(dissenting) — Certainly it can be said that it is the policy of the law to uphold wills. However, the majority, in essence, embraces this hornbook generality as the exclusive and ultimate panacea for this will contest. Indeed, its virtues are elaborated fastidiously and at great length, without recognizing its deceptive oversimplification. Furthermore, this is without recognizing that not just one —but three — wills meeting all of the formal requisites as to execution are involved in this will contest.
Unquestionably there is a countervailing and, in my judgment, a functionally more critical legal principle or policy involved in this or any will contest. Namely, the law does, not uphold and does void wills which do not represent the genuine testamentary intent of the deceased. But, again, this countervailing or conflicting principle is a generality. Neither it nor the first-mentioned one standing alone can solve a will contest. In other words, the courts seldom, if ever, solve any legal problems or controversies without engaging in a process of fact gathering and fact interpretation or evaluation. Apropos of this, the phrase — ascertainment of a genuine testamentary intent — only becomes specific rather than general and only acquires meaning in an ultimate legal sense in relation to the pertinent and material facts gathered, presented to the courts, considered, interpreted, and evaluated by the courts.
The foregoing is only prelude to pointing out that it is the function of the trial courts to consider, interpret, and evaluate pertinent and material facts in any given law suit. Stated somewhat conversely, it is not the prerogative, nor are the appellate courts equipped to perform, the indicated significant functions of the trial courts. Most certainly an appellate court should not literally substitute its own personal judgment for that of a trial court in the interpretation and evaluation of facts. It is now hornbook law, or at least should be recognized as such, that the findings of fact of the trial court will not be disturbed on appeal if supported by substantial evidence. Will contests are no excep*670tion. These legal principles are tersely and unequivocally summarized in the following language of Foster, J., writing for the court in In re Estate of Kleinlein, 59 Wn.2d 111, 113, 366 P.2d 186 (1961): “[o]ur sole power is to ascertain whether the findings are supported by substantial evidence. The weight and credibility of the evidence are for the exclusive determination by the trial court.” (Italics mine.) The majority glosses over, and in so doing does violence to, this basic premise. In this respect, I disagree with the majority as strongly as possible.
My further disagreement with the. majority relates to the significance of the burden of proof factor. The facts as seen by the trial judge in the instant case, and as I also see them, establish a confidential relationship as between the testatrix, the attorney who prepared her deathbed will, and the beneficiaries under that will. A rebuttable presumption of undue influence arises from the proof of a confidential relationship between a beneficiary and a testator, plus proof of activity on the part of the beneficiary in the preparation of the will; and when that proof is made sufficient to give rise to such presumption, the burden is on the beneficiary to show that the will was not procured by his undue influence. Whether the presumption is overcome is a question for the trier of fact. See In re Estate of Hall, 158 Cal. App. 2d 466, 322 P.2d 1011 (1958). The majority brushes these legal principles aside. Their applicability and dispositive thrust are simply ignored in this will contest. In like manner, the majority assumes or preempts plenary and arbitrary judicial authority to dispense with the findings of the trial court. Apparently seeking some solace in administering the coup de grace to the findings and to the hitherto recognized appropriate functions of the trial court, the majority resorts to a hoary but patently transparent legalism, ie., the clear, cogent, and convincing test. This so-called test, in my opinion, is simply a phrase of art — lacking in substance and without legal significance other than may be attributed to it on a case-to-case and totally on a subjective rather than objective basis. Indeed, the clear, cogent, and convincing phrase, like beauty — as defined by a sometime *671poet-philosopher — is largely in the eyes of the beholder. Stated forthrightly and unequivocably, the clear, cogent, and convincing phrase, in my opinion, is a conceptualism conceived and dedicated to the propagation of purely subjective value judgments and their legal implications. In other words, the meaning of this legal phrase, as said of yore, is “measured solely by the length of the chancellor’s foot.” Assuming only for the purpose of argument that the clear, cogent, and convincing phrase has some substantive or possibly even slightly objective validity, the Kleinlein case, supra, states and clearly holds the weight and credibility of the evidence is for the trial court in will contests. If the clear, cogent, and convincing phrase fits into any recognized legal category, it is that category regarding “the weight and credibility of the evidence.” Again, Kleinlein clearly and irrevocably stands for two propositions: (1) the trial court determines the weight and credibility of the evidence, and (2) that we do not try will contests de novo at the appellate level. At most, it may be said that our function on appeal is not to examine the disputed evidence de novo; rather, our function is to determine whether there is substantial evidence to support the findings, conclusions, and judgment of the trial court.
Additionally, I cannot agree with the majority’s disregard of the significance of the contesting niece and nephew as the natural objects of the testatrix’s bounty. The law has long favored construction of wills favoring those who would inherit under intestate laws. See, e.g., In re Estate of Tipps, 54 Wn.2d 585, 343 P.2d 566 (1959); In re Estate of Levas, 33 Wn.2d 530, 206 P.2d 482 (1949). It seems obvious to me that this concern should be given equal recognition where those natural objects of the testatrix’s bounty are disinherited by means of a deathbed will.
What was the genuine or controlling testamentary intent in the instant case? Was it that evidenced in two carefully prepared previous wills, and as expressed by a woman in robust health with an unquestionably astute mind, or was it that supported essentially by a document hastily prepared for and signed by a mortally ill woman at a time *672when she was obviously physically and mentally exhausted, and under extreme duress from a potential beneficiary to whom she was beholden for all physical and virtually all other needs? A most experienced, competent, and impartial trial judge found no genuine testamentary intent evidenced by the deathbed will, and for this reason voided that will. In a protracted trial, skillfully and competently handled by counsel for each side, this trial judge had the opportunity at firsthand — personally and in open court — to hear and to observe numerous witnesses and to evaluate their testimony in terms of reliability. On the crucial question of the existence or nonexistence of a genuine testamentary intent, he characterized the testimony of the key witnesses of proponents of the will as incredible — in fact, unworthy of belief. Based upon a careful review of the voluminous record, I cannot disagree with him. Furthermore, I do not think this appellate court should do so by substituting de novo its evaluation of the evidence and its findings of fact for those of the trial judge.
It is a fundamental jurisprudential concept that the trial court’s findings of fact, where supported by substantial evidence, will not be disturbed on appeal:
It is possible, as plaintiff seeks to do on this appeal, to diminish or enhance the weight to be attached to various evidentiary facts . . . and thereby reach a result contrary to that reached by the trial court. This, however, is not our function on appellate review of the question presented. Our function begins and ends with ascertaining whether the challenged finding of fact, as entered by the trial court, is supported by substantial evidence and, if so, whether the findings as a whole sustain the challenged conclusion of law. Stringfellow v. Stringfel-low, 56 Wn.2d 957, 350 P.2d 1003, 353 P.2d 671 (1960); Tremlin v. Tremlin, 59 Wn.2d 140, 367 P.2d 150 (1961).
(Italics mine.) Hollingbery v. Dunn, 68 Wn.2d 75, 82, 411 P.2d 431 (1966). An obvious corollary to this function of appellate review is the recognition that questions involving the credibility of witnesses is a function singularly within the competence of the trial court. The demeanor, poise and sincerity of the testifying witness all vanish in the static *673pages of the trial transcript. The transcript, at most, presents only remote and shadowy, attenuated or secondhand indicators of the character and reliability of the witnesses at the trial of the will contest.
Where, as in the instant case, there is a wealth of conflicting evidence on critical factual questions by interested witnesses, unquestionably, the problem presented is credibility. Determination of the credibility of witnesses and the weight of their testimony is a matter exclusively within the competence of the trial court. As mentioned before, an appellate court is not equipped, and as a matter of longstanding decisional law, cannot pass on the credibility of witnesses. See Davis v. Bader, 57. Wn.2d 871, 360 P.2d 352 (1961); Anderson v. Kurrell, 28 Wn.2d 227, 182 P.2d 1 (1947); Speckert v. Bunker Hill Arizona Mining Co., 6 Wn.2d 39, 106 P.2d 602, 131 A.L.R. 125 (1940). Particularly where testimony is flatly contradictory, and the trial court might have found for either side, the appellate court cannot set its judgment of the credibility of witnesses against that of the trial judge who heard and saw the witnesses, and was in a better position to determine the weight of the evidence. Oium v. Fillion, 129 Wash. 37, 223 P. 1060 (1924). Issues of credibility in will contests are subject to the same jurisprudential principle. To repeat: in will contests involving a real and substantial conflict of evidence on the issues of fact involved, the trier of fact is the sole judge of the credibility of witnesses and the weight of the evidence. In re Estate of Washington, 116 Cal. App. 2d 139, 253 P.2d 60 (1953); In re Estate of Merrick, 93 Cal. App. 2d 624, 209 P.2d 666 (1949).
The majority, in totally disregarding these basic principles of review, cavalierly usurps the functions of the trial court. Whether this be done with great subtlety and skill or more bluntly and openly, the result is the same. It is inescapable that the majority, in its disposition of this appeal, arrogates to itself a basic and well-established function of the trial courts of this state; viz., resolution of conflicting factual testimony premised on the credibility of witnesses.
If the position of the parties was reversed and if the *674relatives of the testator or any other person, for private gain or strictly private or personal purposes, had used the same techniques as were used in this case to induce the testator to drastically change a will carefully prepared with the assistance of competent legal counsel — trusted and personally selected by the testator — I firmly believe there would be little hesitation in holding that such techniques constituted undue influence. I fear the majority may be impressed too much by the underlying charitable motives of the purported new beneficiary — which in one sense are highly commendable- — -if the personal interests and rights of Miss Reilly’s only relatives may be forgotten. There is no doubt that the new beneficiary is a very worthy charity and that there was no “garden variety” venality involved in the ceaseless pressure to get this elderly and desperately ill woman to make a new will. But, the law does not recognize the subjective worthiness of underlying motives which may encourage acts of undue influence nor does the law recognize the relative worthiness of competing beneficiaries. Nevertheless, the motives and the worthiness of the Order of the Sisters of Charity seem to be a premise or cause — if not the unstated rationale — of the majority opinion.
However much we, as individuals, may respect the worthiness of the nursing home, the law can have only one concern: do the facts as shown by the. evidence support the decision of the trial court that there was undue influence. I believe that the following analysis and examination of the record will show that the trial court was unquestionably correct in finding that there was undue influence.
The opinion in Dean v. Jordan, 194 Wash. 661, 79 P.2d 331 (1938), suggests a format or model which may be helpful for purposes of orderly analysis and evaluation in the instant case. The format of Dean v. Jordan, supra, focuses first on those facts which tend to raise a suspicion of undue influence, namely:
(1) that the beneficiary occupied a fiduciary or confidential relation to the testator; (2) that the beneficiary actively participated in the preparation or procurement of *675the will; and (3) that the beneficiary received an unusually or unnaturally large part of the estate. Added to these may be other considerations, such as the age or condition of health and mental vigor of the testator, the nature or degree of relationship between the testator and the beneficiary, the opportunity for exerting an undue influence, and the naturalness or unnaturalness of the will.
Confidential Relationship Involved
The majority opinion displays some considerable confusion as to the legal significance and effect of the relationship between Miss Reilly and the Sisters of Charity as the beneficiary under the Corrigan will. The trial court had no difficulty in finding and stating that the relationship “was one of a confidential and fiduciary character.” In positing and then focusing solely on the one separate and distinct legal concept — the fiduciary aspects of the relationship between Miss Reilly and the purported beneficiary — the majority fails to distinguish and, more importantly, fails' to recognize the legal significance of the more relevant confidential relationship.
The effect of a confidential relationship is aptly shown in W. Bowe & D. Parker, 3 Page on Wills 590 (1961):
If confidential relations are shown to exist between the testator and the beneficiary, slight evidence of additional facts may shift the burden to the beneficiary.
In support of this proposition the learned authors cite In re Estate of Jaaska, 27 Wn.2d 433, 178 P.2d 321 (1947).
What are these relationships, described as “confidential,” which have the effect of shifting the burden of proof in a will contest involving undue influence? The authorities in the area almost invariably suggest that they include at least the three relationships involved in this case. The first of these is that vis-a-vis a testator and one providing medical aid. See W. Bowe & D. Parker, 3 Page on Wills 634 (1961):
The physician and nurse of testator stand in a relation of peculiar trust and confidence to the testator, especially when the will is made in his last sickness.
*676(Italics mine.) See also T. Atkinson, Handbook of the Law of Wills 550 (1953). This confidential relationship has been upheld in Washington. See Foster v. Brady, 198 Wash. 13, 86 P.2d 760 (1939), wherein the court repeated the quotation from Dean v. Jordan, 194 Wash. 661, 79 P.2d 331 (1938), and then said:
In the case at bar, we find all the elements suggested in the foregoing quotation — the testator of great age and very ill, suffering from a mortal disease; the beneficiary occupying the relation not only of physician but of custodian, and actively participating in the procurement of the will, receiving thereunder an unnaturally large proportion of the estate, to the practical exclusion of the testator’s nearest living blood relative, for whom he fiad always manifested affection, and whom he had remembered much more substantially in a prior will.
(Italics mine.) As pointed out previously, the fact that Sister Joseph was not motivated by personal avarice, while possibly relevant from a moral or religious viewpoint, is irrelevant to the legal question of undue influence.
The authorities recognize a second category of confidential relationship, i.e., spiritual adviser. See, e.g., W. Bowe & D. Parker, 3 Page on Wills 637 (1961):
A spiritual adviser is ordinarily in a relation of peculiar confidence toward his congregation or parishioners. Accordingly, as in other cases of those in confidential relations, undue influence may be inferred as a presumption of fact from the additional circumstances that such adviser drew the will or procured it to be drawn.
(Italics mine.) Many states have recognized a high danger of abuse, however well intended, of this particular kind of confidential relationship and have enacted modern Mort-main statutes or have otherwise restricted charitable bequests in anticipation of death. See W. Bowe & D. Parker, 1 Page on Wills 104 (1961). Other states have adopted a more flexible case-by-case approach, placing a heavy burden upon the proposed beneficiary when a confidential relationship exists.
The nature of the evil sought to be prevented by restric*677tions on charitable bequests in anticipation of death has been clearly stated:
At common law, a gift to charity by will was not invalid although made shortly before death. It has long been considered in accordance with sound public policy, however, to guard against those improvident dispositions by last will and testament which are so often the result of a weakened mental condition, due to severe illness, and the fear that comes to many in the hour of death, and to prevent testators who may be laboring under the apprehension of impending death from disposing of their estates to the exclusion of those who are, or should be, the natural objects of a testator’s bounty.
(Italics mine. Footnotes omitted.) 15 Am. Jur. 2d Charities § 23, at 28. Another writer has noted that:
Undoubtedly the reason for [modern Mortmain statute] time periods is that a testamentary gift given in a will made a considerable period prior to the testator’s death, at a time when he is not motivated by a deathbed fear of hell and the need of purchasing heavenly bliss, is not as likely to be improvident as a charitable gift influenced by the fear of death, purgatory and the impending judgment. Obviously the law feels that whereas natural affections of a man for his family should normally be allowed to compete freely with other motives and influences vying for his generosity, such competition becomes unfair and should be restricted during a period shortly preceding death.
(Italics mine. Footnotes omitted.) 1 Page on Wills § 3.16, at 108 (W. Bowe & D. Parker rev. 1960). Where a confidential relationship, such as that evidenced in the instant case, exists, it is incumbent upon the proposed beneficiary under the deathbed will to rebut a clear inference of abuse of the relationship where those who are the natural objects of the testator’s bounty are disinherited. It is clear to me that the nieces and nephew of Miss Reilly were the natural objects of her bounty. While authorities are in disagreement as to the precise meaning of the phrase “natural objects of the testator’s bounty,” I would adopt the statement that the term comprises those persons who would take in the absence of a will. Such persons are those whom intestacy *678statutes have so designated to take and, under most, if not all, modern intestacy statutes recognize the status of near relationship. See Page v. Phelps, 108 Conn. 572, 143 A. 890, 893 (1928); In re Estate of Walther, 177 Ore. 382, 163 P.2d 285 (1945). But see In re Estate of Nolan, 25 Cal. App. 2d 738, 78 P.2d 456 (1938). Historically, the concept of testate disposition of property is not traceable to the desire of testators to distribute their property among friends or charities. Rather:
The will has been called “an accidental fruit of feudalism” in the respect that the feudal doctrine of primogeniture, whereby all real property descended to the oldest son of the owner upon the latter’s death, created the occasion and desire for a testamentary disposition to avoid the harsh consequences of the doctrine by providing for an equitable division of the property of a decedent among those having equal claims hy virtue of equal kinship.
(Italics mine. Footnotes omitted.) 57 Am. Jur. Wills § 3, at 42. In this light, I am convinced that the better view equates “intestate takers” with those who are “the natural objects of the testator’s bounty.”
In re Estate of Bourquin, 161 Cal. App. 2d 289, 326 P.2d 604 (Dist. Ct. App. 1958), presented a fact situation strikingly similar to the instant case. An elderly woman with an apparently terminal illness entered a rest home operated by a religious organization. While there, she allegedly decided that she wanted to make a new will, disinheriting the closest relatives and leaving most of the money to the home. The woman in charge called an attorney who had provided legal services to this home in the past. He hastily prepared a will leaving the bulk of the estate to the home. The trial court held that the nursing home personnel and attorney were in a confidential relationship with the decedent, that there was undue influence, and denied the new will admission to probate. Instead, the previous will was admitted to probate. The appellate court upheld the decision of the trial court and engaged in an extended discussion of the confidential relationship involved.
*679Another very similar case is Muller v. St. Louis Hosp. Ass’n, 5 Mo. App. 390, aff’d, 73 Mo. 242 (1878). Muller also involved a terminally ill patient at a religious medical institution who was encouraged by a priest to make a will leaving a substantial bequest to the institution. The court, noting the presumption against a will made in favor of a professional adviser, stated:
The same reasons exist, with at least equal force, in regard to a will, made in extremis, in favor of one’s spiritual adviser, or of a religious institution within whose walls the patient lies, and whose ministers are assisting in a professional capacity at his bedside.
. . . The intention of all parties may have been disinterested and praiseworthy to a high degree, in a religious and moral point of view, and the will may, nevertheless, be void for legal fraud.
(Italics mine.) The court continued showing other factors to be considered:
The facts that the will was made several days before death actually occurred; that the patient rallied and lived a week, during which time he expressed no wish to change it; and the fact that his friends had at all times free access to the dying man, are highly in favor of the will. But against these the jury might set the fact that he never alluded to the will after its execution, and gave directions concerning his property, not to the executor, hut to an intimate friend, as if no will existed. This circumstance tended to show that he had forgotten the will as soon as made, or did not know what he was about when he signed it.
(Italics mine.)
There is a third relationship which is uniformly held to be a confidential relationship casting suspicion of undue influence upon a will. This is the attorney-client relationship. Although perhaps insufficient in and of itself, the fact that Corrigan had been the longtime legal adviser to the nursing home and was procured by the home to draw the will clearly shows, at best, divided loyalties between the home and his other client, Miss Reilly. See In re Estate of Beck, 79 Wash. 331, 140 P. 340 (1914), wherein the court said that the fact that the “beneficiaries procured an attor*680ney to draw the will, if it be a fact, was material . . . upon the question of undue influence.” See also McCutcheon v. Brownfield, 2 Wn. App. 348, 467 P.2d 868 (1970).
Active Participation by Beneficiary in Preparing and Procuring Will
Sister Joseph of Arimathea was Miss Reilly’s supervising nurse. She is a member of the Sisters of Charity and a registered nurse. As will be shown, the evidence at trial indicated a persistent effort to have Miss Reilly make a will in favor of the Sisters of Charity. Mrs. Oden, a nurse’s aide at the home testified that shortly before Miss Reilly’s arrival, the Sister told her that “we were getting in a real rich woman, and that we must be nice to her; and she may will the home some money.” Mrs. Oden also testified that in February she overheard a conversation between Sister Joseph and Miss Reilly which went as follows:
A She [Sister Joseph] said, “Miss Reilly, you must make your will,” and she repeated it several times. Q Did Miss Reilly say anything in response to that? A No, she didn’t answer her at all.
Mrs. Troxell, another member of the floor staff at the home noted that the Sister said to her:
We have a guest coming in to be put in the front bedroom. She is a rich woman. I want you all to be very good to her, treat her with great respect. She has money and maybe she will leave us some money.
As noted by the majority, this “rich woman” was indeed treated very well. She was given extraordinary service, fine china, and even a special room redecorated to conform with Miss Reilly’s every desire. The home spared no effort in the attempt to get Miss Reilly to “will the Home some money.” Some of the most persuasive testimony in this regard is that of Father Galvin, Miss Reilly’s chaplain at the home. His testimony is as follows:
Q My question is this: At any time did Sister Joseph tell you that she, Sister Joseph, asked Miss Reilly to leave money to the home in her will? A Well, in ah indirect way by the way she spoke. Indirectly. She said, “Why *681don’t you ask her?” That would mean she asked, do you see. Q Did she ever tell you that she herself had asked Miss Reilly? A She didn’t come out and say, “I asked,” not that way, but she said, “Well, why don’t I ask her? We could do a lot of good.” So I concluded she did ask it.
The majority argues that all of this was mere concern to get Miss Reilly to make a will, inferentially on the assumption that she had no will. However, it is clear that Sister Joseph was aware of the previous disposition of the estate in Miss Reilly’s prior wills, and continually sought to have Miss Reilly make a new will designating a different beneficiary — The Sisters of Charity. Thus, the effort and objective involved considerably more than the mere attempt to get Miss Reilly to make a will. Indeed, it was designed to cause Miss Reilly to disinherit her nieces and nephew, and to will her estate to the home. Three days before the Corrigan will was executed, the Sister remarked to Mrs. Nelson, “You know, we have a project going on here, an experimental project, and in the neighborhood of $14,000.00, and we need this money very badly, much more so than nieces and nephews.” (Italics mine.) Several weeks later the Sister acknowledged the success of her persistent strategy, remarking to Mrs. Troxell, “Well, we finally got Miss Reilly to make out a will.” (Italics mine.)
The Unnatural Nature of the Sudden Change in Testamentary Plans
The majority opinion goes to some considerable lengths to describe litigation between Miss Reilly and her half brother antedating her death by almost half a century. The apparent purpose of this discussion is to demonstrate that she was deeply hurt by the episode. However, there is no testimony that she bore her half brother any enmity either at that time or subsequently. Indeed, the portion of Miss Florence Mollan’s testimony which the majority omits from her quoted testimony notes that “Josephine never seemed bitter. She was always kind and generous and good.” Miss Molían also testified that, with reference to the half brother, Miss Reilly “wanted no hard feelings; only *682peace.” Curiously, the majority omits this testimony. The majority conjectures that Miss Reilly would not want her estate to go to the children of her half brother. This conjecture completely ignores one important factor which clearly negates Miss Reilly’s alleged animosity toward her half brother; viz., in the will made by Miss Reilly in 1945, and again in the will made by Miss Reilly in 1954, the nieces and nephew were the beneficiaries.
It should be remembered that the prior litigation over the will of Dr. Reilly occurred in 1929. It should further be remembered that both Frances Reilly Estill and John Reilly lost contact with Miss Reilly sometime in 1934 (perhaps explainable by the fact that between 1931 and 1935, Miss Reilly moved a total of four times — from Chicago to San Diego; from San Diego to Texas; from Texas to Denver; and from Denver to Seattle). In 1945, when Miss Reilly made her first will naming the nieces and nephew as beneficiaries, 16 years had elapsed since the earlier will contest, and 11 years had elapsed since Miss Reilly and her nieces and nephew had lost contact with one another.
After reviewing the Chicago will litigation, and certain statements by Miss Reilly purportedly implying animosity toward her half brother, the majority concludes, at page 648, supra:
In our opinion, the foregoing discussion of the litigation instituted by the half brother against Miss Reilly after the death of their father, in which he accused her of dishonesty in her handling of their father’s property during the last years of his life, shows that she was deeply hurt and seriously disturbed by this episode. ... It was an experience which a conscientious and meticulous young woman would not be likely to soon forget.
The deficiency in this critical reasoning of the majority deserves careful analysis since the above-quoted language forms the basis for the majority’s unsupportable conclusion that the Chicago will litigation may be used to explain and support Miss Reilly’s deathbed disinheritance of her nieces and nephew — the named beneficiaries in her two previous wills. Such a conclusion cannot stand in light of the facts in *683the instant case. The majority reasons sylogistically from an unstated major premise that “Persons deeply hurt by relatives are more likely to disinherit those relatives than are persons who have not been so hurt.” The majority’s stated minor premise is that “Miss Reilly was deeply hurt by her half brother.” The unstated but clearly inferential conclusion drawn by the majority is that “Therefore, it was natural for Miss Reilly to disinherit her nieces and nephew.”
The majority clearly draws too heavy a conclusion for the foundations which it sets. It is a conclusion which is not supported by the facts: (1) Even if one assumes that Miss Reilly did, in fact, hold animosity toward her half brother, the record is categorically devoid of any indication that this alleged animosity extended to Miss Reilly’s nieces and nephew. Rather, the trial court found that “[d] espite the circumstances that prompted [Miss Reilly’s] move from the middle West and despite having lost contact thereafter with the petitioners, decedent continued to consider them her family.” (Italics mine.); (2) Further, even if one assumes that Miss Reilly’s alleged animosity toward her half brother extended to her nieces and nephew, it is incongruous to assume that she would fail to assert this animosity at the earliest possible opportunity — i.e., when preparing her first or second wills — considering her fundamental “Do it now” nature. That Miss Reilly would, instead, reserve this alleged animosity and express it by disinheriting her nieces and nephew some 35 years later, by means of a deathbed will, seems highly improbable. The two earlier wills clearly contradict the unsupported assumption of the majority that an ancient unpleasantness or misunderstanding between Miss. Reilly and her half brother still smoldered and carried over years later to her nieces and nephew.
There is no question but that the two previous wills were made without undue influence while Miss Reilly was in good health and in full possession of her faculties and after due consultation with her personal attorney and full consideration of the implications of the wills.
The majority opinion attempts to show that Miss Reilly *684had contemplated changing her will. This assumption is based upon either highly ambiguous testimony or testimony which was found by the trial court to be very questionable — in fact, unworthy of belief. As an example, in footnote 2, the majority theorizes, indeed flatly asserts, that “Miss Reilly said that she wanted to change her will.” But, the contrary is much closer to reality and truth. The conversation apparently relied upon and attributed to Mrs. Scott, an employee of the Redemptorist Order who was a slight acquaintance of Miss Reilly, actually concerned a request by Miss Reilly that Mrs. Scott witness a gift. Miss Reilly remarked that she wanted her will “taken care of.” In view of Miss Reilly’s past experience with her father’s will and the litigation over unwitnessed gifts prior to death, this concern is quite consistent with a desire to keep the will the same but to have other particular items pass outside the will. Indeed, if Miss Reilly contemplated a major change of beneficiaries, she would have probably waited and incorporated these changes in the new will.
The majority places considerable emphasis on the testimony of Mrs. Heily that Miss Reilly contemplated leaving her estate to a charity. However, during cross-examination, Mrs. Heily said “[Miss Reilly] said charity, whether she said a charity or charity, I can’t say.” The majority states that “[it] is undisputed that several months before her death Miss Reilly was considering making a new will entirely different from her wills of 1945 and 1954.” At best this is an overstatement of a small amount of ambiguous and questionable evidence. The majority relies heavily upon the testimony of Mrs. Anderson and Mrs. Heily, both of whom dedicated a great amount of time and effort to the furtherance of interests of the Sisters of Charity as a possible beneficiary under the “Corrigan” will. The majority also appears to rely on the ambiguous testimony of Mrs. Scott. Despite the assumptions of the majority opinion, Miss Reilly at no time said to anyone that she wanted to change her will, make a new or different will, or change beneficiaries.
But, let us assume that Miss Reilly did plan to change *685her will at some point 9 months before her death. (Mrs. Anderson and Mrs. Scott both testified to events taking place in September and October of 1963.) As the majority continually notes, Miss Reilly’s temperament was reflected in the slogan “Do it now.” Since she was well aware of the terminal nature of her cancer at this time, it is hardly in keeping with her personality and character for her to delay making a new will if indeed that is what she intended and wanted to do. It is most significant that Miss Reilly, in fact, did nothing about changing her will until she lay mortally ill. Miss Reilly’s propensity for not procrastinating on important matters was a fact apparently believed by the trial court. Again, such a factual determination should not be now disturbed by this court.
The majority insists that the sudden break with Miss Reilly’s previous testamentary plan and long-established practice of making charitable gifts was entirely natural. The majority rejects all evidence of Miss Reilly’s past charitable gifts with the statement that the contestants would not be benefited by a wider distribution of Miss Reilly’s estate to charities. I disagree with this rejection. Even if one assumes, against the weight of the evidence, that Miss Reilly desired to change her will, her past practice is relevant to the question of whether this will, to only one charity, was natural and reflected a genuine intent. Certainly Miss Reilly’s past practice is relevant to the question of whether the “Corrigan” will reflects her intent or the intent induced by the representatives of the beneficiary involved. Consequently, a close examination of this past practice is in order.
The bequest to the Sisters in the purported new will amounted to the entire devisable estate. This is in marked contrast to Miss Reilly’s giving to the Mount St. Vincent’s Home in the period before her entrance into it. In the year 1963, Miss Reilly gave to Catholic charities other than the home the sum of $5,491.25. She gave to the home $110. In 1962 she gave $4,643.15 to the former; $405 to the home. In 1961 she gave $13,424.50 to the former group; she gave $235 to the home. In short, in 1961, 1962, and 1963, the home *686received slightly more than 3 per cent of Miss Reilly’s giving to Catholic charities.
In 1964, Miss Reilly took up residence in the home. In January she gave $1,050 to other Catholic charities and her parish. In February she gave $1,105 to other Catholic charities; she gave the home gifts of $1,000 and $3,000. In March she gave $1,000 to the Society for the Propagation of the Faith, and a $15 Easter offering to the home. In April she gave a $10 Sunday offering to the home, and a gift of $50 to a friend.
On May 5 Miss Reilly gave $5,000 to the home and $5,000 to Mrs. Nelson. The checks were marked “gift in appreciation.” In view of the fact that Miss Reilly received the last rites on May 4, it is reasonable to suppose that she was making gifts to those to whom she felt gratitude for aid and attention. On May 8, the same date as the contested will, Miss Reilly gave $30,000 to the home. On May 5 she had informed Mrs. Nelson that this fund was being transferred to Seattle to be used for the expenses of her last illness.
It appears clear from this record that the home did not become the significant object of any giving on the part of Miss Reilly until after she had taken up residence there, was ill with terminal cancer, and was exposed to the repetitive solicitations of the Sisters.4 She responded to those solicitations with several munificent gifts. But it cannot be said, at any time prior to the creation of the confidential relationship between the home and Miss Reilly, that the home was shown by any action of Miss Reilly to be a significant natural object of her benefactions.
Other Conditions — Age, Condition of Health, Opportunity to Influence, Et Cetera
Let us now turn to the events immediately prior to May 8, 1964, the day the will was executed. Miss Reilly’s condi*687tion worsened increasingly during her stay in the home. By early May her terminal cancer was in an advanced state and it was obvious that she could not live much longer. On May 4 she was running a fever of over 101. She was vomiting clear fluid, had lost control of her bowels, and was so exhausted she was unable to raise her head. She received the last rites on May 4. On that same day she fainted on the floor of her room and was not discovered there for almost half an hour. Dr. Reilly noted in the medical records, “Patient is emotionally unreasonable, refusing common sense suggestions.”
A fairly extensive hospital medical history of Miss Reilly was available, as well as medical and nursing home notes. This evidence provided the basis of extensive testimony by several medical experts about the medical and mental condition of Miss Reilly on the crucial dates. One of these witnesses was Dr. Alexander Stevens, a clinical associate professor of medicine at the University of Washington, who has written extensively in the fields of hematology (diseases of the blood) and cancers of the lymphatic system. He testified that one having the objective symptoms manifested by Miss Reilly was probably suffering from a serious fluid imbalance, extensive heart and arterial disease, and hypovolemia (reduced blood volume). She also had infections for which she was receiving large doses of penicillin. Dr. Stevens concluded, from 'ample objective evidence to verify his opinion, that beginning May 4 there was a 6-day period of maximal illness after which she improved a bit before her final decline and death.
Another medical expert, Dr. James Burnell, also teaches medicine at the University of Washington and has developed considerable expertise as a result of his research and teaching in the field of fluid balance problems of seriously ill patients. After reviewing the mass of medical evidence, he testified as follows:
the period of maximal illness, with the possible exception of the few days immediately antedating her demise, was on or about May 8th. I say this because the recorded *688pulse rate was the highest on May 8th; the recorded temperature was very nearly the highest on May 8th; the falls, the fainting spells were present largely only immediately before May 8th and many of these functions were apparently improved approximately one to two weeks after May 8th.
He stated that there was a high probability of inadequate cerebral blood flow coupled with extreme fluid imbalance with resultant disordered mental function and a general lassitude. It was his opinion that as a consequence during this critical period Miss Reilly would desire to follow the course of least resistance. A psychiatrist also testified that one afflicted with the physical stress which Miss Reilly was undergoing, and whose character was such as described in the depositions of Miss Reilly’s friends, would, if that person’s will broke, break suddenly and panic. He characterized susceptibility of one of such character to influence by one in the position of a supervising nurse as “as susceptible as a child-mother relationship . . . almost completely susceptible.”
The majority disregards all of the expert medical testimony, citing In re Estate of Bottger, 14 Wn.2d 676, 129 P.2d 518 (1942), for the proposition that testimony of physicians who were not present at the time the will was executed is evidence of the weakest sort. In so doing the majority demonstrates the danger of taking language of a court decision out of context with little regard for changing medical technology or the fact pattern in the original case. In Bott-ger, the evidence was offered against the testimony of two outside physicians who had served as disinterested witnesses to the execution of the will after conducting a medical examination of over an hour’s duration, comprehending both the physical condition of the testatrix and her memory, orientation, ability to perform mental operations, and knowledge of her affairs. The fact that Cadwell Corrigan did not provide for such independent corroboration is another factor tending to show the highly questionable nature of this will. Cf., Meyer v. Campion, 120 Wash. 457, 207 P. 670 (1922).
*689There is also another significant difference in that there is no indication that the physicians involved in Bottger had anywhere near the medical data available upon which to base a diagnosis as did the expert witnesses in the instant case. In a time when specialists are frequently called upon to consult and make a diagnosis at great distances and without the patient’s presence, the out-of-hand rejection of such evidence is entirely without basis. It is particularly inappropriate for us as appellate judges, spending great amounts of time making “diagnoses” based upon a partial record and without the “patient’s” presence, to deny that skill to other professions. It is ironical that the majority says that only the physician who saw the patient can be relied upon, while ignoring our normal practice of placing particular reliance upon the trial judge because of his ability to examine and understand the testimony and demeanor of the various witnesses.
The majority also attempts to discredit the testimony of the two medical experts with ‘an assertion that they “admitted that their opinions were based either on incorrect assumptions or on incomplete facts.” The record does not support this assertion. Cross-examination simply demonstrated the obvious — both medical experts were testifying on the basis of medical records or other medical documentary evidence before them. Personal examination and questioning of the patient would have been helpful but was not a sine qua non. One of the experts stated that the latter kind of information would increase his degree of certainty in his diagnosis 15 per cent — from 80 per cent to 95 per cent. Thus, absence of this information does not mean that the testimony of the two experts should be disregarded. It is relevant, material, and was to be considered and evaluated by the judge.
On May 5, Miss Reilly had given the home a check for $5,000, bearing the notation “gift in appreciation.” On the afternoon of May 8, Miss Reilly drew a countercheck for $30,000 on her account in the Metropolitan Branch of the Seattle-First National Bank. Miss Reilly’s handling of her financial affairs was characterized by meticulous attention *690to detail. The check which she drew is reproduced below:
It may be noted that the spaces for the drawee bank’s name and branch are improperly filled out. The name of the payee is stated as “Mount St. Vincent, Seattle” although Miss Reilly usually made her checks payable to Mount St. Vincent Home for the Aged. Unnecessarily duplicative words of negotiability are used on the payee line.5 The line stating the amount in words commences with the figures “30” which are inadvertently written in error and then stricken out. The typed language was, according to the testimony of the Sisters, inserted at Miss Reilly’s request. At the time that the check was prepared, Sister Margaret Jane, the Sister Superior, contacted Cadwell Corrigan, who was retained as counsel by the home, for advice on how the home should accept this gift.
Somewhat later in the afternoon Sister Margaret Jane again attempted to contact Corrigan. When Corrigan returned that call at about 4:30 p.m., he was informed that Miss Reilly desired to make a will. He was summoned to the home for that purpose and went there immediately.
Corrigan met the Sister Superior, Sister Margaret Jane, in the lobby and was conducted to Miss Reilly’s room. Miss Reilly and Corrigan had never met prior to this time. He hurriedly prepared the will upon a stationer’s form by inserting a residuary clause comprising the entire estate. The will left the entire estate to the Sisters conducting the Mount St. Vincent Home for the Aged. So hurried was the *691drafting that the name of the beneficiary was misstated and Miss Reilly’s name was misspelled. Although Miss Reilly was extremely precise in her business affairs and meticulous as to the spelling of her name, she neither read the will (which was read to her by Corrigan) nor detected the misspelling when she signed it. Mr. Corrigan later made a self-serving statement in his deposition to the effect that Miss Reilly told him of her attorney, Mr. Ferguson, prior to the drafting of the will. According to Corrigan, he then offered to call Ferguson. Curiously, the asserted offer to call Ferguson is not corroborated by any of the other witnesses present.
Between 7 and 7:30 that evening, Miss Reilly prepared the note set out below:
This note is further evidence of Miss Reilly’s confused mental state. By this note, Miss Reilly purportedly disposed of certain property immediately after she had signed the Corrigan will which left her entire estate to the home. The trial court found that “. . . after the signing of the [Corrigan will], which left everything to the respondent religious Order, she wrote out a separate document specifying that her rug and mirror be given to the Rest Home . . .” The trial court additionally observed:
*692. . . [T]here were many other circumstances of suspicion attendant upon the procurement and execution of the instrument of May 8, 1964, here offered for probate, the more important among which were: . . . the failure of the decedent’s memory as to . . . (c) the execution of the letter disposing of her rug and mirror . . .
I would concur in the trial court’s analysis that this duplicative act is highly significant in indicating a confused mental state; namely, lack of testamentary capacity. Immediately thereafter, she handed a note to Sister Joseph of Arimathea. The note read as follows:
*693The majority bases its decision that the evidence was not clear, cogent, and convincing upon its determination that there was “no direct evidence that either Sister Joseph or the Sister Superior ever suggested to Miss Reilly what provisions her will should contain.” (Italics mine.) The lack of direct evidence is not the proper test and never has been. See In re Estate of Tresidder, 70 Wash. 15, 125 P. 1034 (1912), wherein the court said “[f]rom the very nature of things, undue influence can rarely be proved by direct evidence.” The evidence that was offered unerringly points toward a constant, albeit well-meaning, pressure to have Miss Reilly change her will to benefit the home.
At this point, the testimony of Mrs. Nelson is of great significance. The majority opinion adequately shows the great faith and reliance which Miss Reilly had in Mrs. Nelson. However, there is some misstatement. The majority incorrectly states that Miss Reilly gave Mrs. Nelson a power of attorney on May 10, “limited to depositing dividend checks, drawing checks to pay bills, and making funeral arrangements.” The general power of attorney, which was in fact signed on May 5 (before the execution of the Corrigan will), was unlimited and had no such restrictions.
On the evening of May 8, as was her custom, Mrs. Nelson visited Miss Reilly. The majority attempts to characterize the events of this visit as those of a crafty and secretive old woman cleverly evading the probing inquiries of an overly-inquisitive person. The majority even cites an irrelevant 1912 New York case for this amazing factual construction without any basis in the record and in clear contradiction to the factual finding of the trial court. Let us look at what actually happened. Mrs. Nelson arrived somewhat later than usual and asked “Well, how are you?” This was hardly an overly-probing inquiry into Miss Reilly’s business affairs. Miss Reilly responded “Oh, my, am I exhausted. I have been signing papers all day. I don’t know what I have signed. I hope I have signed the right thing.” (Italics mine.) The trial court found that this statement was exactly what it appears to be — a lament from an exhausted, confused, desperately ill elderly woman who had *694no idea what she had been signing. The majority cites no authority for its newly found power to disregard that finding.
The record also indicates a rather suspicious turn in the chain of entries in the nurses’ record at the home. Prior to the signing of the will, Miss Reilly had been described as “extremely weak” (May 4), “very uncooperative” (May 5), and “very weak” (May 6). On May 7, the entry — crowded in at the end of the line and admittedly written at a different time — reads like a legal conclusion, “very alert and conscious.” On May 9 another self-serving statement continued: “her mind very clear . . . always rational and definite of what she wants or not wants.”
On May 11 Sister Joseph sent Cadwell Corrigan the note she received from Miss Reilly in which Miss Reilly identified her attorney and her will. Although the note, addressed to Sister Joseph, identified another attorney as her attorney and another will as her will, Corrigan did absolutely nothing about this apparent confusion and merely filed the note. The majority attempts to explain the note as actually intended for Corrigan to aid him in his work as administrator. However, the record is devoid of any finding as to when the note was actually written. And, if one accepts the statement that the note given to Sister Joseph was intended for Corrigan, there is no reason given for the wording of the note which omits any reference to Corrigan or the new will. There is also no explanation advanced to show why Miss Reilly supposedly waited until immediately after Corrigan had left the home to send him the information which an administrator would need. In my opinion the somewhat strained hypothetical explanation offered by the majority is not enough to overcome the clear meaning of this evidence on its face.
Conclusion
All of the above tends to show the various suspicious circumstances involved which raise a presumption of undue influence. Briefly summarized, again using the format adopted in Dean v. Jordan, 194 Wash. 661, 79 P.2d 331 *695(1938), they are (1) the confidential relationship involved; (2) the beneficiary unquestionably actively participated in the preparation and procurement of the will through constant pressure and the use of its own attorney to draft the will; and (3) the rest home received all of the estate, which is unusual and unnatural in view of the prior wills and past charitable practices of the decedent. The other considerations enumerated in Dean v. Jordan, supra, which serve to strengthen the presumption are present in this case also. Age, terminal illness, serious question of mental competence, and the disinheritance of the only blood relatives with no apparent reason for this change in testamentary plans all point toward undue influence. When this is coupled with the suspicious circumstances surrounding the signing of the will, the close confidential relationship giving great opportunity for exerting undue influence and the sudden change in charitable giving which took place after the confidential relationship was established, the presumption of undue influence becomes inescapable. I would hold that the presumption of undue influence has been established.
Did the proponents of the will come forward with sufficient evidence to balance the scales against the presumption? The record is replete with testimony — but that testimony is from the Sisters, from the employees and nurses in the home, and from Dr. Reilly (who, in addition to being Miss Reilly’s physician, was also an attending physician at the home). Evaluation of that testimony was the province of the trial court. That court found the testimony of Sister Joseph to be incredible and that of the Sister Superior and Dr. Reilly to be so suspicious as to be entitled to little weight.
What little disinterested direct testimony there was in this case and the objective evidence contained in Miss Reilly’s writings and the quantitative items in the nursing records was squarely contradictory to the testimony of the Sisters and Dr. Reilly as to Miss Reilly’s condition on May 8.
The deposition of Cadwell Corrigan raises particular problems. The majority disregards the finding of the trial *696court that Corrigan’s testimony also was incredible. This decision is based upon our rule that an appellate court is in as good a position as the trial court to weigh purely documentary evidence. I question whether this rule is properly applied when a document is being weighed and evaluated against a great amount of in-court testimony from many witnesses. In the latter case, the trial judge is still in a unique position to evaluate the totality of the evidence. But even if it be assumed that his finding is to be disregarded, I cannot help but agree with the conclusion of the learned trial judge. Let us evaluate the position of Cadwell Corri-gan.
It will be recalled that Cadwell Corrigan and Miss Reilly were strangers until they were introduced by the Sister Superior. Corrigan was employed by the home as its attorney and was on a monthly retainer. When summoned to the home he was confronted with an elderly woman in ex-tremis. She was in a feverish, weak, and bedridden condition. She had to be assisted into a sitting position to sign the will. The Sister Superior who had summoned him had told him nothing concerning the state of Miss Reilly’s health or the imminence of her death. Although Corrigan was on retainer from the home, he did not disclose this fact to Miss Reilly. According to him, she volunteered the statement that she had a considerable estate, that her relatives were likely to be disappointed in the proposed new will, and there might be trouble. Although he was thus apprised of the possibility of a will contest, Corrigan took no steps whatever, such as obtaining independent subscribing witnesses or a medical examination to clearly establish the facts as to undue influence or testamentary competence. Let us assume that Corrigan was so fearful of his client’s immediate demise that he felt it necessary to prepare a hasty handwritten will initially. Miss Reilly survived almost a month after May 8, and it is clear from the record that her condition rallied somewhat after that date. There is no evidence in the record for the continued inaction on the part of Corrigan. Professional responsibility would seem to require that he replace the initial will with one *697carefully prepared and properly corroborated as to testamentary capacity and intent at the earliest opportunity.
On May 11, Corrigan received the note addressed to Sister Joseph which is set out above. Although the note was undated, it refers to Mr. Ferguson as the testatrix’s attorney in the present tense, speaks of a former will as the testatrix’s will, and names the National Bank of Commerce (main branch) as the testatrix’s executor, whereas the will Corrigan had drafted named Corrigan as executor. Receipt of such a communication by a lawyer for a very ill, elderly person within 3 days of drawing a will indicates a clear ambiguity as to the testamentary intent of the testator, and raises a duty of inquiry on behalf of counsel into his client’s testamentary intent and capacity.
Corrigan made no inquiries whatever of Miss Reilly, or the executor under the previous will, or Miss Reilly’s previous counsel. Such inaction occúrred in the face of a clear conflict of interest between his duty to Miss Reilly and his retainer from the home. It is absolutely clear that Corrigan violated Canon 6 of the Canons of Professional Ethics in not making a full disclosure to Miss Reilly of his relationship to the home and in not making a full and complete inquiry into Miss Reilly’s testamentary capacity and any possibility of undue influence before drawing her will in favor of the home which retained him as its counsel.
The trial court characterized his conduct as so far below the minimal standards required of a practicing attorney that it required no further comment. I agree with that evaluation and the characterization of his testimony as incredible.
In my opinion, the decision of the trial court can and should be upheld even if one accepts Corrigan’s testimony at face value or goes further and rejects the presumption of undue influence. Even in the absence of the presumption, I believe that the evidence of undue influence is clear, cogent, and convincing.
There remains the question of the cross appeal, which actually involves three separate orders: the awarding of fees to the estate of Cadwell Corrigan; the awarding of fees *698to his successor, Richard J. Corrigan; and the order concerning the expenses of defending the will contest.
I have some serious misgivings on this cross appeal in view of Cadwell Corrigan’s role in the preparation of the deathbed will. I have serious reservations as to whether he was entitled to be compensated either as executor or as attorney for the estate. Had I been the trial judge, I might well have denied fees in this connection. However, I defer to the trial judge’s discretion, judgment and conclusion in this matter.
The next issue which must be faced is whether Cadwell Corrigan’s breach of loyalty may be attributed to his successor as administrator de bonis non, with will annexed, Richard J. Corrigan to Richard Corrigan’s attorneys, and to the counsel, retained originally by Cadwell and subsequently by Richard, who defended the will of May 8.
In this regard it must be noted that the trial court found that Richard J. Corrigan continued the defense of the will in good faith and faithfully performed his duties as administrator. Richard Corrigan was not a party to Cadwell’s misconduct. He accepted appointment to administer what, at the time, was a valid will. His conduct of the administration of the estate would have had to have been performed by someone, and there is no showing of any misconduct personal to him. It follows that the portion of the order of April 7, 1967, establishing reasonable compensation of Richard J. Corrigan and his attorney at $4,000 and $12,000 respectively was correctly affirmed.
There remains the question of the expenses of the will contest. It is true that the attorneys defending the will were originally retained by Cadwell Corrigan. It is also true that, had Richard Corrigan abandoned those attorneys and sought new counsel, substantial duplication of effort would have been necessitated to properly defend the will.
It may be observed that this will was defended most zealously. The defenders of the will owed to their client entire devotion and warm zeal in the defense of his cause. The expenses allowable in a will contest brought in good faith are the reasonable expenses of the defense of the will. *699Such reasonableness depends upon the going rate for what was done and upon the necessity for doing what was done.
The. experienced trial judge was in a much better position than members of this appellate court to pass on this as well as other aspects of this will contest. Consequently, I accept the inquiry made by him as sufficient and would affirm his judgment as to the award to counsel presenting the defense of the Corrigan will.
I would affirm the decision of the trial court.
Hunter, C. J., and Hamilton, J., concur with Finley, J.
The Sisters testified that no direct solicitations of the guests for gifts were made. However, the home made its needs known to the guests through the Sisters and trusted that this would he persuasive and effective. • ■ ;
An alternative reading of the payee as “the [religious] order of Mount St. Vincent, Seattle” explains the unnecessary words of negotiability, but would indicate an even more confused mind than that supposed by the above reading.