NO. 91-064
IN THE SUPREME COURT O F THE STATE O F MONTANA
MARTHA TAYLOR,
P l a i n t i f f and A p p e l l a n t , JUl- 2 FM
v.
JOHN AUSTIN K O S M S K Y ,
Defendant and R e s p o n d e n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e E i g h t h J u d i c i a l D i s t r i c t ,
I n a n d f o r the County of Cascade,
The Honorable Thomas McKittrick, Judge p r e s i d i n g .
C O U N S E L OF RECORD:
For Appellant:
Thomas J. Murphy; Conklin, Nybo, L e V e q u e & Murphy,
Great Falls, Montana
For Respondent:
Joseph R . M a r r a ; M a r r a , Wenz, J o h n s o n & Hopkins,
G r e a t F a l l s , Montana
Submitted on B r i e f s : E'ay 2 3 , 1 9 9 1
Filed:
I
Clerk
Justice R. C. McDonough delivered the Opinion of the Court.
The plaintiff Martha Taylor appeals the order of the Eighth
Judicial District Court, Cascade County, granting summary judgment
to the defendant John Koslosky. The court determined that Taylor
failed to raise a genuine issue of material fact and that there
was no evidence of actual or constructive fraud, undue influence
or breach of fiduciary responsibility. We affirm.
Taylor raises the following issue on appeal:
Did the District Court err in determining that there was no
genuine issue of material fact regarding whether the decedent
Oswald Koslosky executedtrustdocuments disinheriting his daughter
Martha Taylor as a result of undue influence by his son?
On September 25, 1984, Oswald Koslosky created a trust whereby
his four children were to receive equal shares of the trust corpus
existing at the time of his death. Oswald Koslosky died testate
in Great Falls, Montana in July of 1987 at the age of 85. He was
survived in part by four adult children: Marjorie Wolford, of
Klamath Falls, Oregon; Mary Lawrence of Little Falls, Minnesota;
Martha Taylor of North Home, Minnesota, plaintiff here; and John
Koslosky of Great Falls, Montana, the defendant.
Prior to his death, the decedent contemporaneously executed
a will and an amendment to the trust agreement on September 2,
1986. The will is a pour-over will leaving all of Oswaldls
property to be disposed in accordance with the amended trust. The
amended trust document provides:
The donor has four children, namely, MARJORIE LOUISE
WOLFORD, MARY FRANCIS LAWRENCE, MARTHA JEAN TAYLOR, and
JOHN AUSTIN KOSLOSKY; it is understood and agreed,
however, that MARTHA JEAN TAYLOR shall not be a rrchildrr
or one of the "childrenrr for purposes of benefitting or
becoming a beneficiary under this Trust Agreement. The
donor's purpose and intent in excluding MARTHA JEAN
TAYLOR from any benefits under this trust result from the
receipt or retention by his daughter of other property
of the donor during the donorrs lifetime which shall be
deemed to be in lieu of any right, title, interest,
benefits or distributions under this Trust Agreement.
Thus, the new will and trust amendment disinherited his daughter,
Martha Taylor, the plaintiff. The other three children remain as
beneficiaries under the trust.
The plaintiff filed a complaint on September 2, 1988 to
declare the trust amendment invalid, alleging three counts: breach
of fiduciary responsibility and undue influence, actual fraud and
constructive fraud. Taylor alleged that due to the decedent's
suffering from Parkinson's disease, he was not competent to execute
the changes to the trust agreement. She further alleged that
because of animosity between her and the defendant, the defendant
breached his duties as the decedent's fiduciary and exercised undue
influence over the father, causing her to be disinherited. The
defendant moved for summary judgment and the District Court granted
the motion on December 4th, 1990. From this judgment Taylor now
appeals, alleging the District Court erred in determining that
there were no genuine issues of material fact regarding whether the
decedent executed the trust documents as a result of undue
influence by his son.
Summary judgment is governed by Rule 56(c) of the Montana
Rules of Civil Procedure, which provides in pertinent part:
The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no qenuine issue as to any material
fact and that the movinq Dartv is entitled to iudqment
as a matter of law. (Emphasis added.)
This Court has held that in order for summary judgment to issue,
the movant must show there is no genuine issue as to all facts
considered material in light of the substantive principles
entitling the movant to a judgment as a matter of law. Frigon v.
Morrison-Maierle, Inc. (1988), 233 Mont. 113, 117, 760 P.2d 57, 60;
Cerek v. Albertsonts, Inc. (1981), 195 Mont. 409, 411, 637 P.2d
509, 511. If the movant meets this burden, the burden then shifts
to the non-moving party to demonstrate a genuine issue of a
material fact. Friaon, 760 P.2d at 60. "Mere denial or
speculation will not suffice, the non-moving party must show facts
sufficient to raise a genuine issue." Friqon, 760 P.2d at 60;
Gamble Robinson Co. v. Carousel Properties (1984), 212 Mont. 305,
In Montana, undue influence is defined by statute. The
statute provides:
28-2-407. What constitutes undue influence. Undue
influence consists in:
(1) the use by one in whom a confidence is reposed
by another or who holds a real or apparent authority
over him of such confidence or authority for the purpose
of obtaining an unfair advantage over him;
(2) taking an unfair advantage of another's
weakness of mind; or
(3) taking a grossly oppressive and unfair
advantage of another's necessities or distress.
In construing this definition, Montana courts consider the same
criteria in determining whether a donor making a gift or a testator
executing a will was subject to undue influence at the time the
gift was made or the will executed. Cameron v. Cameron (1978), 179
Mont. 219, 229, 587 P.2d 939, 945. The criteria are well-settled
in Montana case law. They are:
(1) Confidential relationship of the person attempting
to influence the testator;
(2) The physical condition of the testator as it affects
his ability to withstand influence;
(3) The mental condition of the testator as it affects
his ability to withstand the influence;
(4) The unnaturalness of the disposition as it relates
to showing an unbalanced mind or a mind easily
susceptible to undue influence, and
(5) The demands and importunities as they may affect
the particular donor taking into consideration the time,
the place, and all the surrounding circumstances.
Matter of Estate of Luger (Mont. l99O), 797 P.2d 229, 231, 47
St.Rep 1642, 1644; Christensen v. Britton (1989) 240 Mont. 393,
398, 784 P.2d 908, 911; Blackmer v. Blackmer (1974), 165 Mont. 69,
75, 525 P.2d 559, 562. To prove an assertion of undue influence
one must satisfy each of these criteria. Christensen, 784 P.2d at
This Court recently held that summary judgment is proper in
a case where the party contesting a will failed to demonstrate a
material fact issue regarding the naturalness of the disposition.
In Matter of Estate of Luqer, sums, 797 P.2d at 231, the decedent
devised his entire estate equally between Shodair Childrens* Homes
and Intermountain Deaconess Childrens Home in his 1980 will.
Decedent's charitable intent in this will was consistent with his
intent in a previous 1948 will and an unsigned copy of a 1976 will
with the exception of adding Deaconess as a beneficiary in the 1980
will. In addition, the decedent specifically stated that his
nieces and nephews were to receive nothing from his estate because
of previous inheritances from the decedent's deceased parents1
estates. A nephew contested the will on the ground of undue
influence. Examining the criteria set forth above, we held that
the nephew failed to demonstrate a material fact issue regarding
the naturalness of the disposition. Luaer, 797 P.2d at 231.
In this case, Taylor has also failed to meet her burden of
showing disputed material facts regarding whether the disposition
was unnatural. In her deposition, the plaintiff did not present
any facts to controvert that the decedent's will accomplished
exactly what the decedent intended it to do. Taylor merely alleges
that because her brother was acting as the decedent's fiduciary,
and that because of alleged animosity between her and her brother,
he exercised undue influence over the decedent to have her cut out
of the will. This is insufficient:
Mere general influence in the affairs of life or method
of living at the time of the execution of a will by a
testator is not proof of undue influence in the
contemplation of our statute, and, in order to establish
it as a fact, it must be shown by proof that it was
exercised uDon the mind of the testator directlv to
procure the execution of the will. Mere sus~icionthat
undue influence may have or could have been brousht to
bear is not sufficient. It is never presumed, and must
be Droven like any other fact. (Emphasis added.)
Blackmer, 525 P.2d at 563. In Blackmer, this Court reversed a
trial court's finding of undue influence. This case is an appeal
from summary judgment. When a motion for summary judgment is made
and supported an adverse party may not rest upon the mere
allegations or denials of his pleading, but his response must set
forth specific facts showing that there is a genuine issue for
trial. If he does not so respond, summary judgment, if appropriate
shall be entered against him. Rule 56(e), M.R.civ.P. Thus, on a
motion for summary judgment
the party opposing the motion must present facts in
proper form--conclusions of law will not suffice; and
the opposing party's facts must be material and of a
substantial nature, not fanciful, frivolous, gauzy, nor
merely suspicious.
The trial court . . .
has no duty to anticipate
possible proof that might be offered under the pleadings.
Asking for such foresight demands clairvoyance not
possessed by even a trial judge.
Silloway v. Jorgenson (l965), 146 Mont. 307, 310, 406 P.2d 167,
169. Taylor introduced into evidence nurses1 reports indicating
that the decedent was confused and disoriented at times surrounding
the execution of the will and trust amendment. However, with
respect to whether the decedent was competent to execute the trust
amendment or was subject to undue influence from his son, these
notes are speculative at best, The deposition testimony of the
attorneys who worked on the amendment indicates that the decedent
was c o m p e t e n t a t t h e t i m e t h e trust a m e n d m e n t w a s executed.
Furthermore, Taylor also offered the affidavit of her own counsel
regarding a telephone conversation counsel had with the decedent's
treating physician. In the transcription of the phone call the
physician indicated that he believed that the decedent was
competent to execute the trust amendment and that he saw nothing
to indicate that he was unduly influenced by anyone.
The testator's intent in excluding Martha was clear in the
trust instrument: "The donor's purpose and intent in excluding
MARTHA JEAN TAYLOR from any benefits under this trust result from
the receipt or retention by his daughter of other property of the
donor during the donor's lifetime which shall be deemed to be in
lieu of any right, title, interest, benefits or distributions under
this Trust Agreement." Both attorneys who worked on the trust
amendment, the decedent's doctor, who was a witness to decedent's
execution of the will, and three of Oswald's children testified
that the decedent was of sound mind and knew why he wanted to
exclude the plaintiff. The record indicates that Martha and her
ex-husband had borrowed significant sums of money during the
decedent's lifetime which they failed to pay back, and the decedent
felt that they had already received their share of his property
during his lifetime.
In light of the uncontroverted evidence in the record, there
was no question of material fact regarding whether the disposition
was natural, the result of undue influence, or that the decedent
was incompetent to execute the trust amendment and will.
The order of the District Court is
AFFIRMED.
I?
We Concur: ,,
:7-
,'
Chief Justice
July 2, 1991
CERTIFICATE O F SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Thomas J. Murphy
Conklin, Nybo, LeVeque & Murphy
#9-3rd St. No., Ste. 203
Great Falls, MT 59403-2049
Joseph R. Marra
Marra, Wenz, Johnson & Hopkins
P.O. Box 1525
Great Falls, MT 59403-1525
ED SMITH
CLERK O F THE SUPREME COURT