Fleming v. Morrison

187 Mass. 120, 72 N.E. 499 (1904)

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Nature of the Case

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Facts

Testator drafted a will leaving all his property to Fleming (P). After the will was executed, testator told his attorney that it was a 'fake,' made for the purpose of inducing P to sleep with testator. The attorney signed the will as a witness after he learned of testator's purpose. The other two witnesses were unaware of testator's true purpose. The will was admitted to probate after testator's death. The Probate Court found that the testator was of sound mind, was under no undue influence at the time he executed the will, and that the will was properly executed. D appealed, claiming that P failed to prove that testator had the necessary animus testandi at the time of execution. This contention was based on the evidence that testator intended the will to be a 'fake', and that one of the witnesses to the will knew of this intent at the time he witnessed the will. Since three witnesses were required, the will was improperly witnessed.