No. 85-69 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

IN THE MATTER OF THE ESTATE OF 

ASMUND AAGESON, Deceased. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Hill, 

The Honorable M. James Sorte, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Moses Law Firm, Billings, Montana 

For Respondent : 

Aronow, Anderson, Beatty & Lee, Shelby, Montana 

Waldo Spangelo, Havre, Montana 

Filed: 

Submitted on Briefs: April 25, 1985 

Decided: July 

Clerk 
Mr. Justice Frank £3. Morrison, Jr. delivered the Opinion of 

the Court. 

Three children of the deceased, Asmund Aageson, appeal 

the December 7, 1984, order of the Twelfth Judicial District 

Court dismissing th.eir petitions for probate of wil.1.s dated 

September 5, 1980, and July 15, 1980. By that same order, 

the District Court admitted into probate a will dated December 30, 1964, together with its two codicils, dated December 

17, 1974, and November 10, 1-975. We affirm the order of the 

District Court. 

Asmund and Ella Aageson, husband and wife, operated a 

farm north of Gildford, Montana, consisting of approximately 

1,980 acres. They had five children, one of whom predeceased 

his parents. The remaining four are Arvin, Eugene, Delia 

(Lorraine) and Nan. Lorraine and Nan moved from Montana in 

the 1940's and now live in California and Washington, respectively. Eugene acquired his own farm in the same general 

area. Arvin served in the military during World War I1 

before returning to the family farm. He then acquired 

adjacent farm land and entered into a farming partnership 

with his father in either 1948 or 1949. 

Asmund and Ella retired from active farming in 1951 and 

moved to Seattle, Washington. To facilitate his continued 

operation of the farm, Arvin was granted a power of attorney 

permitting him to sell grain, sign checks and enter into farm 

programs. However, he was not allowed to sell or encumber 

his parents' land. 

Pursuant to an estate plan recommended by Asmund's 

attorney, Mr. Kilbourne, Asmund and Arvin terminated their 

partnership in December 1964 and entered into a lease agreement. Asmund and Ella also executed wills dated December 30, 

1964, whereby Arvin was to receive 1,020 acres while the 
remaining 960 acres were to pass one-third each to Eugene, 

Lorraine and Nan. 

Four hundred eighty acres of the farm land were in 

Ella's name. Under Ella's will, those acres were to be 

inherited by Arvin, subject to Asmund's life interest in the 

income from the land. Further, the oil and gas royalties on 

those lands were to go to Arvin, Eugene, Lorraine and Nan, 

equally. The remaining 1,500 acres were in Asmund's name. 

By Asmund's will, Arvin was to receive 540 acres while Eugene, Lorraine and Nan were each to have 320 acres. These 

lands were subject to the same royalty reservations set forth 

in Ella's will. 

Thereafter, in the early 1970s, Mr. Kilbourne advised 

Arvin regarding his own estate and recommended that "a generation skipping device" be employed to prevent Arvin's estate 

from being taxed for the farm lands. Accordingly, Asmund and 

Ella executed codicils to their wills on December 17, 1974, 

vesting the lands Arvin was to receive upon their deaths in 

Arvin's sons, David and Verges. David and Verges had remained at home, assisting their father with the family farm. 

Arvin and his sons subsequently formed a partnership, 

Aageson Grain and Cattle. On November 10, 1975, Asmund and 

Ella replaced the original 1964 farm lease to Arvin with a 

new lease to the partnership. The two leases are virtually 

identical except the lease to the partnership: (1) covered 

all properties mentioned in the 1964 wills; and (2) granted 

to the lessee, upon Asmund's death, the option to purchase 

for $118,680, the 960 acres devised to Eugene, Lorraine and 

Nan in Asmund' s 1964 will, excepting the royalty interests. 

The $118,680 represented the fair market value of the land at 

that time. (The fair market value of the land was $356,410 

at the time of Asmund's death.) 
The second codicil, also dated November 10, 1975, referenced the new lease and provided that should the option to 

purchase be exercised, Eugene, Lorraine and Nan would receive 

the proceeds in equal shares. 

In the spring of 1978, David and Verges purchased the 

family farm from Arvin. In connection with the financing of 

the purchase, Asmund and Ella executed a mortqage on the 

lands they had devised to Arvin. The 960 acres devised to 

Eugene, Lorraine and Nan were not mortgaged so that if the 

option to purchase was not exercised, the lands would pass 

unencumbered. With Asmund's and Ella's consent, the existing 

farm lease was assigned to David and Verges. 

Asmund and Ella had sold their home in Seattle in the 

spring of 1974 and moved into the Tacoma Lutheran Home and 

Retirement Community in Tacoma, Washington, approximately 12 

miles from Nan's home. Nan visited her parents every weekend, taking them shopping and to her home for Sunday dinner. 

Arvin phoned at least weekly to update his father on the 

progress of the farm. He also visited his parents several 

times a year. Eugene's and Lorraine's contact with their 

parents was more limited. 

Ella Aageson died on February 28, 1979. Probate of her 

1964 will and its 1974 and 1975 codicils was commenced in the 

spring of 1980 in Hill County, Montana, with Arvin and Eugene 

appointed as co-executors of the estate. However, despite 

three inquiries from this Court, as of the date of the trial 

of this cause Eugene had failed to execute the final papers. 

There was little discord within the Aageson family until 

Ella's death, when Eugene, Lorraine and Nan learned of the 

option to purchase their interest in the farm. At Asmund's 

91st birthday party on February 25, 1980, the family members 

and a moderator held a meeting at which Arvin was told of his 
siblings' dissatisfaction. Arvin was advised not to exercise 

the option to purchase. An accounting of the farm's proceeds 

was requested. Nan demanded that Eugene be given his devised 

land immediately. Arvin refused to acquiesce to the demands 

of his siblings. 

Asmund was present, but did not participate at the 

meeting. He apparently was unable to either hear or understand what was occurring. 

In May 1980, Nan determined that her father needed an 

attorney to represent his interests. She contacted Warren 

Peterson, the attorney for the University for which she 

worked, and requested that he visit with Asmund regarding 

some estate matters. Though at trial she denied having done 

so, Nan apparently furnished Peterson with copies of at least 

her father's will and codicils, and possibly the farm lease. 

At a meeting on May 27, 1980, Asmund and Peterson discussed 

the facts that Arvin's fixed price on the option to purchase 

was too low and would be unfair to Asmund's other children, 

and that Arvin needed to provide his father with an accounting of the farm's business. Further, Peterson suggested to 

Asmund, per his deposition, that Peterson write Arvin to 

inquire as to his willingness to renegotiate the purchase 

price to reflect the faFr market value of the farm upon 

Asmund's death and to demand an accounting. The letter was 

written. Upon Asmund's approval, the letter was sent to 

Arvin . Arvin's reply was an unresponsive, angry letter, 

which was shown to Asmund by Peterson. Peterson then wrote 

another letter to Arvin, which apparently went unanswered. 

Subsequently, at a July 1, 1980, meeting at the nursing 

home, Peterson presented Asmund with documents revoking 

Arvin's power of attorney and granting a new, general power 

of attorney to Nan, including the right to sell Asmund's 
land. Those documents were signed and a decision was made to 

draft a new will, eliminating Arvin and his children. While 

admitting that the npw will was not entirely equitable, 

Peterson testified at his deposition that he and Asmund 

thought such a will would be more equitable than the 1964 

will, especially since Arvin and his sons would be retaining 

the option to purchase at a price substantially below fair 

market value. 

Because he was concerned about Asmund's competency to 

execute a will, Peterson contacted Asmund's doctor, Ernest 

Randolph. Dr. Randolph responded that on the basis of his 

monthly visits with Asmund, he was uncertain whether on any 

given day Asmund would be competent to execu,te v. a .b,will. 

Peterson therefore requested Dr. Randolph' s presence at the 

time of the actual execution, July 15, 1980. 

On that date, Dr. Randolph questioned Asmund concerning 

personal data, his children, his property and the nature of 

his actions under the new will. Both Dr. Randolph and Peterson were then satisfied that Asmund was competent to execute 

a will and the will was signed. There were no other 

witnesses. 

Arvin was informed of the revocation of his power of 

attorney and Nan's general power of attorney on August 11, 

1980. He was not told of the new will. Upon legal advice, 

Arvin presented his father with a new power of attorney for 

himself, as well as an extension of the existing 1975 farm 

lease providing that if any farm lands were sold, Arvin would 

have the right of first refusal to meet the price. These 

documents were signed in Asmund's room on August 29, 1980. 

At least four nursing home staff members and a legal secretary witnessed the execution of the documents. Most of those 

witnesses testified that though they had been skeptical at 
first, they thought upon seeing and talking with Asmund that 

he was competent to execute the documents. 

Asmund apparently told Nan that Arvin had had him sign 

some new documents. Nan then contacted Peterson, who recommended that Asmund be brought to see him. Eugene took Asmund 

to Peterson's office on September 5, 1980. Asmund was unable 

to remember what documents he had signed for Arvin. Therefore, after satisfying himself that Asmund was again competent to execute a will, Peterson had Asmund re-execute the 

July 15, 1980, will and sign documents revoking any power of 

attorney given to Arvin and reestablishing a general power of 

attorney in Nan. 

Arvin took no responsive action. However Nan, on October 24, 1980, through lawyer Peterson, petitioned the court 

in Tacoma, Washington, to have Asmund declared incompetent 

and to have herself appointed guardian of his person and 

estate. A guardian ad litem was appointed to represent 

Asmund in those proceedings. The court subsequently appointed Nan guardian of Asmund's person. However, on the recommendation of Asmund's guardian ad litem, a bank in Tacoma, 

Washington, was appointed guardian of Asmund's estate. 

Little else relevant to this case occurred until 

Asmund's death on July 18, 1983. At that time, Nan acquired 

the 1980 wills from Peterson and gave them to Eugene. On 

August 3, 1983, Arvin and Eugene, as co-executors of the 1964 

will, met with their respective attorneys to obtain Asmund's 

1964 will and the 1974 and 1975 codicils from Asmund's safety 

deposit box. They both signed a petition for probate of that 

will that same day. However, the next morning, still without 

disclosing the existence of the 1980 wills, Eugene called 

Arvin's attorney and advised him not to file the petition. 
Nothing happened until October 12, 1983, when Arvin, as 

one of the co-executors of the 1964 will, filed a petition 

for probate of that will and accompanying codici.1~. Negotiations between Arvin's and Eugene's attorneys postponed the 

hearing on that petition until November 29, 1983. Finally, 

on the evening of November 28, 1983, Eugene's attorney informed Arvin's attorney of the September 5, 1980, will.. 

Eugene filed that will for probate on the morning of 

November 29, 1983. During the hearing on the petitions to 

probate the two wills, held that same day, no mention was 

made of the July 3.5, 1980, will. Further, Eugene told the 

judge that he had not produced the September 1980 will earlier because he "didn't think we would have to produce 

it . . . [blecause we could settle out of court.'' (Tr. of 

November 29, 1983, at p. 25.) No determination regarding 

which will to probate was reached that day and the matter was 

continued. 

The next hearing on the matter was held October 22 and 

23, 1984, following which the trial judge admitted the 1964 

will and accompanying codicils into probate. In his order, 

the trial judge held both that Asmund was not competent to 

execute the 1980 wills and that Asmund had been unduly influenced in executing those wills. 

In their appeal of that order, Eugene, Nan and Lorraine 

raise the following issues: 

1. Was there sufficient substantial, credible evidence 

to support the District Court's conclusion that Asmund 

Aageson was incompetent on July 15, 1980, at the time he 

executed his last will and testament of July 15, 1.980? 

2. Was there sufficient substantial, credible evidence 

to support the District Court's conclusion that Asmund 
Aageson was incompetent on September 5, 1980, when he 

executed his Last Will and Testament dated September 5, 1980? 

3. Was there sufficient substantia 1, credible evidence 

to support the District Court's conclusion that Asmund 

Aageson was under the undue influence of Nan Nolkleberg, 

Eugene Aageson and/or their agents on July 15, 1980, when he 

executed his last will and testament? 

4. Was there sufficient substantial, credible evidence 

to support the District Court's conclusion that Asmund 

Aageson was under the undue influence of Nan Nolkleberg, 

Eugene Aageson or their agents on September 5, 1980, when he 

executed his last will and testament? 

There is some question about whether a testator can be 

both incompetent and unduly influenced at the same time. 

Here the trial judge found this testator to be both 

incompetent and the subject of undue influence. Several 

cases have held that if you are incompetent then you cannot 

be the subject of undue influence as the latter presupposes 

testamentary capacity. For example see Johnson v. Shaver 

(S.D. 1919), 172 N.W. 676; Moore v. Horne (Tex.Civ.App. 

1940), 136 S.W.2d 638. This view has been criticized by text 

writers. In T. Atkinson, Law -- of Wills (2d ed. 1953) at page 

253, the author states: 

"At the outset it is important to notice language 

which is sometimes found to the effect that undue 

influence, fraud and mistake presume a mentally 

competent testator. It is true that if the 

testator is incompetent, the other elements may be 

considered immaterial, for his will is invalid for 

lack of testamentary capacity alone. However, many 

wills are contested both on the ground of 

incapacity and also because of undue influence, 

fraud, or mistake. It has been held that a will 

may be invalid for both mental incapacity and undue 

influence, and that the matters are so closely 

related that the courts will consider them 

together. These grounds are not mutually 

inconsistent in the sense that proof of one 

disproves the others." (Footnotes omitted) 
It is true that if a testator is incompetent that should 

end the inquiry. However, testamentary capacity and undue 

influence may be considered together in the sense that one 

who has a weak will is more subject to influence. In this 

case the evidence of incompetency, standing alone, is not 

sufficient to support the trial court's finding of mental. 

incapacity. However, the evidence is sufficient to show that 

the testator was mentally weak and highly suggestible. This, 

taken together with the evidence of undue influence, supports 

the trial court's finding that there was in fact undue 

influence exercised. 

Undue influence is defined in 5 28-2-407, MCA. 

"Undue influence consists in: 

" (1) the use by one in whom a confidence 

is reposed by another or who holds a real 

or apparent authority over him of such 

confidence or authority for the purpose 

of obtaining an unfair advantage over 

him; 

" (2) taking an unfair advantage of 

another's weakness of mind; or 

" (3) taking a grossly oppressive and 

unfair advantage of another' s necessities 

or distress." 

In determining whether or not undue influence has been 

exercised on a testator making a will, a court must consider: 

(1) . Confidentia 1 relationship of the 

person attempting to influence the 

testator; 

"(2). The physical condition of the 

testator as it affects his ability to 

withstand the influence; 

" (3) . The mental condition of the testator 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 particular testator 
taking into consideration the time, the 

place, and all the surrounding circumstances. " Blackmer v. Blackmer (1974) , 165 Mont. 69, 75, 525 P.2d 559, 562. 

Confidential Relationship 

Eugene and Nan en joyed a confidentia 1 relationship with 

their father. They were Asmund's children and he obviously 

cared deeply for them. His physical proximity to Nan encouraged a close, confidential relationship. He spent every 

weekend with Nan and her family. He relied on Nan for companionship as well as for the provision of some of his needs. 

(2) 

Physical Condition 

Asmund's physical condition was such that he could not 

easily withstand any influence placed upon him. He was very 

hard of hearing, and therefore unable to comprehend the 

activities and meetings occurring around him. This was 

evidenced by the fact that he was unaware of the animosity 

between his children at the "meeting" on his 91st birthday. 

He was essentially confined to a nursing home, so unable 

to see for himself how the farm in Montana was progressing. 

Even when he allegedly told Arvin he wished to visit Montana 

in the fall of 1980, Nan prohibited him from doing so. His 

confinement also limited his ability to interact with his 

children concerning his financial matters or to view for 

himself how his children were reacting toward those matters. 

When he was approached by one of his children in the nursing 

home, he was forced to rely on whatever they said as he had 

no independent means of verifying the information. 

(3 

Mental Condition 
Asmund's mental condition made him very susceptible to 

the influence of those close to him. He suffered from a 

brain disorder. Several nursing home staff members testified 

that Asmund's memory was not good, that be suffered day-today disorientation with respect to time, place and regular 

activities. This loss of memory and disorientation resulted 

in Asmund relying on other individuals for all his needs and 

information. It also, according to the nurses at the nursing 

home and Dr. Randolph, left him very susceptible to suggestion and influence. 

Dr. Randolph's deposition, which was videotaped and 

presented at trial in lieu of Dr. Randolph testifying in 

person, included the following: 

"Q (By Mr. Moses) Let me narrow it down 

if I could. Around late August and early 

September of 1980-- 

"A Okay. 

"Q --while he was living in the Lutheran 

Home, Mr. Aageson was living in the 

Lutheran Home, was he capable of entering 

into amendments to lease agreements, 

extending them, and that sort of thing? 

"A - I would imagine -- he was capable -- of it 

- on suggestion, but other than that I --- can't L 

sav that he would be. of his volition would -- do it, --- but thG 170- know. 

"Q But he did understand these things as 

they were explained to him? 

"A I think he coul~d. 

"Q Sure. And he could voluntarily enter 

into these if he understood them? 

"A Yes, if they were explained, I think 

he could understand them. 

"Q And the same would be true of a will, 

and this would be about the time of 

August 29 to September 5 of 1980? 

"A Yes, I think he could probably." 

(emphasis supplied) Dep. Tr. at p. 15. 
We also quote the following excerpt from the testimony 

of David Fagerly, the Director of the Department of Social 

Services at the Tacoma Lutheran Home: 

"Q At the last hearing held in November 

of 1983, you testified specifically that 

you thought that Mr. Aageson was extremeLy subject to suggestion or influence of 

the last person that he talked to, is 

that correct? 

"A Yes, pretty much, yes, I would say 

particularly someone that he knew; maybe 

with a complete stranger, maybe not quite 

as flexible, but very prone still to 

influence . 

"Q Very prone to influence? 

"A Extremely, yes. 

"Q - If someone was to come to him like a ------- 

son or a daughter, or a representative of --- - - - -- - - 

--- that son or daughter, would --- he be in- 

~lined to listen to them and be subiected ---- d 

- to influence & them? 

"A Yes if he believed they -- in fact 

represented tre interests ---- of his son or 

daughter, - I believe he would." (emphasis 

supplied) (Tr. ofOctober 22 and 23, 

1984, at pp. 243-244) 

Unnaturalness of Disposition 

As illustrated by the facts set forth at the beginning 

of this opinion, every action by Asmund since 1948 was directed toward protecting Arvin's interest in the family farm. 

Therefore, the 1980 wills disinheriting Arvin and his sons 

are completely unnatural. 

Demands on Asmund Given Surrounding Circumstances 

Eugene, Nan and Lorraine were shocked and greatly upset 

when they learned of Arvin's option to purchase their interest in the family farm upon their father's death. Nan obtained a lawyer for her father, thus encouraging a change in 

his testamentary disposition. Eugene hampered the 
inheritance by Arvin of his mother's 480 acres by refusing to 

sign the final papers required to probate her will. After 

Asmund's death, Nan and Eugene attempted to use the 1980 

wills as a negotiating instrument to prevent Arvin from 

exercising his option. 

It is clear from the evidence presented that Asmund was 

the victim of demands by his children to dispose of his farm 

in the manner they believed best. 

There is substantial credible evidence in support of the 

trial judge's determination that all five factors to be 

considered when determining whether or not a testator was 

unduly influenced at the time he made his will are present in 

this instance. The order of the District Court is affirmed. 

FJe concur: /