Matter of Estate of Zech

HENDERSON, Justice

(dissenting).

This action involves the contest of a will executed by Paul Zech, deceased, on the 16th day of June, 1970, at Watertown, *242South Dakota. The circuit court admitted it to probate. Under its terms Charles and Mary Tesch inherit the bulk of decedent’s estate. Three other nephews and one niece appeal. I would reverse.

Paul Zech was the youngest of fourteen Zech children and the last child in the family to survive. He passed on at the age of eighty-three years at Aberdeen, South Dakota, on April 15, 1977. He was a life-long epileptic and never married. At the age of fifty, Paul Zech retired from active farming and did yard work around the farm. Paul Zech remained on the family farm with his sister, Alma. Their living conditions, however, were absolutely appalling. Neither Paul nor Alma was able to cook, food was left out to spoil, and Alma used the dining room as a bathroom, forcing decedent to sweep the excrement out the door.

Alma was committed to the State Hospital at Yankton, South Dakota, in December, 1965, for one month. Paul then took up residency with his nephew and wife, Carl and Letha Rau, as he was physically unable to fend for himself on the farm. He lived there from December, 1965, until September 1,1966, when, because of Letha Rau’s ill health, he was moved to the Jenkins Nursing Home in Watertown, South Dakota, where his sister Alma was residing.

Charles and Mary Tesch began regularly visiting Paul at the Jenkins Nursing Home as many as three and four times a week and for several hours at a time. Noting the general unhappiness of Paul and Alma Zech, Mary Tesch suggested a house be purchased in Watertown, South Dakota, where she and Paul’s nephew, Charles Tesch, could care for both of them. After frequent visitations, an arrangement was struck whereby Paul Zech was to purchase a home in Watertown and pay the yearly real estate taxes and insurance. Mary Tesch selected the home, which Paul Zech bought. The arrangement, although loose and not committed to writing, included that Charles and Mary Tesch were to live with Paul and Alma Zech rent free and generally attend to their needs. Charles and Mary Tesch were to receive the sum of $500 per month, which represented the amount of money that it was costing Paul and Alma Zech to live in the Jenkins Nursing Home. The record substantiates the decedent’s payment of the yearly real estate taxes and insurance; however, the record is unclear as to the decedent’s monthly payment of $500 due to a failure in keeping records. The decedent, however, substantially complied.

From the latter part of May, 1967, to June, 1975, Charles and Mary Tesch resided in the same household as Paul Zech. The record discloses that Paul was dependent upon them for all of his basic needs. During the time decedent lived with the Teschs, he was in extremely poor physical health. He suffered from severe arthritis, epilepsy that had brought on eleven grand mal seizures from 1946 to 1966, arteriosclerosis, cataracts, and elimination problems. He had great difficulty in walking and it was necessary that someone cook his meals, make his bed, do his laundry, buy his medicine, and drive his automobile. He could not conduct his business and financial affairs without aid. During the late summer or early fall of 1973, while the decedent lived with Charles and Mary Tesch, Mary Tesch tied Paul in bed so that she was able to attend a ladies’ aid meeting.

During the time that Paul Zech lived with Charles and Mary Tesch in the same household, Charles and Mary Tesch dominated and controlled Paul to such extent, that in addition to the fruits of the above arrangement, they were able to induce Paul Zech to:

(1) Convey the $19,000 home to them within one month after living with them;

(2) Purchase an automobile which was placed in joint ownership with Charles and Mary Tesch and purchase a pickup truck placed in the sole ownership of Charles Tesch;

(3) Place their names as joint owners on a $10,000 savings certificate purchased with his money on July 6, 1971;

(4) Designate Mary Tesch as beneficiary of $60,000 in Series H United States Government Bonds;

*243(5) Designate Charles, Mary or Carl (their son) Tesch as joint owners of $13,500 in certificates of deposit purchased with Paul Zech’s money, which was accomplished in a time frame from April 4, 1970 to July 29, 1974;

(6) Name Mary Tesch as a joint owner of a savings account that she opened with Paul Zech’s money on November 7, 1974, and unilaterally closed on March 11, 1976;

(7) Add Mary Tesch’s name to Paul Zech’s checking and savings accounts with a balance of $6,400 in February, 1976;

(8) Enter into two contracts for deed with their two sons, Dennis Tesch and Kenneth Tesch, for a combined sale of 400 acres. By Mary Tesch’s own admission, the sons had little contact with Paul Zech before he entered the home to live with them and the sons came to the home and visited Paul Zech frequently thereafter.

On August 9, 1968, Paul Zech sold 240 acres to Dennis and Dorothy Tesch for $24,000 at 5% interest, with a $100 down payment and annual installments of $1,000 each. On September 3,1968, Paul Zech sold 160 acres to Kenneth and Bernadine Tesch for $16,000 at 5% interest, with a $100 down payment and annual payments of $750 each year. On June 10,1971, Mary Tesch recorded forgiveness of $5,000 on each contract for deed and then added her same as assignee of the contract for deed upon the death of Paul Zech. It further appears that the 1971, 1974, and 1975, yearly payments on each of the contracts were all noted as being forgiven by personal notations of Mary Tesch. Although she testified that the payments were deposited in Paul Zech’s account, the bank statements contained no entries corresponding with the several payments purportedly made on the contracts for deed.

As a part of the probate, both sons of Charles and Mary Tesch petitioned the court to complete the sale on the two contracts for deed. Due to this appeal, these petitions have not been judicially acted upon.

Prior to moving into the home with Charles and Mary Tesch, Paul Zech had expressed his belief that his nieces and nephews should be treated equally in the distribution of his estate which was in apparent keeping with the Zech tradition. Paul Zech had refused to consider an inquiry about the sale of his land and had responded by declaring that the land would be left for his survivors to share. Paul Zech was adamant about not wanting the Zech family farm land sold. Under Charles and Mary Tesch’s domination, however, it was sold to their sons. It was Mary Tesch, not Paul Zech, who personally wrote to a tenant expressing that the land would not be rented any longer because it had been sold. It was she who called another tenant informing him that her sons would have the land next year. During the time that Paul Zech and the Teschs were living together, Paul Zech, in a conversation in a Water-town bar, asked one Casper Henrichs to farm his 240 acres. Charles Tesch broke into the conversation and told Casper Hen-richs to “mind his own damn business.” In another conversation, Charles told Bert Tesch (in referring to decedent) that “I don’t think the s.o.b. will ever die,” and “I’m going to inherit a kingdom.”

Charles Tesch testified that he had told Paul Zech that $100 per acre was a good price for the land considering the shape the land was in. Charles Tesch also admitted that he had talked to decedent about the purchase and sale of his land a few times. Considering the totality of the land sale, i. e., decedent’s expressions that he did not want to sell the land, the meager down payment and very liberal terms on a questionable price, it emerges that as early as the fall of 1968, Paul Zech’s mind was not in an open and free state to act independently and his free agency had been destroyed.

Mary Tesch admitted that she and her husband, Charles, stood in a confidential relationship with Paul Zech and aided and helped him in his business and financial affairs; she also admitted, however, that she kept no financial records of decedent’s business. Called upon to prove payments *244and to account for the money of Paul Zech, Mary Tesch indicated that Paul Zech had a habit of destroying his checks, receipts, grain receipts, and that he kept his business in his head.

Mary Tesch was deeply involved in the preparation and execution of a will by Paul Zech dated November 9, 1968. In fact, Mary Tesch wrote this will for the decedent in longhand and then later typed it on a typewriter at home. The decedent executed this 1968 will in the living room of the home he occupied with Mary Tesch then present. Under this will, Charles and Mary Tesch were the principal benefactors. The will opponents introduced evidence that Paul Zech had previously indicated he was not in favor of having a will and he felt that the property should go equally to his relatives. Paul Zech had, prior to living with Charles and Mary Tesch, expressed his general opposition to wills and had told Mary Tesch that a will was no good anyway. Mary Tesch did not tell anyone about this 1968 will. She later took the position that the will was not valid as it had not been prepared by an attorney.

Mary Tesch testified that “after certain conditions” the decedent changed his mind about wills. The June 16, 1970, will should be considered in the light of this revealing testimony. The decedent had a severe epileptic seizure on June 6, 1970, during the time that he was living with Charles and Mary Tesch. He was unconscious for several hours. He remained hospitalized from June 6 to June 9, 1970. Seven days after being released, decedent executed his second will. During this time, however, it was later discovered that the dosage of medication prescribed for him was too strong. Furthermore, it was Mary Tesch who called a Watertown attorney, supposedly pursuant to decedent’s request, to prepare decedent’s will which again left the bulk of his estate to Charles and Mary Tesch. The discussion and execution of this will all took place in the common home occupied by the Teschs and Paul Zech.

The record reflects that not only was the decedent in a weakened condition because of this severe epileptic seizure but that he still suffered from poor health such as arthritis, arteriosclerosis, poor eyesight, and elimination problems. At the time of the making of the second will, he not only could not live alone but was still unable to fend for himself. In fact, he was totally dependent upon the Teschs to furnish him the very basics of life.

Although Charles and Mary Tesch had access to Paul Zech and participated in discussions with him regarding his will, the record reflects the other nephews and nieces did not. Mary Tesch maintains that she only did Paul Zech’s writing and acted as his chauffeur but the record simply does not bear this out. Mary Tesch also admitted that she and her husband used decedent’s money for their personal expenses during a nine-month period after he had moved to the Aberdeen nursing home. On numerous occasions, she entered Paul Zech’s safety deposit box on her own signature. She had access to all of his cash, checks, checking accounts, savings accounts and bonds without power of attorney.

In the eight years that Charles and Mary Tesch lived in the same household with Paul Zech, acting in a confidential, if not fiduciary capacity, they and their two sons unduly profited from that relationship by acquiring a great amount of Paul Zech’s personal property and land. There is overwhelming evidence that they appropriated for their use and benefit decedent’s property throughout the course of years. As a vivid example, Charles and Mary Tesch both conceded that the decedent had virtually lost his mind subsequent to breaking his hip in October, 1974. Yet, it was after this, that Mary Tesch on her own volition forgave the 1975 payments on the land in question.

This case boils down to only one issue: Did Charles and Mary Tesch exert undue influence on decedent? The standard of review to be applied in this instance is the “clearly erroneous” standard. This court has adopted language used by the United States Supreme Court in construing the “clearly erroneous standard” as follows: “A *245finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” In Re Estate of Shabley, 85 S.D. 692, 695, 189 N.W.2d 460, 461 (1971). I am firmly and definitely convinced that the trial court’s findings are clearly erroneous and that a mistake has been committed.

The four elements that together constitute undue influence are: “(1) a person susceptible to such influence, (2) opportunity to exert such influence and effect the wrongful purpose, (3) a disposition to do so for an improper purpose, and (4) a result clearly showing the effect of such influence.” In Re Estate of Melcher, 89 S.D. 253, 259, 232 N.W.2d 442, 446 (1975).

The majority opinion concedes that the proponents of the will were in a confidential relationship with decedent. Once a confidential relationship is established between the testator and beneficiary, the burden of going forward with the evidence shifts to the beneficiary to show that he took no unfair advantage of his dominate position. In Re Metz’ Estate, 78 S.D. 212, 100 N.W.2d 393 (1960). The proponents did not meet their burden as indicated by the evidence adduced at trial. Indeed, unfair advantage was taken and undue influence was exerted by proponents upon decedent. These conclusions are supported by examining the four elements of undue influence. Since the majority opinion concedes the existence of one element, the opportunity to exert undue influence, it is only necessary to examine the evidence in relation to the other three to show that undue influence was exercised on decedent.

The record reflects that Paul Zech was a person very susceptible to influence. In describing decedent, witnesses spoke of him as being “timid,” “easily influenced,” “never caused any problems,” “wanted to please people,” “would agree with people when they talked to him,” “would agree with them one day and if somebody came the next day and presented a different thought, he would agree with them and would avoid a confrontation if possible,” and “needed assistance, baby of the family, his brothers told him what was what, needed guidance pretty much.”

Several instances were cited by witnesses which reveal decedent’s susceptibility. For example, when his sister Alma used their dining room as a bathroom, decedent offered no resistance. Decedent became a victim of some fly-by-night repairmen who convinced him that the roof of his farmhouse needed treatment. Decedent paid a large sum of money for the unnecessary work, but he was afraid to complain to authorities because he feared that “they will come back and burn down the barn.” In addition, a neighbor of decedent’s had to talk him out of having the same repairmen make questionable repairs on the barn’s lightning rods. Furthermore, decedent was seriously considering giving his barn to the County Historical Society to use as a museum, and was engaged in conversation to that effect when Mary Tesch walked into the room and said, “We ain’t going to do anything with that old barn, are we Paul?” Decedent responded, “Nope.” Mary went on to say “that barn is going to stay right where it is, isn’t it, Paul?” Paul replied, “Yup.”

Susceptibility to influence is also apparent when decedent’s previous statements and declarations are examined. Decedent had made numerous statements to many people regarding his distaste and distrust of wills and his opposition to the sale of his land. Yet, within a relatively short time after living with proponents, he suddenly executed a will, prepared by Mary Tesch, leaving the bulk of his estate to proponents, and had executed contracts for deed to proponents’ two sons. Finally, decedent subscribed to the traditional family practice of treating all relatives alike, both in inter vivos transactions and in testamentary dispositions. Each Christmas, decedent would give the same amount to members of the Tesch family. The terms of the will contradict this avowed practice.

This court has often placed considerable emphasis upon evidence that the intent of *246the decedent was not carried out. In Johnson v. Shaver, 41 S.D. 585, 595, 172 N.W. 676, 678 (1919), this court stated: “Declaration of testator made previous to the execution of the will, and indicating a purpose inconsistent with the provisions thereof, ‘is competent and relevant, in connection with other evidence, as tending to show susceptibility to undue influence.’ ” All of the above examples are weight to that effect.

The importance of physical and mental health in determining susceptibility to undue influence was recognized by this court in the Metz’ case. In Metz’, at 100 N.W.2d 398, it was observed that:

Susceptibility to influence does not mean mental or testamentary incapacity. In fact, the application of undue influence presupposes mental competency. . However, “physical and mental weakness is always material upon the question of undue influence.” . . . Obviously, an aged and infirm person with impaired mental faculties would be more susceptible to influence than a mentally alert younger person in good health.”

Decedent was not in good health. In fact, when decedent supposedly asked Mary Tesch to call an attorney to make a valid will in June of 1970, he had been discharged from the hospital only a day or two before and was taking dilantin to combat the seizure’s effects. In addition, his doctor testified that both grand mal seizures and arteriosclerosis may produce mental changes and deterioration over a period of time. Decedent’s seizures began in 1948.

The only substantial evidence proffered by proponents was to the effect that decedent was competent. Competence, however, does not preclude a finding of undue influence; in fact, without proof of competence, undue influence is not possible. Hence, testimony as a whole painted a picture of a man who was competent, but because of various circumstances outlined above, was malleable and easily led. He was a perfect target for undue influence.

In the Metz’ case, we stated that “disposition to unduly influence . .. for an improper purpose is evident from . . . persistent efforts to gain control and possession of testator’s property.” 100 N.W.2d at 398. The proponents’ successful efforts in obtaining control of and title to decedent’s property during this time he lived with them warrants a finding that the proponents had the disposition to exert undue influence upon decedent for an improper purpose.

It was brought out at trial that proponents had earlier attempted to receive 320 acres of land from the estate of Dorothy Zech on the strength of statements contained in a Christmas card. This court in In Re Zech’s Estate, 70 S.D. 622, 20 N.W.2d 229 (1945), affirmed a judgment against Charles and Mary Tesch in that matter. Additionally, a disinterested witness, a legal secretary present when Alma Zech’s will was admitted to probate, testified that Mary Tesch was disgusted and upset when the will was read. Alma’s will distributed her estate to her survivors in fairly equal amounts. These actions further substantiate proponents’ disposition toward exercising undue influence.

The resultant effect of proponents’ influence is clearly demonstrated by the fact that under the arrangements, which they were instrumental in devising, proponents or members of their immediate family stood to receive the bulk of decedent’s estate. The terms of the will dated June 16, 1970, would give decedent’s other nephews and nieces about $2,000 each, amounting collectively to about $21,000. This contradicts decedent’s belief, both avowed and substantiated in practice, that his relatives should be treated equally.

There was no reason for decedent to change his mind to benefit proponents to the nearly total exclusion of his other relatives. Although proponents attempted to establish that decedent’s other relatives forgot about him when he began living with proponents, there is a good deal of testimony that many of his relatives made reasonable efforts to communicate with him. Furthermore, there is testimony that proponents informed decedent’s relatives, either implicitly or explicitly, that they did not *247appreciate visits or calls regarding the decedent and preferred to have decedent left alone.

I would conclude that upon the basis of all the facts presented the proponents exercised undue influence upon the decedent. When he was most seriously ill in June of 1970, proponents saw the need for a will drawn by an attorney to insure its validity. When decedent lived on, proponents began exercising their influence to effectuate the terms of the will inter vivos.

While the courts have generally been sympathetic to those who provide care for an aged person, the proponents were not the Good Samaritans they portrayed themselves to be. Rather, they were guilty of overreaching in their efforts to gain complete control and ownership of the decedent’s property.

I would reverse.

I am authorized to state that Justice DUNN joins in this dissent.