dissenting: In my opinion, due to the involvement of Lori Silvers Klarfeld and Dr. Alvin Silvers, the appellees failed to sustain the burden of proof cast upon them to show the consent of Anjanette Irons, the appellant, was freely and voluntarily given..
The majority opinion holds both Dr. Silvers and his daughter, Lori Klarfeld, were in a confidential relationship with the appellant, one as her doctor, the other as her lawyer. In addition, the majority finds suspicious circumstances existed due to the existence of the father-daughter relationship between the appellant’s doctor and her attorney. Therefore, a presumption of undue influence arose and the burden of proof shifted to the appellees to show the appellant’s consent to the adoption was freely and voluntarily given. With these findings and conclusion *554I agree. However, a review of the evidence presented, by Silvers and Klarfeld particulary, discloses it fails to overcome this presumption.
Competent and sufficient evidence must be presented to rebut a presumption of undue influence. In 25 Am. Jur. 2d, Duress and Undue Influence § 46, it is stated:
“As a general rule, to render [a transaction between those in a confidential or fiduciary relationship] valid, it is necessary to show only that the party alleged to have been influenced had competent and disinterested advice, or that he performed the act or entered into the transaction voluntarily, deliberately, and advisedly, knowing its nature and effect, and that his consent was not obtained by reason of the power and influence to which the relation might be supposed to give rise. Moreover, it has been held that the presumption may be rebutted by proof that the parties dealt as strangers and that no unfairness was used, that the facts in the knowledge of the one in the superior position affecting the matter were communicated to the other, or that the entire transaction was made in perfect good faith and was equitable and just.”
The test of undue influence is whether the party alleged to have been influenced exercised his own free agency and acted voluntarily by the use of his own reason and judgment, which is to be determined by the surrounding circumstances, including the relation of the parties, the time and manner of making suggestions or giving advice, the motive, if any, in making suggestions, and the effect upon the party so acting. See Cersovsky v. Cersovsky, 201 Kan. 463, 467, 441 P.2d 829 (1968); In re Estate of Ziegelmeier, 224 Kan. 617, Syl. ¶ 2, 585 P.2d 974 (1978). It is generally held there are four elements of undue influence: (1) a person who is subject to influence, (2) an opportunity to exert undue influence, (3) a disposition to exert undue influence, and (4) a result indicating undue influence. 25 Am. Jur. 2d, Duress and Undue Influence § 36. Factors to take into consideration to determine the existence of undue influence include the age and physical and mental condition of the one alleged to have been influenced, whether the person had independent or disinterested advice in the transaction, the providence or improvidence of the gift or transaction, delay in making it known, necessities and distress of the person alleged to have been influenced, the person’s predisposition to make the transfer in question, and active solicitations and persuasions by the one benefitting from the transaction. See 25 Am. Jur. 2d, Duress and Undue Influence §§ 36, 48.
*555Each of these factors is established by uncontroverted evidence in the record or by the trial court’s own findings of fact and conclusions of law. The trial court made these conclusions of law:
“It can be conceded for this case that Anjanette places reliance on the advice and opinions of others and that she is swayed by figures in authority, particularly if male, and further that the decision to give up a child is an extremely emotional and difficult decision, under any circumstances.
“It is true that Anjanette felt, at least up to February 1982, that she would keep her child. Well into the third trimester of the pregnancy, the hard and fast realities of her situation began to become more evident and she began considering adoptive placement and even initiated contacts with residents of New York.
“The day of decision arrived earlier than expected and may have caused more stress on Anjanette than otherwise might have existed.”
These conclusions of law, made by the trial court, establish the appellant was a person subject to influence. Clearly she relied on the advice of her doctor and attorney. The appellant was seventeen years old when she began going to Dr. Silvers for prenatal care and had been eighteen for only two months when the child was born. She did not live at home with her mother, but instead lived with a girlfriend until about a month before the birth. She did not discuss the options available to her or receive independent advice from her mother, close friends, social workers or counselors. At the time of the birth she no longer had a job and had no means of support other than welfare. Such circumstances would present a very difficult, stressful situation for any unwed mother, but particularly for a teenager with no support, emotional or financial, from her family or other sources. Unquestionably the appellant was susceptible to the suggestion and advice of her doctor and attorney.
The opportunity for Dr. Silvers to exert undue influence upon the appellant was clearly present and the evidence indicates he took every advantage of that opportunity. Dr. Silvers himself understood that his patients place a great deal of reliance on him. He used that position of trust and reliance to persuade Anjanette to put her child up for adoption, whether she wanted to or not. When Anjanette informed him she intended to keep her baby, she was subjected to what amounts to an intense campaign designed to convince her to give up her baby for adoption. At every prenatal visit she was subjected to unsolicited “advice” to have the child adopted. Dr. Silvers told her she was a “complete *556fool” if she kept the baby. At every visit Dr. Silvers would continue to point out to the appellant that she could not properly support the child and would get “nowhere in life” if she kept the baby. At a time when the appellant felt she had no options left to her because she no longer had a job and had not heard from the father, Dr. Silvers suggested she should contact his daughter, Lori Klarfeld, an attorney, to handle the legal details of the adoption.
The testimony of Dr. Silvers and others clearly shows he had a disposition to exert undue influence. The trial court made this pertinent finding of fact:
“Throughout the trial of this matter, Dr. Silvers’ expressions of advice to Anjanette about her alternatives in dealing with the child have been the subject of protracted testimony. Several witnesses have testified that Dr. Silvers gave the same advice to them and they chose not to follow that advice. Dr. Silvers’ own testimony reveals that he is strongly of the opinion that the best interest of the mother and child are to adopt the child out. That he gave that advice to Anjanette, on several of the pre-natal visits, is undisputed.”
The fact that other witnesses testified they were not persuaded against their will by Dr. Silvers’ advice is immaterial here. We must look subjectively at the appellant’s mental condition and the circumstances and stress affecting her at the time she was alleged to have been influenced, which may have caused Dr. Silvers’ influence to be greater upon her than other patients.
Dr. Silvers’ personal interest in influencing the appellant was established by his own testimony at trial. He testified he has an interest in furthering his daughter’s career and assumes if he can supply her with a baby for adoption she will profit from it. Although Dr. Silvers professed concern at trial for the welfare of his patients and their unborn children, it becomes evident when viewing all the evidence presented that his primary concern was not for Anjanette’s personal happiness or to ensure that adoption was truly her choice, but to impose his personal beliefs concerning the welfare of unwed mothers and their children upon his patients and to assist in furthering his daughter’s career, if possible, by supplying her with babies for adoption.
A conclusion of undue influence is inescapable when one views the circumstances surrounding Anjanette’s signing of the consent form in the hospital. It is undisputed that Dr. Silvers instructed the hospital staff not to let anyone see the baby until Anjanette had seen “the lawyer.” Dr. Silvers testified he knows a *557mother is more likely to sign a consent to adopt if she hasn’t seen the baby. Without consulting Anjanette or being asked by her to do so, Dr. Silvers telephoned his daughter shortly after the baby was born and advised her of the birth. Uninvited by the appellant, Lori Klarfeld appeared in Anjanette’s hospital room, with the consent documents in hand, less than six hours after Anjanette, an unwed eighteen-year-old, had delivered her first child. Anjanette had not yet had an opportunity to visit with any member of her family. She had been informed she could not see the baby because it was a ward of the court. She testified she believed that by signing the consent form she would be allowed to see her baby. Although she knew she was signing a consent for her baby to be adopted, she did not understand it was irreversible. The following testimony of Lori Klarfeld reflects the manner in which the legal ramifications and irrevocable nature of the consent document were explained to Anjanette:
“Q. Did you tell her that when she signed that consent that she had irrevocably and irretrievably given up the right to her child?
“A. I’m not sure I expressed it that way. That she would be signing a consent and that was —
“Q. You told her she was signing a consent to adopt, right?
“A. Yes.
“Q. Did you explain to her that the statute of this state requires that in the event she should change her mind for any reason whatsoever that the only way she could upset that signed consent was to be able to establish that the consent was not freely and voluntarily given, did you explain that to her?
“A. I doubt that I used those terms, no. But I’m sure that I told her her consent was irrevocable. I doubt I used that particular term.
“Q. You didn’t explain to her what the statute would require her to do in case she wanted to change this consent?
“A. No, because there was no suggestion that she wanted to change her consent. »
“Q. So you didn’t feel it was necessary to explain to her what the statute was because you weren’t representing her?
“A. I explained to her she was signing a consent to an adoption and it was a final proceeding or that her signature was final. I did not say the statute says this or that it was irrevocable, in those terms, no.
“Q. And you assumed she understood this was an irrevocable act?
“A. Yes.
“Q. And you assumed that she understood what the law was in that regard?
“A. We didn’t talk about the law per se.
“Q. Don’t you feel that when you talk to her as you did, under the circumstances you did, being referred to her by your father, meeting with her in your *558father’s office, that you owed an obligation to explain the full extent and purport of the law?
“A. I explained to Anjanette that I represented the adopting couple and if she had any problem about working with me she could get another lawyer.
“Q. Well, you didn’t explain what the law said about what it took to set aside a consent, you didn’t explain that to her?
“A. There wasn’t any question about her setting aside a consent.
“Q. Okay. But you didn’t explain it to her, did you?
“A. No.” (Emphasis added.)
These facts, taken together, constitute nothing less than coercion and duress on the part of Dr. Silvers and Lori Silvers Klarfeld when the appellant was in a position where she was extremely vulnerable, both emotionally and physically. This type of behavior on the part of a patient’s doctor and lawyer should not be approved merely because the patient succumbs to their influence. In other cases courts have found a mother’s consent to adopt was not freely and voluntarily given where undue influence has been exerted by the mother’s physician or another professional. See, e.g., Annot., What Constitutes Undue Influence in Obtaining a Parent’s Consent to Adoption of Child, 50 A.L.R.3d 918 § 7. In D— P— v. Social Service & Child W. Dept., 19 Utah 2d 311, 431 P.2d 547 (1967), it was held that under the totality of the circumstances a 34-year-old unwed mother was unduly influenced to give up her child for adoption, where during her pregnancy she had been repeatedly advised by her doctor-brother, attending physician and a social worker with a placement agency to give up her child. Within 24 hours of delivery by Caesarian section which followed extensive pain, and within a few hours after the mother received pain relievers, the social worker appeared with the consent form which the mother signed. All the witnesses who testified conceded the mother was upset and crying, and that it was an ordeal for her. Twelve days later the mother sought to revoke her consent. In ordering the return of the child to the mother the court recognized the rule, that the weight and credibility of the evidence is for the trial court to consider, should not be followed where the reviewing court was convinced that under the facts of the case equity required reversal of the trial court. 19 Utah 2d at 321. The court also made this comment:
“[M]ost everyone will agree that there is a strong presumption . . . that a pregnancy experienced by a single woman generally is fraught with emotional *559upset, fear of social consequences, economic problems and unusual reactions that make a woman under such circumstances subject to unusual pressures.” 19 Utah 2d at 312.
Other factors are also present in the instant case indicating Anjanette’s consent to adopt was not freely and voluntarily given. Roth Anjanette’s mother and sister were shocked to learn, after the fact, that Anjanette had consented to adoption. Anjanette remained very emotional and cried throughout the remainder of her stay in the hospital. The day after her discharge from the hospital Anjanette telephoned Lori Klarfeld and advised her she wanted her child back. Anjanette’s mother also sought the return of the baby. Anjanette and her mother were then advised to seek the advice of an attorney.
From the totality of the attendant circumstances involved in this case it can only be concluded that Anjanette Irons’ consent to adopt was not freely and voluntarily given, but was obtained as the direct result of undue influence exerted over her, by Dr. Silvers and his daughter, Lori Klarfeld, prior to and after the delivery. The factors cited in the majority opinion in support of the trial court’s finding that the appellant’s consent was freely and voluntarily given are insufficient to overcome the presumption of undue influence raised under the circumstances of the case. The fact that Dr. Silvers personally believed the mother and child would be better off if the child was adopted out or had humanitarian reasons for not allowing her to see the baby until she had talked to his daughter does not remove the influence which his acts had on the appellant’s decision. The majority opinion states Dr. Silvers could not have exerted undue influence over the appellant when she signed the consent document because he was not present at the time. This statement ignores the fact that a great deal of influence by Dr. Silvers occurred prior to that time. Dr. Silvers’ influence was also present at the time the consent document was signed by virtue of the fact that he had instructed the hospital staff that she could not see the baby until after she talked to Ms. Klarfeld. This led her to believe, rightly or wrongly, that she had to sign the consent form to see the child. The majority opinion also emphasizes the appellant had several months to make the decision and could have sought advice from others if she had wanted to. Whether she could have sought advice from someone other than Dr. *560Silvers is, again, immaterial. The fact is, for whatever reason, she did not have the benefit of independent advice from a disinterested objective person. As a result, the advice given to her by Dr. Silvers and Lori Klarfeld acted to influence her all the more. She was told by Ms. Klarfeld she could get another lawyer if she (Anjanette) was not comfortable working with her; however, she was not advised that it would be in her best interest to seek the advice of another lawyer, or for that matter, any type of professional counselor.
Concerning the interest of Lori Klarfeld in this case, who stood to benefit most from this transaction, the record discloses these additional facts. Ms. Klarfeld testified her fee for an adoption (to be paid by the adoptive parents) is $1,000 for approximately the first sixteen hours of work she does on the case, and an hourly wage for each additional hour of work required. Ms. Klarfeld has continued to represent the prospective parents throughout this litigation and on appeal even though she was a principal witness in the litigation on the issue of undue influence. Although John C. Amorosa entered his appearance as attorney for the appellees five days after the appellant’s defenses to the adoption were filed, Lori Klarfeld has continued to sign her name as attorney for the appellees on various documents found in the court file, entered her appearance as their attorney along with Mr. Amorosa at trial, and has signed motions as attorney for the appellees concerning this appeal filed with the Clerk of the Appellate Courts. Ms. Klarfeld testified Mr. Amorosa is not her law partner but they share the same law office and some legal work. Their practice is referred to as “the law offices of Amorosa and Klarfeld” on the depositions of the witnesses included in the record on appeal. Ms. Klarfeld’s conduct in this case is in direct violation of DR 5-102(A) (232 Kan. clxxxv), which requires an attorney to withdraw from the case when it becomes obvious he or she or a lawyer in his or her firm will be called to testify concerning contested matters. See, e.g., Mildfelt v. Lair, 221 Kan. 557, 568, 561 P.2d 805 (1977); State v. Miles, 191 Kan. 457, 382 P.2d 307 (1963); State v. Spencer, 186 Kan. 298, 349 P.2d 920 (1960). It became obvious in this case that Klarfeld would be called as a witness as soon as the appellant’s defenses were filed. Klarfeld’s failure to withdraw and her continued active participation in the case only serve to emphasize her financial interest in the case, as *561well as her lack of objectivity or concern for Anjanette Irons. It is also questionable whether it was proper for Mr. Amorosa to accept employment on behalf of the appellees in view of his close legal association with Lori Klarfeld.
It is respectfully submitted the judgment of the trial court should be reversed and the child returned to the appellant, his natural mother.
Prager, J., joins the foregoing dissenting opinion.