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In making its determination, the court must answer the question of whether the donor would have made the gift but for the undue influence exerted over him or her. Undue influence exists when testator's volition at the time of testamentary act was controlled by another and the resulting will was not the result of the free exercise of judgment and choice. The contestant has the burden of proof to establish a prima facie case of undue influence. N.M. Stat. Ann. § 45-3-407 (1975). The contestant has to do so by clear and convincing evidence. If she establishes facts sufficient to support a presumption of undue influence, however, the donee is required to rebut the presumption.
Mrs. Gersbach filed a petition to declare a portion of her husband's will void as a result of undue influence. The trial court granted Mrs. Gersbach's petition. In voiding a portion of the will, the trial court found that Mr. Gersbach and Warren had a confidential relationship, and that several suspicious circumstances surrounded a devise to Warren. The suspicious circumstances identified by the trial court included secrecy on Mr. Gersbach's part and the fact that in a prior will Mr. Gersbach had made a different disposition of the property at issue. The trial court concluded that "the existence of the confidential relationship, coupled with the suspicious circumstances gives rise to a presumption that the devise . . . in the [later] will was a result of the undue influence of Tom Warren . . . ." The Court of Appeals affirmed the trial court's judgment in favor of Mae Gersbach. Tom Warren appealed.
Did the presumption of undue influence arise in this case?
Although it found that there was a confidential relationship between Mr. Gersbach and Warren, the court reversed and held that: 1) the presumption of undue influence did not arise; 2) the wife failed to establish a prima facie case of undue influence; 3) the evidence did not support a finding that anything beyond an outright gift to the friend was intended by the decedent or that the decedent misrepresented his intent; 4) the evidence was insufficient to show the element of secrecy and the trial court erred in identifying secrecy as a suspicious circumstance; and 5) the lack of consideration was not, independently, a suspicious circumstance.