tion of these diseases of the mind makes a frightful list that includes delirium, drunkenness, dementia, monomania, insane delusions, paranoia, and so on, to yet remoter classifications of the mind diseased. It may be said that if a will made by a person alleged to have been insane is sensible, just, and discreet in its provisions, so that it seems to be a rational expression of the testator's will, the instrument will probably be upheld and adjudged good. If, on the contrary, such a will shows eccentricity, irrationality, and abnormal likes and dislikes, the presumption will be against it. § 47. Causes of Rejection If a will presented for probate has been executed by reason of fraud, compulsion, or undue influence, it may be rejected. To secure its rejection the fraud, compulsion, or undue influence must be proved. The usual form in which undue influence is exercised is when a person of some means, in his last illness comes under the control of covetous relatives or other persons who, when his mind and body have weakened, influence the victim to make such disposition of his property as they desire. There is difficulty in deciding what measure of influence is "undue," because anyone may be influenced by perfectly fair means and when in possession of all his faculties. Many repulsive cases have occurred where those about a dying man have kept other friends and relatives away, and by entreaty and argument have procured from the sorely beset invalid the execution of a will that would not have been made had the testator been a free agent. In such cases it is sometimes hard to secure evidence sufficient to satisfy a court of the wrong that has been done. Lawyers, ministers, and close friends sometimes take an unfair advantage through their confidential relations with the testator. On the other hand, it is entirely proper for those who have the confidence of those likely to die, to advise and counsel them as to the proper disposition of their property. In the matter of undue influence the character of the will and the disposition made of the property have great weight. Just, fair, and rational provisions for those near and dear to the testator would tend to refute any story of undue influence. If on the contrary the provisions of the will were unjust, unfair, and showed undue partiality to those whose influence was suspected, this would weigh heavily against the will. Many such cases where a will is contested for undue influence fail for lack of proof. Laymen rarely understand that, to get the decision of a court, matters alleged must be proved, and something of which the contestant is morally sure may be impossible of actual proof by positive evidence. Actual force or coercion by fear is not often alleged. If proved, either would defeat the probate. Note: 1. Before beginning any suit to contest a will, marshal all the admissible evidence and judge whether you can prove your case. Fraud or Forgery. If the genuine signature of the testator were procured by representing the instrument to be something else, or if a different will were substituted for one he had read or had heard read, or if his signature were forged, it would usually be required that the witnesses should be parties to the crime. On this account it is a venture difficult to carry through successfully and is not often attempted. Legal records yield some strange stories of such crimes, but practically they are so rare that a work like this can ignore them. Deficient Execution. This matter has already been mentioned. The man who executes his own will is likely to come to grief here. An instrument purporting to transfer prop erty after the death of the party executing it, is not a will unless it is signed, sealed, and witnessed as the law says a will should be signed, sealed, and witnessed. It is the law that carries a man's will into effect, and it prescribes that if any man wishes to get the benefit of the law he must make a will and observe certain formalities when he executes this. In New York and some other states the statutes prescribe that the testator shall sign at the end of the will. The provision is a wise one and is intended to secure the instrument from interpolation and subsequent additions, but it has happened more than once that a person has bought a printed blank having a place on the third page for signature and attestation by witnesses. The would-be testator, not being able to get all his wishes written before the place for signature, has written part of the will on the fourth page and has then signed on the third page in the place indicated by the form. The New York courts have invariably refused probate to instruments signed in this way.3 If a man disregards the prescribed formalities, he may have expressed his wishes but he has not made a will, and the instrument he leaves has no legal or binding force. It is not a willa court of probate will not recognize it—it is only a "scrap of paper." Note: I. If a man intends a will, he must follow the law. Lack of Jurisdiction. It is possible to contest the probate of a will if it is offered in a court that does not properly have jurisdiction. Such a proceeding would hinder the operation of the will but would not have any influence on the final result. The parties seeking probate might be compelled to apply in another court, but their mistake in going first to a wrong court would have no effect except the short delay. Matter of O'Neil, 91 N. Y. 516; Matter of Whitney, 153 N. Y. 259; Matter of Field, 204 N. Y. 448. § 48. How Contest of Will Is Initiated A party in interest seeking to contest the probate of a last will and testament must first file a written appearance with the clerk of the court, together with a written and verified answer to the petition of the party who asks that the will be admitted to probate. This answer should give good reasons why the will should be refused probate, or any facts that can. be alleged tending to establish a want of jurisdiction of the court to grant such probate. In case the jurisdiction of the court should be denied, or the right of any objecting party to appear and contest the probate should be questioned, the court will first hear and pass upon the question of jurisdiction, or the status of the contestant, unless for the convenience of the parties or of the court it shall be ordered otherwise. A stranger, who had no interest in the matter, could not come in and contest the probate of a will. A contestant may ask for the examination of all the subscribing witnesses to a will, or for any other material witnesses, by filing notice with an affidavit showing the materiality of the testimony of the witnesses or witness sought to be examined, and in such case the attendance of the witnesses or witness may be secured by the usual process of court. It is the duty of the party presenting the will to establish the will prima facie, proving its due execution and the mental capacity of the testator. It then becomes the legal presumption that the testator was of sound mind, and the burden of proof that he was not so rests on the party who alleges that the testator at the time the will was executed was otherwise than sane. This is the general procedure in courts of probate, but in each state this procedure may be varied, and in fact each probate judge has the right to allow great latitude in these matters. As is the case in all legal procedures, those inter ested must be notified of every important hearing. Each side must be heard and must have the privilege of hearing all that is presented by the other side. When a question of fact is to be decided, usually a jury may be had by either party. The right of appeal to a higher court always exists. Note: 1. Do not start to contest a will unless you can afford to retain an able trial lawyer. § 49. Who May Contest a Probate Any person who is named as a devisee or legatee in the will propounded, or as an executor, trustee, devisee, or legatee, in any other paper purporting to be a will of the decedent, or who is otherwise interested in sustaining or defeating the will, may appear, and, at his election, may support or oppose the application for probate. When it appears that all the necessary parties contemplated by this action have been cited or served with notice of hearing of the objections, or have voluntarily appeared in the proceeding, a day is set for the hearing and the formal trial takes place according to the usual procedure of courts. Note: 1. Consider well whether your interest in a will contest justifies participation in the suit. § 50. Who May Defend The rules for deciding who may defend a will are as inclusive as the rules for permitting parties to contest. Each party in interest may appear and fight for or against the will; that is, each party may employ counsel or may help pay some of the counsel already in the case. A will contest necessarily means large fees for the lawyers concerned, and a protracted case where large interests are involved, many heirs |