96-348
No. 96-348
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
IN RE THE ESTATE OF
CHRISTINE ELIZABETH TIPP,
Deceased.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John W. Larson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Bryan Charles Tipp, Richard R. Buley, Tipp & Buley,
Missoula, Montana
For Respondent:
Clinton H. Kammerer, Kammerer Law Offices, Missoula,
Montana
Submitted on Briefs: December 12, 1996
Decided: February 4, 1997
Filed:
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__________________________________________
Clerk
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Appellant Dorothy Shodin (Dorothy) appeals the decision of the
Fourth Judicial District Court, Missoula County, determining that
the testamentary will and property transfer of Christine Elizabeth
Tipp (Christine) were not entered into as a result of undue
influence, and admitting the will to probate. We affirm.
ISSUE
The sole issue presented on appeal is whether the District
Court erred in finding that Christineþs will and property transfer
were not the products of undue influence.
FACTS
Christine died in 1994 at the age of eighty-six. She and her
late husband, George, had seven children including Dorothy, the
appellant in this case, and Sylvia, the respondent.
In 1984 or 1985, George became incapacitated by a medical
condition which resulted in partial paralysis. At this time,
Sylvia became involved in her parentsþ care, managing their
finances and transporting them around as needed. Christine did not
drive and, by this time, George was no longer able to do so.
Because Sylvia so often took them to doctor appointments and ran
other necessary errands, George and Christine gave her their car.
Because of Georgeþs partial paralysis, he was placed in a
nursing home. The entire family, however, was very dissatisfied
with the care he received and he was quickly brought home. In
1988, George died; Christine continued to occupy their home alone
after his death. Sylvia and another daughter, Virginia, would look
in on their mother and provide whatever assistance she needed.
Sylvia continued to provide transportation and to manage
Christineþs financial affairs. By 1990, Christine had been
diagnosed with advanced breast cancer and was under the care of an
oncologist.
In 1992, Christine fell at home and broke her hip. She
thereafter required more frequent and continual care, which Sylvia
primarily provided. Also in 1992, Sylvia discussed with her mother
the possibility of Sylvia buying Christineþs house. Upon hearing
of the plan, Sylviaþs brother Ray obtained an appraisal of the
house. No other steps were taken in furtherance of such a sale.
In March of 1993, Sylvia twice transported Christine to the
office of her attorney. Christine later revealed that the purpose
of the visits had been to change her will and to transfer the
ownership of her house to joint tenancy with right of survivorship
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between herself and Sylvia. In this way, Sylvia would receive the
house when Christine died.
In April of 1993, Christine traveled to California to be with
her oldest son, who was himself dying of cancer. She made the trip
alone and unassisted, and returned to Montana in the same manner.
During the time Christine was in California, Sylvia and her husband
Gordon moved into Christineþs home. Thereafter, Sylvia was almost
entirely responsible for her motherþs care. Christine became
increasingly ill and, in February, 1994, she passed away.
Following Christineþs death, her other children became aware
of the will she had executed in March, 1993, as well as the
simultaneous transfer of the home to joint tenancy with Sylvia.
Dorothy then brought suit to prevent the willþs admittance to
probate and to set aside the property transfer, asserting that the
will and transfer were the products of undue influence. After a
thorough hearing, the District Court determined that the will and
transfer were not in fact the products of undue influence. The
court then ordered the will admitted to probate. Dorothy appeals.
STANDARD OF REVIEW
The case law regarding the standard of review in estate cases
at equity is inconsistent and contradictory. On the one hand, this
Court has determined that the proper standard of review is whether
substantial credible evidence supports the district courtþs
findings. See, for example, Christensen v. Britton (1989), 240
Mont. 393, 784 P.2d 908; In re Estate of Palmer (1985), 218 Mont.
285, 708 P.2d 242; Cameron v. Cameron (1978), 179 Mont. 219, 587
P.2d 939. On the other hand, we have also declared that the proper
standard of review in such cases is whether the district courtþs
findings are clearly erroneous. See, for example, In re Estate of
Parini (Mont.1996), 926 P.2d 741, 53 St.Rep. 1062; Flikkema v. Kimm
(1992), 255 Mont. 34, 839 P.2d 1293; In re Estate of Flynn (1995),
274 Mont. 199, 908 P.2d 661.
Cases using the "substantial credible evidence" standard of
review generally cite 3-2-204(5), MCA, which provides:
[i]n equity cases and in matters and proceedings of an
equitable nature, the supreme court shall review all
questions of fact arising upon the evidence presented in
the record, whether the same be presented by
specifications of particulars in which the evidence is
alleged to be insufficient or not, and determine the
same, as well as questions of law . . .
In re Estate of Melvin (1993), 261 Mont. 408, 412, 862 P.2d 1159,
1162 (citations omitted); In re Estate of Barber (1989), 239 Mont.
129, 137, 779 P.2d 477, 482. Cases using the "clearly erroneous"
standard of review generally cite Rule 52(a), M.R.Civ.P., which
provides in part:
In all actions tried upon the facts without a jury or
with an advisory jury, the court shall find the facts
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specially and state separately its conclusions of law
thereon . . . . Findings of fact, whether based on oral
or documentary evidence, shall not be set aside unless
clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility
of the witnesses. . . .
Flikkema, 839 P.2d at 1296; In re Estate of White (1984), 212 Mont.
228, 231-32, 686 P.2d 915, 916-17.
While nothing in 3-2-204(5), MCA, precludes the use of the
"clearly erroneous" test, Rule 52(a), M.R.Civ.P., by its terms,
mandates that this more stringent test be applied to "all actions
tried upon the facts without a jury or with an advisory jury,"
without regard for whether the case arises at law or in equity.
For this reason, we conclude that the proper standard of review in
estate cases at equity is whether the findings of the district
court are clearly erroneous. Absent a determination that the
findings are clearly erroneous, they will not be set aside.
Flikkema, 839 P.2d at 1296.
DISCUSSION
Did the District Court err in findings that Christineþs will
and property transfer were not the products of undue influence?
In seeking to have the will and property transfer set aside,
Dorothy alleges that the testamentary changes were the products of
undue influence asserted upon Christine by Sylvia. Dorothy
contends that Sylvia was in a position to assert such influence
because of her role as primary care giver to Christine and because
of the fact that she lived with Christine. Dorothy further
contends that Christine was particularly susceptible to this
influence due to her advanced age and illness.
Section 28-2-407, MCA, provides:
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.
Section 28-2-407, MCA. See In re Estate of Jochems (1992), 252
Mont. 24, 28, 826 P.2d 534, 536. In determining whether undue
influence was exercised, the court must consider the following:
(1) the confidential relationship of the person allegedly
attempting to influence the testator;
(2) the physical condition of the testator as it affects
his or her ability to withstand the influence;
(3) the mental condition of the testator as it affects
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his or her 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 have
affected the testator, taking into consideration the
time, place, and surrounding circumstances.
Jochems, 826 P.2d at 536 (citing In re Estate of Luger (1990), 244
Mont. 301, 303-04, 797 P.2d 229, 231 and Christensen, 826 P.2d at
911). These same criteria are used in determining whether undue
influence existed regardless of whether the case involves a donor
making a gift or a testator making a will. Cameron, 587 P.2d at
945. Further, as this Court stated in Christensen, "[u]ndue
influence is never presumed and must be proven like any other
fact." Christensen, 784 P.2d at 911 (citations omitted).
In this case, the evidence clearly showed that Christine and
Sylvia had a confidential relationship. Sylvia was not only
Christineþs daughter but her primary care giver, and she lived with
Christine. Nor is it disputed that Christineþs physical condition
might serve to render a donor susceptible to influence; Christine
was both elderly and seriously ill at the time she made her will
and property transfer. The parties contest, however, whether
Christineþs mental condition would render her susceptible to
influence. While Sylvia contends that Christine was alert and in
possession of all her faculties until just shortly before her
death, Dorothy contends that Christine was prone to forgetfulness
and confusion, indicating a mental state in which she might be
susceptible to undue influence. The testimony of the family
members on this point is directly contradictory and cannot be
reconciled.
Several other individuals, however, also testified at the
hearing regarding Christineþs mental state around the time that she
made her will. These other witnesses, unrelated to the family,
consistently testified that Christine was fully capable of
appreciating her actions and their ramifications when she changed
her will and placed Sylviaþs name on the deed to her home.
Christineþs doctor testified that as of April of 1993, Christine
was "very independent" and in control of her cognitive powers. The
secretary to the attorney who made Christineþs will, anticipating
possible problems from a will that essentially disinherited several
other children, made a point to observe Christineþs demeanor
closely while the will was being prepared. When questioned about
her impression, the secretary testified:
Q. Is it your belief, based on your knowledge about
Christine and your familiarity with her, at least since
1986, that she was fully aware of what she was doing on
this particular day?
A. Yes.
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Q.
This March 31 of 1993, right?
A. Yes.
Q. Did there seem to be any confusion in her mind as
far as what it was she was there for?
A. No, sir.
The attorney who prepared the will similarly testified that he was
satisfied that Christine understood what she was doing and the
consequences of her acts. In addition, one of Christineþs
neighbors and two hospice workers testified that Christine remained
alert and self-possessed even months after the date on which she
changed her will. Furthermore, the evidence presented showed that
Christine independently planned a trip to California in the weeks
following the change to her will. Such a trip would have been
extremely difficult for an individual whose mental faculties were
impaired. Yet Christine undertook the trip with the encouragement
of her children, and apparently experienced no problems while
traveling alone.
Given such evidence, the District Court determined that
Dorothy had failed to prove the third factor in the above-
referenced test for undue influence. While the testimony in this
case conflicted, Sylvia presented evidence which supported the
District Courtþs findings regarding Christineþs mental state, and
those findings are not clearly erroneous.
Dorothy also contests the District Courtþs finding that she
had failed to prove the fourth factor necessary to establish undue
influence, the unnaturalness of the disposition.
In arguing that the will and property transfer were unnatural
dispositions, Dorothy points out that the arrangements Christine
made effectively disinherited all of her children except Sylvia.
This Court has held, however, that "the fact that a parent might
leave the majority of his or her assets to only one child, while
excluding others, is not in and of itself unnatural." In re Estate
of Lien (1995), 270 Mont. 295, 305, 892 P.2d 530, 535 (citing
Flikkema, 839 P.2d at 1298).
Dorothy argues, however, that the evidence presented
nevertheless tended to prove an unnatural disposition in this case.
In particular, Dorothy points out that Christine had another, older
will in place for over thirty years which split her estate evenly
between all her children, a commitment to "fairness" which she and
her husband had honored almost all their lives. Given this
history, Dorothy argues that it was unnatural for Christine to
decide, less than a year before her death, to leave the bulk of her
estate to only one child.
The fact that Christine already had a will drawn up at the
time she decided to change its provisions is largely irrelevant.
No one disputes that she had the absolute right to destroy or
change her will at any time, should she choose to do so. Yet
Dorothy insists that the change must have been unnatural because it
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contradicted Christineþs previously articulated desire to treat all
of her children equally. There was no reason, Dorothy argues, for
Christine to independently wish to make such a radical alteration
in her estate planning; therefore, the new will must have been a
product of Sylviaþs undue influence.
Yet the testimony of various witnesses at the hearing
illuminated probable reasons for Christine to make such a change:
her increasingly close relationship with Sylvia and her gratitude
to Sylvia for taking care of her. While it is not disputed that
all of Christineþs children loved her, it is also not disputed that
Sylvia assumed the greatest share of responsibility in caring for
Christine. Christine herself was apparently acutely aware of this
fact. As a hospice worker testified:
[Christineþs] main concern was for Sylvia and she told
me--this came about when I was talking to them both about
long-range care plans and how they were going to manage
if they planned to stay at home until her death with her
care. [S]he said that, yes, that was, in fact, the
agreement that she had made with Sylvia, because she did
not want to go to a nursing home, and she had given her
other children the opportunity to care for her, and they
had chosen not to do it or not to do it in a fashion that
she was comfortable with. [S]he told me, in fact, that
she was leaving her home to Sylvia in exchange for taking
care of her until she died, whether it was tomorrow or,
you know, five years from now . . .
The District Court noted that Christine obviously dearly loved all
the members of her family and, in her own way, remained close to
each of her children. Nevertheless, given Christineþs articulated
rationale for leaving her home to Sylvia and the fact that Sylvia
was Christineþs primary care giver, the District Court determined
that the will and property transfer in this case were not
unnatural. These findings are not clearly erroneous.
Dorothy further argues that the District Court erred in
finding that she had failed to prove the fifth factor, the
existence of demands and importunities calculated to affect the
testator. She contends that the deed and will were made at a time
when Sylvia controlled all of Christineþs finances and assets.
Dorothy further contends that the will and transfer were made under
a threat of institutionalization, a particular fear of Christineþs
in light of the substandard care her husband had received in a
nursing home years before.
Sylviaþs management of Christineþs finances is not, in and of
itself, a "demand or importunity" made upon the donor. The
implication, however, is that Sylvia may have wielded this
financial power to force her mother to make a will in her favor.
Yet this theory is pure speculation, unsupported by any of the
evidence presented. The District Court did not err in largely
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disregarding it.
Similarly, while certain family members testified that Sylvia
had threatened Christine with institutionalization, Sylvia
categorically denied ever having done so. No independent evidence
or witnesses were presented to support this allegation, and it was
within the discretion of the District Court to disregard this
unsubstantiated theory as well.
After an extensive hearing, the District Court found that
Dorothy had failed to prove the existence of undue influence. It
consequently declined to set aside the will and property transfer.
Having thoroughly reviewed the record, we determine that the
findings of the District Court are not clearly erroneous. Its
decision is therefore affirmed.
/S/ WILLIAM E. HUNT, SR.
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ TERRY N. TRIEWEILER
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