted to probate in July 1966 and respondents Marian Wentz and Wells Fargo Bank were appointed executors. Thereafter, in December 1966, contestant Robin Galloway filed a petition for revocation of the probate of the will on the ground that the will was procured as the result of undue influence exercised on decedent by Glenn P. Wentz and Marian Wentz. In November 1967 respondents moved for summary judgment against contestant. The motion was supported by declarations made by Glenn P. Wentz, Marian Wentz and Robert W. Morrison, the attorney who prepared the disputed will for decdent. It was also supported by the deposition of contestant. Contestant did not file any counteraffidavits or other documents in opposition to the motion. The motion for summary judgment was granted on the ground that contestant’s petition presented no triable issue of fact.

Contestant contends, essentially, that the court erred in granting the summary judgment because the affidavits of respondents do not discuss each and every element which must he proved in a will contest based on the theory of undue [788]influence. In support of his contention, contestant observes that the following are elements- of undue influence in a will contest: 1. The provisions of the Will are unnatural; 2. Its dispositions a,re at a variance with the testator’s intentions, expressed before and after its execution; 3. The relations existing between the chief beneficiaries and the testator afforded to the former an opportunity to control the testa.mentary act; 4. Testator’s mental and physical condition was such as to permit a subversion of his freedom of will; 5. The chief beneficiaries under the Will were active in procuring the instrument to, be executed.1 He then points out that the declarations in support of respondents’ motion do not set forth the requisite evidentiary facts covering the five elements of undue influence, and asserts that there is ample evidence in contestant’s deposition to establish a triable issue of fact.

Adverting to contestant’s contentions, we note that although some cases have referred to the elements of undue influence relied upon by contestant as the “indicia of undue influence” (see Estate of Yale, 214 Cal. 115, 122 [4 P.2d 153] ; Estate of Bourquin, 161 Cal.App.2d 289, 299 [326 P.2d 604] ; Estate of Nelson, 227 Cal.App.2d 42, 48 [38 Cal.Rptr. 459]), the essential elements which bring the presumption of undue influence into play are the following: (1) the existence of a confidential or fiduciary relationship between the testator and the person alleged to have exerted undue influence; (2) active participation by such person in preparation or execution of the will; and (3) an undue benefit to such person or another person under the will thus procured. (Estate of Fritschi, 60 Cal.2d 367, 376 [33 Cal.Rptr. 264, 384 P.2d 656] ; Estate of Nelson, supra, at p. 57; Estate of Niquette, 264 Cal.App.2d 976, 982 [71 Cal.Rptr. 83].) In Fritschi, supra, it was noted that the existence of a confidential relationship and the fact that the will is an “unnatural one” is not enough to establish undue influence. (P. 374.) Accordingly, if the person alleged to have exerted undue influence has not actively participated in the preparation or execution of the will, undue influence is not established even though such person may have been in a confidential relationship with the testator and have unduly profited from the will. (See Estate of Fritschi, supra, at p. 376; Estate of Nelson, supra, at pp. 57-58.)