§21. Eccentricity. Eccentricity may be defined as a deviation from the usual way the mass of mankind act and behave when similarly situated. The rule of law is that it has no effect upon testamentary capacity, even where the eccentricity of the person reaches to the verge of insanity28. §22. Spiritualism. Although mere whims, delusions, belief in spiritualism and other peculiar beliefs do not destroy necessarily the testamentary capacity27, yet one who thinks so persistently on the subject as to become a monomaniac by having such confidence in spiritualistic communications through mediums or otherwise that he is impelled to follow them blindly thereby becoming incapacitated to reasoning, is devoid of testamentary capacity 28. §23. Intoxication and Delirium Tremens. The rule as to intoxication is analagous to the rule in cases of delusion and monomania, if the intoxication of the testator renders him incapable of knowing what he is doing and the fact that his intoxication affects the disposition he is making of his property, he is incompetent to make a will29. §24. Senile Dementia. Senile dementia is one of the most difficult subjects in that part of the law relating to testamentary capacity. It 26. Prentiss v. Bates, 88 Mich. 567, 50 N. W. 637. 27. Rice v. Rice, 53 Mich. 432, 19 N. W. 132. 28. O'Dell v. Goff, 149 Mich. 152, 10 L. R. A. (N. S.) 989, 112 N. W. 736. 29. Pierce v. Pierce, 38 Mich. 412. may be defined as a form of imbecility, which is not due to any specific disease, but rather the result of structural degeneracy incidental or contingent to old age. Old age in itself is no criterion for senile dementia30, for the test rests upon the general question whether the mind and memory of the testator were sufficiently sound so that he knew and understood the transaction in which he was engaged at the time he executed the will. An idiot is one who hath no understanding from his nativity, and therefore is by law presumed never likely to attain any31. It is well established that an idiot cannot make a will, for he does not possess sufficient mental capacity to form an animus testandi. Where proof does not amount to idiocy or to such imbecility as disqualifies one from making a will, it does not incapacitate the testator32. The fact that one is an invalid, nervous, reserved and disinclined or even hardly able to read and write does not in any way establish the idiocy or imbecility of the testator or his lack of testamentary capacity33. 30. O'Connor v. Madison, 98 Mich. 183. 31. Black, Com. I. 32. Hoban V. Piquette, 52 Mich. 346, 17 N. W. 797. 33. Hoban V. Piquette, 52 Mich. 346, 17 N. W. 797. CHAPTER III. MISTAKE, FRAUD, UNDUE INFLUENCE. $25. In General. §26. Mistake. $27. Fraud. $28. Undue Influence. §29. Fraud As to Undue Influence. $30. Undue Influence Exercised After Execution of Will. §31. When Undue Influence Must Be Exercised. §32. When no Fatal Undue Influence Exists $33. Unnecessary to Show Freedom of Influence. $34. Rule of Law as to Proof of Undue Influence. $35. The Different Kinds and Forms of Undue Influence. $36. Effect of Undue Influence. $37. Lack of Fairness in Will Raises no Presumption of Undue Influence. In the expression of the animus testandi there are certain elements essential to the internal structure of the will, while there are certain external features that may affect the reality of the animus testandi, and therefore they enter into the external structure of the will. Mistake, fraud and undue influence are of that nature that they may render the animus testandi unreal. Thus, like in contracts, there are affirmative defenses which, in the case of wills may be made to the probate of will, for where on the face of it, the will is valid, there may be facts which show that the animus testandi was not free from taint. §26. Mistake. Mistake usually accompanies fraud. However, mistake may be divided into mistake of intention and mistake of expression. It is in the former instance that a will may be wholly or partially vitiated, although otherwise formal, by establishing that it was not executed animus testandi1. Mistakes of expression are confined to the construction of wills. It is apparent that a naked mistake must be distinguished from a mistake resulting from misrepresentation2. §27. Fraud. Fraud may be divided into fraud in the execution and fraud in the inducement. The former arises where a person is ignorant of the nature and contents of a will which he is induced to execute, owing to the false statement made wilfully with full intent to deceive him as to the facts, and thereby actually deceiving him; while the latter may arise where a person has full knowledge of its nature and contents, but the wilful false statements of facts are intended to and do induce him to execute the will which he does. In its nature fraud is closely related to undue influence. Fraud is deceit, while undue influence operates on the will in that it overpowers it. Thus, where the false representations made to a testatrix by a brother, who was a lawyer and the draftsman of her will, that the residuary clause in a former will, whereby a trust estate was created for the benefit of her brothers, would affect the 1. Haines v. Hayden, 95 Mich. 332, 54 N. W. 911, 35 Am. St. Rep. 566 2. Haines v. Hayden, 95 Mich. 332, 35 Am. St. Rep. 566, 54 N. W. 911. validity of the will, and that it would be better to eliminate it, the fact that he concealed from her knowledge that the clause might be drawn to satisfy her wish, with full knowledge that she relied upon him, constituted fraud perpetrated in the execution of the will3. A will which is obtained by fraud is absolutely void1. §28. Undue Influence. Undue influence cannot be presumed, it cannot be established unless the circumstances are inconsistent with any other hypothesis, it is neither advice nor argument nor persuasion nor appeals to the affections, ties of kindred, sentiments of gratitude, nor pity for future distribution, but influence obtained by flattery, importunity, superiority of will, mind or character, or by what art soever that human thought, ingenuity or cunning may employ, which would give dominion over the will of the testator to such an extent as to destroy free agency, or constrain him to do against his will what he is unable to refuse, is such an influence as the law condemns as undue, when exercised by any one immediately over the testamentary act, whether by direction or indirection, or obtained at one time or another. It is clear that in order to invalidate a will the undue influence must amount to force or coercion so great as to render the party upon whom it is exerted unable to refuse and influence short of this amount would 3. Lyon v. Dada, 111 Mich. 340, 69 N. W. 654. 4. Haines v. Hayden, 95 Mich. 332, 35 Am. St. Rep. 556, 54 N. W. 911. 5. Sullivan v. Foley, 112 Mich. 1, 70 N. W. 322. 7. Maynard V. Vinton, 59 Mich. 139, 60 Am. Rep. 276, 26 N. W. 401, Kemprey v. Maginis, 2 Mich. N. P. 42. |