2d DCA 1968), incompetence was found based on evidence that, at the time of executing the will, the testatrix
was under the influence of a narcotic drug that affected her intellect and reasoning processes and resulted in stupefaction.
In that case, of course, the lawcompels me to presume that the testatrix herself revoked it by destruction," Judge Perkins declared.
I hope to prove not only that the testatrix did not herself destroy the document but that some other person did.
I superintended its execution in the bedroom of the testatrix on December 25 of last year.
2002), where the court listed the seven Carpenter factors for active procurement and then stated, "[i]n addition, although not part of the Carpenter criteria, the inequality of mental capacity and strength between the testatrix
and the party with the confidential relationship is a factor in determining active procurement.
46) For example, in Carr-Glynn II, (47) the testatrix wanted to leave an interest in land to her niece, but held the land as a joint tenant with her nephew.
57) In Walker v Geo H Medlicott & Son (a firm), (58) it appeared that the testatrix truly intended to leave her house to her nephew and that that intention remained stable from the time the will was prepared and executed until the time of her death.
That led to differing interpretations as to whether there was a joint retainer, and as to whether James was advised as both testatrix and beneficiary of Hall's estate.
In the later California case of Heyer v Flaig, (92) and the almost identical Florida case of McAbee, (93) the accidental revocation of part of a will by the subsequent marriage of a testatrix was held to make the attorney liable to the residuary beneficiaries.
When the testatrix died in 1975, the solicitors dealt with her nephew and with another relative, arranged for the bank to pay her funeral expenses, and inspected a safe-custody packet.
If the firm simply retained custody of the will without disclosing its existence to anyone at all, those testamentary intentions would obviously be likely to be frustrated--by grant of probate of an earlier will, by grant of letters of administration on the basis that the testatrix had died intestate or by the estate remaining unadministered and the assets being neglected, misused or misappropriated.