In Re Last Will and Testament of Smoak

I dissent. The sole issue on appeal is whether there was sufficient evidence to submit the question of undue influence to the jury. I would hold the evidence sufficient and affirm the jury’s verdict.

In a will contest, the contestants clearly have the burden of proof as to any alleged invalidity once due execution of the challenged will is proved. Byrd v. Byrd, 279 S. C. 425, 308 S. E. (2d) 788 (1983); Calhoun v. Calhoun, 277 S. C. 527, 290 S. E. (2d) 415 (1982). Although circumstantial evidence may be used to prove undue influence, such evidence must “... point unmistakably and convincingly…