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Totorgul v. Abayhan (In re Will of Baitschora) - 207 N.C. App. 174, 700 S.E.2d 50 (2010)

Rule:

Undue influence is exerted by various means of a kind that so overpowers and subjugates the mind of the testator as to destroy his free agency, and to make him execute a will, which, although his, in outward form, is in reality not his will, but the will of another person, which is substituted for that of the testator. 

Facts:

This appeal concerns a caveat proceeding regarding the purported will of Leyla K. Baitschora (decedent). Propounder decedent's nephew, Ismail Abayhan, appealed from a judgment and order from the trial court, which set aside decedent's purported will after a jury determined that it was procured by undue influence. The order taxed decedent's estate with Caveator Martin Totorgul's attorneys' fees and costs.

Propounder argues on appeal that the trial court erred by: (1) excluding oral communications between decedent and propounder; (2) charging the jury that a fiduciary relationship existed between propounder and decedent; and (3) awarding caveator attorneys' fees and costs after notice of appeal was entered from the judgment.

Issue:

Did the trial court err in setting aside the decedent's purported will after a jury determined that it was procured by undue influence?

Answer:

No

Conclusion:

The court held that undue influence was exerted by various means of a kind that so overpowered and subjugated the mind of the testator as to destroy his free agency, and to make him execute a will, which, although his, in outward form, was in reality not his will, but the will of another person, which was substituted for that of the testator. Here, the evidence excluded by the trial court and sought to be admitted by the nephew was tangential, at best, on the issue of the undue influence. In an undue influence case, the issue was not how severely the decedent was estranged from her next-of-kin, but to what extent the person asserting the influence had on the execution of a will on the decedent. On balance, then, the court was not convinced that the evidence omitted would have persuaded the jury on the issue of undue influence.

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