See, e.g., In re Estate of Komarr, 46 Wis.2d 230, 175 N.W.2d 473, 477–78 (1970); In re Will & Estate of Freitag, 9 Wis.2d 315, 101 N.W.2d 108, 109 (1960); In re Beyer's Estate, 262 Wis. 441, 55 N.W.2d 401, 403 (1952); In re Feeley's Estate, 253 Wis. 204, 33 N.W.2d 139, 142 (1948); In re King's Will, 251 Wis. 269, 29 N.W.2d 69, 72 (1947); In re Faulks' Will, 246 Wis. 319, 17 N.W.2d 423, 440 (1945); In re Scherrer's Estate, 242 Wis. 211, 7 N.W.2d 848, 853 (1943); In re Raasch's Will, 230 Wis. 548, 284 N.W. 571, 575 (1939); Leisch's Will, 267 N.W. at 271;In re Schaefer's Estate, 207 Wis. 404, 241 N.W. 382, 385 (1932). Later cases, however, seem to abandon the requirement, see, e.g.
Lancaster v. Bank of New York, 147 Conn. 566, 164 A.2d 392 (1960); In re Lavelle's Estate, 122 Utah 253, 248 P.2d 372 (1952). In re Leonard's Estate, 92 Cal.App.2d 420, 207 P.2d 66 (1949); In re Payne's Estate, 94 Cal.App.2d 504, 210 P.2d 916 (1949); Marcum v. Gallup, 237 S.W.2d 862 (Ky. 1951); In re Urich's Estate, 194 Or. 429, 242 P.2d 204 (1952); Taylor v. Taylor, 248 S.W.2d 820 (Tex.Ct.Civ.App., 1952); In re Feeley's Estate, 253 Wis. 204, 33 N.W.2d 139 (1948). See In re Pitt's Estate, 88 Ariz. 312, 356 P.2d 408 (1960); In re O'Connor's Estate, 74 Ariz. 248, 246 P.2d 1063 (1952).
D. Mrs. Norwood and Mrs. McShan, the two beneficiaries against whom complaint is made, dominated and controlled and influenced the testatrix in many kinds of circumstances, and had full opportunity to exert undue influence in the making of her will. In Re Feeley's Estate (Wis.), 33 N.W.2d 139; In Re Roehl's Will (Wis.), 53 N.W.2d 180. E. Actual overt acts of Mrs. Norwood and Mrs. McShan in attempting from time to time to unduly influence the testatrix to make a will in their favor.
Its findings in these respects should not be interfered with unless contrary to the great weight and clear preponderance of the evidence, and undue influence is not to be proved but by clear, convincing, and satisfactory evidence. Will of Schaefer (1932), 207 Wis. 404, 411, 412, 241 N.W. 382; Estate of Feeley (1948), 253 Wis. 204, 213, 33 N.W.2d 139. The written decision filed by the trial court shows how conscientiously it reviewed the evidence before reaching its conclusion, which it stated as findings of fact, that Charles Miller was not a person subject to undue influence nor was the will of September 24, 1951, the result of undue influence. We conclude that there is no such preponderance of evidence in appellants' favor as will permit us to set aside the findings of fact by the learned trial court.
The facts in the present case clearly distinguish it from the authorities cited by appellant. The elements necessary to establish undue influence in the execution of a will are susceptibility of the testator to influence, the disposition and opportunity of another person to exercise such influence, and a result indicating the exercise of undue influence by the person so disposed and so situated. See Estate of Feeley (1948), 253 Wis. 204, 210, 33 N.W.2d 139. The only person that there could be any question about in that regard is Essie Williams, a sister of the decedent.
However, the rule is that undue influence being a species of fraud, must be proved by clear, convincing, and satisfactory evidence. Estate of Feeley, 253 Wis. 204, 33 N.W.2d 139. The requirement is not met by the evidence relied on to establish undue influence in this case. It fails to show that plaintiff was at the time a person unquestionably subject to undue influence; or that the opportunity to exercise such influence and effect the wrongful purpose existed.