not constitute undue influences. Facts and circumstances form the basis of influence from which the undue influence is to be established. The validity of a will is affected by undue influence, but not where it is predicated upon opportunity alone, or upon conduct in the line of filial duty, or upon a disposition of property not in accordance with the statute of descent1o. It is not the question of what amount of influence is required to influence a strong and intelligent mind, but what amount is required to be exerted to influence the mind of the person on whom it is exerted11. Declarations on the part of the testator that others hounded him to make the will are not admissible for the purpose of establishing undue influence11a.

§29. Fraud As to Undue Influence.

Undue influence is sometimes a subtle species of fraud, savoring of deceit. Thus when due influence is exercised through fraud, it justifies the refusal to admit a will to probate12

§30. Undue Influence Exercised After Execution of Will. The exercise of undue influence after a valid will has been executed cannot invalidate the will13.

8. Sullivan v. Foley, 112 Mich. 1, 70 N. W. 322.

9. Rivard v. Rivard, 109 Mich. 98, 63 Am. St. Rep. 566, 66 N. W. 681.

10. Severance v. Severance, 90 Mich. 417, 52 N. W. 292.

11. Sullivan V. Foley,

112

Mich. 1, 70 N. W. 624.

11a. In re Kennedy's Estate, 159 Mich. 548.

12. Dodson V. Dodson, 143 Mich. 586, 105 N. W. 1110. 13. Haines V. Hayden, Mich. 332, 35 Am. St. Rep. 566, 54 N. W. 911.

95

§31. When Undue Influence Must Be Exercised.

In order to affect the validity of a will the undue influence must be exercised at the very time of making the testamentary dispositions of property, but the pressure may have been brought to bear previously and if it remained so as to coerce the mind of the person making the will at the time the will was executed, it cannot be sustained as the testament or act of that person11.

§32. When no Fatal Undue Influence Exists.

No fatal undue influence exists unless there is a person incapable of protecting himself, as well as a wrong-doer to be resisted15.

§33. Unnecessary to Show Freedom of Influence.

Absolute freedom of influence need not be shown in order to establish a will, for the question is, was the will of the testator overpowered1®?

$34. Rule of Law as to Proof of Undue Influence.

On account of the exclusion of all presumptions of undue influence over a person of sound mind, the rule of law is that a person who asserts that the will or instrument ought not to have any force or effect because obtained by undue influence must prove affirmatively that it was so obtained17.

14. In re Shepardson's Estate, 53 Mich. 106, 18 N. W. 575.

15. Latham v. Udell, 38 Mich. 238.

16.

Schneider v. Vosburgh, 143 Mich. 476, 106 N. W. 1120. 17. In re Shepardson's Estate, 53 Mich. 106, 18 N. W. 575.

§35. The Different Kinds and Forms of Undue Influence.

According to the facts and circumstances that constitute undue influence, three kinds of forms may be established.

(1) Those facts and circumstances which enter into an appeal with such a degree of force as to coerce the mind and render the will inoperative18.

(2) Those facts and circumstances which enter into flattery with such a degree of force as to coerce the mind and render the will inoperative1o.

(3) Those facts and circumstances which enter into cunning with such a degree of force in the form of fraud and deceit as to coerce the mind and render the will inoperative 20.

§36. Effect of Undue Influence.

Only such part of a will is void which is the direct result of the exercise of undue influence21.

§37. Lack of Fairness in Will Raises no Presumption of Undue Influence.

The law recognizing no presumption of undue influence, it is clear that lack of fairness in a will cannot raise a presumption of undue influence22.

§38. Duress.

Duress in relation to undue influence may be said to be the use of such force or coercion as may interfere and de

18. Rivard V. Rivard, 109 Mich. 98, 63 Am. Rep. 566, 66 N. W. 681.

19. Schofield V. Walker, 58 Mich. 96, 24 N. W. 624.

20. Haines V. Hayden, 95 Mich. 332, 54 N. W. 911, Lyon v.

Dada, 111 Mich. 340, 69 N. W. 654.

21. Rivard V. Rivard, 109 Mich. 98, 63 Am. Rep. 566, 66 N. W. 681.

22 In re Merriman's Appeal, 108 Mich. 454, 66 N. W. 372.

stroy the free will power of the testator. Thus where the testator is induced, through threats, force and violence, to make his will, the coercion will amount to duress the result of undue influence23.

§39. Spiritualism and Undue Influence.

A testator who is such a firm believer in spiritualistic communications received through mediums or otherwise that he is impelled to follow them blindly, is affected by the undue influence of his belief to such an extent that his free will power is destroyed24.

§40. Undue Influence on Part of Wife.

It is said that a testator is not unduly influenced by his wife unless she practices fraud or deceit upon him to such an extent as to destroy his power of will or she exercises such mastery over his will as to deprive him of free agency, but there is no rule which discourages the exercise by a wife of any such wifely influence over a husband as does not indicate that he is incapable of protecting himself adequately from her compulsion, and is practically not a free agent25. There is no doubt but what the general condition and surroundings of the deceased, and his relations with his wife-who is the person supposed to have exercised the influence over him-may be properly shown for any period which can reasonably be regarded as bearing

23. Sullivan V. Foley, 112 Mich. 1, 70 N. W. 322.

24. O'Dell v. Goff, 149 Mich. 152, 10 L. R. A. (N: S.) 989, 112

N. W. 736.

25. Pierce v. Pierce, 38 Mich. 412; Latham v. Udell, 38 Mich.

238.

on the act of disposal of the property. But as the only important inquiry is concerning the pressure of undue influence at the very time of the will, the testimony to show facts of an inferential nature must be confined to what would be legitimately regarded as his then present relations20.

26. Pierce v. Pierce, 38 Mich. 412.