Estate of Mann

Carl B. Shapiro, B.E. Bergesen III and Siegfried Hesse for Claimant and Appellant.

John H. Pollak for Contestant and Respondent.

OPINION

KLINE, P.J.

Appellant Roy Laird Smith appeals from a judgment revoking probate of the will of Hazel Mann after a jury found that decedent was of unsound mind at the time she executed the will and that execution of the will was obtained through appellant's undue influence. Appellant contends the verdict is unsupported by the evidence and that the trial court committed prejudicial error in failing to give a requested jury instruction pertaining to undue influence. We agree with all appellant's claims and, accordingly, shall reverse the judgment.

Hazel Mann, a resident of Mill Valley, California, died on March 22, 1981, at the age of 94 years. At the time of her death, her closest relatives were two nephews, appellant Smith and respondent Van Gorp, who lived in Mill Valley and Missouri, respectively.

Appellant and decedent had a close relationship throughout his life. During his childhood and adolescence appellant lived either with his mother in San Francisco or in foster homes in the San Francisco Bay Area and saw decedent frequently.…