On appeal from the Superior Court, Appellate Division.
For affirmance -- Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Chief Justice Vanderbilt, and Justice Heher. The opinion of the court was delivered by Wachenfeld, J.
This will contest, initiated in the County Court, where the will was sustained, was taken to the Appellate Division, where it was again upheld by a divided court. One judge having dissented, the appellant was automatically entitled to come here.
The residuary legatee is a lawyer, which fact occasions most of the difficulty. Jacob B. Hopper died August 14, 1948, leaving no issue but survived by his wife, the appellant here. His will, dated July 19, 1948, was admitted to probate by the surrogate. The widow contested the probate in the County Court, alleging the testator was of unsound mind and the will was the product of undue influence.
On appeal the issue of unsound mind was abandoned, leaving the question of the effect of the confidential relationship between the testator and the proponent of the will, the residuary legatee, and the query as to whether or not there was undue influence.
The burden of proving undue influence usually lies on the contestant, but if a will benefits one who stood in a confidential relationship to the testator and there are additional circumstances of suspicious character, a presumption of undue influence is raised and the burden of proof is shifted to the proponent.
A confidential relationship arises where trust is reposed by reason of the testator's weakness or dependence or where the parties occupied relations in which reliance is naturally inspired or in fact exists, as the relation between client and attorney. In re Heim, 136 N.J. Eq. 138 (E. & A. 1945); In re Romaine, 113 N.J. Eq. 477 (Prerog. 1933), affirmed 115 N.J. Eq. 172 (E. & A. 1933).
"Both courts and lawyers should welcome any inquiry into the fairness of transactions between attorney and client, and courts should never hesitate to condemn where the conduct of the attorney has been unconscionable. In no other way can the high reputation of the legal profession, of which its members are justly proud, be maintained." Dwyer v. Anderson, 113 N.J. Eq. 210 (Ch. 1933).
The Appellate Division placed the burden of proving the will upon the residuary legatee and held the evidence to countervail the presumption raised against him by the circumstances was required to be impeccable and convincing. The quarrel, therefore, is not with the rule of law employed but with its application to the facts involved.
The testator died in his eighty-sixth year, leaving his widow, 84. He made three wills, the first on January 1, 1947, drafted by Viviano, the testator's next-door neighbor. The entire estate was left to the widow with Viviano as the executor. The second will was executed July 6, 1948, about five weeks before his death. It was prepared by Edgar A. DeYoe and left the residuary estate in trust, directing the principal and income to be used by his widow and, upon her death, the remainder to go to the Holland Home. Viviano was again named executor and trustee.
The third will, the one in dispute, was executed on July 19, 1948, about three and one-half weeks ...