dissenting:
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 to the fact that the mind of the testator was subjected to. that of some other person, so that the will is that of the latter and not of the former.” Havird v. Schissell, 252 S. C. 404, 411, 166 S. E. (2d) 801, 804 (1969). The influence “... must amount to force and coercion, destroying free agency ...,” and the issue of undue influence should be resolved in the light that a sane testator has a right to dispose of his property as he chooses. Calhoun, 277 S. C. at 532, 290 S. E. (2d) at 418.
*429Using these strict standards, a review of the evidence clearly demonstrates the existence of a factual issue warranting submission of the case to the jury.
The testator and his wife were very close to respondent’s family for many years. The Smoaks, who were childless, referred to Dorothy’s daughters as their grandchildren and treated them accordingly. Mrs. Smoak’s will provided for a substantial cash bequest for Dorothy’s daughters.
Immediately after his wife’s unexpected death, Mr. Smoak summoned his attorney, Mr. Horlbeck and directed him to draft a new will. Mr. Horlbeck had been the Smoaks’ personal attorney for a number of years and had drafted Mr. Smoak’s previous will. The new will, executed in May 1979, was necessary since the previous will left virtually everything to Mrs. Smoak.
For several years, Mr. Smoak’s health had steadily declined. By the time of Mrs. Smoak’s death, he was totally dependent on others for his care. Mr. Horlbeck was directed to draft a power of attorney, naming appellant Janette Martin as his attorney in fact.
Despite offers from Dr. William Woodward and respondent to assist with Mr. Smoak’s care, Mrs. Martin moved him into her home, taking complete charge of him and his affairs.
After Mr. Smoak was moved into the Martin home, contacts by respondent and her daughters with Mr. Smoak were involuntarily curtailed. They were frequently denied visits, being told that Mr. Smoak was sleeping, or not feeling well. They began coming to the front door of the Martin home so Mr. Smoak could hear them, and call them in. They were never allowed to visit Mr. Smoak alone.
Dr. William Woodward had been Mr. Smoak’s personal physician and close friend for many years. He visited on a weekly basis because of Mr. Smoak’s deteriorating health. He testified that he felt intimidated when visiting the Martin home and was never left alone with his patient, even when he had to do full physical examinations of Mr. Smoak. After a dispute with Mrs. Martin involving his purchase of Mr. Smoak’s house. Dr. Woodward visited less frequently. Eventually, Mrs. Martin (rather than Mr. Smoak) dismissed him. Mrs. Martin’s attorney wrote Dr. Woodward and re*430quested that he send Mr. Smoak’s file to another physician.
At trial, without objection from appellant’s counsel, Dr. Woodward was qualified as an expert in geriatrics. His opinion was, in light of the testator’s serious physical ailments and dependency on others, he was vulnerable to influence. The majority’s contention that his opinion had no basis is completely at odds with the record. Dr. Woodward’s years of constant care provide an ample basis for his opinion.
Between the preparation of the May will and October will, Mr. Smoak’s health declined rapidly.
In marked contrast with the May will, the October will was drafted by Mrs. Martin’s attorney, instead of Mr. Smoak’s regular attorney, Mr. Horlbeck. Mrs. Martin called her attorney in to draft the will, and it is evident she was heavily involved in its preparation. The testimony suggested that she may have, in fact, dictated the October will. It should also be noted that Mrs. Martin fired Mr. Horlbeck as Mr. Smoak’s attorney, even though Mr. Horlbeck was handling Mrs. Smoak’s estate at the time.
Of special note is the fact that the attorney who drafted the October will was never called to testify, though this possibility was suggested by appellants at trial. His testimony would have been dispositive on the issues at trial “.. ,[W]hen the circumstances in proof tend to fix a liability on a party who has it in his power to offer evidence peculiarly within his knowledge of all the facts as they existed and rebut the inferences which the circumstances in proof tend to establish, and he fails, without satisfactory explanation, to offer such proof, the presumption is that the proof, if produced, would support the inferences against him.” Collins v. Merrimack Mut. Ins. Co., et al., 210 S. C. 207, 212-13, 42 S. E. (2d) 67, 70 (1947). Since the record is replete with evidence supporting the claim of undue influence, the presumption operates regarding this obviously missing testimony.
Regarding the change in beneficiaries, there was testimony that Mr. Smoak did not care for one of the new beneficiaries.
Mr. Smoak’s health continued to fail. At one point, he was admitted to a local hospital. Respondent’s family was not *431told, and found out only when one of Dorothy’s daughters had a chance meeting with Mr. Martin at the hospital.
Eventually, Mr. Smoak was placed in a nursing home. He had great difficulty communicating with others. During one visit, respondent’s daughter heard him say, “It’s too late”, appearing very disturbed. She testified she believed he was referring to the will; however, his inability to communicate prevented him from explaining the comment.
Additionally, Mrs. Martin was in a fiduciary relationship with the decedent. This relationship, while not giving rise to a presumption of influence, Karesh, Wills, at 25, demonstrates the trust and confidence placed in Mrs. Martin and was proper evidence of domination. See Byrd, 279 S. C. at 430, 308 S. E. (2d) at 791.
The facts of this case are very close to our decision in Byrd. As in the Byrd decision, viewing the evidence in a light most favorable to respondent, the circumstances and the fiduciary relationship between Mrs. Martin and the testator created a clear factual question of undue influence. These factual disputes were properly submitted to, and resolved by the jury.
Appellants also argue that Mr. Smoak had over a year between the execution of the October will and his death, and could have changed it once he was transferred from the Martin home to a nursing home.
Where a testator has an unhampered opportunity to negate any will procured by undue influence, and does not do so, the allegations of undue influence are destroyed. Calhoun, 277 S. C. at 533, 290 S. E. (2d) at 419. In Calhoun, there was evidence that the testator transacted business after the execution of the disputed will. Here, there is no such evidence. At the time of the October will, Mr. Smoak’s physical condition had deteriorated so as to preclude any business transactions. He also had great difficulty communicating. Since his condition never improved, he had no unhampered opportunity to revoke the October will.
The majority opinion places this Court in the position of making findings from evidence replete with factual disputes. Such is not our function. Substantial evidence of undue influence was presented to the jury. By its unanimous ver-*432diet, the jury properly resolved the factual issues. The verdict should be affirmed.
Ness. J., concurs.