will participated in the procurement or the preparation of the will i think the review of these cases will tell us that it's a fact specific and brief there's no one thing that's going to tell us one way or the other whether  beneficiary to make an appointment with an attorney i want to prepare a statement they go to that i gather the attorney gathers information during the meeting for the will the attorney mails a copy of the will to the home where the testator's the beneficiary are living together a new draft is prepared following that there's a second meeting again the beneficiary drives to the meeting and in this case in the just in case there is some time of the execution we know that this room contacted bought thomas office she scheduled that meeting we know that miss roden and her husband jerry were both present for that initial meeting and really throughout this entire process of meeting with the attorney gathering documents putting their prior state plans this room was the conduit for all information that was coming between attorney thomas and then whatever evidence is left for you would be the misrepresentation argument if that's not sufficient why would the summary judgment the appropriate for that and well i think in this case your honor the strength of evidence required to rebut a presumption is going to depend on the strength of that presumption that's that's throughout all of this and in order to evaluate the strength of those options you have to look at all four of those factors ok so  what was the relationship between the tested are and the beneficiary and that's one of the most important factors that's under the client case they say that it's so without really examining the strength of all those and  say yes this is a really strong presumption or this is weak for some reason we don't know what quantum of evidence is necessary to overcome that presumption there was only one of those elements examined here i think if the trial  the presumption don't just vanish it's just simply the frog horse made the determination that the jury is not going to be instructed as to a presumption of on to influence those facts still remain is that that's what i am so assuming your argument is essentially explaining to attorney thomas why there is going to be this drastic change in the estate plan before i go to marry have told him why there's going to be a stress change safely she also tells him and i don't know whether this was during the same conversation tell you and during this conversation she makes no mention of all the reasons that come up later but the change in the state plays she just says yeah they took care of stephen's issue something back she doesn't go into this incident that happened  awful but i think there's crucial in this case is that jane call the turning thomas office and told us a system that her husband should be named contingent beneficiary and that he should also be named successor executor now this isn't just someone who's helping their parents driving into the meeting that sort of thing she is supplying material provision of the estate play something that is  you know going to be part of the estate planning and undertake home base in illinois supreme court case from one nine hundred forty five there the presumption was established when the beneficiary is in the room and just tried they were summary judgment cases the hankie case actually supports the claim on this issue as to whether a presumption of on the records was established in that case after a trial the court found the presumption of under influence had been established when the beneficiary drove testator to the attorney's office and was present for discussion about testamentary plans in my view the court found there was no presumption  but in doing so stated the only evidence of the beneficiary of his name was thank you's involvement in the making of the will was retrieving the old will making the appointment driving the testator there being present in the wills discussed that's terse question but the evidence required to replot a presumption depends on the strength of the presumption and that strength is going to depend on the evidence supporting off were factors and again the case law says the relationship between the testator's the beneficiary if it is a proper issue pursue it just me a summary judgment is particularly inappropriate in the term issues of motive tense the fact that edward and mary stated their borne by another these testator's are going to walk into the attorney's office and say well we'd really like to give the fart to our grandson stephen but you know jane here is has made other plans for us because there will be has been substituted for another you know there's there's they've been sort of injected with these ideas about what they want their ninety one their eighty eight sort of the final layer of this presumption argument is that even if it's rebutted which again i don't think is a proper question at this point there are still materials issues of genuine fact thank you  distinguish so i'm assuming that there's an appeal on behalf of jane and sharon but the brief of my opponent makes it clear he never discusses share or her role or any evidence sharon fair perhaps he did i shouldn't have wasted my time ok i'm very content with that however there is something i should say about sharon in bed her testimony in deposition was a part of the summary judgment motion and just one aspect of her testimony in the record that i would like to read to set this up and then to talk about the evidence in this context sharon testified this is a i'm sorry become a record nine ten and he attend two she was asked so were you upset with ed and mary about the siding to give all the farmland only to jane yes why because i didn't think they should do it why because ann and sue was their kids too did you talk to them yes what did they say now this is what did they say to sharon it doesn't matter what i thought w do it pam well ed told me it got out of the nursing home saw as papers were missing mary told me that the girls had taken it she was mad and he said i'm going to change my will drugs or talk to mar what did she say that was she was wanting to do it too i only read that to you because it reduces to a nutshell what this case is about and what the evidence is undisputed now explain that evidence and wives undisputed the material facts in a moment but i first must say and i am pleased that this question of what is the role of the presumption in this case is is has the court has questioned my opponent and demonstrated what i think is a fundamental misunderstanding on his part to argue that the presumption once and may requires this to go to the jury is wrong in at least two particulars the first is as justice turner said and i think i've heard justice here is maybe here provided the presumption disappears it's gone it's not an issue it alone cannot take the case to the jury once re as justice here said the court can still look at that evidence but must look at it with a different doc not the question of whether there is a presumption snappish not the question of whether or not the defendant participated in hearing will now the question is whether the evidence or stamp assures our undue influence this is been said clearly in the cases up or first from kline once the presumption has been reported the plaintiff must then be lyin specific half again something half true will influence undue influence must be directly connected with the execution of the instrument operating at the time the instrument was made so yes the evidence remains in the record but its strength might vary what is that participation in this case the participation is weak on the question of  evidence in establishing presumption and the analysis of that same evidence and proving on the cases aren't always as clear as they can be and i think the fifth district case was not at all clear if they think that evidence of participation is sufficient without looking at its character as my opponent actually has argument here this is incorrect law and it's incorrect law because logically it cannot be and disappear and still play a role in proving the case the evidence must be looked at with a fresh i am different issue how do you explain the franciscan sisters case which which speaks about when the presumption on then it's still a question that i think as a general rule i think as a general rule this is true once the presumption is gone the court must look with a different guy on the question of couldn't see any evidence of undue influence and here's why here's what the plane evidence was the same evidence to establish the presumption participation in procuring alternative there's no presumption if there was to be but it anyhow and disappears and we didn't emphasize and make this the issue because as i said no credible argument could be made that it wasn't the defendant's evidence of lack of under influence was overwhelming the presumption is gone it's been rebutted now we are in a regular case of weighing the evidence and identifying disputed issues of material i said jane was a pretty sure the record shows that jane was asked by her parents to move back to central of them or to care for them in their final years and she did move back and she lived there and she took care of them adverse inference on the substantive issue of influence by the fact that she drove them because it couldn't pry find their own job was doing her job change and say oh i better not try you james not a lawyer she did her job and it's the hoover line it's the secret influences lie the secret influences lie hoover says the secret influence are actually secret from the testator's the defendant says mom and dad and mom and dad become a stranger and on their own decide to rewrite their will not that the defendant said i want to leave everything to me but they weren't up in a campaign assassinating the character of their siblings or the heirs or whoever they may be a reading of the hoover case and all cases that have been cited as only one or two since have explicit evidence of character assassination letters t defendant was writing to her parents that said he's a bad son she's a bad daughter there's no evidence in this case as the court has the court has said there is no specific evidence of actual undue influence here whether that influence is overheard leave very thing to me or whether that evidence was secret i'm a good song the bad son you see there don't you there is is the question they have not the trial court said that there was a lot of time wasted in this case by my opponent and i couldn't get their reasons why they were leaving because there are reasons that they repeat to many people over many months including directly to life thomas alone that those reasons were wrong they were mistaken this didn't happen this didn't happen you know i have to say if they believed it happened that's the material fact if those are their reasons with one exception or if they were mistaken was it because of james if there is no thousand dollars paid on stevens that's steven himself in his affidavit i might say but that wasn't all the money that they did on behalf of him that wasn't the attorney's fees that they paid for the deal why that wasn't all the things that they did for him and that was in two thousand and five not in two thousand and ten and by the way if it was a mistake when he thought that probably it's still hundred thousand and all it was was eighty five thousand dollars or so there was and that was a later letter after additional financial support and assistance was provided by and mary or me yes yes how do you get around this rather broad statement from the supreme  disagree i disagree with that i don't know that so i'm best pacific issue no court not the supreme court has ever said or merely you can look at the evidence as a trial judge and make a determination that there's no question of fact in dispute here but not in these undue influence whereas in the former in terms of raising the presumption it might be evidence of the actions fake and by the beneficiary the soul of stating the change in the testator's pliant the state plans and so forth  assertion i think it is with one qualification what i'm saying is that the evidence necessary to are sufficient to raise the presumption is not necessarily sufficient to support an inference of undue influence but it could also be insufficient to create a question of fact i'm the material issue and in this case it is insufficient then the trial court found it was in the trial court is correct because there was no connected with execution of the instrument and the operating at the time it was made there is a higher standard sometimes the evidence of participation can come for that steam but not in this case not when it was entirely natural for the person who moved back in with their parents and the only one living in the area and the one who was driving them around because they couldn't drive and the one who was dialing the phone for them doing all of this it's so natural it's  benign it's not as if they were sneaking out the basement door with the brothers and sisters upstairs to go to the lawyers office it was natural for jane to do what she did and she was doing her job i can only conclude by saying that la influence there are some other issues between steven and jane your state so yes there are still issues pending ok because of just a few issues on rebuttal the first is with respect to sharon's testimony and by the testimony of the thomas this isn't convincing because the court has pointed out what led them to make these statements where those statements those beliefs come from and i think there is it's easy to make that inference it's reasonable to make and consider any and all reasonable inferences that can be drawn from these facts doing the possible inference of undue influence of the rebuttal were part of the presumption that disappear but will not preclude the fact finder from what it says is that these cases can be proved by circumstantial evidence they can be proved by inference there's not always a smoking gun and you know mr ansell said well maybe ever to marry you know if where we have a history of twenty years of a state plans where they're doing one thing and now in the months before the death of bedworth they're doing something completely different they're cutting out two daughters and their grandson who had par property for years and years and years so it's a drastic shift and i think that those facts coupled with the facts of her execution fall in the execution of that will clearly point to just simply the beneficiary to some of stated meetings with the attorneys and so forth is that in your view is that an accurate statement of the law no i don't think there has to be something separate from just those facts those facts themselves the facts of this case came create an inference but even if we do need something else i think it's their revenge that cheney made misrepresentations about writing of things including the fact as to how much steven owed this issue whether or not he tried to acce indicated that thomas met with edward and mary alone there's no direct evidence of that he said on deposition that i believe it occurred but i can't tell you for certain that it occurred he also said that well i usually have a gauge mail order i didn't have one here so i think it's reasonable to infer that he didn't do one thing in in line with his customs and practices he didn't do another thing  why because he's histories and practices in meeting with them alone there's no notes indicating he met with them alone so that's just one other factor that plays into whether or not a presumption was established i think the court or your attention this morning