next case of the after solar company trust and the issue concerns the scope of the presumption of bond to influence rising from a fiduciary relationship specifically does the presumption apply in a situation where the have exercised on to influence drafted the instrument issue but is not the primary beneficiary under the instruments but the same time has a significant relationship with that primary beneficiary and in this case that relationship evolves raising funds and that relationship was concealed from the suit the amended complaint which was dismissed with prejudice under section two six to fifteen of the code of civil with evidence of fraud or coercion or does recognize a presumption of undue influence where there's a certain fiduciary relationship involved under certain circumstances and i will address the circumstances in a minute but first i'd like to planning and related matters missed him a clear head both a personal relationship with the student going back thirty five years and a professional relationship his personal relationship is know him by the would attend social events students were both writers specifically they were members of the amps are trying headquartered here in springfield but mcclure was more than just a member he was the leader of that organization with a specific office and specific in this position he was in charge of raising money for the shriners hospital in st louis he solicited and facilitate the donations he represented to shriners and fundraising activities for the hospital system waiters and others with clients wishing to recently i've been told i do not believe there has been any activity on that filing  apparently just reclear did well enough in the job fundraising and he was to move it in two thousand and eight after the death of seeding to the position of international donor relations chairman where you get your side of the same duties only on a larger geographic scale shriners hospital mr mclaren was governed by and controlled by the regulations that the trainers hospital adopted for that purpose we have specified some of those regulations in the amended complaint but one of the key valid the documents drafted by mr mcwhorter will raise a substantial amount of money for the shriners hospital without anybody able to challenge whether or not they are valid i mean if this case is continued to be dismissed two and he was incontinent nurses refusing therapy being even good from his wife's nursing home for inappropriate and aggressive behavior even mr mcclurg recognized in two thousand and four before these instruments redacted that the scenes condition was deteriorating and that he was in feeble in march of that year two thousand and four less than three months before the execution the instruments in issue mcclurg informed another lawyer that the student was slipping both physically and mentally and all along the clerk thought he was competent he recognized that the state was susceptible to unscrupulous third part march twenty sixth one nine hundred ninety the seton espoused bernice executed reciprocal revocable living trusts generally each provided that upon the death of one spouse the trust the state was to be distributed to the surviving three times twice in two thousand to one thousand two thousand and three and on july thirty first two thousand and three he also executed the will the trust in minutes and the will however did not alter is what brings passed away in march of two thousand and four at some point prior to her death she revised her trust to provide that rather than going to her surviving spouse or his trust the property was to be directed  july twelfth two thousand for less than four months after his wife's death he signed the will that happen probate in this issue today he signed that while sitting in a car parked in a alley behind the  as part of his new estate plan the seaton also executed a fourth amendment to his revocable trust that document was also prepared by mr mccourt rather than signed the trust documents at the same time he required the decision to return to his office four days later where he executed the trust that point these instruments proport he made manifest a major change in deceit and stone and of intent and  change in the disposition of his property rather than leaving the property to his descendants as all prior state plans have done these instruments mean shriners hospital in st louis as the primary beneficia very organization with which mcclure had money raising duties the two documents the trust and the will which leads to a question if you had such feelings for them it was hard to disposition the property why you trust him at that time to keep them as the producers an improper urgency of persuasion whereby the will of the person is for power and he was induced to do or forbear from an act as i noted earlier on doing films can be a direct case influence and the person exerting young to influence had either received a substantial benefit from the documents or he directed gone to influence toward procuring a benefit for a third party number two the instruments were prepared by or executed in circumstances where the person exerting onto influence per participated we respectfully certain that the facts supporting each of these elements are contained within the amended complaint relationship may also arise in circumstances that aren't as a matter of law but that's not necessary the case here under the circumstances alleged in the middle amended complaint mcclure's on to influence however can be imputed to the tryin swenson case which is cited in my brief nine hundred sixty eight case said i quote on doing phones may be the result of activities of third parties as well as a result of the activities of the direct beneficiaries at the same time he had a unique and important role trying your hospital is responsible for raising money feeling that he had towards his children yet he refused if purposely concealed his relationship with the hospital in terms of raising money this is the fanatically on the other hand if he had mentioned his relationship to the can serve to pop different principles but that should be disclosed so that so everybody can make an informed decision in this case mr rohit we don't know whether he had the chance to refuse that service or not but he may have known  a strong personality and was a strong willed individual is anybody really surprised that he changed his distribution plant three found out what his deceased wife and son i mean i can answer you by saying that his children were surprised well i think i said that too lightly i would understand that there would be surprised but it's not in the realm of  children not necessarily because getting new would you agree i would be with that i mean people have the right to not leave things to their children but what we're dealing with here is a unique and suspicious set of circumstances that that may not be now the administrator has suggested that the presumption should be limited to cases favor of third parties where there is a director near direct financial benefit to himself that's why i would say the cases don't say that but i would say this if there is any limit to where the cases should the should be drawn it should be drawn where the circumstances indicate that there is a benefit or a reason for the person exercising onto influenced to do what he has done for who benefited substantially from his there is i believe the presumption that there's undue influence in this particular case and if your honour's we'll hear from they don't contend that there is any direct evidence of on doing so or as you pointed out your honor that should be clear said or did anything to influence where he was going to leave his money all they want to rely on is this presumption well they've got to alternative theories that  pursued at the trial court level neither one of which get them to the elements they need in order to state the cause of action under a rock the first attempt that they made was in the original complaint where they tried the traditional out that it's a produce i don't believe he said he purposely conceal it i believe the testimony of the formal proof of the will your honor in response to his question as you did you specifically discussed your role with the shriners hospitals as he said i stayed away from it or as you're aware that's saying i don't believe it was because they probably sat next to each other at most of these meetings so to suggest that this was something where there was something he would commission were just flies in the face of all logic and inference on the complaint in this case the plaintiffs cannot prove two of the essential elements they need in order to state a claim under the traditional elements sept fourth in the jury instructions in the cases such as take home and deem from the supreme court that is the is kind of change horses and they said ok well you could also have a fiduciary who prepares will who exercises undue influence to benefit a third party well if that's the case we're no longer talking about mcqueary must have been an agent for the trench hospital he was simply benefiting a third party trying to hospitals when we look at the cases in illinois and elsewhere they have addressed that issue that theory also fails and i say that because almost every because the plaintiffs in this case raise issues regarding this and who are professional content well let's look at the only rules were one point eight a lawyer shall not prepare an instrument leaving a substantial gaffed to a parent to a child in this case i believe you asked that same question about six weeks ago when you were here on the other case and it was only after that that the family in this case apparently decided to go file an r t c complaint but i would also refer to and the last point i want to make is the two supreme which it was a gift to grandchildren of the person allegedly procuring well the supreme court said well that doesn't raise a presumption it's not a direct benefit to the person procuring the will and perhaps the closest case that i have seen cited by either from our supreme court in one thousand and twenty where the individual went to a person who was on the board of directors of the blessing hospital in quincy and had that person prepare well that left a substantial benefit to the blessing hospital and the supreme court rejected out of hand the concept that that situation created a presumption of undue influence what the supreme court said separately is and i'm quoting from the last page of the opinion there is no proof that montgomery the individual carrying the will ever buys or suggested the making of a will or any of its provisions and the mere fact that institutions in which he was interested received substantial the number of meetings in the titles that are given in the things that i have read about it it appears as if people enjoy the recognition that they receive from peers who are advancing through the old in acquiring titles is to some people that could be of use more important are just as important as professional titles or or or economic success here is a little bit different being a member of the board of directors of a hospital or a philip interested hospital you're going to rotate off of it in three years because the board has you know that kind of policy or something it's just different well it may be different your honor but i don't believe that it's a matter in which it makes a difference in the results in this case and i say that for a couple of reasons because in the document case i believe that that's even stronger case where the court could have fun a presumption because in our case it would be as if you had two members of the board of directors one of whom asked the other to prepare his wealth leaving it to their joint organization keep in mind this shriner's was an organization that by plaintiffs own admission mr robey was a member of for decades it's not as if it was some charity unknown to him being a member of the local lodge if that's the right term may not be quite the same thing as rising through the order and getting titles being recognized as well that may be however i would also use the analogy of if we're going to get beyond the cases which existed only today as to where is the line drawn and it's clearly drawn right financial benefits or potential financial benefits directly to the individual that is like you have to your spouse or your minor child we can get beyond that where do you want to draw the line if i graft a will that leaves a substantial benefit not to a charity that i am affiliated member of the bar association so at what point are we going to draw the line with the cases the supreme court cases have told us that and they've drawn the line where there is a direct or near direct financial benefit to the drafting attorney and a benefit to your grandchildren doesn't get you their financial benefit certainly to an organization that you served on the records of does not get you there all of the cases both in the way as well as the foreign jurisdiction's have been once where it's been the spouse with minor children so in this case i understand the point of some on hand as you pointed out which really would be if your father disinherited you but he had a reason to do it and he went to i disclaim her revelation regarding not a conflict but just something that i mislead there was some degree of discomfort your may not be the right word but there is some question about are they going to be challenged down the road as to count and seek and we've done it ourselves and michael who videotaped the discussion so when somebody comes out of the woodworks ten years later here's the videotape of me talking to your dad and explaining all this but the organization when i'm acting as a shriner when i'm raising money for the trench hospital just makes sense when i'm out with the local fire department that i'm a member of doing the m d a fill the boot thing while i'm raising money for the m d a but that doesn't but the point is in order to state a claim they have to put facts to name all four elements of the presumption they want cheerfully when they have no evidence that they can leap of any undue influence and before we get past the pleading stage they don't have those facts to it off or elements the case properly dismissed it should be not where we say that it has to be a financial benefit well the cases don't what is on to influence it because you're you're exercising your persuasion to convince somebody to do something or other frames something that they wouldn't do otherwise or they would do something that they wouldn't do clearly the history of on to influence in a presumption situation is that it goes to a family member if it's not a direct benefit meaning the way you're drafted the will for his benefit is what his spouse's benefit or the lawyers child but the cases don't draw the line there if we have a situation where somebody has an interest in benefiting a third party simply because of the respect or give honor that that individual me yet and he exercises on to influence the law has to give a remedy to that and we're talking about a fiduciary relationship it's same time i can serve this other entity that i want to take care of that's what it's about so young to our situation the presumption should arise because mr mccloy are acting as a producer sherry took care of the organization of yes dip spend money it's raised money for that's what this is about the light hasn't been drawn the cases talk about there's a presumption here there's not a presumption here but nor has ever said well has to be a direct financial benefit to distort i don't want to mislead the court historically it clearly was that the on the influencer had to be the primary beneficiary as well but since i believe the mid sixty's at least the courts have been saying influence could be exercised for the benefit of a third party it doesn't say financial benefit says it doesn't say that the the new influencer has to have some direct financial and influence benefit it just says suspicious circumstances were surrounding this entire event not clearly some of the circumstances weren't there there may be a different case or not a case but that's not what we're dealing with we're dealing with very specific facts that we let now i'm not here to advice or discuss what the ethics of mr mclaren were that is what the cause of action were was about but based upon the court's questions if mr mcwhorter thought that he had