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amounts to undue influence sufficient to avoid a will is such moral coercion or importunity as the testator was unable to resist and which constrained him to do that which otherwise he would not voluntarily have done. It may also be exercised by physical coercion or by threats of personal harm and duress, or it may consist of procuring a will by working upon his fears or hopes, by art or cunning, by constant pressure, persuasion, and effort, so that, while the testator willingly and intelligently executes a will, it is really the will of another induced by the overpowering influence exercised.
The mere circumstance that the will is drawn by, and in favor of, one who stands in a relation of trust and confidence to the testator, as an attorney, physician, spiritual adviser and the like, is not in itself a presumption of fraud; but in such cases the court will scrutinize the transaction and will not admit the will to probate unless well satisfied that the testator understood its contents, and that it expressed his real wishes. Nevertheless it must be said that in no case will the exertion of such influence be presumed. It must be proved, as any other fact, by the party alleging it. Secrecy and contrivance are not enough in themselves, nor injustice in the provisions of the will, nor opportunity and interest, nor the fact that the testator was weak and easily influenced. It is not often the subject of direct proof but may be shown from the thousand and one circumstances which surround a man and his family, the kind of will he has executed, his relations with the members of his family, his mental and physical condition, the state of his dependence upon the person claimed to have exerted the influence, and the motives of the latter in wielding it. But whatever the facts, they must lead to the conclusion that the will does not express the real wishes of the testator, but rather the purposes of others, by whose will his own has been subdued. If this be shown the will must be denied probate.
14. Making and execution of wills.
Being now of sound and disposing mind and having finally determined upon the provisions of the will he is about to make, the testator sets about its actual preparation. But a preliminary consideration should not escape his attention. If he has real property situated in different states or countries, or if he intends executing the will in a state or country other than that of his residence, he would be well advised if he were to enquire on the one hand into the laws of the place where the real property is located, and on the other, to ascertain whether a will, signed and witnessed according to the laws of the state where the ceremony takes place, will be allowed probate in the courts of the state wherein he resides.
This subject, to some extent, has to do with the jurisdiction of probate courts and will be mentioned later on when we come to consider the proceedings necessary to prove a will. In the meantime it is enough to point out that in most states, wills which dispose of real property must be executed with all the formalities required by the law of the place where such real property is situated. If the will relates only to personal property, and is executed according to the laws of the testator's domicile, it may be proved wherever the property is.
By a recent New York statute a radical change has been made in the formalities required in the case of wills, whether affecting real or personal property, made without that state. If such will be in writing and subscribed by the testator as required by the law of the place where made, or by the law of the testator's domicile, it is to be deemed legally executed and will be admitted to probate. But generally speaking, the laws of the testator's domicile govern a will of personal property, not only as to the formalities of execution, but also the question of his testamentary capacity, and the construction of the instrument. The legal capacity of a legatee to receive a bequest is usually governed by the laws of his own residence.
It can serve no useful purpose to weary the reader with any prolonged statement of the laws of the various states regulating the execution of wills. There are, however, certain facts respecting the mode of signing, publishing, and attesting a will which are common to the statutes of all states, and these may now be profitably considered.
In the first place, every will (except those called nuncupative, already mentioned) must be in writing, though not necessarily in the English language, and must be completely executed and attested before the testator's death. If he dies after signing, but before the witnesses have affixed their signature, the will is not valid. The signature or mark of the testator must be at the end of the will, that is, the end of the instrument
a completed whole. Where any material provision follows the signature, the will is not properly subscribed, unless such matter was written subsequent to execution, in which case it may be disregarded. As may be imagined, this requirement is intended to prevent the insertion of fraudulent additions to a will and is strictly enforced by the courts. If the testator cannot write, he may make his mark, or his hand may be guided by a third person, if he so requests it. But
the act of that person must be strictly that of assistance, not control. The fact that the testator could read and write does not of itself invalidate a will signed by his mark. It simply places upon those supporting the will the burden of explaining the method of signing; and if the circumstances are not satisfactory it will be presumed that the mark is not the subscription of the testator. By whatever means the subscription is accomplished, it must be done either in the presence of the requisite number of witnesses (two in New York), or if not, the testator must exhibit his signature to them and acknowledge its authenticity, and must also declare the instrument to be his will. If the will is not signed in the presence of the witnesses, and he fails to acknowledge his signature, the instrument cannot be proved, even though he declared it to be his will and requested the witnesses to sign. All the witnesses need not be present at the same time. It is enough if the testator signs in the presence of one and makes his final acknowledgment to another later on; but it is fatal if any one of the witnesses neither saw the signing nor heard the acknowledgment. This does not mean that in all cases it is necessary to affirmatively show that the witnesses actually saw or heard. If they could have seen the act or heard the spoken word,