1. Did the decedent have testamentary capacity?

2. Did the decedent act of his own free will in cutting out his son and the son’s family, or was Inga’s influence too great?

3. How should the court rule in this case?

The plaintiff, John Morse, son of the decedent, Marvin, brought this action to contest his father’s will. He alleged that his father lacked testamentary capacity and was under the undue influence of his second wife when he made out the contested document. The Lower Court decided in favor of the son and ruled that it was not the father’s legitimate last will and testament. Barbara Volz, the personal representative of the estate of John Morse’s second wife, now deceased, brought this appeal.

When the father’s first wife lay dying, he began to exhibit behavior that seemed questionable. He drank more and refused to visit her in the hospital. He would isolate himself in his study with a bottle of scotch and take long solitary walks. He was so irritable that he struck his granddaughter and yelled and screamed at family, friends, and neighbors.

This behavior struck his son, John, as exceptional as he had never seen his father act in such a way. After the death of his first wife, the father refused to make the funeral arrangements or attend the visitations. To John, he had always been a kind and understanding man. John and his wife, Claire, decided to live permanently near the father and had a caring relationship with him for several years after the first wife’s death. Then the father’s eyesight began to fail and he became depressed and reclusive. He began to drink heavily.

Obsessed with money, the father moved into the basement of his house and slept on a cot to save on utilities. He also experienced memory lapses and could not recall the events of past days or even hours. After his house was burglarized, the father began to prowl it at night carrying a .20 gauge shotgun.

Then he began seeing Inga, the woman who would become his second wife. Inga was at the time seeing another man named Eldon Zion. Following a luncheon with her friend Zelma and Marvin, Inga telephoned Zelma and said that, although she loved Eldon, she was going to date Marvin because Eldon “had no money and was not a Mason.”

When Marvin announced his impending marriage to Inga, his son noted that the date for the wedding was during the time the son and his wife would be in Italy.

At the same time, the father also said that he had been to an attorney and “everything has been taken care of to protect all of our children.”

After the wedding, the father made out the new, contested will. “At the time there was nothing at all unusual about him,” testified the attorney chosen to craft the will and who took the decedent through it “rather carefully” afterward. The attorney also said “He was quite capable of making a will.”

The will in question left everything to Inga, if she survived him, and to her children, if she predeceased him. The will expressly stated that the decedent left nothing to his son as “he does not have the need for what I may leave in my estate.”

Various experts testified to the possibility that the decedent may have been subject to early senile degeneration or Alzheimer’s Disease at the time of the making out of the will.