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ihe issue of undue influence were also in error. According 10 rules of law, a presumption of undue influence arises when three things are shown: (I) that the testator is an old man (2) that are contested will differs from previously expressed intentions and (3) that the will makes a provision for a person who stands in a position of dependanev or confidence with the testator.
All three of those conditions were met, Konick concluded. Col. Holmes was not only old but sick and infirm as well, leaving him much more susceptible to undue influence, the lawyer maintained. Beginning in the early 1970s. according to testimony at the trail, the colonel expressed intentions to leave his property to the 4H or Boy Scouts. Konick noted that Holmes had also fold several people that his sister Ruth would never want for anything; that he was going to leave a house to his employee. Nancy Natl; that he was going to leave property he owned in Millwood to his friend. Henrv Jenkins; that his beloved dog Duke would be taken care of in his will. "There's not one statement at any time made by Col. Holmes that he was going to leave his entire estate to Dr. Nielson..The will is completely at odds with everything he ever said before and everything he said after."
Finally, Konick cited a 1979 Virginia Supreme Court case that included the relationship between a physician and patient as being a position of depen danev or confidence as regards will provisions. With the three conditions met. the jury should have been instructed that a presumption of undue influence existed, leaving the proponents of the will with the burden of proof to show that Dr. Nielson did not exercise undue influence on Col. Holmes. Konick said.
Deathbed Declaration “We're not carrying on this litigation for money...We're not interested in the money., We're interested in a sick old man who goes to Ihe hospital, who is dying and knows it,” Konick states, adding that the colonel suffered from a liver disease which affected ihe brain as well as hariening of the arteries of the arain which left him as early »s 1973 unable to remember Ive objects for even five ninutes, according to nedical records of teurological testing. The day after Dr. Nielson old Holmes that he was
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