dissenting: The admitted facts in this case require the application of K.S.A. 59-605 and a reversal of the judgment of the trial court.
The provisions of K.S.A. 59-605 apply when three conditions are present: a will is (1) written or prepared by (2) a sole or principal beneficiary who (3) at the time of writing or preparing the same, was the testator’s confidential agent or legal adviser of the testator, or who occupied at the time any other position of confidence or trust to such testator. All three conditions are present in this case.
The Stowells, both attorneys, admit two of the three conditions are satisfied: They are the principal beneficiaries under the will and were confidential advisors to the testatrix. As confidential advisors they stood in a fiduciary relationship to the testatrix when her will was prepared.
Any unfair transaction undertaken by one in a fiduciary relationship may result in liability for unjust enrichment of the fiduciary. Where the fairness of a fiduciary transaction is challenged, the burden of proof is upon the fiduciary to prove by clear and satisfactory evidence that such transaction was fair and done in good faith. Sampson v. Hunt, 233 Kan. 572, 665 P.2d 743 (1983). The burden of proof cast upon the Stowells in this case was to show by clear and satisfactory evidence that'the mandates of K.S.A. 59-605 were satisfied in order to sustain the validity of the testatrix’ will.
The admitted facts in this case establish as a matter of law that McCubbin was acting as an agent for the Stowells in the preparation of the will of the testatrix which left the substantial share of her estate to the Stowells.
This court stated in In re Estate of Schippel, 169 Kan. 151, 161, *22218 P.2d 192 (1950), “It may be conceded that under some circumstances a person occupying such a position of ‘go-between’ could be considered and held to be the one ‘writing or preparing’ a will within the meaning of [K.S.A. 59-605]. . . .”
The admitted facts controlling the decision are as follows:
1. While in a fiduciary relationship, the Stowells prepared and submitted a will questionnaire to the testatrix, which they had her answer in theirpresence. Heretofore, the Stowells had never used this particular form of questionnaire in the preparation of a will in their legal practice.
2. The testatrix was advised that it was necessary that she consult another attorney if she desired to leave her property to them, but she stated she knew no other attorney. The Stowells then selected Mr. McCubbin, who practiced law in a county adjoining Phillips County. This was done by the Stowells because they felt an attorney from their county, where the testatrix resided, might be reluctant to get involved in leaving almost the entire estate of the testatrix to lawyers in Phillips County.
3. The Stowells provided Mr. McCubbin with a copy of the will questionnaire together with the testatrix’ answers thereto. Mr. Stowell accompanied Mr. McCubbin to the home of the testatrix.
4. Mr. McCubbin spent a mere 24 minutes with the testatrix. In his testimony Mr. McCubbin admitted at the trial he did not know of the existence of a discrepancy in the will questionnaire — that the testatrix at one place said her sister Bertha Ludwig was deceased and in another place that Bertha Ludwig was living and that this sister should be given $300 in the will.
5. The will prepared by Mr. McCubbin followed precisely the disposition of the property as it was set forth in the will questionnaire, except for one tax matter.
6. The names of the witnesses from which Mr. McCubbin made the selection were supplied to Mr. McCubbin by the Stowells.
7. Although Mr. McCubbin had never before in his practice tape-recorded the execution of a will, he. tape-recorded this one, asking the testatrix whether the Stowells had ever asked or suggested that she leave them her property. The *23taped execution was also used to demonstrate the testatrix knew the contents of her will. But the tape ran out before the execution of the will was completed.
Knowing that K.S.A. 59-605 applied to the preparation and execution of the will in this case, the Stowells attempted to circumvent its thrust. To validate the will, they were required to make it affirmatively appear the testatrix had read or knew the contents of her will and that she had received independent legal advice. On the latter requirement they failed. The record indicates no independent advice was given, although the testatrix had many relatives, some living within a two hour driving distance of the testatrix’ home, who could have aided in securing independent counsel. The Stowells have succeeded only in showing that Mr. McCubbin was their agent in the preparation and execution of the will of Birdie Kern. In reality, the will was not prepared by McCubbin but rather by the Stowells whose ever present hand is evident in these facts.
When Birdie Kern told the Stowells she wanted to give them her land, rather than going through the motions of drafting a will questionnaire and all that followed, Mr. Stowell should have recommended she personally find another attorney through the recommendations of either her family or friends.
Birdie Kern’s physician testified she was in the hospice program at his recommendation. It was his opinion she could be easily influenced by authority figures. From May 1983 onward Genevieve Robben, a registered nurse, visited Birdie Kern on a regular basis as a hospice employee. Sandra Kuhlmann, a nurse, also worked with Birdie as an employee in this program. Joan Krenzer moved in with Birdie in July 1983 as a housekeeper. Birdie was also acquainted with Robert E. Kaup, the manager of the Farmer’s National Bank in Phillipsburg. Therefore, Birdie had many persons with whom she could have consulted for recommendations regarding the selection of an independent attorney.
The rarely used will questionnaire and tape-recorded execution of the will illustrate not an attempt by the Stowells to satisfy the requirements of K.S.A. 59-605, but their attempt to circumvent and manipulate the statute for their own benefit.
Findings of fact made by a trial court cannot override the legal consequence of facts admitted by the parties upon whom the *24burden of proof is cast. The legal significance of the admitted facts in this case should not be ignored by the appellate court by simply saying there is evidence from which a trial court could make the findings that it did.
In corporate cases, where an individual uses a corporation merely as an instrumentality, as a sham, to conduct personal business and perpetrates fraud or injustice on those dealing with the corporation, this court disregards the corporate entity and holds the individual liable. See Sampson v. Hunt, 233 Kan. at 578-82. The corporate veil is pierced in order to get at the truth, to expose the sham, and to prevent injustice. Here, that same approach is applicable. We should look beyond the sham carried out by the Stowells consisting of a will questionnaire, so-called “independent” legal advice, and the partial taping of the execution of the will to satisfy the statute. We should recognize this transaction for what it is — overreaching by the Stowells.
In re Estate of Seeger, 208 Kan. 151, 160, 490 P.2d 407 (1971) (Fromme, J., dissenting), it was stated:
“There is no profession [as the legal profession] in which so many temptations beset the path of him who is to serve with strict integrity and loyalty. There are pitfalls at every step to be avoided if the integrity and good name of the bar and of the administration of the law are upheld. A lawyer must exercise prudence and self-denial as well as moral courage if he is to maintain the high ethical standards expected of lawyers.”
The public perception of this transaction clearly will be one of overreaching by attorneys. It is an embarrassment for other members of the Bar to be associated with such behavior. See In re Estate of Seeger, 208 Kan. at 160-62.
It is respectfully submitted the judgment of the lower court should be reversed.