No. 85-69 INTHE SUPREME COURT OF THE STATE OF MONTANA 1985

INTHE MATTER OF THE ESTATE OF ASMUND AAGESON, Deceased.

APPEAL FROM: DistrictCourt

### of the Twelfth

### Judicial District, 

### Inand 

### for the County

### of Hill, The HonorableM. James

### Sorte, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Moses LawFirm, Billings, Montana

For Respondent: Aronow, Anderson, Beatty & Lee, Shelby, Montana Waldo 

### Spangelo, Havre, Montana

Filed: Submitted

### on Briefs: April25, 1985 Decided: 

### July

ClerkMr. Justice Frank £3. Morrison, 

### Jr. delivered the Opinion of theCourt. Three children of the deceased, Asmund Aageson, appeal the December 7, 1984, order of theTwelfth 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 intoprobate a 

### willdated December 30, 1964, together with 

### itstwo codicils, dated December 17, 1974, and November 10, 1-975. We affirm the order of the DistrictCourt. Asmund and Ella Aageson, husband and wife, operated a farm north of Gildford, Montana, consisting of approximately 1,980 acres. They had fivechildren, 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 inCalifornia 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 fatherineither 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 permittinghim to

### sell grain, signchecks and enterinto 

### farm programs. However, he was not allowed to 

### sell or encumber hisparents' land. Pursuant to an estate plan recommended by Asmund's attorney, Mr. Kilbourne, Asmund and Arvin terminated their partnership inDecember 1964 and entered into a lease agreement. Asmund and Ella alsoexecuted

### willsdated December 30, 1964, whereby Arvin was to receive 1,020 acres while theremaining 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 toAsmund's lifeinterest inthe income from the land. Further, the oiland 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 tohave 320 acres. These landswere subjecttothe same royalty reservations 

### set forth inElla's 

### will. Thereafter, 

### in the early 1970s, Mr. Kilbourne advised Arvin regarding hisown estateand recommended that "a generation skipping device" be employed toprevent 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 toreceive upon their deaths in Arvin's sons, David and Verges. David and Verges had 

### remained athome, assistingtheir 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 toArvin 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 toEugene, Lorraine and Nan inAsmund'

### s 1964 

### will, excepting the royalty interests. The $118,680 represented thefairmarket value of the land at that 

### time. (The fairmarket value of the land was $356,410 atthe

### timeof Asmund's death.)The second codicil, alsodated November 10, 1975, referenced the new lease and provided that should the option to purchase be exercised, Eugene, Lorraine and Nan would receive theproceeds inequal 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 toArvin. 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, theexisting farm leasewas assigned 

### toDavid 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 toher 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

### willand 

### its 1974 and 1975 codicilswas commenced inthe springof 1980 in HillCounty, Montana, with Arvin and Eugene appointed as co-executors of the estate. 

### However, despite three inquiries from thisCourt, as of the date of the trial of this cause Eugene had failed 

### toexecute the finalpapers. Therewas littlediscord within theAageson family until Ella's death, when Eugene, Lorraine and Nan learned of the option topurchase their interest in the farm. AtAsmund's 91st birthday party on February 

### 25, 1980, the family members and a moderator held a meeting atwhich Arvin was toldof hissiblings' dissatisfaction. Arvin was advised not toexercise theoptiontopurchase. An accounting of the farm's proceeds

was requested. Nan demanded thatEugene be given hisdevised land immediately. Arvin refused toacquiesce tothe demands of his siblings. Asmund was present, but did not participate at the meeting. He apparently was unable toeitherhear orunderstandwhat 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 attrial she denied having done so, Nan apparently furnished Petersonwith copies of atleast her father's 

### will and codicils, and possibly the farm lease. At a meeting on May 27, 1980, Asmund and Peterson discussed the facts thatArvin's fixed price on the option topurchase

was too low and would be unfair toAsmund's other children, and that Arvin needed toprovide his fatherwith 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 todemand 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 toAsmund by Peterson. Peterson then wrote another letter to Arvin, which apparently went unanswered. Subsequently, ata July 1, 1980, meeting atthe 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'sland. Those documents

### were signed and a decisionwas made to draft a new 

### will, eliminatingArvin 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 sinceArvin 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,tev. a.b,will. Peterson therefore requested Dr. Randolph'

### s presence atthe 

### timeof theactual execution, July 15, 1980. On that date, Dr. Randolph questioned Asmund concerning personal data, his children, his property and the nature of hisactionsunder thenew 

### will. Both Dr. Randolph and Peterson 

### were then satisfied thatAsmund was competent toexecute

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 leaseproviding that ifany 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 

### secretarywitnessed theexecution of thedocuments. Most of those witnesses testified that though they had been skeptical atfirst, they thought upon seeing and talking with Asmund that he was competent toexecute thedocuments. Asmund apparently told Nan that Arvin had had him sign

some 

### new documents. Nan then contacted Peterson, who recommended thatAsmund be brought toseehim. Eugene took Asmund toPeterson's officeon September 5, 1980. Asmund was unable to remember what documents he had signed forArvin. Therefore, after satisfying himself that Asmund was again competent to execute a 

### will, Peterson had Asmund re-execute the July 15, 1980, 

### willand sign documents revoking any power of attorneygiven toArvin and reestablishing a general power of attorney inNan. 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 inthose 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. Atthat 

### time, Nan acquired the 1980 wills from Peterson and gave them to Eugene. On August 3, 1983, Arvin and Eugene, asco-executors of the 1964 

### will, metwith their respective attorneys toobtain Asmund's 1964

### willand the 1974 and 1975codicils fromAsmund's safety deposit box. They both signed a petition 

### for probate of that willthat same day. However, thenext morning, 

### stillwithout 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 forprobate 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 attorneyof 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 thathe had not produced the September 1980will 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 

### willtoprobate was reached thatday and thematterwas 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

### willsand thatAsmund had been unduly influenced inexecuting those

### wills. In their appeal of thatorder, Eugene, Nan and Lorraine raisethe 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 hislast

### willand 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 LastWill and Testamentdated September 5, 

### 1980? 3. Was there sufficient substantia1, 

### 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 lastwill 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. InT. Atkinson, Law ofWills (2d ed. 1953) atpage 

## -- 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 elementsmay 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 forbothmental 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 

### istruethatifa 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 ismore subject toinfluence. In this

case the evidence of incompetency, standing alone, 

### is not sufficient to support the trial court's finding of mental. incapacity. However, theevidence 

### is sufficienttoshow that thetestatorwas mentallyweak and highly suggestible. This, taken together with theevidence of undue influence, supports the trial court's finding that there was in fact undue influenceexercised. Undue influence 

### isdefined in 

### 5 28-2-407, MCA. "Undue influence consists in: 

### "(1) theuse by one inwhom a confidence 

### isreposed by anotherorwho 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'sweakness of mind; or 

## "(3) taking a grossly oppressive and unfair advantage of another'

### s necessities ordistress." In determining whether or not undue influence has been exercised on a testatormaking a

### will, a courtmust consider: 

### (1)

# . Confidentia1 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 thetestator 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 toundue 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.

ConfidentialRelationship Eugene and Nan enjoyed a 

### confidentia1 relationship with their father. They were Asmund's children and he obviously cared deeply for them. Hisphysical proximity toNan encouraged a close, confidential relationship. He spent every weekend with Nan and her family. He 

### relied on Nan for companionship aswell as for the provision of some ofhis 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 91stbirthday. Hewas essentially confined to a nursinghome, 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 independentmeans ofverifying the information. (3 

### Mental ConditionAsmund's mental condition made him very susceptible to the influence of those close to him. He suffered from a brain disorder. Severalnursing 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 inAsmund relying on other individuals for allhisneeds and information. It also, according tothenurses atthenursing home and Dr. Randolph, lefthim 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

### menarrow 

### it down if I could. Around lateAugust and early September of 1980-- "A Okay. "Q --while he was living intheLutheran 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 sav thathe would be. of hisvoliL tion would do 

### it, but thG 170- 

## know. -- --- "Q But he did understand these thingsas they

### were explained tohim? "A I think he coul~d. "Q Sure. And he could voluntarily enter intothese ifhe understood them? "A Yes, if they 

### were explained, I think he could understand them. "Q And the same would be trueof a 

### will, and this would be about the 

### time of August 29 toSeptember 5 of 1980? "A Yes, I think he could probably." (emphasis supplied) Dep. Tr. atp. 

### 15.We also quote the following excerpt from the testimony of David Fagerly, the Director of the Department of Social Services attheTacoma Lutheran Home: "Q At the last hearing held inNovember of 1983, you testified specifically that you thought thatMr. 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 toinfluence? "A Extremely, yes. "Q If someone was to come tohim like a 

### - 

## ------- son ora daughter, ora representative of 

### --- 

## -- - -- 

### - 

## - that son or daughter, would he be 

### in- 

## --- 

## --- ~lined to

### listentothem and be subiected

d 

## ---- toinfluence

## &them? 

### - "A Yes if he believed they in fact 

## -- represented 

### tre interests 

# ---- of his son or daughter, 

## - I believehe would." (emphasis supplied) (Tr. ofOctober 22 and 23, 1984, atpp. 243-244)

Unnaturalness of Disposition As illustrated by the facts 

### set forth atthe beginning of this opinion, every action by Asmund since 1948 was directed toward protectingArvin's interest inthe family farm. Therefore, the 1980 

### wills disinheriting Arvin and his sons

arecompletely unnatural.

Demands on Asmund Given Surrounding Circumstances Eugene, Nan and Lorraine 

### were shocked and greatlyupset when they learned of Arvin's option topurchase their interest in the family farm upon their father's death. Nan obtained a lawyer forher father, thus encouraging 

### a change in his testamentary disposition. Eugene hampered theinheritanceby Arvin of hismother's 480 acresby 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 exercisinghisoption. It 

### is clear from the evidence presented thatAsmund was the victim of demands by hischildren todispose of his farm inthemanner theybelieved best. There 

### issubstantial credibleevidence insupport of the trial judge's determination that all five factors to be considered when determining whether or not a testator was unduly influenced atthe

### timehemade hiswill arepresent in this instance. The order of the DistrictCourt 

### is affirmed.

FJe concur: /