mentally, by whatever measure, is.  Thus, the psychiatrist's role in an undue
influence case is to provide clinical data, usually without an explicit or
implied conclusory opinion.  Inasmuch as a finding of undue influence
requires, in addition to some impairment, suspicious circumstances involv-
ing the behavior of others, supplemental evidence from other data sources is
necessary.  The concept of some type of coercion is important; some au-
thorities have referred to the "moral or physical coercion" as an element of
undue influence.  Another expression encountered is that of the "captive mind".

    Thus, the judge must consider not only the physical and mental condi-
tion, but also the role and actions of the persons exerting pressure or
influence, the time and the place and the surrounding circumstances.

    For example, spouses are not usually found guilty of undue influence,
particularly if the behaviors utilized are characterized by virtuous concern,
kindness, and devotion.  On the other hand, such allegations are not uncom-
mon when the interests of the second spouse are contrary to the wishes of
the children by the testator's first marriage.

    Very important is the consideration of whether a beneficiary charged
with undue influence occupied a confidential or fiduciary relationship with
the testator.  This fact may be considered in association with suspicious
circumstances, such as the beneficiary's participating in the procuring,
preparation, and execution of the will or the fact that the testator's mental
functioning was impaired.  Other facts, such as the testator's being
exhausted or at the point of death, may be considered along with any other
factor that may render a person more susceptible to influence.

    Behavior by one occupying a dominant position in a trust or confidential
relation, such as an attorney, may amount to undue influence where the
same behavior by another party might not.


         PRESUMPTIONS OF PROOF AND THE WEIGHT OF EVIDENCE

    As undue influence is usually covert, it seldom can be established by
direct testimony and the contest must often resort to presumptions of law or
circumstantial testimony.

    In the majority of states, the burden of proof is on the one contesting the
will.  In a minority of states, the burden is on the one establishing the validity
of the will.  Certain circumstances may raise a presumption or inference of
undue influence which will require proponents of the will to assume the
burden of proof or at least present evidence as a counterweight to such a
claim.

Generally, the contestant must prove his or her claim by a preponder-
ance of the evidence.  Some states use a clear and convincing standard.

When there is a presumption of undue influence, the proponent of the
will runs the risk of non-persuasion.

Opportunity to exercise undue influence or such opportunity, plus the
existence of an unjust will, is insufficient to create a presumption of undue