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No. 99-618 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2001 MT 92 

IN RE THE ESTATE OF 

DANIEL G. BRADSHAW,

Deceased.

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula,

The Honorable Ed McLean, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Scott B. Spencer, Attorney at Law, Libby, Montana

For Respondents:

James P. O'Brien; O'Brien Law Offices, Missoula, Montana

John C. Schulte; John Schulte Law Office, Missoula, Montana

Submitted on Briefs: October 19, 2000 

Decided: May 24, 2001

Filed:

_________________________________________

Clerk

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Chief Justice Karla M. Gray delivered the Opinion of the Court.

¶1 The Fourth Judicial District Court, Missoula County, determined that Daniel G. 

Bradshaw (Daniel) died intestate and that his estate, including an annuity, will pass to his 

minor sons. Daniel's mother, Mary Bradshaw (Mary), appeals. We affirm.

¶2 We address the following dispositive issues:

¶3 1. Did the District Court err in concluding Mary was named the beneficiary of Daniel's 

annuity as a result of undue influence?

¶4 2. Did the District Court err in determining Daniel died intestate?

¶5 3. Did the District Court err in determining the beneficiaries of the constructive trust or 

in making other conclusions relating to Mary's status as constructive trustee of funds from 

Daniel's annuity?

BACKGROUND 

¶6 Daniel was twenty-seven years old when he committed suicide in Missoula, Montana, 

in October of 1996. He had been paralyzed on his left side as the result of a head injury in 

a wrestling accident during high school. The head injury and a lifelong learning disability 

also impaired Daniel's speaking ability, memory, and thinking. Following settlement of a 

lawsuit arising out of the wrestling accident, Daniel received annuity payments of $1,200 

per month. The face value of the annuity payments, which continue for a total of 360 

payments, is over $600,000. The annuity, Daniel's primary asset at the time of his death, is 

the focal point of this case.

¶7 After graduating from high school, Daniel moved from his family home in Kalispell, 

Montana, to Missoula, Montana, where he worked and bought a home. Daniel's survivors 

include two young sons, Danny, Jr., who was born in 1992, and Tristan, who was born in 

1995. Daniel's marriage to Danny, Jr.'s mother was dissolved in 1994. See Marriage of 

Bradshaw (1995), 270 Mont. 222, 891 P.2d 506. Daniel was later engaged to marry 

Tristan's mother, but she broke the engagement. Daniel's other survivors (his "family of 

origin") are his parents, a sister, a brother, three nephews and a niece. 

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¶8 After Daniel's death, Tristan's mother petitioned the District Court to appoint her as the 

personal representative of his estate and to determine that he died intestate, leaving Danny, 

Jr., and Tristan as his heirs. Danny, Jr.'s mother also sought appointment as personal 

representative or, in the alternative, as co-personal representative. Mary moved for an 

order declaring her the owner of Daniel's annuity, pursuant to his written instructions to 

the annuity company in November of 1996 that she was the beneficiary of the account. 

The District Court appointed Tristan's mother as Daniel's personal representative, 

recognized Danny, Jr.'s mother as an interested party, and placed Daniel's estate under 

supervised administration.

¶9 The District Court held a bench trial on Mary's claimed ownership of the annuity. It 

heard testimony from numerous witnesses, including Daniel's psychiatrist, divorce 

attorney and employment and parenting counselor; Mary; Bradshaw's sister; four of 

Bradshaw's neighbors in Missoula; friends of Mary's from Kalispell; and both Danny, Jr.'s 

and Tristan's mothers. 

¶10 The District Court entered extensive findings of fact, conclusions of law, and an order. 

The court concluded that Daniel died intestate and that he named Mary as the beneficiary 

of his annuity as a result of her undue influence. The court also concluded the disposition 

of all annuity benefits to Daniel's family of origin, as advocated by Mary, was unnatural 

given the evidence of how important Daniel's sons were to him. Determining Mary was a 

constructive trustee of the annuity but that she had failed in that role, the court removed 

Mary as constructive trustee and ordered Mary to transfer and deliver to Daniel's estate all 

property, funds and interest she had received from him or from the annuity and that all 

future payments on the annuity be paid to the estate to be expended on behalf of Daniel's 

sons. Mary appeals.

STANDARD OF REVIEW 

¶11 Section 3-2-204(5), MCA, and Rule 52(a), M.R.Civ.P., require that in equitable cases 

like this one, findings of fact must be upheld unless they are clearly erroneous. Hansen v. 

75 Ranch Co., 1998 MT 77, ¶ 20, 288 Mont. 310, ¶ 20, 957 P.2d 32, ¶ 20 (citation 

omitted). The first part of that inquiry is whether the findings are supported by substantial 

evidence. Interstate Production Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 323, 820 

P.2d 1285, 1287. The evidence is reviewed in the light most favorable to the prevailing 

party, and the credibility of witnesses and the weight assigned to their respective 

testimony are up to the trial court. In re Guardianship of Mowrer, 1999 MT 73, ¶ 36, 294 

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Mont. 35, ¶ 36, 979 P.2d 156, ¶ 36 (citation omitted). Further, our role in reviewing 

findings of fact is to determine whether the findings made are clearly erroneous; it is not to 

determine whether there is support in the evidence for findings which were not made. See, 

e.g., Cenex Pipeline L.L.C. v. Fly Creek Angus, Inc., 1998 MT 334, ¶ 35, 292 Mont. 300, ¶ 

35, 971 P.2d 781, ¶ 35. 

DISCUSSION 

¶12 1. Did the District Court err in concluding Mary was named the beneficiary of 

Daniel's annuity as a result of undue influence? 

¶13 Section 28-2-407, MCA, defines undue influence as:

(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. 

To determine whether there has been undue influence, a court examines: (1) any 

confidential relationship between the person alleged to be exercising undue influence and 

the donor; (2) the physical condition of the donor as it may affect his or her ability to 

withstand influence; (3) the mental condition of the donor as it may affect his or her ability 

to withstand influence; (4) the unnaturalness of the disposition as it relates to showing an 

unbalanced mind or a mind easily susceptible to influence; and (5) the demands and 

importunities as they may affect the donor, taking into account the time, place and 

surrounding circumstances. Mowrer, ¶ 31 (citations omitted).

¶14 The proper consideration and application of these five criteria have become muddled 

in some of our recent cases on undue influence. Beginning in In re Maricich's Estate 

(1965), 145 Mont. 146, 161, 400 P.2d 873, 881, we set forth the five criteria listed above 

as factors a court "may consider" in determining a question of undue influence. We 

continued that approach in Cameron v. Cameron (1978), 179 Mont. 219, 229, 587 P.2d 

939, 945. In In re Estate of Aageson (1985), 217 Mont. 78, 85, 702 P.2d 338, 342, we 

strayed slightly from the above approach, saying a court "must consider" the five above 

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criteria. 

¶15 Then, in Christensen v. Britton (1989), 240 Mont. 393, 398, 784 P.2d 908, 911, we 

cited Cameron in setting out the same five criteria. We went on to describe the standard 

for their consideration as one in which the proponent of the undue influence theory "must 

satisfy each of these criteria." Christensen, 240 Mont. at 398, 784 P.2d at 911. That 

description of the standard under which courts are to consider the criteria was not 

supported by any authority. Moreover, such an approach does not square with the 

alternative statutory definitions of undue influence set forth at § 28-2-407, MCA. We 

carried forward the erroneous and unsupported notion from Christensen that all five 

criteria must be satisfied to prove undue influence in In re Estate of Luger (1990), 244 

Mont. 301, 304, 797 P.2d 229, 231; Taylor v. Koslosky (1991), 249 Mont. 215, 218, 814 

P.2d 985, 987; In re Estate of Jochems (1992), 252 Mont. 24, 28, 826 P.2d 534, 535; 

Flikkema v. Kimm (1992), 255 Mont. 34, 40, 839 P.2d 1293, 1297; In re Estate of Lien

(1995), 270 Mont. 295, 304, 892 P.2d 530, 535; In re Estate of DeCock (1996), 278 Mont. 

437, 444-45, 925 P.2d 488, 492; In re Estate of Lande, 1999 MT 162, ¶ 42, 295 Mont. 

160, ¶ 42, 983 P.2d 308, ¶ 42; and Luke v. Gager, 2000 MT 377, ¶ 35, 303 Mont. 474, ¶ 

35, 16 P.3d 377, ¶ 35. 

¶16 These statements, beginning in Christensen and ending in Luke, are overruled and we 

return to the standard expressed in Cameron: that a court may consider the five criteria in 

determining the existence of undue influence. The five criteria may, but need not, be 

present in any given undue influence case. The statutory requirements control. The five 

criteria are simply nonexclusive considerations available to guide the trial court in its 

application of the statutory requirements. 

¶17 In determining that Mary's status as the beneficiary of the annuity was a result of 

undue influence, the District Court found all five criteria were present. Mary admits she 

had a confidential relationship with her son. As to the remaining four criteria, however, 

she disputes the court's determinations.

¶18 Mary contends there is no evidence in the record to support the court's determination 

that Daniel's physical and mental conditions made him susceptible to influence. In 

Conclusions of Law 7 and 8, the District Court determined:

7. The Decedent's physical condition affected his ability to withstand influence. The 

Decedent suffered from significant paralysis on his left arm and hand, a left-sided 

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limp, and his cognition and memory were impaired. 

8. The Decedent suffered from various mental conditions including narcissistic 

personality disorder and organic explosive disorder. During his life he was 

significantly depressed and subject to suicidal ideation. The personality disorder 

resulted in an abnormal need to fulfill the requests and demands of his family of 

origin. He was susceptible to his mother's requests for assistance. 

¶19 These "conclusions of law" might more properly be identified as findings of fact, and 

both are supported by the record. The record is uncontradicted that, as a result of his 

teenage wrestling accident, Daniel walked with a limp, had limited use of his left side, and 

suffered a speech impediment and thinking difficulties. The evidence also was 

uncontradicted that Daniel's intellectual performance was at the level of borderline mental 

retardation. Further, Daniel had been diagnosed with narcissistic personality disorder 

which made him susceptible to flattery, and with emotional dependency. He had a history 

of depression and attempted suicide. Larry Ginnings, Daniel's divorce attorney, testified 

Daniel was "child-like"-he could speak intelligently and could understand what was said 

to him, but "things didn't last with him. They kind of would slip his mind or he would 

think about something else and he would go on." On this record, the referenced 

"conclusions" are supported by substantial evidence. 

¶20 Mary controverts the determination that Daniel's mental condition made him unable to 

withstand influence, pointing to testimony that he made his own decisions and was quite 

capable of saying "no." However, it is the District Court's job to weigh the evidence. 

Mowrer, ¶ 36. Moreover, our standard is to determine whether substantial evidence 

supports a trial court's findings, not to determine whether the evidence would support 

other findings. DeSaye, 250 Mont. at 323, 820 P.2d at 1287; Cenex, ¶ 35. 

¶21 With regard to the fourth criterion considered in a claim of undue influence, the 

District Court concluded that "[t]he disposition of all annuity benefits to his family of 

origin, excluding his own minor children, is unnatural, particularly given how important 

his children were to him." Mary contends the disposition of Daniel's annuity to his family 

of origin is not unnatural and that the exclusion of his children may show that he was 

reacting against their mothers--his ex-partners--and that this is consistent with Daniel's 

self-focused personality. 

¶22 The witnesses at trial unanimously attested to Daniel's love and commitment to his 

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firstborn son, Danny, Jr., and, later, to his younger son Tristan as well. Mary's friend 

Charlotte Wade testified that Daniel's children were "the most important thing" to him and 

that he "knew" his mother would make sure his children would have something from his 

annuity. Ginnings and, by deposition, Danny, Jr.'s mother, both testified that they 

understood Daniel named Mary as the beneficiary of the annuity under the belief that she 

would always take care of Danny, Jr. Dr. David Stube, Daniel's employment and parenting 

counselor, was asked if he could imagine Daniel intending to cut Danny, Jr., off from the 

annuity by making Mary its beneficiary. He responded that he "cannot see any reason why 

[Daniel] would not want his son to be part of his legacy, that heritage." This substantial 

evidence supports a conclusion that the disposition of the annuity to Daniel's family of 

origin was unnatural.

¶23 Mary further contends Conclusion 17, that it was not reasonable or credible to believe 

Daniel intended his sons to take only Social Security benefits, is "not relevant to undue 

influence." On the contrary, this conclusion also relates to the fourth criterion--

unnaturalness of the disposition--in considering an undue influence claim. 

¶24 The District Court did not make a conclusion or finding specifically identified as 

addressing the fifth undue influence criterion--the demands and importunities as they may 

affect the donor, taking into account the time, place and surrounding circumstances. The 

court did conclude, however, that 

Mary Bradshaw wrote the letter to the insurance company to name her as primary 

beneficiary of the annuity. The Decedent only signed the correspondence. In short, 

Mary Bradshaw wrote the letter naming herself as the primary beneficiary and 

procured the signature of Decedent. At the time Mary Bradshaw was named as 

primary beneficiary of the annuity, Decedent was engaged in a bitter divorce with 

Michele Ahern which made him more susceptible to the influence of Mary 

Bradshaw. 

In challenging this determination, Mary contends the idea of changing the 

beneficiary of the annuity came from Daniel's attorney during his divorce. She 

points to the absence of evidence that she had ever previously tried to be named 

beneficiary or that Daniel ever expressed a desire to change the beneficiary to 

anyone else.

¶25 As the District Court stated, the decision to name Mary as the beneficiary of the 

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annuity was made while Daniel was going through a bitter divorce from Danny, Jr.'s 

mother. Ginnings testified he was not a participant in the decision as to who the new 

beneficiary should be when the name of Danny, Jr.'s mother was removed. The record 

reflects that Mary was the only person who discussed with Daniel the idea that she be 

named as beneficiary of the annuity. Mary admitted she was the one who called the 

annuity company to make the change in beneficiary and that she drafted the letter 

changing the beneficiary of the annuity, which Daniel then signed. In short, the above 

conclusion is supported in the record as to its factual aspects. 

¶26 Mary maintains, and correctly, that Daniel had every legal right to designate anyone 

he wanted as the beneficiary of his annuity, even if it meant disinheriting his children. 

This case hinges, however, on the believability of Mary's testimony that her borderline 

retarded son intended to disinherit his little boys from his annuity in favor of his family of 

origin. The District Court found her testimony incredible, and credibility determinations 

are solely within a trial court's province. See Mowrer, ¶ 36. The District Court ultimately 

found and concluded:

Mary Bradshaw . . . was able to overcome Dan's desire to provide for his children 

by telling him that Social Security would provide for [them]. This was done to the 

detriment of Danny, Jr., and Tristan and did not constitute the true desire or 

intention of the Decedent. 

While Mary disputes this finding and conclusion, the record before us contains 

substantial evidence to support it. 

¶27 We conclude the District Court correctly determined that each of the criterion for 

considering a claim of undue influence had been established. On that basis, we hold the 

District Court did not err in concluding that Mary was named the beneficiary of Daniel's 

annuity as a result of undue influence. 

¶28 2. Did the District Court err in determining Daniel died intestate?

¶29 Mary contends Daniel executed a valid holographic will in 1988. In the 1988 

document, which was introduced into evidence, Daniel left his vehicle to one of his 

nephews and the rest of his estate to be divided equally between his mother, his father, his 

brother and his sister. 

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¶30 The District Court found the 1988 document had not been submitted into evidence as 

a holographic will and, in addition, that it was unnecessary to determine whether that 

document was a will. While arguing at some length that the court erred in these regards, 

Mary also states that "[w]hether or not a will exists is mostly irrelevant to the resolution of 

this case." We agree.

¶31 Section 72-2-332, MCA, provides that the children of a decedent born after the 

making of a will who are not specifically provided for in the will take as if the decedent 

died intestate. Daniel's sons were born in 1992 and 1995. Thus, even assuming arguendo

that Mary properly submitted the 1988 document as a holographic will and that it 

constituted a will, Danny, Jr., and Tristan are entitled to their shares of Daniel's estate as 

though he died intestate. Pursuant to § 72-2-113(1)(a), MCA, when, as here, an intestate 

decedent leaves no surviving spouse, the decedent's estate then passes to the decedent's 

descendants. 

¶32 Alternatively, Mary contends notes Daniel wrote shortly before his death constitute a 

valid will when viewed in connection with the 1988 document. As to the notes, the court 

found:

Notes left by [Daniel] written near the time of his suicide demonstrate that he was 

convinced that suicide was the only way out after having lost his employment. 

Additionally, those suicide notes indicated that his children were uppermost in his 

mind.

The last of the notes left by [Daniel] were given to [Daniel's] family of origin by 

John and Colleen Montgomery. Subsequently, the notes were delivered to the 

Estate. The notes were altered sometime between when John and Colleen 

Montgomery transferred them to [Daniel's] family of origin and when delivered to 

the Estate. The notes were altered by his family of origin. 

Given that Mary or another member of her family altered the notes Daniel wrote near the 

time of his suicide, they offered only a partial picture of Daniel's wishes, at best. The notes 

were not offered into evidence as a holographic will. The District Court weighed the notes 

under the circumstances of the case and Mary has not established an error in that regard. 

¶33 Further, this Court generally will not address either an issue raised for the first time on 

appeal or a party's change in legal theory on appeal because "it is fundamentally unfair to 

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fault the trial court for failing to rule correctly on an issue it was never given the 

opportunity to consider." Day v. Payne (1996), 280 Mont. 273, 277, 929 P.2d 864, 866 

(citation omitted). Inasmuch as Mary did not argue in the District Court that the suicide 

note taken together with the 1988 document constituted a valid will, we will not consider 

that argument. 

¶34 We hold the District Court did not err in determining Daniel died intestate.

¶35 3. Did the District Court err in determining the beneficiaries of the constructive trust 

or in making other conclusions relating to Mary's status as constructive trustee of funds 

from Daniel's annuity?

¶36 A constructive trust arises when a person holds title to property subject to an equitable 

duty to convey that property to another because the person holding title would be unjustly 

enriched if permitted to retain it. Section 72-33-219, MCA. Mary admitted to the trial 

court that Daniel's annuity was placed in her name to hold in trust for the benefit of others. 

Her arguments relate to the identities of those for whom she held the annuity in trust and 

whether she violated her fiduciary duty as trustee. 

¶37 Mary challenges four of the District Court's conclusions of law relating to constructive 

trust. Specifically, she challenges Conclusions 5, 12, 13 and 14:

5. . . . Mary Bradshaw was named primary beneficiary by the Decedent as a 

constructive trustee for the purposes of managing money received from the annuity 

for the benefit of his natural children, Danny, Jr., and Tristan.

. . . . 

12. Mary Bradshaw has violated her fiduciary obligation as the constructive trustee 

of funds received from the Decedent's annuity by refusing to acknowledge her role 

to expend the money received on behalf of the Decedent's minor children.

13. As constructive trustee, Mary Bradshaw was required to use her best efforts and 

reasonable care to ensure all needs of the Decedent's minor children were supplied.

14. Mary Bradshaw has failed in her role as a trustee of the funds by failing to 

observe, ascertain, or address the needs of the Decedent's minor children.

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Mary's position at trial was that Daniel had named her as the beneficiary of the annuity 

with the expectation that she would distribute the annuity monies equally among herself, 

her husband, Daniel's brother and sister and his nephews and niece. She testified she had 

later decided to also give shares of the annuity to Danny, Jr., and Tristan, resulting in ten 

equal shares. 

¶38 Mary's testimony about Daniel's wishes was contradicted by the testimony of 

numerous witnesses that Daniel named Mary as his beneficiary on the annuity with the 

idea that she would "take care of" his children. Mary characterizes this as "mere precatory 

language." While Mary points out that precatory language is insufficient, by itself, to 

impose a constructive trust in a will (see In re Estate of Bolinger (1997), 284 Mont. 114, 

118-19, 943 P.2d 981, 986), the term is generally used in relation to wills. See Black's Law 

Dictionary 1176 (6th ed. 1990). As discussed above, Daniel left no valid will. 

¶39 Mary asserts as to Conclusions 12, 13, and 14 that there is no evidence she breached a 

fiduciary duty, because no one claimed that either Danny, Jr., or Tristan had "gone 

without" during the pendency of this action. Such a claim was unnecessary. A trustee has 

the duty to administer the trust solely in the interests of its beneficiaries. Section 72-34-103

(1), MCA. By taking the original position that the annuity was to be distributed among 

various members of Daniel's family of origin and the later position that each of his sons 

was entitled to a mere one-tenth share, Mary failed to administer the trust solely in the 

interests of Danny, Jr., and Tristan. 

¶40 The evidence discussed above as to the fourth criterion for undue influence supports a 

conclusion that Daniel's sons were properly the beneficiaries of the constructive trust. We 

hold that the District Court did not err in determining the beneficiaries of the constructive 

trust or in its other challenged conclusions relating to Mary's status as constructive trustee 

of funds from Daniel's annuity.

¶41 Given our holdings on the dispositive issues discussed above, we need not address the 

other findings of fact Mary challenges. To the extent those findings are unnecessary to 

resolution of the above issues, they are irrelevant to the ultimate outcome of this case. In 

addition, Mary's arguments that the District Court should have made several additional 

findings is not a function of our review on appeal. See Cenex, ¶ 35. 

¶42 Affirmed.

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/S/ KARLA M. GRAY

We concur:

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ JIM REGNIER

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