The parties have filed a joint motion to modify the judgment, and, as modified, affirm the judgment in trial-court cause 69,389, the subject of this appeal. We will grant the motion. The trial court judgment is modified to vacate any finding that the signing of the October 18, 1996, "Last Will and Testament of Lena Gary Whitworth" was procured by undue influence or fraud on the part of Walter Batla and to vacate any finding that Walter Batla failed to comply with his fiduciary duty to Lena Gary Whitworth in obtaining her signature on the October 18, 1996 will. As modified, the judgment is affirmed.

The pending motion to abate is dismissed.

Before Justices Jones, Kidd and Patterson

Modified and, as Modified, Affirmed

Filed: January 6, 2000

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