Conrotto v. Zappelli (1957)

In support of their contention that the evidence is sufficient to sustain a finding of undue influence, contestants rely upon the rule that proof of a confidential relationship between a testatrix and a beneficiary who unduly profits by a will, coupled with activity on the part of the beneficiary in the preparation thereof, raises a rebuttable presumption of undue influence which must be overcome by the proponents, and results in an issue of fact, citing Estate of Lances, su…

In support of their contention that the evidence is sufficient to sustain a finding of undue influence, contestants rely upon the rule that proof of a confidential relationship between a testatrix and a beneficiary who unduly profits by a will, coupled with activity on the part of the beneficiary in the preparation thereof, raises a rebuttable presumption of undue influence which must be overcome by the proponents, and results in an issue of fact, citing Estate of Lances, su…

It is better practice for the lawyer to exclude others during his conference with one who is about to make a will (see Estate of Gagliasso, 150 Cal.App.2d 65, 69 [ 309 P.2d 513 ], but their presence does not amount to the activity which, with other elements, creates the presumption of undue influence.

It is stated in Estate of Gagliasso, 150 Cal.App.2d 65, 70 [ 309 P.2d 513 ], that, "The incompetency to make a will must be shown to exist at the very time of the will's execution." [10] Evidence of the testatrix' mental status, appearance and conduct before and after the execution of the will is admissible as long as it has a reasonable tendency to indicate the mental condition at the time of the execution of the will, which also includes permanent and progressing mental di…

It is stated in Estate of Gagliasso, 150 Cal.App.2d 65, 70 [ 309 P.2d 513 ], that, “The incompetency to make a will must be shown to exist at the very time of the will’s execution.” Evidence of the testatrix’ mental status, appearance and conduct before and after the execution of the will is admissible as long as it has a reasonable tendency to indicate the mental condition at the time of the execution of the will, which also includes permanent and progressing mental disease.

(Estate of Jamison, 41 Cal.2d 1, 8 [ 256 P.2d 984 ] ; Estate of Gagliasso, 150 Cal.App.2d 65, 69 [ 309 P.2d 513 ].) As we have seen, there was evidence that Joseph was present when the will was executed, that he gave decedent pen, ink and paper, that she wrote the will and immediately gave it to him, that he took it to his attorney, whom she did not know, and that contestants had no knowledge of its existence for several months after her death.

We find that the court’s decision was correct. “ It is now settled that ‘. . . when the contestant has shown that the proponent of a will sustains a confidential relationship toward the testator, and actively partiepates in procuring the execution of the will, and unduly profits thereby, the burden then shifts to the proponent to prove that the will was not induced by his undue influence. ’ (Estate of Pellegrini, 138 Cal.App.2d 143, 145 [ 291 P.2d 558 ] ; Estate of Rugani, 1…