If my mom already had a will is it legal for a stepson to have her make up a new one without having any
The witnesses to a Will generally attest to the following:
Some of the factors to prove undue influence in execution of a Will are below.
We, ___________, ___________, and ___________, the testator and the witnesses, respectively, whose names are signed to the attached or foregoing
instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as the testator's will and that the testator had signed willingly or willingly directed another to sign for the testator, and that the testator executed it as the testator's free and voluntary act for the purposes therein expressed; and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of our knowledge the testator was at that time 18 years of age or older, of sound mind, and under no constraint or undue influence.
In Okken v. Okken Estate, 348 N.W.2d 447, 450 (N.D. 1984), we outlined the elements necessary to invalidate a will on the ground of undue influence:
(1) that the testator was subject to such influence; (2) that the opportunity to exercise it existed; (3) that there was a disposition to exercise it; and (4) that the result appears to be the effect of such influence. Okken v. Okken, supra, 325 N.W.2d at 267-68; In re Burris' Estate, 72 N.W.2d 884, 889 (N.D. 1955). To be undue, the influence must operate at the time the will is made and must dominate and control the making of the will; it must be such as to make the will express the purpose and intent of the person exercising the influence and not the purpose and intent of the testator. Okken, supra; Bender v. Bender, 72 N.W.2d 220, 223 (N.D. 1955).
Although the existence or nonexistence of undue influence is a question of fact, a mere suspicion of undue influence is insufficient to require submission of the question of undue influence to the jury or to sustain a verdict. Matter of Estate of Polda, 349 N.W.2d 11 (N.D. 1984). Evidence which merely shows that a party who benefited by the will had both motive and opportunity to exert influence over the testator is not sufficient to invalidate a will if there is no evidence that such influence was actually exerted. Id. A party challenging a will as invalid for undue influence must present evidence to support the assertion. Boone v. Estate of Nelson, 264 N.W.2d 881 (N.D. 1978).