concurring.
Although I agree with the lead opinion’s conclusion on the appeal and cross-appeal, I write separately to clarify a point of law and to amplify and emphasize the facts that I perceive to be material.
First, the lead opinion makes the conclusory statement that “there was a confidential relationship between Edward and Lucille as husband and wife.” 98 Or App at 520. That is not enough to trigger the inference of undue influence, even if there are suspicious circumstances. In re Reddaway’s Estate, 214 Or 410, 420, 329 P2d 886 (1958). There must also be, in addition to what may be generally perceived to be a confidential relationship, evidence that the “relationship is such as to indicate a position of dominance by the one in whom confidence is reposed over the other.” Doneen v. Craven, Executor et al, 204 Or 512, 522, 284 P2d 758 (1955); In re Reddaway’s Estate, supra.
The record here is replete with evidence that Lucille was an assertive person, more than 13 years younger than Edward, that Edward was devastated by the death of Amy, his wife for over 47 years, and that, when he started seeing Lucille, he was lonely and vulnerable. A psychiatrist testified that, when Lucille came into his life, Edward was an easy target. About five months after Amy’s death, Lucille and Edward decided to be married in August of 1980. Lucille proceeded to sell her house but said that she would not move in with Edward unless they were married and would not travel to California with him to attend his grandson’s wedding unless *524they were married. Accordingly, their wedding was moved up to June 11. After that decision was made, Lucille moved into Edward’s home—before their wedding.
Before the marriage, Edward was interested in a prenuptial agreement and consulted his long-time friend and attorney, Killeen, who advised him correctly and appropriately that it would be necessary for Lucille to have independent counsel. Edward did not return to Killeen; instead, Lucille directed him to Scott, who was her attorney, had been the attorney for her son and her daughter and had probated her deceased husband’s estate. She made an appointment for early June, 1980, before the parties were married. As the lead opinion points out, in March, Lucille had stated, in effect, to Edward’s children that what was Edward’s would remain his and what was hers would remain hers. By the time of their appointment with Scott, the theme was that part of what was Edward’s would remain his and all of hers would remain hers. After the wedding, the theme was that essentially all of what was Edward’s was to be hers, and all of hers was to be hers.
The evidence is convincing that Edward reposed confidence in Lucille and that she was in a position of dominance over him.
At no time after Lucille directed Edward to Scott was a pre-nuptial agreement mentioned. Lucille was present during all of their conferences with Scott and participated to a significant extent in the discussions; Scott was to prepare wills for both of them. Scott’s letters were addressed to both of them. There is no evidence that Scott suggested that Edward retain separate counsel or that he confer privately with Edward. Neither is there any evidence that he explained to Edward that a will could be revoked but that a deed to Lucille as a tenant by the entirety could not be. Yet Scott prepared two deeds by which Edward created tenancies by the entirety with Lucille. There is no evidence that Edward was advised that, if he wanted to have Lucille live in his home after his death, that could be accomplished by giving her a life estate or by creating a trust. The same is true with respect to his substantial liquid income-producing assets. Scott stated only that “other alternatives” were discussed, which tells v. nothing. Galton did not testify, as the lead opinion states, that he discussed other alternatives with Edward. Rather, he said that *525he told Edward that there were other alternatives and asked him if he had been advised of “those.” Edward said that he had.
It is clear that Edward needed and should have had independent advice. As the court stated in Toomey v. Moore et ux, 213 Or 422, 431, 325 P2d 805 (1958):
“This court has uniformly held that it is the duty of a beneficiary who participates in the preparation of a will and who occupies a confidential or fiduciary relationship to the testator to see that the testator receives independent and disinterested advice.”
In In re Reddaway’s Estate, supra, the court reiterated that statement. The same rule applies to a donee who occupies a confidential relationship to the donor and who participates in a consummation of the gift. Toomey v. Moore et ux, supra. Not only did Edward not receive independent advice, he was steered away from it. Although defendant contends that Edward did not consult Killeen, his long-time friend and attorney, because Killeen had disclosed Edward’s financial condition to his son, I agree with the trial court that that is not credible, because the family finances had been discussed regularly and openly among the family. Edward was taken to Lucille’s attorney.
Even though both deeds relating to Edward’s real property had been executed before April 16, 1981, Edward’s will, executed on that date, left “his” home to Lucille and contained precatory language expressing the hope that she would leave the family home to his children. Lucille’s will, signed the same day, gave nothing to Edward but left the family home to his children. Very shortly after his death, she revoked that provision. The coup was complete.
It is a rare case in which undue influence can be shown by direct evidence; the influence usually is shown by reasonable inferences that may be drawn from the evidence. The ultimate question is whether “the influencer by his conduct gained an unfair advantage by devices which reasonable men regard as improper?” In re Reddaway’s Estate, supra, 214 Or at 419. The kinds of suspicious circumstances identified in that case are present here, as the lead opinion states. I have elaborated on two of them, procurement and the lack of independent advice.
*526The unjustness of the gifts, another factor, also needs some elaboration. Although it was perfectly natural for Edward to want to provide for Lucille, there were other ways to accomplish that objective. Further, when it is considered that Lucille had inherited in excess of $150,000 from her first husband, it is difficult to understand why Edward would have given Lucille the house that was not their residence and essentially all of his personal fortune, cutting off his children entirely. The lead opinion sets out parts of the record that might tend to explain Edward’s complete about-face, but does not find those facts to be true. The trial court expressly found that plaintiffs were credible and that defendant’s evidence to which the majority refers—that it was plaintiffs’ greed that broke v. their relationship with Edward—was not credible. I agree with the trial court. Because there existed a confidential relationship in which Lucille was dominant and there are suspicious circumstances, an inference of undue influence arises, and I agree that defendant did not fulfill her burden to overcome that inference. The sum and substance of this case is that Lucille took over Edward’s life and drove a wedge between him and his children, even his young grandson with whom he had been close and with whom he had initiated contact regularly before Lucille came into his life.
Accordingly, I concur in the disposition of the appeal and the cross-appeal.