McGeehan, Jayne, and Goldmann.
The subject matter of the present appeal relates to the propriety of a judgment of the Atlantic County Court, Probate Division, sustaining the validity of a will executed on August 22, 1949, by one Florence R. Fleming, the grandmother of the appellant, Richard Fleming. The testatrix died on August 12, 1950, at the age of 76 years. leaving her estate by the will in question to her son John and her daughter Mabelle, and disinherited Richard.
The validity of the will is attacked upon the three grounds: (a) that its execution was not in conformity with an essential statutory requirement; (b) that the will was the result of undue influence practiced upon the testatrix by her daughter Mabelle; and (c) that the testatrix at the time of the execution of the purported will lacked the requisite testamentary capacity.
Oddly a copy of the alleged will is not included in the appendix, but we infer from the comments of counsel concerning it in the briefs and the fact that the instrument was prepared and its execution supervised by a member of the bar that it bears the signature of the testatrix and the conventional attestation clause beneath which are the signatures of the two witnesses.
It is recognized that a complete attestation clause supplemented by proof of the signatures of the testatrix and of the subscribing witnesses carries a weighty presumption of the truth of the circumstances therein declared to have accompanied the execution of the instrument. The clause is now accepted as "a most important element of proof" and the derivative presumption is deemed impregnable unless it is devastated by "strong and convincing evidence." Bloom v. Terwilliger , 78 N.J. Eq. 221 (Prerog. 1910); In re Lazzati , 131 N.J. Eq. 54 (E. & A. 1942); In re Wherry , 131 N.J. Eq. 505 (E. & A. 1942); James v. Wendehack , 1 N.J. Super. 203 (App. Div. 1949), certif. denied 1 N.J. 603 (1949); In re Dubois , 9 N.J. Super. 280 (App. Div. 1950), certif. denied 6 N.J. 232 (1951).
In addition to the declarations of the attestation clause the publication of the alleged will was supported by the testimony of the witness Enoch A. Higbee, Jr., and in some measure by that of the witness John Lamp, who recalled that "at the time Mrs. Fleming signed her signature" Mr. Higbee inquired of her "is this the way you want the will made out?" and she replied in the affirmative. (Italics ours.)
The facts embodied in the attestation clause (assuming it to be of the accredited type) and the testimony of the witnesses were not disproved by any countervailing evidence.
We do not discover in the transcript of the evidence that degree of proof which adequately establishes the essential elements of undue influence.
The primary and ultimate burden of proving the use of undue influence devolves upon the party who alleges it. In re Strang , 109 N.J. Eq. 523 (E. & A. 1932); In re Neuman , 133 N.J. Eq. 532 (E. & A. 1943); In re Filo , 9 N.J. Super. 146 (App. Div. 1950); In re Gotchel , 10 N.J. Super. 208 (App. Div. 1950); Stroming v. Stroming , 12 N.J. Super. 217 (App. Div. 1951); Gellert v. Livingston , 5 N.J. 65 (1950).
The mere isolated fact that a beneficiary under a
will occupied a natural position of trust and confidence to a testatrix who in the present case was her mother does not alone create a presumption of undue influence. In re Neuman, supra; Gellert v. Livingston, supra. There must be, in the case of wills, proof of some additional facts and circumstances in support of the allegation of undue influence beyond the existence of the confidential relationship and the bare opportunity to exercise such influence, in order to cast upon the accused beneficiary the burden of proving ...