(dissenting) — A thorough reading of the record convinces me that the trial court erred in refusing to grant a directed verdict in favor of Mrs. Koppang. Therefore, I respectfully dissent.
In summary, Mrs. Koppang had questionable mental capacity. Mrs. Hudon was given a power of attorney. As a fiduciary, she had a duty to preserve Mrs. Koppang's assets; instead, within months all or substantially all of Mrs. Koppang's assets were in the possession of Mrs. Hudon and her husband available for their personal use. Mrs. Hudon claims the transfer to herself of almost $125,000 was a gift. In my view, the evidence is not of sufficient quantum to establish a gift by the higher clear, cogent and convincing standard. Consequently, the court should have directed a verdict for Mrs. Koppang.
Because Mrs. Hudon was a fiduciary, the Hudons had the burden of proving by clear, cogent and convincing evidence the transfer was a gift. Whalen v. Lanier, 29 Wn.2d 299, 310, 186 P.2d 919 (1947); In re Estate of Oney, 31 Wn. App. 325, 329, 641 P.2d 725 (1982); Doty v. Anderson, 17 Wn. App. 464, 471, 563 P.2d 1307 (1977). Clear, cogent and convincing evidence is something more than a mere preponderance, Bland v. Mentor, 63 Wn.2d 150, 154, 385 P.2d 727 (1963); Holmes v. Raffo, 60 Wn.2d 421, 426, 374 P.2d 536 (1962); 5 K. Tegland, Wash. Prac., Evidence § 62, at 112-13 (2d ed. 1982), but something less than proof beyond a reasonable doubt. Beckett v. Department of Social & Health Servs., 87 Wn.2d 184, 186-87, 550 P.2d 529 (1976). The "clear, cogent and convincing" standard requires the ultimate facts and issues be shown by evidence which is highly probable. In re Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973), rev'g, 7 Wn. App. 457, 499 P.2d 881 (1972); Richards v. Pacific Nat'l Bank, 10 Wn. App. 542, 519 P.2d 272 (1974); Rolph v. McGowan, 20 Wn. App. 251, 579 P.2d 1011 (1978). Therefore, this court's function in reviewing the trial court's refusal to direct a verdict is not simply to determine whether there is substantial evidence to support that decision, but whether the evidence is of such quantum *190as to meet the higher "clear, cogent and convincing" standard and thus support a finding of gift. In re Sego, supra at 739; Silver Surprize, Inc. v. Sunshine Mining Co., 15 Wn. App. 1, 23, 547 P.2d 1240 (1976).
The evidence shows Mrs. Koppang had an eighth grade education. During her marriage she was completely dependent upon her husband to manage their money and business affairs. Mr. Koppang died July 21, 1978. On August 7, just 17 days later, a power of attorney was prepared by Mrs. Koppang's attorney and executed by her designating Mrs. Hudon as her attorney in fact. On the same day, the two women went to the Yakima City & County Employees Credit Union and the Home Federal Savings and Loan Association where the Koppangs had their accounts. At that time Mrs. Hudon's name was put on the accounts with Mrs. Koppang. A month later, on September 7, Mrs. Hudon took Mrs. Koppang to Mrs. Hudon's attorney and another power of attorney was executed. That same day the funds in the joint accounts at the credit union and Home Federal were withdrawn and placed in new accounts in Mrs. Hudon's name only. On September 8 Mr. Hudon's name was added to the Home Federal account. The credit union account was closed on November 1 and a check for $72,795.66 was issued to Mrs. Hudon. On the same day, the Home Federal account was closed by the issuance of a check to Mr. Hudon for $32,411.10.
On November 9 another power of attorney was executed designating Mrs. Hudon as first attorney in fact and her husband, Leon D. Hudon, as second attorney in fact. During February 1979 Mrs. Koppang sold her mobile home. The proceeds, $19,000, were delivered to Mrs. Hudon to place with the other monies. Thus, in less than 7 months, substantially all of the Koppangs' savings and assets were in the sole possession and control of the fiduciary Mrs. Hudon and her husband for their personal use.
To compound this situation, Mrs. Koppang had serious mental problems. She had been receiving psychiatric treatment for the past 10 to 15 years and at one point had *191undergone electric shock treatments. She was diagnosed as having organic brain disorder and dementia, which causes loss of memory and poor judgment. She also had Parkinson's Disease. A psychiatrist testified her organic brain syndrome affected her judgment to such an extent she had difficulty carrying out sequential activities and that while she may have appeared to understand what was said to her, she would have no memory of it.1 This testimony is not contradicted by any other medical testimony.
In essence, there is evidence from the interested parties to support both positions on the question of gift. I fail to find any disinterested corroborative evidence that Mrs. Koppang intended to make an inter vivos gift to the Hudons. To the contrary, there is evidence corroborative of Mrs. Koppang's claim of no gift. Where evidence is equally balanced, or as here somewhat balanced in favor of no gift, proof by the clear, cogent and convincing standard has not been met.
Mrs. Bruns, an employee of Home Federal, who handled the transfer of Mrs. Koppang's savings account to Mrs. Hudon, questioned Mrs. Koppang about the advisability of transferring the funds to Mrs. Hudon. Mrs. Bruns testified that on three different occasions Mrs. Koppang responded: "If she couldn't trust her niece, who could she trust." Mrs. Bruns stated: "Well, it was — like her niece would take care of her the rest of her life, you know, that type of thing. Well, I still was reluctant to do such a thing because I felt that it was too permanent." According to Mrs. Bruns, neither party stated Mrs. Koppang was making a gift to Mrs. Hudon. As a result, obviously to protect the bank, Mrs. Bruns prepared and Mrs. Koppang signed a statement that the account was being freely transferred to Mrs. Hudon. *192This written statement does not indicate the transfer was a gift; rather, the circumstances are more consistent with an intent to create a trust to be used for Mrs. Koppang's future needs.
Since the transfers occurred on the same day, it is appropriate to consider what occurred at the credit union when the Hudons closed that account. The teller informed the Hudons she knew they were withdrawing Mrs. Koppang's money. The Hudons in response stated they were going to invest the money at a higher rate of interest "for her." That statement is not consistent with a claim of gift. It is supportive of Mrs. Koppang's claim that the Home Federal transfer was for her benefit.
Additionally, it is important to note that one of the requirements for a completed gift is "donative intent". Oman v. Yates, 70 Wn.2d 181, 185, 422 P.2d 489 (1967); In re Estate of Oney, supra at 329. Where the donor is mentally incapacitated, donative intent to make a gift is lacking. See In re Estate of Dawson, 127 Wash. 205, 220 P. 764 (1923). Here two psychiatrists testified to the mental condition and judgmental deficiencies of Mrs. Koppang. The only controverting evidence was by Mrs. Hudon. Even though she was the one who arranged Mrs. Koppang's appointments with the psychiatrists, she testified she was unaware of Mrs. Koppang's mental condition and stated, "she can be just as bright as anybody. She's not a dumb person, not by a longshot [sic]. She's very intelligent." The evidence casts considerable doubt upon Mrs. Koppang's capacity to understand the nature of these transactions and renders the transaction even more ambiguous.
For the foregoing reasons, I do not find evidence of sufficient quantum to establish a gift by the higher clear, cogent and convincing standard. At most, the evidence is equivocal. Equivocal evidence is not clear, cogent and convincing evidence. Thus, a directed verdict should have been granted and I would enter judgment for Mrs. Koppang.
The question presented in this case is a troublesome one and, with the numbers in the aging population increasing, *193will recur in the future. It is obvious both the donor and the donee occupying a fiduciary relationship need more protection than is afforded through litigation such as occurred here. It is an area for legislative consideration and action. Perhaps, transfers of this kind should be approved by a court. It might be appropriate to require that where all or substantially all of a person's property is transferred to one in the position of fiduciary, the transfer should be voided unless approved by a court. In any event, resolution of the issue of gift in this area under existing legal principles affords little protection to either party and is ripe for legislative action.
I would reverse and enter judgment for Mrs. Koppang.
Reconsideration denied January 6, 1984.
Por example, the psychiatrist testified Mrs. Koppang "was so unsure of her ability to think that she was unable to actually buy groceries. She couldn't make a decision whether she wanted to get a can of tomatoes or a can of squash. . . . She was having trouble preparing meals. . . . She couldn't get from the raw potato to the mashed potato. She would forget the steps in between, and forget what she had done prior to that time."