Oklahoma probate law defines undue influence as that which compels the testator to do that which is against his will, from fear, the desire of peace, or some feeling which he is unable to resist. The influence must be undue, in order to vitiate the will, because influences of one kind or another surround every rational being, and operate necessarily in determining one’s course of conduct under every relation of life. Within due and reasonable limits such influence affords no ground of legal objection.

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Undue influence necessary to set aside a will must be a present restraint, fraud or undue influence, operating upon the testator’s mind in the very act of making the will, and affecting its execution or the disposition it makes, as the undue influence must dominate testator at the time of making the will and contemporaneous threats have this effect.

Influence based on affection for members of a family is not undue influence, as such influence is natural and proper and in a different class from that which a stranger may obtain.

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Undue influence, such as will invalidate a will, must be something which destroys the free agency of the testator at the time when the instrument is made, and which, in effect, substitutes the will of another for that of the testator. It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them and in confidential relations with them at the time of its execution. Mere general influence, not brought to bear on the testamentary act, is not undue influence; but in order to constitute undue influence, it must be used directly to procure the will, and must amount to coercion destroying the free agency of the testator. Mere suspicion that undue influence was brought to bear is not sufficient to justify the setting aside of the will.

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Based on the above summary of how an Oklahoma probate court will consider evidence of undue influence, it requires good proof.  I once had a case where we were able to prove undue influence.  An attorney-in-fact sequestered the will maker in her home.  Then locked the relatives out.  And had the will signed under those circumstances.  The court set the will aside for undue influence.

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Brent Coldiron is a practicing attorney will offices in Edmond/Oklahoma City and Midwest City.  Give him a call if you have questions.  His number is (405) 478-5655 or 737-2244.

Any person who makes a will in Oklahoma is legally presumed to have been legally competent to make the will.

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The will stated as follows:

“Know All Men by These Presents: That I, Emanuel J. Kerchner of Kiowa, in the county of Barber, in the state of Kansas, being in good health (or ill health) and of sound and disposing mind and memory, do make and publish this, my last will and testament, hereby revoking all former wills by me made; and as to my worldly estate and all the property, real, personal or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof in the manner following, to wit:

“First: That all my funeral expenses, and any expense occurring from sickness, be paid in full out of the proceeds of my estate.

“Second: To my grandson, Harry Burns, I bequeath the school land, being the northeast quarter of section thirty-six (36), township twenty-nine (29), range thirteen (13) in the county of Woods, Oklahoma; Provided that he assume and pay all assessments due the government as it becomes due.

“Third: To my son, Nick K. Kerchner, I bequeath one promissory note, the amount being $ 1,470.50, dated April 10, 1917; also one promissory note, being in amount $ 500, dated May 25th, 1918; also any bills I may have paid out for improvement on his school land in Harper county, Okla.

“Fourth: To my daughter, Ninnie Burns, I bequeath the sum of ten dollars ($ 10.00).

“Fifth: To my grandson, Harry Burns, I bequeath the southeast quarter of twenty-five (25), township twenty-nine (29), range thirteen (13) in the county of Woods, Okla., provided, that he pays Nick K. Kerchner the sum of eleven hundred and seventy-three dollars and 50-100 (1,173.50), the same to be paid in two equal payments of five hundred eighty-six and 75-100 dollars ($ 586.75) the first payment one year after my decease, and the second one year thereafter.

“Sixth: All moneys or bonds that I may have are to be equally divided with my son Nick K. Kerchner and my grandson, Harry Burns.

“And lastly, I do nominate and appoint L. E. McClure to be the executor of this, my last will and testament.

“In Witness Whereof. I, the said Emanuel J. Kerchner, have to this, my last will and testament, subscribed my name, this 17th day of April, A. D. 1920.

“Emanuel J. Kerchner, Testator.

“Signed. Published and Declared, by the said Emanuel J. Kerchner as his last will and testament, in the presence of us, who, at his request, and in his presence, and in the presence of each other, have subscribed our names as witnesses thereto; and at the time we know the said Emanuel J. Kerchner to be of sound and disposing mind and memory.

“Witness Our Hands, the day and date above given.

“Z. H. Tibbetts,

“W. H. Harris,

“Witnesses.”

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The question before the probate court was the maker of the will at the time he executed his last will and testament competent to make the will?

The probate court considered the habit and capacity of the will maker to actively transact his ordinary business and make his own contracts.  The appellant court determined that the actual time and place to be when the will was signed was the point in time in which a will maker must be competent.

The opinion of the will maker’s doctor as to his mental condition would be considered by the court.

The probate court said that legal competency to make a will consisted of the following:

“The testator must have sufficient memory to comprehend the conditions of his property and his relations to the objects of his bounty, but the fact that the memory of an old person has failed somewhat does not of itself invalidate his will, as occasional lapse of memory, mere decay or feebleness of memory, or absent-mindedness, ought not to invalidate a will, unless amounting, under our general rule, to a mental incapacity to collect the particulars essential to a just testamentary disposition.  It is a general rule that testamentary capacity consists in the ability to understand the nature of his property, the natural objects of his bounty, and the nature of the testamentary act, and it is sometimes said that it is sufficient if he knows of what his estate consists and the persons to whom he desires to give it.  This rule does not mean that all these things must be known by the testator minutely, but if he knows them in a general way, this is enough. ”

 

The probate court is not to hold being old against anyone who makes a will.  The mere fact that a person is aged person in no way operates against the validity of the will.

A will going to probate carries this strong presumption.  There is a presumption of sanity that the person who made the will was legally competent.  It is for everyone who makes a will.  The burden of proving unsoundness of mind in a will contest rests on the contestant.

 

The court held: An examination of all the testimony convinces us beyond serious doubt that at the time he made this will, Emanuel Kerchner was competent and in possession of his mental faculties to such an extent that he knew well the property which he possessed, the indebtedness due him, his relation to his kindred, his duty toward such kindred. That he knew the diposition which he desired to make of his property and that the will which he executed expressed his intentions.

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Brent Coldiron practices law at 1800 East Memorial Road, Suite 106 in Edmond/Oklahoma City and 2801 Parklawn Drive, Suite 503 in Midwest City.  Brent can be reached at (405) 478-5655 or 737-2244.