In re Will of Moses

The Facts

  • T had had 3 husbands who predeceased her
  • Her attorney, Holland (D), became her lover after her 3rd husband’s death
  • T died in 1967
  • T had executed will in 1964 leaving almost of her estate to Holland
  • 6-7 years before death, T had had serious heart trouble, breast cancer, and become an alcoholic
  • Will was drafted by a lawyer who had no connection to Holland
  • Lawyer (L) did not tell Holland of the will
  • L asked about marital history, children, values of property
  • L asked for more accurate descriptions of the items of real and personal property
  • L offered no further “advice or counsel”
  • Will was witnessed by 2 secretaries
  • T’s closest relative was an elder sister (P)

Procedural History

  • P attacked will on the grounds of undue influence
  • PC found for P and denied probate of will
  • D appealed

The Issue

  • Whether T’s will was the result of undue influence when T had the independent advice and counsel of one entirely devoted to her interests

The Rule

  • When there is a confidential/fiduciary relationship, it gives rise to a presumption of undue influence that can be overcome only by evidence that, in making the will, the T had acted upon the independent advice and counsel of one entirely devoted to her interest

The Holding/Disposition

  • Yes, affirmed (no advice or counsel)

Court’s Reasoning

  • Evidence supports finding that the confidential/fiduciary relationship between D and T was a subsisting and continuing relationship since it only ended upon T’s death
  • D saw T daily in intimate circumstances
  • T had hoped D would marry her
  • This relationship existed on the day of the execution of the will (not contradicted by the manifest weight of the evidence)
  • L was acquainted with D and aware D was a lawyer, but was not aware of the relationship between D and T.
  • L testified T was not intoxicated at her appointment and “knew what she was doing”
  • L did not care to whom she left her estate
  • L did no more than write down what T told him
  • No meaningful independent advice or counsel (little more than a scrivener)
  • Did not meet burden or overcome presumption

Dissents or Concurrences

  • T was a good businesswoman with a strong personality who pursued her own course
  • No one contended that D was in any way actively concerned w/ the preparation or execution of will
  • P relies only on PC finding that the circumstances were “suspicious”
  • NO proof alcoholism affected her will power or her ability to look after her extensive real estate holdings
  • L was required to 1) ascertain T was competent to make a will, 2) T was acting of her own free will and accord and 3) that T was disposing of her property exactly as she wished and intended
  • L did this
  • No evidence D even knew of the will, let along unduly influenced it

The “suspicious circumstances” had nothing to do with her will

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