concurring in part, and dissenting in part.
"I 1 I concur with this Court's conclusion to reverse the trial court's judgment awarding damages against Defendant Rex Urice for breach of contract. In all other respects, however, I respectfully dissent.
12 Starting in 2001, Plaintiff Edwards sued her mother, her mother's financial ad-visor, her mother's estate planning attorney, and the trustees of the family trust, both individual and corporate. In essence, she alleged that, beginning in 1997, Defendants had unduely influenced her mother to disinherit her by creating a charitable foundation. If not for undue influence, how else could one account for her mother's actions?
13 Twelve years before any of the Defendants (except mother) had ever made an appearance in this not uncommon, but always sad, family tragedy, Plaintiff wrote to her mother:
Since my father's death and probate, I have deliberately left it to you to make whatever decisions you must make in regard to the family trust.... It is obvious that you feel no need to speak with me further about the trust or the future, and it is equally obvious that you have no plans to share your holdings with me in any way. 1 would have joined you had you chosen to break the trust, but your actions make it clear that you plan to leave it as it stands. Since I was totally excluded (actually disinherited 28 years ago for reasons I am sure I will never know), I feel that I have buried a father who felt nothing but anger and hate for me, and that now you obviously share his feelings.
This letter was written in 1985 after the death of Plaintiff's father, and after Plaintiff discovered her father's estate plan, by which, according to her, she had been "disinherited." It was also in 1985 that Plaintiff first attempted to "break" the trust.
114 All of the early estate planning in this unfortunate family saga was performed by different attorneys, different accountants and different corporate trustees from any of the Defendants in this case. Almost a decade after her husband's death, Plaintiff's mother amended one of the existing trusts, created an additional one to provide for Drew, and left the residue to charity. This occurred in 1994, fully three years before any of the Defendants were involved.
T5 In 1997, Plaintiffs mother again amended her estate plan, and refined her charitable giving by creating her own family charitable foundation, the Defendant Robert S. Bowers and Eloise C. Bowers Foundation. This time, she used a different financial ad-visor, different corporate trustee, and different attorney, with whom she met or spoke privately for more than four hours prior to execution of the trust documents. Yet, it is these advisors, trustees and attorneys that Plaintiff sued (along with her mother) four years later, alleging these estate plans could only exist because her mother's will had been overcome, and the Defendants' will substituted for mother's.
T 6 While Plaintiffs lawsuit asserted other claims, the principal allegations centered on *1157Plaintiff's belief that the Defendants had conspired together to unduly influence her mother. Proving the conspiracy was essential to her right to recover. Otherwise, the inescapable fact that her mother had many separate and individual conversations and contacts with all the other Defendants, at different times and different places, would make it impossible to prove that her duly attested and executed legal documents did not actually reflect her true desires.
T 7 It should be noted that, throughout the entire history of the Bowers family estate plans, beginning with Robert Bowers in the early 1980's and continuing until this suit was filed, grandson Drew was always well-provided for, but Plaintiff, not so much. This was true regardless of who were the attorneys, financial advisors or corporate trustees. The only constant in all the Bowers' estate planning was mother, father, daughter and their relationship.
T8 After the hearing on the merits, the trial court correctly found that no conspiracy existed. Equally significant, the trial court also found that, while the presumption of undue influence had arisen on application of the Maheras factors, Defendants had sue-cessfully overcome the presumption.
1 9 Yet, when the trial court issued its final order, it found that mother's testamentary dispositions were, in fact, not the product of her will, but that someone else had substituted their will for hers. Incredibly, however, the trial court completely failed to identify whose will was substituted. This led the majority of this Court to speculate that, by a "fair reading" of the order, it must have been TUrice, the financial advisor, and James Dickson, president of the Bank's trust department.
[ 10 The failure of the trial court to identify the culprit is alone sufficient, in my mind, to warrant reversal. However, I believe the trial court also committed several other errors which this Court nevertheless affirms. Rather than addressing the substantive appellate claims of issue preclusion, statute of limitations, and the effect of one or more releases of claim by Plaintiff, a discussion of the most obvious errors will suffice to make the point.
{11 Because Rex Urice, a related family member, attorney and former trust officer at a local bank, had a confidential relationship with mother and introduced her to the BaneFirst officers and a probate attorney, a presumption of undue influence arose, and the burden of proof shifted. At the conclusion of trial, however, the court ruled the presumption had been overcome.
T12 How does a party overcome such a presumption? "The person who desires to overcome this presumption must then go forward to produce evidence showing either that (a) the confidential relationship had been severed before the critical events in controversy or (b) the will's maker actually received independent and competent advice about the disposition of his/her estate." In the Matter of the Estate of Maheras, 1995 OK 40, ¶ 9, 897 P.2d 268, 273. (Emphasis original.) (Footnotes omitted.)
T 13 Because the first never occurred, one need only be reminded that the evidence unequivocally showed mother met or spoke with her attorney privately for more than four hours before executing the Second Amended Trust documents. The attorney documented ninety-six (96) contacts with mother regarding her estate plans during the period he advised her.
T 14 That said, there are only two conclusions to be drawn: mother either received independent and competent legal advice, or she didn't. Because the court found that she had, it was error for the trial court to return to the original Mahkeras factors to conclude that undue influence existed.
{15 With the presumption overcome, Plaintiff was required to prove her case of undue influence by a preponderance of the evidence. In the Matter of the Estate of Holcomb, 2002 OK 90, ¶ 42, 63 P.3d 9, 22.1 Once the trial court sustained Defendants' demurrer to Plaintiff's claim of conspiracy, this burden was impossible to meet.
*11581 16 None of the acts of any single Defendant were sufficient to prove undue influence, in my mind, explaining the trial court's failure to identify the someone whose will was substituted for mother's. More importantly, absent a conspiracy, none of the acts of any of the Defendants could be attributed to any other Defendant. Thus, the trial court's order was against the clear weight of evidence and should be reversed.
£17 Furthermore, in weighing the evidence, the trial court repeatedly and erroneously focused on possible inferences and ignored the obvious. For instance, the trial court found that mother did not have the donative intent required to establish a valid inter vivos gift to her recently created charitable foundation. The evidence cited by the trial court in support of that conelusion-and cited by the majority of this Court in support of affirmance-consisted primarily of a conversation overheard by a private duty nurse, who said she heard mother say to Urice, "I'm not giving my money to any damn poor people."
118 The most sinister inference to be drawn from this evidence is that mother either did not know she had created a charitable foundation, or did not want one. On the other hand, most of the evidence presented on this point showed that the foundation was created and funded only after numerous meetings between mother, her attorney, her financial advisor and the corporate trustee. After the Foundation was created, mother attended many meetings of the Foundation's Board of Directors; indeed, one defense exhibit (DXA41) is a picture of a smiling Eloise Bowers present at a Board meeting with nine other people.
119 Yet, in weighing this evidence of mother's knowledge of and participation in the family charitable foundation, the trial court found it significant (and on which finding the majority of this Court relies in affirming) that "Bowers attended and participated in the Foundation meetings only when they were held in her home." Only? It's hard to imagine better or more conclusive evidence of her donative intent to create a charitable foundation than her willingness to participate in Board of Directors' meetings, even if she attended only the meetings at her home.
20 One other example of the trial court's focus and over-emphasis on possible inferences, while ignoring the obvious reality, involves part of what the majority of this Court calls "overwhelming" evidence. The trial court found it significant that mother signed every document presented to her by her attorney with no changes whatsoever. The inference, I suppose, is that the documents represented someone else's will. This ignores that fact that the documents presented to her for her signature were properly prepared, attested to and duly executed.
121 One final point: By holding that a trustee, authorized by trust instruments to hire attorneys "as the trustee may deem advisable" has been unjustly enriched by being reimbursed from the trust for attorneys fees expended, turns, let me suggest, trust law on its head.
11 22 Suffice it to say, I would reverse the trial court's order in its entirety.
. ''The will proponent's successful rebuttal of the presumption restores the case to the procedural posture it would have had if the presumption had never been operative. This means that contestants must prove the existence of undue influence by a preponderance of the evidence without the aide of the presumption."