are are our concerns as well as will you originally trust was march twenty two two thousand and one with a million dollars to susan in the seven million dollars state the guardianship was filed in may of two thousand and one a few months after that trust first amendment was in may of two thousand trust and the jury's verdict on the will naturally the standard is that all of the evidence must be viewed in the light most favorable to respond to the motion very familiar stand so tha unless we can say that the evidence so overwhelm overwhelmingly favors a move but no contrary very and the inference is must be reason to approach this difficult i would say that we should step back and analyze the case perhaps in some broader terms for the defendants there were their expert witness guardianship in two thousand and one we also know that judge or ball and his orders and exhibit in the appendix who heard the guardianship matter first of all found mr wade to be disabled and we think he rejected  this for decades he did not remember doing th see that we need to pay bad expert testimony out of this credibility and their testimony was volney and part of that was they were they testified perhaps they didn't detect any dementia or all  in reviewing  appears to us that when you step away from case and you think about the progression of the circumstances which were in the record and you have an opportunity to reflect on the add a little more then you would like to conclusion of the trial perhaps even more than  and he has worship is his entire line there's no question about that and then suddenly she an alcoholic she's trying to take his business away when she worked in the business for some here as he does a one a day and she makes the perhaps unfortunate decision that she's going to file she well she did and  the consequences are in the record not that's the same subject matter and so on the we have numerous witnesses were which were excluded where they were deceased and we had saw that to terri relationship the tear rating relationship early on and that his mind was boggled over what jail was doing the j l deposition with respect to susan and tom and taken him to france to visit the places where he had been in the war he did not remember that when  unfortunately we haven't had that kind of business and there were that's something that of course we want because it simply wasn't true when we showed them sure we presented evidence during that when his deposition was taken he could not recall having made a new will in the last year this is an office of the will and trust for him mar relevant and important in our case but it was not allowed in addition there was a cd rom and he said he had nine stories that he would repeat and mr over had very careful notes on the ice but he had nine stories that he would repeat not happen he was on the able to answer for over one flew over to ask him whether he wanted his assets to be controlled by bank of america bank of america now contests cases like this  we also make a point about instruction to the significance of instruction two is we wanted the attorney who was involved to be included in that instruction on undue influence the instruction didn't follow the hoover case which is the supreme court case that essentially says the biggest thing i think it says is that  do not necessarily have to be beneficial as in the hoover case robert got cut out at the instigation of nancy and her crowd all of whom were not beneficiary and it was not unlike this case where the petitioner here saying you turn my father against me did not thank you very much eight years later the trial was three weeks long and much of what i've heard this morning mr tucker has argued at least twice if not three times already first in response to the brief as to jury instruction number two our first argument is that the issue that's been brought before you has been waived mr tucker did not raise that is post travel ocean and in fact you may raise two hundred point zero three two hundred twenty three sees me and that two hundred point four and the shows case which we cite says look there's not much that you need to comply with the rule but you got to have more than what what he had on two hundred point three now we see two hundred point four was even raised post from motion we think that's waived based on supreme court rule three sixty six interestingly enough in the reprise reply brief mr tucker i wrote down but they didn't want to weigh the file down with further pages so they didn't put anything in there on two hundred point four because it of the court had enough  i'm sorry didn't feel the need to do that as such he's way that argument here today for you if the court feels that he did not weigh that argument first i would say it's an abuse of discretion standard not what the petitioner here is put attorney for jail wade and is just like koski stated she found nothing by way of any of the evidence that had been presented that mr keller should have been included in the instruction even under the hoover standard which the  argument was made on behalf of ms barr so i think that's already been addressed i don't think there's anything that shows in the brief or the record that taken as a whole the structures that not fairly correctly st informed jury and were in or any way misleading as to the next point on the improperly exclude evidence based on the limitation period and what i'm focusing on here is the may fourth two thousand and four date which was the last document executed by mr wade their brief indicates that there was something excluded previous to that date we raised the point that there was nothing in the trial or the record that was excluded other than walk into later on the guardianship test but nothing that the plaintiff in the case wanted in was excluded so i think what we're focusing on here is the offers of proof made for anything after may fourth two thousand and four as the court is aware from our briefs the standard is either under under the influence or whether he lacked testamentary capacity it is at the time that the documents were executed that is the time that governs the court has within its discretion to allow after a period evidence to come in in our motion in limine a that was granted that nothing after may four would come in tucker was given every opportunity to make our proof he did the court didn't find them compelling much of his offers of proof for the time period two thousand and six two thousand and seven in fact you'll see in the record there was with this is that were called that flew out to see mr wade shortly before he died the court found that evidence not to be probative to whether or not time for instance the will was executed whether or not mr wade had the sufficient mental capacity to know his objects or his property and to form an intent to dispose of those so after may fourth two thousand and four the court ruled on that the offers of proof did not come in and under the abuse of discretion standard  we think they have failed to meet their burden to show them not only at that level to hear why anything was improperly excluded what i heard this morning was talking about walker silver i agree one hundred percent wa litum as of october two thousand and three and mr tucker to get a parent tell you again everything you testified to is in the record he wasn't excluded so the jury and the court has already heard that that wasn't kept out in fact brett irving who was the guardian litum prior to mr gilbert came in and testified so we had all sorts of testimony about everything up to may fourth two thousand and four the only thing that there are is things excluded after that and the court was not persuaded as to the exclusion of the witness testimony from the guardianship trials as mr tucker said the evidence they wanted to give it a trial was of deceased persons who participated in the guardianship hearing two thousand and one that six years prior to the date mr wade died the standards of the guardianship hearing and the will and trust are totally different i think what they were trying to do a trial and trying to argue here is to bootstrap supreme court rule to twelve which allows by way of example i filed a civil action i then voluntarily dismissed that two years after i started doing discovery and depositions we take a discovery deposition but then i refile the court is allowed in the interest of justice and expediency to say look we're going to allow those discovery depositions or use your prior matter to come in now in this matter because it's the same case the same standard the same burden same witnesses we have here i different standard in the guardianship hearing than in the womb trust movement to set that aside did we have a fair opportunity to examine what this is at that time no not a discovery deposition i've handled hundreds if not thousands of discovery depositions i can amount of times i've asked my client questions in a discovery deposition i can count on one hand so what the plate it was arguing is art from now on if this goes i have to make sure that i think ahead that anything that might be asked in one proceeding when this person dies i better try and cover myself if they can test the will and trust later that's not what the rule is meant to handle and that's not what what practice is all  about it be like saying hey you know what in the critics have an adoption case if there's a deposition i better make sure to ask my client because what if they get divorced later i'm going to use that deposition against me in the divorce i would tell you that my argument is rule two twelve doesn't allow for that it wasn't the same subject matter not the same action and that same burden of proof so i think the court probably excluded that evidence after the arguments were made and  not abuse its discretion in doing so as to the motions for a directed verdict counsel spent most of this time this morning arguing that  and what he said was an exhibit that went to the jury he argued it back then he's really arguing it now and what he's doing is making arguments on evidence which is what the trier of fact is  s jury is the ultimate decider of who is credible and who is not on the issues that they heard with regard to the will and just ask you did the same with regard to trust as far as substantial benefit the evidence which is before you goes mainly to their arguments on niemi and mr keller mimi was jails housekeeper caretaker a she received a benefit under the documents that were upheld by the court jury her benefit was a house in arizona and one hundred thousand dollars cash his argument is that by the fact she drove this man to an  generate legal fees for korean summons will this not unduly influence ever received a benefit under this theory so once we put forth all the evidence about i mean mr keller testified for hours and he was on the stand probably for judgment notwithstanding the verdict on everything in its entirety you know this this case as i argued then was one in which you know i think we have a child trying to dictate what a parent does as to the property and wealth that that parent has accumulated over years of hard work unfortunately from his bar there were a few triggering events that led to the ultimate outcome that we're here for today mr wade was a proud man and he was a very smart businessman a guy could mark was a marketing genius and to take the antenna business and purple martin birdhouses and amass the fortune he did  says something about the kind of guy he was but she went after him and she threatened his authority and the minute she found that guardianship action she went in went into his business changed the locks changed the keys threw him out and he didn't like it and as the testimony stated you know he told mr keller that mr copas by to you know bill i hope you never have a child he does to you what she's done to me and he certainly you know was hurt by that she read a newspaper article in the local paper about want to buy property that you know was his and even a trial she said when i asked her point blank you agree with me that everything you did backfired against you she said yes and here we are today and unfortunately you have to take responsibility for your actions in this case that met mr wade changed her changed her inheritance the testimony which went on and on for three weeks talk all about that haven had to victor from his own property we were up here before you we've been here before you in this court at least three other times that was one of them and you know like as he said about her so my point in all of that is there was evidence on both sides for a long period of time and when you look at the standard what they are arguing is based on that evidence everything has to go in my favor right now as i sit here before you all inferences and reasonable doubts go to make that no other verdict could ever stand ever and i would say to you today that that just isn't the case and that's why we but on three weeks of evidence and the jury decided what it did in fact only set aside the two thousand and four  thousand and four second amendment to the trust so they certainly paid attention for three weeks just like ause i'm sorry the jury set aside because of just as he set aside the second trust so as far as the jury verdict goes that's what they're there to do they weigh the evidence they heard the evidence and they came to their decision so that being said i think the trout court was proper and its rulings i would say to you here today that our position is all of this jail is because of her we have dealt with that in this case from the the words are gatekeeper keep away and sh to keep the documents as they are so that there was no opportunity for her to reconcile with her file we think that that is an explanation we did not waive the claim on the jury instruction number two is included in our