dissenting:
We deal with the fact that an attorney was a major beneficiary under a will which he drafted for his client. I must dissent from the majority opinion in its application of the Thayer hypothesis of the “bursting bubble” in the presumption of undue influence arising under the fiduciary relationship which exists as a matter of law.
It is the conclusion of the opinion that since Dean produced “some evidence” which might be considered to suggest a voluntary choice of the testator, and the plaintiff produced no specific evidence of undue influence in addition to the admitted presumption, the trial court erred in finding the issues for plaintiff. The majority have not sufficiently explored the depths of the Thayer hypothesis.
The annotation in Annot., 5 A.L.R. 3d 19, 39 (1966), quotes the Thayer expansion of the hypothesis as stated in J. Thayer, Evidence App.' B, at 575-76 (1898):
“(1) A presumption operates to relieve the party in whose favor it works from going forward in argument or evidence. (2) It serves therefore the purposes of a prima facie case, and in that sense it is, temporarily, the substitute or equivalent for evidence. (3) It serves this purpose until the adversary has gone forward with his evidence. How much evidence shall be required from the adversary to meet the presumption, or, as it is variously expressed, to overcome it or destroy it, is determined by no fixed rule. It may be merely enough to make it reasonable to require the other side to answer; it may be enough to make out a full prima facie case; and it may be a great weight of evidence, excluding all reasonable doubt. (4) A mere presumption involves no rule as to the weight of evidence necessary to meet it. When a presumption is called a strong one, like the presumption of legitimacy, it means that it is accompanied by another rule relating to the weight of evidence to be brought in by him against whom it operates.” (Emphasis added.)
As so explicated, the “bursting bubble” of Thayer does not provide that “some evidence” in behalf of the proponent is necessarily sufficient to make the presumption valueless.
The position taken here was succinctly stated by Mr. Justice Goldenhersh in Diederich v. Walters (1976), 65 Ill. 2d 95, 105, 357 N.E.2d 1128. That opinion concluded that a particular presumption ceased “to operate in the face of contrary evidence In dissent, it was stated:
“Assuming arguendo the correctness of the majority’s conclusion the flaw in its treatment of the question is that it has attempted to apply the same rule to all presumptions whereas it is clear from the decisions of this court that all presumptions are not alike.” 65 Ill. 2d 95, 105-06, 357 N.E.2d 1128, 1133.
One finds that 1 Card, Illinois Evidence Manual ch. II (1979) lists some 40 presumptions, in addition to statutory presumptions, which may be considered under the Thayer hypothesis. McCormick, Evidence §343, at 806-07 (2d ed. 1972), states that it is inappropriate “to attempt to list the hundreds of recognized presumptions, ° °
McCormick states the nature, quality, and purpose for the creation of presumptions:
“A presumption shifts the burden of producing evidence, and as we shall see, under the preferable view operates to assign the burden of persuasion as well. Therefore naturally, the reasons for creating particular presumptions are similar to the considerations, which have already been discussed, that bear upon initial or tentative assignment of those burdens. Thus, just as the burdens of proof are sometimes allocated for reasons of fairness, some presumptions are created to correct an imbalance resulting from one party’s superior access to the proof. * 0 e. Similarly, notions, usually implicit rather than expressed, of social and economic policy incline the courts to favor one contention by giving it the benefit of a presumption, and correspondingly to handicap the disfavored adversary.”
In discussing the “bursting bubble” theory of the Thayer hypothesis, it is stated in McCormick:
“As has been discussed, presumptions are frequently created in instances in which the basic facts raise a natural inference of the presumed fact. This natural inference may be sufficient to take the case to the jury, ° * * despite the resultant destruction of the presumption. ° McCormick, Evidence §345, at 821 (2d ed. 1972).
The text continues:
“Presumptions, as we have seen, have been created for policy reasons that are similar to and just as strong as those that govern the allocation of the burdens of proof prior to the introduction of evidence. These policy considerations generally persist despite the existence of proof rebutting the presumed fact. They may be completely frustrated by the Thayer rule when the basic facts of the presumption do not give rise to an inference that is naturally sufficient to take the case to the jury.” McCormick, Evidence, §345 at 822 (2d ed. 1972).
The majority opinion cites controlling authority upon the established policy of the courts where a fiduciary relationship exists and a presumption of undue influence is created, i.e., the fiduciary is required to show that the execution of the will:
“[W]as the result of free deliberation on the part of the testator and of the deliberate exercise of his judgment, and not an imposition or wrong practiced by the trusted beneficiary.” Tidholm v. Tidholm (1945), 391 Ill. 19, 25-26, 62 N.E.2d 473, 476.
Happily, relatively few will contests include an issue where the testator’s attorney drafts a will wherein he is a beneficiary. However, instances are found in attorney disciplinary proceedings. It may be argued that in a narrow sense, attorney disciplinary proceedings include factors not necessarily concerned in the decision here, i.e., “an obligation to avoid even the appearance of impropriety.”
In In re Saladino (1978), 71 Ill. 2d 263, 272, 375 N.E.2d 102, 105, the supreme court agreed with the finding “that the evidence is not clear and convincing that respondent was actually carrying out complainant’s wishes.” That language is cited with approval in In re Barrick (1981), 87 Ill. 2d 233. In Barrick, the attorney drafted a will wherein the testator left to him a legacy from a substantial estate. The legacy was computed as the equivalent of his retainer fee for a period of five years. In a disciplinary proceeding, the supreme court found that although undue influence might have been presumed “the evidence established that there was none.” (Emphasis supplied.) (87 Ill. 2d 233, 241.) Among the items of evidence noted was that the testimony showed that the attorney had emphasized his conflict of interest to the testator and pressed the testator to obtain other counsel to the point that the testator was offended and adamant. There was substantial evidence that the testator had received independent advice (Saladino; In re Anderson (1972), 52 Ill. 2d 202, 287 N.E.2d 682.) Barrick states that while the act of the attorney in drafting such a will may be proper in special circumstances “he should be prepared to prove later what really happened.” 87 Ill. 2d 233, 239.
Upon the conclusion that the Thayer hypothesis does not undertake to specify what quantum of evidence is required to rebut the presumption of undue influence, one finds that the cases cited as to both will contests and disciplinary proceedings establish a standard of evidence to rebut the presumption of undue influence which is much greater than the “some evidence” which is deemed sufficient in the conclusions of the majority. The standard of clear and convincing evidence found in the disciplinary proceedings is consistent with, and the equivalent of, the standard of Tidholm cited in the majority opinion as the “necessity of showing that the execution of the will was the result of free deliberation 0 * “ and of the deliberate exercise of his judgment ” * e.” (Tidholm v. Tidholm (1945), 391 Ill. 19, 25-26, 62 N.E.2d 473, 476.) One may fairly conclude that notwithstanding the Thayer hypothesis, the supreme court has established that in cases of this character the proponent has the burden of persuasion, and that the rationale of the majority opinion is clearly inconsistent with the standard of proof required under these facts.
The evidence presented in support of this will clearly fails to rebut the presumption of undue influence arising from the attorney-client relation. An absence of close relatives is hardly proof that the bequest to Dean was a product of the testator’s free and voluntary determination. Again, evidence that Dean and testator went to dinner once a month, or had in years past joined in vacation trips, is hardly persuasive evidence upon that significant issue. Such facts may equally be interpreted as a program to enlarge Dean’s influence.
Testator’s interview with Mr. Litak prior to the execution of the will cannot fairly be called independent advice. Conceding that Litak made a conscientious effort to cope with an apparently unexpected, unclear, and embarrassing circumstance, one finds that testator was simply introduced by Dean and delivered to Litak to execute the will. Although Dean did not preside at the execution in a literal sense, he not only drafted the will, but procured its execution before strangers to the testator. It does not appear that Litak knew the contents of the will, or that he was in any way aware of the circumstances under which Dean became a major beneficiary. There is no basis to necessarily conclude that the testator would immediately disclose doubts, or fears to the strangers introduced to her some 20 minutes before the signing of the will.
The majority opinion emphasizes the language of the trial court concerning reliance upon the presumption to reach his decision. The statement is not remarkably significant for the reason that the plaintiff had no access to information concerning the substance and background of the transaction between the testator and Dean. The circumstances of the making of the will in this case are precisely the reason for which the presumption was created as a matter of policy. The quoted sentence of the trial court may fairly be interpreted to mean that the presumption of undue influence was not rebutted, and I would affirm.