(dissenting).
The majority opinion is correct in its finding that a confidential relationship existed between proponent and decedent at the time the will in question was executed. I disagree, however, with the conclusion that the trial court’s error in not finding a confidential relationship was harmless error.
Where a confidential relationship exists between the testator and the beneficiary, a presumption of undue influence arises if it is shown by a preponderance of the evidence that the beneficiary actively participated in the preparation and execution of the will and that the beneficiary unduly profits in the will. Matter of Estate of Nelson, 274 N.W.2d 584 (S.D.1978); In re Estate of Anders, 88 S.D. 631, 226 N.W.2d 170 (1975); In re Metz' Estate, 78 S.D. 212, 100 N.W.2d 393 (1960). The establishment of facts giving rise to the presumption also support a prima facie case which can sustain a finding of undue influence. Matter of Estate of Nelson, supra; In re Rowlands’ Estate, 70 S.D. 419, 18 N.W.2d 290 (1945).
The facts indicate that a confidential relationship existed between proponent and decedent at the time the will was executed. Proponent allegedly lent substantial sums of money to decedent and his brother. The loans were repaid without interest, just one year prior to decedent’s death. Proponent lived with decedent prior to his death and did the cooking, housekeeping and assisted with the farm business. In addition, decedent relied upon proponent for transportation needs. In 1980, proponent also began handling some bookkeeping and banking duties for decedent. During the last half of 1980, decedent paid over $4,000 to proponent, her son and grandchild for labor on the farm.
The facts also indicate that proponent actively participated in the preparation and execution of the will. On October 15, 1980, proponent drove decedent to the attorney’s office. According to proponent and decedent’s attorney, decedent and his attorney met in the Menno bank conference room to discuss changes to decedent’s will. Proponent remained in the bank lobby. The testimony of one of the witnesses to the will, however, indicates that proponent was with decedent in the conference room during the will discussion.
Proponent drove decedent to the attorney’s office on October 20, 1980 to execute the new will. She informed the attorney that decedent was having difficulty walking due to his ill-health and asked the attorney if he could meet with decedent in the automobile for purposes of executing the will and to sign a power of attorney. While the will was being executed, the attorney sat in the front seat of the automobile with decedent, proponent sat in the rear seat, and the two witnesses were standing at the sides of the automobile. The attorney read the will to decedent prior to the execution. Decedent then executed a power of attorney authorizing proponent to act in his behalf in his business and personal affairs.
Added to the fact that proponent was present during the execution of the will and actively participated in bringing decedent to the attorney’s office to prepare the will is the fact that decedent’s wills progressively disinherit his collateral heirs. In February of 1980, decedent executed a will that left twenty-five percent of his estate to his brother Leonard Heer and named Leonard as the executor. The remainder of the estate was left to proponent. The October, *8131980 will totally disinherited Leonard and left everything to proponent. While Leonard is not considered the natural object of this decedent’s bounty, In re Estate of Fleege, 89 S.D. 137, 230 N.W.2d 230 (1975), his gradual disinheritance by decedent in wills drafted while proponent was in a confidential relationship with decedent demands close judicial scrutiny. Matter of Estate of Nelson, supra. Further, the evidence in the record reveals that decedent and his brother Gilbert lived together, farmed together as partners, and had a good relationship prior to the advent of proponent on the scene. Leonard lived ten miles from decedent’s farm and had frequently assisted decedent with the farm work until proponent objected. The change in relationship with his brothers, the pattern of wills, and decedent’s execution of a power of attorney indicates an inability by decedent to resist proponent’s influence.
These facts are sufficient to create a presumption of undue influence. The attorney testified that decedent told him the reason he changed his will was because proponent had been very kind to him and he wanted to show his appreciation. This evidence, alone is insufficient to rebut the presumption. No evidence was presented indicating that proponent took no unfair advantage of her dominant position. In fact, the evidence indicated to the contrary. Subsequent to the onset of decedent’s illness, proponent was paid $10,450 for an undocumented loan that she previously made to decedent; she, her son and granddaughter received $4,000 over a six-month period for labor; and a power of attorney was signed by decedent. A prima facie case of undue influence was established and it required a finding of undue influence. I would reverse the trial court.