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COMMENTARIES ON THE
LAW OF WILLS
FRAUD AND UNDUE INFLUENCE-FORGERY, DURESS, MISTAKE.
$573. Undue influence refers to mental coercion. 5574. Undue influence allied to coercion. § 575. Influence, to be undue, must destroy the free agency of
testator. $ 576. Undue influence is determined by effect produced, not by
means employed. $ 577. Influence, to be undue, must bear directly on the testa
mentary act. 9578. The same subject: Must not be remote. $ 579. Influence resulting from kindness or affection is not
wrongful. $ 580. Advice, argument, flattery, or persuasion, alone, does not
establish undue influence. $ 581. The same subject. $ 582. Soundness of mind of testator: How considered. $ 583. Mental weakness, in conjunction with other matters, may
raise suspicion of undue influence. $ 584. A testator has the right to make an unequal disposition
of his estate. $ 585. An unjust will alone causes no presumption of undue
influence. $ 586. When provisions of an unjust will may be considered. $ 587. Suspicious circumstances dehors the will are heightened
by unjust provisions. 6588. Influence resulting from family relations, II Com. on Wills-1
§ 590. Ipiçit relationship alone raises no presumption of undue Briame subject.
influence. $ 591. The same subject: Contrary view. $592. Suspicious circumstances: Beneficiary directing execu
tion of will. $ 593. Influence, although combined with opportunity and mo
tive, does not render will void. $ 594. Confidential relationship between testator and benefi
ciary: Parent and child. $ 595. The same subject: Some decisions hold that the law pre
sumes undue influence. $ 596. The same subject: A suspicious circumstance to be con
sidered. § 597. The same subject: Slight evidence only may be required. $ 598. Fraud and undue influence distinguished. $ 599. The same subject: Either may exist without the other. $ 600. The same subject. $ 601. Duress and undue influence distinguished. § 602. Forgery and mistake. § 603. Great latitude is allowed as to the character of evidence. $ 604. Undue influence may be established by circumstantial evi
dence. $ 605. Forgery: Matters not establishing. $ 606. Evidence of forgery: Suspicious circumstances. $ 607. Forgery: Declarations of testator: Conflict of authority. $ 608. Declarations of testator not proof of facts stated. § 609. Declarations as to intended manner of disposing of prop
erty: Undue influence. § 610. Declarations of testator as evidence of mental condition. $ 611. The same subject. § 612. Declarations of one of several beneficiaries: Will void in
part only. 8 613. Declarations of sole beneficiary: Conspiracy. § 614. Declarations of executor or one of several beneficiaries :
Not admissible in evidence.
§ 615. Testator's knowledge of contents of will: Presumption. $ 616. The same subject: May be shown by circumstances $ 617. Burden of proof on the issue of undue influence. $ 618. Forgery: Burden of proof. $ 619. Requirements as to pleadings.
8 573. Undue Influence Refers to Mental Coercion.
Undue influence refers strictly to the freedom of the testator's mind. Such freedom of mind presupposes the testator's capability of self-determination, the absolute and inherent freedom of his disposing mind. Under modern philosophy there may be doubts that a mind can be absolutely free from all influence, but those acts and things which subvert the will of a testator and vitiate his testamentary act were determined under the presumption of the freedom of the will and any change would mean a reconstruction of our entire testamentary law."
Legally speaking, influence to be undue must be such as in a measure destroys the free agency of the testator; it must be sufficient to prevent the exercise of that discretion which the law requires in relation to testamentary dispositions. It must constrain the testator to do that which is against his will but which, from fear, desire of
1 In re Hermann's Will, 87 Misc. Rep. 476, 150 N. Y. Supp. 118, 124.
Undue influence, in order to avoid a will, must be such as to destroy free agency of the testator at the time the instrument is made. It must be a present restraint operating on the mind of the testator at the time of the making of the testament. But, as was said by Mr. Justice Brewer, "the question of undue influence
is one of peculiar character; it does not arise until after the death of the one who alone fully knows the influences which have produced the instrument; it does not touch the outward act, the form of the instrument, the signature, the acknowledgment; it enters the shadowy land of the mind in search of its conditions and processes." — In re Miller's Estate, 31 Utah 415, 88 Pac. 338, 342.