Citation. Lipper v. Weslow, 369 S.W.2d 698, 1963)
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Brief Fact Summary.
Three grandchildren of the decedent contest decedent’s will based on the allegation of undue influence. The trial court found undue influence on the part of the proponent, decedent’s son, and set aside the will.
Synopsis of Rule of Law.
The test of undue influence is whether such control was exercised over the mind of the testatrix as to overcome her free agency and free will and to substitute the will of another so as to cause the testatrix to do what she would not otherwise have done but for such control.
Facts.
Sophie Block, decedent, was married three times. From her first marriage she had one son, Julian Weslow, who died in 1949, and was the father of decedent’s grandchildren, Julian Weslow Jr., Julia Weslow Fortson, and Alice Weslow Sale, plaintiffs herein. After the death of her first husband, decedent married a Mr. Lipper and Frank Lipper and Irene Lipper Dover, defendants, are the sons of their marriage. After Mr. Lipper’s death, decedent married Max Block and there were no children from this marriage. On January 30, 1956, decedent, executed a will wherein she left her estate to her two children, defendants. Decedent’s will was prepared by her son Frank, an attorney, one of the beneficiaries of the will, and Independent Executor of the will. The will was witnessed by two former business associates of the decedent. Plaintiffs contested the will and the jury found that decedent’s will was procured by undue influence on the part of defendant Lipper. The trial court entered
judgment on the verdict and set aside the will.
Issue.
Whether there is any evidence of undue influence?
Held.
No. The cause is reversed and rendered for defendants.
Here the will and the circumstances may raise suspicion, but does not give proof of the vital facts of undue influence. All of the evidence reflected that decedent was of sound mind, strong will, and in excellent physical condition. Additionally, subsequent to the execution of the will decedent told three disinterested witnesses what she had done with her property in her will as well as the reason for it.
Decedent’s will did make an unnatural disposition of her property in the sense that it did prefer her two children over the grandchildren by a deceased son. However, the decedent had the right to do as she did and the record contains an explanation from the decedent herself as to why she chose to do such.
Discussion.
A person of sound mind has the legal right to dispose of his property as he wishes, with the burden on those attacking the disposition to prove that it was the product of undue influence.
