(concurring specially).
Here, Beverly Nizielski and Loretta McClain were denied, inter alia, the opportunity to present evidence to a jury that joint tenancy accounts were established for convenience. The complaint sounded in (1) failure to account in a fiduciary capacity and (2) wrongfully inducing an agreement so as to gain control of all farm income. Deceit and undue influence is alleged on *486the latter count.1 All parties hereto are sisters and a brother.
During Lena’s lifetime,2 Ervin and Lena wrote checks on the joint account. Ervin signed checks at/about the time Lena suffered a stroke to pay Lena’s attendant medical expenses. This suggests a joint account for convenience. Lena apparently represented that she wanted all of her children to share equally. During Lena’s lifetime (died at 97), she vouchsafed that her children be treated fairly and alike. Fact questions exist in this case; a jury should assess the credibility of the witnesses.
Ervin geographically lived very close to Lena. Apparently, Lena leaned upon Ervin and Selma for assistance, which Ervin and Selma rendered — in business and personal affairs. Ervin and Selma occupied a close relationship with Lena, in fact. Unequal footing and one party in a position of dominance? Davies v. Toms, 75 S.D. 273, 281, 63 N.W.2d 406, 410 (1954). This is a confidential relationship question. It is a question of fact, not of law.
Ervin and Selma were the movants; Beverly and Loretta, as non-movants, were entitled to have the evidence reviewed in a light most favorable to them. The trial court appears to have done the opposite. Having established a prima facie case of confidential relationship, Beverly and Loretta are now entitled to have Ervin and Selma proceed with evidence. The burden of proof shifted, Delany v. Delany, 402 N.W.2d 701, 705 (S.D.1987). A confidential relationship creates a rebuttable presumption of undue influence.3 Black v. Gardner, 320 N.W.2d 153, 157 (S.D.1982). Too many legal and factual factors weighed against a summary judgment in this case; therefore, it should not have been granted. I would reverse. Furthermore, aside from the confidential relationship issue, although the burden of proof was upon appellees to establish viability for the grant of a summary judgment, the trial court imposed the burden of proof (expressly) upon appellants.
A determination, as a matter of law, was made by the trial court that Lena’s checking and savings accounts belonged solely to the surviving tenant, Ervin. Given Lena’s age and her dependence on Ervin and Selma, plus the statement of Ervin himself (“... I took over”), an inference may arise of improper conduct. In re Estate of Borsch, 353 N.W.2d 346, 349 (S.D.1984). See also duties imposed under SDCL 55-1-8:
One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust or other wrongful act, is, unless he has some other and better right thereto, an implied trustee of the thing gained for the benefit of the person who would otherwise have had it. (Emphasis added.)
Ervin himself maintains that he and his mother, Lena, made a contract whereby he would supervise all of her financial affairs. Thus, he would be entitled to all of the income from the farm, he claims, as part of the contract. Purportedly, this contract was agreed to in 1975. It was, he maintains, supported by Lena’s execution of a Quit Claim Deed. However, at the time of the execution of said deed, Lena was legally blind; her hearing was impaired; she had broken her hip sixteen years before her death. She was unable to walk without a walker for the balance of her life. A deposition reveals that she could not take care of herself during any of the remaining sixteen years of her life.
A deposition further reveals that Selma lived with Lena. Lena depended upon Selma for her daily needs. Ervin lived very close by. Lena depended upon Ervin for transportation and other needs. Ervin or Selma would write checks for Lena’s needs and would tell her where to write her *487name. A combination of the infirmity of a parent, his reliance upon the advice of his children, and the trust placed in them establishes a confidential relationship. Hedges v. Hedges, 87 S.D. 425, 430, 209 N.W.2d 660, 668 (1973); Jaeger v. Sechser, 65 S.D. 38, 270 N.W. 531 (1936). Thus, the trial court could not have shrugged this relationship off. It went to the heart of this lawsuit. To hold, as the trial court did, that these accounts, as a matter of law, belong exclusively to Ervin, are certainly, at best, open to surveillance and legal determination.
A reading further discloses questions of fact concerning the history of certificates of deposit which were in the names of Lena or Ervin. Ervin, when questioned about Lena’s accounts and holdings, failed to mention these certificates of deposit; Selma, also, denied any knowledge of these accounts. But they did exist. Is this not, then, a classic question of factual dispute? An accounting of these certificates of deposit should be made.
Finally, I am sorely troubled by the manner in which Ervin supervised his mother’s farm. Lena possessed a life estate in the farm. She executed a Quit Claim Deed to this 320-acre farm (reserving a life estate!) 4 with the covenant “she to have the income therefrom and pay all taxes.” Even Ervin admitted that his mother never received a dime in income from the farm— though it was directed in the Quit Claim Deed. It stated: “[S]he to have the income therefrom....”
At a trial, all of these matters should be explored. Existence of a confidential relationship requires close judicial scrutiny of the transaction. In re Metz’ Estate, 78 S.D. 212, 222, 100 N.W.2d 393, 398 (1960). Let us, therefore, reverse, that close scrutiny may proceed. Granting a summary judgment was too extreme under the circumstances of this case.
Reference is made to SDCL 15-6-15(a), Amendments to pleadings. The trial judge called this case, on the record, a “fishing expedition.” The trial court reflected that plaintiffs were trying to “find the facts necessary to back up their claims.” As lawyers, we must conceptually theorize our cause of action, prepare our pleadings, and then proceed with facts to establish the causes of action pleaded. There is no explicit reference to violation of an implied trust in the pleadings. I note appellant’s counsel briefs this particular theory: “Accounting from Ervin and Selma is based upon the imposition of an implied trust upon all property wrongfully obtained by Ervin.” 76 Am.Jur.2d Trusts § 505, at 726 (1975), is also cited. Omega thought: Wherefore dost the trust arise, pleading-wise?
. The prayer for relief requests an accounting "for all monies and property owned or possessed by Lena Tvinnereim, or to which she was entitled, at the time of her death[.]’’
. No one could locate a Last Will and Testament of Lena’s; her estate is intestate.
.Ervin told Donald Tvinnereim shortly after the funeral, the financial affairs would only go back two years because that was “more or less when I took over.”
. She already had one.