dissenting.
The issue raised by this appeal is whether the decedent, John Moser, Jr., made a valid gift in September of 1985, when he transferred his and his wife’s life savings into a joint savings account bearing his name and the name of one of his sisters. Because I believe that the evidence showed that the decedent was subject to undue influence by a person who was in a confidential relationship with him at the time he made the transfer, I find that there was no valid gift, and therefore, I vigorously dissent.
As a general rule in this Commonwealth, the burden of proving that a transfer of property was not a gift rests on the party so asserting. Dzierski Estate, 449 Pa. 285, 296 A.2d 716 (1972). This general principle does not apply, however, “where the relation of the parties to each other, or some vicious element in connection with the transaction, is such that the law compels the recipient of the bequest or gift to show that it was the free, voluntary and intelligent act of the person giving it.” Id., 449 Pa. at 289, 296 A.2d at 718. The existence of a confidential relationship shifts the burden of proof, and can be shown where the “circumstances make it certain the parties do not deal on equal terms, but, on the one side there is an overmastering influence, or, on the other, weakness, dependence or trust, justifiably reposed.” Id.
In this case, the decedent was seen in the emergency room of Brownsville Hospital by his family physician in March of 1985. At that time, the decedent, nearly seventy-eight years old, was found to be confused and disoriented, i.e., he did not know who he was, his age, the time, the date, *169and what he was doing. He was in a weakened physical condition and could not control his bowels. He was diagnosed as suffering from transient ischemic cerebral attack and cerebral arteriosclerosis resulting in chronic brain syndrome (senility), conditions which are not reversible. When he was discharged after five days in the hospital, he was better able to walk, but there was no improvement in his mental abilities.
Approximately five months later, the decedent’s sister, appellee, Helen DeSetta, returned to Pennsylvania, from her home in Florida, and immediately assumed control of the decedent’s life and financial affairs. Appellee took decedent to the office of her attorney to sign a power of attorney that appointed appellee as decedent’s attorney-in-fact. Appellee directed the decedent to purchase treasury bills with the substantial sums of cash that he and his wife, appellant herein, had saved during the years of their marriage. Appellee removed decedent from the home that he had shared with the appellant for thirty-seven years, and moved him into the family home in which appellee was then staying with another sister. Appellee arranged for the treasury bills to be transferred into a joint savings account bearing the names of the decedent and this other sister for whom appellee also served as attorney-in-fact.1 Appellee moved the decedent into a nursing home when he became too sick to be cared for in her home.2 And appellee took control of the decedent’s pension benefits and insurance policies, arranging for decedent to change the named bene*170ficiary on those policies from his wife to appellee. Immediately after the decedent passed away, appellee substituted her name for his on the joint savings account.
In sum, appellee, within a one month period, was able to sunder a thirty-seven year marital relationship and to assume and exercise absolute and total control over an ailing, senile man’s personal and financial interests, which interests included appellant’s share of marital assets. In light of this overwhelming evidence of a confidential relationship, the burden shifted to appellee to prove that the gift was the “free, voluntary and intelligent act” of the decedent, by clear, direct, precise and convincing evidence. Donsavage Estate, 420 Pa. 587, 218 A.2d 112 (1966). The appellee did not present any evidence as to the decedent’s competency to make a gift on the day that the transfer of the decedent’s assets into the joint savings account occurred in September of 1985. Thus, appellee did not prove that the decedent was not subject to undue influence at the time he made the gift and did not sustain her burden of proving that the gift was valid.3 The majority is giving the appellee a second bite of the apple in remanding the case and giving her the opportunity to prove what she failed to prove when she had the burden of doing so.
Accordingly, I dissent and would reverse the order of the Superior Court which affirmed the order of the Court of Common Pleas of Fayette County.
. The fact that appellee was the attorney-in-fact for the sister who became the joint owner of the decedent’s savings account is evidence that appellee did receive a benefit from this transfer. Thus Mr. Justice Flaherty, writing for the majority, is mistaken in stating that "DeSetta did not receive from Mr. Moser an interest in the bank account.” Maj. op. at 163.
. Mr. Justice Flaherty, writing for the majority, states that the move to the nursing home was “necessary, not because of [decedent’s] mental state, but rather to facilitate [appellee’s] return to Florida.” Maj. op. at 681. This is simply not true. According to appellee’s own testimony, she placed him in a personal care home after he became ill, and she knew she would not be able to take him to Florida with her as she had planned. Reproduced Record at 118a.
. Moreover, I find that the facts of this case clearly establish the concealment of material facts from the appellant, amounting to fraud. The testimony set forth in the majority opinion indicates clearly and convincingly that appellant did not know until after she had transferred her interest in the couple's life savings that the decedent’s sister, whose attorney-in-fact was appellee, would be getting a share of those assets. Maj. op. at 164-166 n. 1. Appellee did not contradict this evidence when she testified during the hearing in this matter. In light of appellant’s age, confusion, and lack of financial savvy, it was incumbent upon the appellee to explain the transaction and its consequences in a full and complete manner, ensuring that all of the circumstances were understood by the appellant before the appellant signed her name to the relevant documents. This was not done. Hence, I disagree with the majority’s finding that there was no fraud herein.