dissenting.
What do the trial court and the majority have against Lucille? The trial court characterized her as “a good woman [who] really cared for Edward,” then, in an about-face, found that Edward’s will and inter vivos transfers were the products of her undue influence. The lead opinion supports its conclusion that she exerted undue influence on him, inter alia, by the damaging fact that she sat close to him and touched his cheek when he told the children that he could not promise specific amounts to them. Neither a wife’s touch nor any of the other facts recited in the lead opinion are circumstances suspicious enough to give rise to an inference of undue influence. Because there is absolutely no real evidence in this record that would allow a characterization of Lucille as a conniving villainess bent on depriving Edward’s children of their rightful inheritence, I dissent.
*527According to the majority, Edward’s disinheritance of Vera can be explained only by Lucille’s undue influence. That is nonsense. Undoubtedly, Lucille’s presence in Edward’s life caused him to change his testamentary plans. That is easily explained, however, by his gratitude to her for companionship after the death of his first wife and by the couple’s mutual devotion. There is no evidence that Lucille ever discussed Edward’s testamentary plans with him. Truly, her conduct was quite unremarkable. Shows of affection between a man and woman or tears in a lawyer’s office when an unpleasant situation is described do not support finding the kind of improper influence necessary to strike down a will.
The lead opinion concludes that Lucille’s “participation” in the preparation of Edward’s will and deed transfers “by contacting her attorney,” by setting v. an appointment for Edward, by being present when he signed his will and by failing “to personally obtain independent and disinterested legal advice” for Edward raises an inference of undue influence. 98 Or App at 521. That argument ignores evidence that (1) Edward had earlier rejected services from his own attorney; (2) he did so because the attorney had insisted that Lucille have independent representation; (3) Edward, not Lucille, called Scott with instructions to write a will leaving everything to Lucille; (4) Scott and Galton both discussed alternatives with Edward, but he rejected them; and (5) Scott and Galton believed that Edward understood the consequences of his actions. Those circumstances do not support a conclusion that Lucille was luring Edward into a trap by arranging to have her attorney draft a will or by preventing him from obtaining independent advice. It is ludicrous to contend that it is suspicious for one spouse to be present while both spouses sign their wills or to fail to insist that the other spouse have independent representation.
The concurrence correctly points out that, if a confidential relationship is to raise an inference of undue influence, there must be evidence that the one exerting the influence was in a position of dominance. It then concludes that a 59-year old woman assumes that role by being “assertive,” refusing to move in with her husband-to-be until they are married and marrying an older man. Surely more is required to support a conclusion of dominance. I recognize that the lead opinion does not rely on any one fact to support its conclusion. In my *528view, however, even when the facts it points to are considered collectively, they do not provide a sufficient basis for voiding Edward’s will and inter vivos transfers.
In short, it seems to me that the only exercise that the majority has had lately is jumping to conclusions. Accordingly, I dissent.