Harriett Kendall's first will, executed when she was fifty-two, left her entire estate to her husband, Ralph. She entered a nursing home in 1965, when she was eighty-one. Shortly thereafter, she called an attorney to ask some questions about her will. Harriet was bedridden at the time, unable to carry on a conversation for more than several minutes, and prone to forgetfulness.

The attorney made his first visit to the nursing home with Harriet's sister, Mabel. Mabel suggested that she think about writing a new will. On their second visit, about one week later, the attorney and Mabel brought a new will for Harriet to sign. Although she was too weak to sit up to sign it, she was able to mark it with an "X" after Mabel propped her up with some pillows. When Harriet died in early 1966, her husband learned that the second will left her estate to Mabel's only son, Edmund. He also learned that the attorney who 'drafted the second will was not Harriet's personal attorney, but rather was Mabel's attorney. The trial court nonetheless admitted the second will to probate. We reverse.

There are two tests for determining whether there was undue influence in the execution of a will. The first test, described in ln re Estate of Steffans ( 1962), need not be considered here because we find the trial court erred under the second test. Undue influence can occur when there is a confidential relationship between the testator and the one alleged to have exercised undue influence, and there are suspicious circumstances surrounding the making of the will. The existence of a confidential relationship depends on the ease with which the confidant controlled or influenced the drafting of that will. Suspicious circumstances exist when there is a sudden and unexplained change in the attitude of the testator, activity by the beneficiary in procuring the drafting and execution of the will, or similar circumstances. In this situation the activity of the attorney and the beneficiary's mother in procuring a will from an elderly woman meets both requirements.

1. What three most important legal points should you, the prosecutor/plaintiff include in your opening statement? State briefly why they are important to your case.

2. List the three most important witnesses to your case and briefly state why they are important to your case.

3. List the three most important pieces of evidence you will introduce at trial and briefly state why they are important to your case/what each will prove. HINT: EVIDENCE = STUFF/TANGIBLE ITEMS. NOT PEOPLEWhat evidence, law, fact, etc. in favor of the other side is the most damaging to your case? Why?
4. What evidence, law, fact, etc. in favor of the other side is the most damaging to your case? Why?