NO. 93-151

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

Honorable Maurice R. Colherg, Jr., Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Eula Compton, Missoula, Montana

For Respondent:

Jock B. West and Bruce 0. Bekkedahl, Billings,

Montana

Cynthia R. Woods, Billings, Montana

Earl J. Hanson, Billings, Montana

Filed:

Submitted on Briefs: November 5, 1993

Decided: December 14, 1993
Chief Justice J. A. Turnage delivered the Opinion of the Court.

This is an appeal from the District Court for the Thirteenth

Judicial District, Yellowstone County. Trustee Leon McKittrick and

intervenors Leo, Larry, Lew and Lynn McKittrick appeal a judgment

upholding the validity of the revocable trust created by their

father, Seward Clark McKittrick, before his death. We affirm.

We restate the issues as:

1 . Are certain of the District Court's findings clearly

erroneous?

2 . Did the court err in rejecting the claim of undue

influence?

3 . Did the court err in excluding evidence of possible

attorney/cult member involvement in the creation of the trust?

4. Did the court err in refusing to permit expert examination

of a trust draft offered by Barbara McKittrick?

Seward Clark McKittrick (Clark) died in May 1990 at age sixtysix, of cancer. He and his wife, Barbara, had been married for

over forty years and had seven sons, all of whom were adults at the

time of Clark's death. Five of those sons, Leo, Larry, Lew, Lynn,

and Lundell, are intervenors in this action. Another son, Leon, is

the trustee of the Seward Clark McKittrick Revocable Trust. Lonny,

the seventh son, is not a party to these proceedings. The position

of Leon is adverse to Barbara's position in this action. The

position of Leo, Larry, Law, and Lynn (the adverse intervenors) is

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also adverse to Barbara's position. Lundell's position is aligned

with that of Barbara.

Clark and Barbara lived modestly during Clark's lifetime.

Barbara devoted most of her time to running their household and

raising their sons. Clark worked in a corporate warehouse business

in Billings, Montana, in which he and Barbara owned half the stock.

In late 1989, the McKittrick family was aware that Clark was

suffering from terminal cancer. Clark discussed the idea of

setting up a revocable living trust with Leon, a licensed attorney

in California, and Leo, an accountant. On March 12, 1990, Clark,

Barbara, and Lundell met with a representative of Legal Tech, a

Billings, Montana, firm specializing in the estate and tax

business. An acquaintance of Leo's worked at the firm, and Leo had

recommended it to Clark. As a result of the meeting, Legal Tech

prepared drafts of a trust, a will, a living will, and a durable

power of attorney for Clark.

On April 11, 1990, Clark's physical condition deteriorated and

he was admitted to a Billings hospital. Attorney Gil Kelling, who

often worked with Legal Tech, met with Clark and Barbara in the

hospital to complete Clark's estate planning documents. Barbara is

the initial beneficiary of the trust. Clark wanted Leon to act as

trustee. Barbara, who was worried that Leon would not adequately

provide for her perceived needs, preferred Lundell. After the

discussions, Kelling inserted in the trust a power of withdrawal on

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the part of Barbara, Leon was named as trustee, and Barbara was

given a limited power of appointment. Kelling testified at trial

that he did not completely read the revised trust instrument to

Clark but that he discussed with Clark the various provisions,

including Barbara's power of withdrawal. Clark signed the final

form of the trust and other documents on April 12, 1990,

Clark and Barbara executed a stock power to transfer the stock

in the warehouse business to Leon, as trustee. After Clark's

death, a buyout of Clark and Barbara's stock in the warehouse was

arranged from the proceeds of life insurance, for a total price of

$1,090,000. Clark and Barbara also transferred to the trust their

home, which they owned jointly, and another piece of undeveloped

real property.

The trust provisions at issue in this litigation read:

THIRD: Upon my death, if my wife, Barbara E. McKittrick,

survives me . . . the assets of the trust (including

assets received by the Trustee under my Last Will) shall

be held, managed and distributed in accordance with the

following provisions:

A. The Trustee shall pay to my wife the net income

of the trust not less often than quarter-annually

so long as my wife lives. Also, during the life of

my wife,. the Trustee shall distribute to her from

the principal of the trust such further amounts as

the Trustee may deem necessary or proper to provide

for her support, maintenance and health; and, in

exercising such discretionary power, the Trustee

may, but need not, consider any other resources

available to my wife and shall give primary consideration to her needs and desires. In addition. my

wife shall have the risht at anv time to withdraw

such amounts from the nrincival of the trust (even

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to the woint of comwletelv exhaustina the same) as

my wife shall determine. [Emphasis supplied.]

. . .

B. Upon the death of my wife, the accrued, but

unpaid, income shall be paid to the estate of my

wife and the then remaining assets shall be distributed among my then living descendants in such

amounts and upon such terms as my wife shall appoint by specific reference to this limited power

in her Last Will. To the extent that my wife does

not exercise such limited power of appointment,

such assets shall be added to the principal of the

trusts created under the provisions of paragraph

FOURTH hereof.

The adverse intervenors point out that the underlined portion of

paragraph THIRD(A), the power of withdrawal in favor of Barbara,

was not present in earlier drafts of the trust, nor was the limited

power of appointment in paragraph THIRD(B). They further point out

that, if Barbara exercises the power of withdrawal, tax advantages

of the trust are destroyed.

A substantial amount of evidence at trial related to alleged

cult membership and activities carried on by Clark, Barbara, and

their son Lundell. Beginning in the early 1980's, Clark, Barbara,

and Lundell attended meetings with a group described by Barbara and

Lundell as a Bible study group and described by Leon and the

adverse intervenors as a cult. Leon and the adverse intervenors

claimed that David H. Colville was the cult leader. They introduced into evidence a text co-authored by Colville, Life Force in

the Great Pyramids. Matters discussed in the book and studied by

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the group involved biorhythms, pyramids, and issues relating to

inanimate objects possessing energy and l'blowing'l people.

("Blowingl* is 'Ia person's natural harmonic balance with nature

being altered in a negative fashion.")

Over the years, Clark and Barbara displayed behavior described

by the District Court as "bizarre*N and "consistent with cult

membership." For example, they had the insulation removed from

their home because it was "blowing" them. In the months prior to

Clark's hospitalization, Clark and Barbara were not living in their

home and were secretive with the members of their family other than

Lundell concerning their whereabouts.

In September of 1990, after Leon, as trustee, refused certain

requests by Barbara for funds, Barbara demanded all of the assets

in the trust, relying upon her power of withdrawal. Leon's

resistance to her demand led to this litigation. Leon and the

adverse intervenors claim the language in the trust document

granting Barbara a power of withdrawal is inconsistent with other

portions of the document, for tax planning reasons. They further

claim Clark was subjected to undue influence by Barbara and other

cult members and that there was actual or constructive fraud in the

creation of the final trust document.

Following a nonjury trial, the District Court found in favor

of Barbara. As to the alleged cult activity, the court stated,

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[allthough this activity seems abnormal and although the

study group's methodology appears consistent with cult

activity, the Court cannot on this basis make any adverse

findings related to the validity, construction or

interpretation of the trust.

The court noted that even Leon's testimony concerning his conversations with his father after the trust document was signed supports

the position that Clark was aware of and understood Barbara's power

of withdrawal under the trust document.

The evidence also included the testimony of Clark's treating

physician that he was competent and "his thinking was intact" on

the day he signed the trust and other documents, and the testimony

of a witness to the signing of the trust that Clark was of sound

mind and that she observed no undue influence. The District Court

upheld the validity of the Seward Clark McKittrick Revocable Trust.

Leon and the adverse intervenors appeal.

Are the District Court's findings clearly erroneous?

In Interstate Production Credit v. DeSaye (1991), 250 Mont.

320, 820 P.2d 1285, this Court adopted a three-part test for

determining whether findings of fact are clearly erroneous.

First, the Court will review the record to see if the

findings are supported by substantial evidence. Second,

if the findings are supported by substantial evidence we

will determine if the trial court has misapprehended the

effect of evidence. . . . Third, if substantial evidence

exists and the effect of the evidence has not been

misapprehended the Court may still find that "[A] finding

is 'clearly erroneous' when, although there is evidence

to support it, a review of the record leaves the court
with the definite and firm conviction that a mistake has

been committed.tq

Interstate Production, 820 P.2d at 1287.

Leon and the adverse intervenors challenge the following

specific findings of the District Court: (1) that Clark and

Barbara owned sixty-five shares of stock in the warehouse business;

(2) that "several drafts" of the McKittrick trust were prepared;

(3) that attorney Kelling met with Clark more than once; (4) that

attorney Kelling discussed the various trust provisions with Clark;

(5) that Exhibit 9 was the trust agreement signed by Clark: (6)

that the McKittrick Trust creates a "coherent plan;" and, (7) that

the trust represents a natural disposition for Clark.

We have reviewed the record. The arguments of Leon and the

adverse intervenors concerning the above findings depend on their

inferences from and interpretations of those findings. In some

instances, even if their arguments were correct, the points they

make are ultimately irrelevant. Our review reveals that the

findings themselves are supported in the record. We do not believe

the District Court has misapprehended the effect of the evidence or

that a mistake has been made. We therefore hold that the challenged findings are not clearly erroneous.

II

Did the court err in rejecting the claim of undue influence?

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Elements to be considered in a claim of undue influence are:

(1) a confidential relationship between the person attempting to

exert influence and the trustor; (2) the physical condition of the

trustor as it affects his ability to withstand the influence: (3)

the mental condition of the trustor as it affects his ability to

withstand the influence: (4) the unnaturalness of the disposition

as it relates to showing an unbalanced mind or a mind easily

susceptible to undue influence; and, (5) the demands and importunities as they may affect that particular trustor, taking into

consideration the surrounding circumstances. Cameron v. Cameron

(1978) I 179 Mont. 219, 229, 587 P.2d 939, 945.

In this case, the District Court found:

Concerning the issue of undue influence, the Court finds

that there is a failure by trustee and the adverse

intervenors to prove its existence. The discussions

between Barbara and [Clark] leading to execution of the

trust document were appropriate discussions made under

the circumstances between the two parties who had an

ownership interest in the assets intended to be placed in

the trust. There was no confidential relationship

existing between Barbara and [Clark] in this context.

The physical and mental condition of [Clark] was appropriate to withstand any claimed undue influence. The

disposition was natural in allowing his surviving spouse

control over the trust estate.

As to the first element, Leon and the adverse intervenors claim a

confidential relationship does not require that the parties'

relationship be confidential as to the specific property at issue.

They state, without citation to authority, that the husband and

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wife relationship is traditionally a confidential relationship in

all aspects.

Any presumption of a confidential relationship between Clark

and Barbara was diminished by evidence that Clark generally did not

discuss business or family financial matters with Barbara, but

instead reserved those responsibilities solely for himself or

discussed them with his sons. Moreover, all of the elements listed

above, not just the presence of a confidential relationship, are

considered in a claim of undue influence. The record supports the

court's findings regarding Clark's physical and mental condition

and the naturalness of the disposition in allowing the surviving

spouse the option of control over the trust estate. We hold that

the court did not err in rejecting the claim of undue influence.

III

Did the court err in excluding evidence of possible attorney/cult member involvement in the creation of the trust?

According to an offer of proof by Leon and the adverse

intervenors, an unnamed witness was prepared to testify that the

witness visited C!lark in the hospital: that, during the visit,

three other people stopped in to see Clark: and, that Clark

introduced one of the three visitors, a woman, as a member of his

church and an attorney. The District Court disallowed the

testimony.

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Decisions regarding the admission of evidence are subject to

a standard of review of abuse of discretion. State v. Hall (1990),

244 Mont. 161, 169, 797 P.2d 183, 188. In this case, the offer of

proof was that the woman introduced in the hospital room was an

attorney, not that she in any way influenced or advised Clark or

Barbara in regard to the terms of the trust. The court disallowed

the testimony on grounds that the witness had not been disclosed

and that the proposed testimony was cumulative and of questionable

relevance. We hold that the District Court did not abuse its

discretion in refusing to allow this unnamed witness to testify.

I V

Did the court err in refusing to permit expert examination of

a trust draft offered by Barbara McKittrick?

The adverse intervenors proposed to have a document expert

examine a document purported by Barbara to be a draft of the

McKittrick trust. The draft contained the right of withdrawal, but

did not name a trustee. Leon and the adverse intervenors claim

this proves the draft is a forgery, because of other testimony that

Leon was named as trustee before the right of withdrawal was added

to the trust. In an offer of proof, the intervenors stated that

their document expert would testify that it did not appear that the

draft document was prepared on the same laser printer as was the

final trust.

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In an order entered with its findings, conclusions, order, and

judgment, the District Court stated

Any deizermination would at best be inconclusive.

The matter had been scheduled for trial for some period

of time and this exhibit is not determinative in the

findings of fact and conclusions of law filed concurrently by the Court. An examination of this document would

create additional expense and delay in reaching a

determination of the issues. No one has suggested an

arrangement that the Court would deem appropriate for

transmittal of the document to an expert.

For allt of these reasons the motion should be

denied.

As stated in Issue III, our standard of review on evidentiary

questions is whether the District Court abused its discretion. We

hold that no abuse of discretion has been shown in the denial of

the request for examination of the document.

Barbara asks that this Court assess sanctions against Leon and

the adverse intervenors pursuant to Rule 32, M.R.App.P., for the

costs of this appeal, on grounds that the appeal was taken without

substantial or reasonable grounds. Under the circumstances of this

case, we decline to so order.

Affirmed.
We concur:

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