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The proponents of the will were misled by pleadings that specified one t^pe of fraud—undue influence or fraud in the enducement—against which they had prepared to defend. Judge Robertson agreed. If the court allowed the pleadings to be amended to include fraud by trickery, then the defendants would be entitled to a mistrail or a continuance, he said. On the other hand, the judge pointed out, if he disallows the request to amend pleadings, the plaintiffs "will be denied a chance to present what they deem to be critical evidence."
With the jury excused, attorney David Konick told the court that the plaintiffs side will show Col. Holmes thought he was signing a hospital release form on October 27. The release form had been altered to provide extra space above the signature lines and after the colonel signed, the will was typed into the blank space and the release form portion was cut away, he maintained. Konick added that expert witnesses on contested documents would testify that the paper alleged to be the colonel’s will had been a xerox machine, cut two ways in a paper cutter and taken, in and out of a typewriter between the time the signature was added and the body of the will typed.
Maintaining that he was ‘‘virtually hamstrung and incapable of giving equity to both parties” in making a decision. Judge Robertson asked the plaintiffs to make a written proffer of testimony
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