In re Succession of Gilbert, 37047 - La. App. 2 Cir 06/05/03), 850 So. 2d 733

Rule:

When seeking to annul a donation on the basis of undue influence, it is not sufficient to merely show that the donee exercised some degree of influence over a donor; instead, the challenger must show that the donee's influence was so substantial that the donee substituted his or her volition for that of the donor. To annul a testamentary disposition on the basis of undue influence, the influence must be operative at the time the testament is executed. When the evidence shows that the execution of a testament was well within the discretion of the testator, the court should find that the testator's volition has not been substituted by the volition of any donee.

Facts:

Appellant, Darlynn Gilbert Ware, the decedent’s daughter, sought to disqualify appellee executor and nullify her mother's last will and testament, alleging that the executor, with whom the decedent had a close relationship, unduly influenced her mother at the time of the execution of her will. During trial, the decedent's physician testified that decedent did not have any cognitive deficits. He felt that the decedent understood the extent of her diseases and condition and she comprehended the medical information he gave her. He discussed the option of surgery with decedent and she, on her own accord without the executor's involvement, refused to have the operation. The decedent's son, who spoke often to his mother, testified that his mother understood his offer to come to live with him, but she stated that she wanted to stay with the executor. The district court granted the executor's motion for directed verdict and dismissed the daughter's claim. The daughter appealed.

Issue:

Under the circumstances, was there enough evidence to prove that the executor exercised undue influence over the testator, which would warrant the nullification of the testator’s last will and testament?

Answer:

No.

Conclusion:

Because the executor and the decedent established a relationship of confidence and were not related by affinity, consanguinity, or adoption, the daughter was required to prove undue influence by a preponderance of the evidence. The appellate court held that the evidence did not support her assertion of undue influence. The decedent's bequest to the executor was not invalid merely because the executor may have at some time made negative statements about decedent's family. Furthermore, the testimony did not demonstrate that decedent's "free agency was destroyed" and that the executor's "volition" was substituted for that of her own.