NO. 97-148 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1997 

MERRILL KLUNDT, Special administrator 

of the Estates of William G. Klundt, 

deceased, and Renada Klundt, deceased, 

Plaintiff and Appellant, 

ADELINE ADOLPH, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Maurice R. Colberg, Jr., Judge presiding. 

COrnSEL OF RECORD: 

For Appellant: 

Charles F. Moses, Billings, Montana 

For Respondent: 

Gary L. Beiswanger, Billings, Montana 

Filed: 

Submitted on Briefs: June 19, 1997 

Decided: August 14, 1997 
Justice William E. Hunt, Sr., delivered the Opinion of the Court. 

Pursuant to Section I, Paragraph 3(c) of the Montana Supreme Court 1995 Internal 

Operating Rules, the following decision shall not be cited as precedent and shall be publ~shed 

by its filing as a public document with the Clerk of the Supreme Court and by a report of its 

result to State Reporter Publishing Company and West Publishing Company. 

Menill Klundt appeals the findings of facts, conclus~ons of law and judgment entered 

by the Thirteenth Judicial District Court, Yellowstone County, determining that the property 

transfer of William and Renada Klundt to their daughter Adeline Adolph was valid and was 

not the product of fraud or undue influence, finding that Adeline did not manage her parents' 

financial affairs and did not hold a fiduciary relationship with them, and refusing to impose 

a constructive trust. We affirm. 

ISSUES 

The issues on appeal, as framed by the Court, are: 

1. Are the District Court's findings that Adeline did not manage the financial 

affairs of her parents and did not occupy a fiduciary relationship with them clearly 

erroneous? 

2. Did the District Court en in holding that the transfer of property and accounts 

was not the product of undue influence? 

3. Did the District Court en in holding that Adeline did not commit actual or 

constructive fraud when assisting her parents with their financial affairs? 

2 
4. Did the District Court err when it failed to impose a constructive trust upon the 

property of the deceased parents? 

5. Did the District Court err in holding that Adeline was not merely an 

accommodation party concerning the placement of her name on joint accounts with her 

parents and that the creation of the joint accounts passed ownership to Adeline upon their 

death? 

THE FACTS 

This case involves a dispute over the estates of William and Renada Klundt. William 

Klundt died in 1986 and Renada Klundt died in 1991. At the time of their deaths, they had 

five living children, including the plaintiffiappellant Menill Klundt (Merrill), 

respondentldefendant Adeline Adolph (Adeline), Verlyn Klundt (Verlyn), Orville Klundt 

(Orville), and Verdie Smitb (Verdie). 

The District Court found that the family relationship between William and Renada 

and most of their children was strained. William and Renada had no relationship at all with 

Merrill for many years after 1953, when Merrill married a woman of whom they 

disapproved. Even after Menill divorced his wife, his relationship with his parents remained 

strained until their death. He took his two living children to visit William and Renada only 

twice. 

William and Renada similarly had no relationship with their son Orville for 13 or 14 

years after 1953, apparently because Orville bad taken Merrill's side in the family dispute 
over Merrill's marriage. Although Orville enjoyed a good relationship with his parents after 

1968, he lived in Great Falls, Montana, and did not often visit his parents, who lived in 

Billings, Montana. 

Verlyn lived in California for most of his adult life, His relationship with his parents 

was cordial, but they did not visit frequently due to distance and circumstances. 

Verdie did not have a close relationship with her parents. In 1969, she moved to the 

Whitefish, Montana, area. She visited her parents only occasionally. Her parents visited her 

once, but never returned for another visit. 

In contrast to her siblings, Adeline enjoyed a close, loving relationship with her 

parents. Although she lived out-of-state from 1958 to 1969, she and her husband have lived 

in Billings since 1969. Adeline and her family spent almost every Christmas, Thanksgiving 

and Easter holiday with her parents. As William and Renada aged, Adeline assisted them 

with personal matters and helped them shop, go to doctor's appointmentq, secure prescription 

drugs and other such matters. Her children also had a close relationship with William and 

Renada. Adeline and her family visited them very ofien after they entered St. Jolm's Nursing 

Home in 1985. 

On March 4, 1959, William and Renada executed wills. Because of the dispute over 

Merrill's first wife, they disinherited both Merrill and Orville. They devised their estates, 

upon their death, to Verlyn, Verdie and Adeline. 
In June 1984, William and Renada told Adeline that they wanted her to become a jotnt 

tenant owner with right of survivorship of their investments. They wanted Adeline to have 

their remaining property upon their death. Accordingly, they added Adeline's name as a 

joint tenant with right of survivorship to their accounts at various financial institutions. They 

also added her name as a signatory to a safety deposit box and as a joint owner on certificates 

of deposit, 

On March 17, 1986, William and Renada sold their house for approximately $38,600. 

They deposited the money into a joint account in the names of William, Renada and Adeline. 

That money u7as later invested in a mutual fund account in joint tenancy between Renada and 

Adeline. On October 4, 1986, William died. 

In March 1991, the residue of the funds received from the sale of the house, which 

amounted to approximately $37,000, remained in a joint tenant account held by Renada and 

Adeline. Renada transferred those funds to Adeline as a gift, telling Adeline that rather than 

a 

paying it all to the nursing home, she wanted Adeline to have something for all the years she 

had helped William and Renada. Renada died on December 22, 1991. 

Following Renada's death, Merrill caused himself to be appointed as Special 

Administrator of his parents' estates. He brought suit against Adeline, seeking to impose a 

constructive trust upon the estates of his parents, and seeking an accounting from Adeline 

of all their property. He alleged that Adeline obtained their parents' property through fraud 
or undue influence. After a non-jury trial, the District Court entered judgment in favor of 

Adeline. Merrill appeals. 

STANDARD OF REVIEW 

The standard of review of a district court's findings of fact is whether they are clearly 

erroneous. In re Estate of Hill (Mont. 1997), 931 P.2d 1320, 1323, 54 St.Rep. 101, 102 

(citing In re Estate of Parini (1996), - Mont. -, -, 926 P.2d 741, 743). This Court 

reviews a district court's conclusions of law to deternine whether the court's interpretation 

of the law was correct. In re Hill, 931 P.2d at 1323 (citing In re Parini, 926 P.2d at 743). 

ISSUE ONE 

Are the District Court's findings that Adeline did not manage the financial affairs of 

her parents and did not occupy a fiduciary relationship with them clearly erroneous? 

Merrill argues that the District Court erred when it found that Adeline did not manage 

or handle the financial affairs of her parents and was not a fiduciary or trustee with respect 

to their estates. The District Court found that Adeline began providing assistance to William 

and Renada after December 1984, by providing them with financial information and carrying 

out certain financial requests. For example, Adeline discussed interest rates with Renada and 

suggested, when it was appropriate, to make changes in investments based upon increases 

in interest rates. However, Renada was interested in interest rates and observed for herself 

the advertisement of such rates. Adeline also helped write checks to pay William's and 

Renada's bills. Some checks were written completely by Renada. Others were written by 
Adeline and signed by Renada. Some were written and signed by Adeline to pay bills of 

Renada from the joint account. 

Merrill does not dispute these facts. Instead, he points to William's and Renada's 

applications to live at St. John's Nursing Home in support of his argument. In 1984, William 

and Renada had decided to move to the nursing home. The plan to change residence to the 

nursing home was that of William and Renada, and not the idea of Adeline. Adeline went 

with her parents to the nursing home ro prepare the applications dared December 28, 1984. 

She helped her parents make out the forms by writing in information obtained from William 

and Renada. Adeline's name and address was placed in two blanks after the statement 

"Name of person who will handle your financial and personal affairs." The District Court 

attributed little significance to these notations in light of the undisputed facts and the manner 

in which Adeline actually assisted her parents. This Court agrees. The District Court was 

correct in concluding that Adeline merely assisted her parents and helped carry out their 

requests and wishes. The District Court's findings that Adeline did not handle her parents' 

financial affairs and was not a fiduciary or trustee were not clearly erroneous. 

ISSUE TWO 

Did the District Court err in holding that the transfer of property and accounts was not 

the product of undue influence? 

Merrill seeks to have the property hansfers to Adeline set aside, claiming they were 

the result of undue influence. Specifically, he claims that William and Renada were mentally 
incompetent. He claims that Adeline breached a fiduciary relationship and obtained an unfair 

advantage over her parents due to their weakness of mind. As already established, Adeline 

did not have a fiduciary relationship with her parents. With respect to undue influence, 5 28- 

2-407, MCA, provides: 

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. 

This Court, in In re Estate of Tipp (Mont. 1997), 933 P.2d 182,54 St.Rep. 90, set forth the 

criteria the court must consider to find undue influence. The five criteria are: 

(1) the confidential relationship of the person allegedly attempting to 

influence the testator; 

(2) the physical condition of the testator as it affects his or her ability to 

withstand influence; 

(3) the mental condition of the testator as it affects his or her 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 have affected the testator, 

taking into consideration the time, place, and surrounding circumstances. 

In re Tipp, 933 P.2d at 184 (citing In re Estate of Jochems (1992), 252 Mont. 24, 28, 826 

P.2d 534,536). For undue influence to exist, the plaintiffmust prove there was a destruction 

of free agency. Matter of Estate of Hogan (1985),218 Mont. 428,431,708 P.2d 1018,1020. 

The second and third criteria relate to the physical and mental condition of William 

and Renada. The Diskict Court found that there was insufficient evidence to justify a finding 
that either William or Renada was mentally tncompetent. At the time that W~lliam and 

Renada transferred their property to joint ownership with Adeline in June 1984, William had 

no ailments that affected him mentally. It was not until May 15. 1985, after the property had 

already been transferred to joint ownership, that William suffered a stroke. Although he 

suffered some memory loss, a nurse at St. John's testified that he knew what he was doing. 

We conclude that the District Court was not clearly erroneous in finding that there was no 

evidence that William was incompetent either then or at the time that the significant events 

occurred in 1984. No evidence supports a finding either that his physical or mental condition 

rendered him susceptible to undue influence in 1984 or that Adeline exerted any such 

influence. 

Renada similarly had the mental capacity to make financial decisions until her death. 

Although she had a heart attack in 1983, the District Court found no evidence that this 

affected her mental competence. She became a resident of St. John's Nursing Home in 1985. 

From then until the date of her death in 1991, her treating physician never observed any 

mental deterioration. He testified that neither her physical conditions nor her medication 

affected her ability to make financial decisions. Two of her nurses similarly testified that she 

was mentally competent until her death. We find that the District Court did not err when it 

found she had the mental capacity to understand what she was doing, both at the critical time 

in 1984 when the joint accounts were created and in 1991 when she made the gift to Adeline. 

The fourth criteria is the unnaturalness of the disposition as it relates to show~ng an 
unbalanced mind or a mind easily susceptible to undue influence. The fact that the transfer 

of assets into joint accounts with Adeline and the subsequent gift to Adeline resulted in the 

exclusion of the other siblings from receiving any of the parents' assets is not in and of itself 

unnatural. Matter of Estate of Lien (1995), 270 Mont. 295,305, 892 P.2d 530, 536. Indeed, 

as far back as 1959, decades before Menill contends that his parents were incompetent or 

susceptible to undue influence, his parents entirely disinherited him and his brother. 

Consideration of the transfers to Adeline in light of the fifth criteria indicates why the 

transfers were not unnatural. In this case, the parents had a close relationship with Adeline, 

who assisted them with their various needs. In contrast to this close relationship, the parents 

had little or no relationship with the remaining children. Under these circumstances, the 

transfer of all assets to Adeline was not unnatural. The District Court was correct in finding 

that the transfer of assets was not the product of undue influence. 

ISSUE THREE 

Did the District Court en in holding that Adeline did not commit actual or 

constructive fraud when assisting her parents with their financial affairs? 

Menill claims that Adeline committed actual or constructive fraud. In Hickingbotham 

v. Duncan (1995), 271 Mont. 525, 898 P.2d 1215, we set forth the elements that a plaintiff 

must prove to establish actual fraud: 

1. a representation; 

2. its falsity; 

3. its materiality; 

4. speaker's knowledge of the falsity or ignorance of its truth; 
5. speaker's intent that the representation be relied upon; 

6. hearer's ignorance of the falsity; 

7, hearer's reliance on the representation; 

8. hearer's right to rely on the representation; and 

9. hearer's consequent and proximate injury caused by the reliance. 

Hickingbotham, 898 P.2d at 121 8 (citing Barrett v. Holland and Hart (1992), 256 Mont. 101, 

106, 845 P.2d 714,717). The District Court found that Memill failed to prove any of the nine 

elements to establish actual fraud. On appeal, Merrill fails to reference any record evidence 

that would support any of the nine elements. For example, he fails to point to any evidence 

that a "representation" was made. Moreover, he fails to specify how the District Court erred. 

Under these circumstances, we cannot conclude that the District Court erred. 

To establish constructive fraud, a plaintiff must prove: 

(1) any breach of duty which, without an actual fraudulent intent, 

gains an advantage to the person in fault or anyone claiming under him by 

misleading another to his prejudice or to the prejudice of anyone claiming 

under him; or 

(2) any such act or omission as the law especially declares to be 

fraudulent, without respect to actual fraud. 

Section 28-2-406, MCA; Hickingbotham, 898 P.2d at 1218-19. The District Court found that 

none of Adeline's actions in assisting her parents constituted constructive fraud. Moreover, 

as already established, Adeline did not have a fiduciary relationship with them. Merrill has 

again failed to specify any record evidence that would establish constructive fraud, and he 

has failed to specify the manner in which the District Court erred. We hold that the District 

Court did not err when it found that Adeline did not commit either actual or constructive 

fraud. 
ISSUE FOUR 

Did the District Court err when it failed to impose a constructive trust upon the 

property of the deceased parents? 

Memll urges that the District Court should have imposed a constructive trust upon his 

parents' estates. Section 72-33-219, MCA, defines constructive trust: 

A constructive tmst arises when a person holding title to property is subject to 

an equitable duty to convey it to another on the ground that the person holding 

title would be unjustly enriched if he were permitted to retain it. 

Courts impose constructive trusts because of "'fraud, mistake, undue influence, the violation 

of a trust, or other wrongful acts' to work an equitable result." In re Marriage of Owen 

(1990), 244 Mont. 306,309,797 P.2d 226,228 (citing In re the Marriage of Malquist (1988), 

234 Mont. 419, 422, 763 P.2d 1 11 6, 11 18). We have already concluded that the District 

Court did not err in finding that the property transfers were not a result of undue influence 

or fraud. The record is devoid of any evidence of wrongdoing requiring such a remedy. We 

conclude that the District Court did not en in refusing to impose a constructive trust. 

ISSUE FIVE 

Did the District Court en in holding that Adeline was not merely an accommodation 

party concerning the placement of her name on joint accounts with her parents and that the 

creation of the joint accounts passed ownership to Adeline upon their death? 

Having failed to show fraud or undue influence, Merrill next contends that the transfer 

of the accounts to joint ownership was merely to enable Adeline to senre as an 
accommodation party. In connection with this argument MerriIl contends that the creation 

of the joint accounts was not valid because his parents lacked the donative intent to make a 

gift. The District Court found that the creation of the joint accounts was the method William 

and Renada used to transfer ownership of their property to Adeline. William and Renada 

told Adeline they wanted her to become a joint tenant so she could have their remaining 

money after they died. The three then went to the various financial institutions where they 

made the changes to the accounts and Adeline signed the signature cards. Both William and 

Renada understood the form of ownership of assets as joint tenants with right of survivorship 

and the employees of the financial institutions explained to William and Renada the nature 

of the joint tenancy accounts. When the employees told them that the assets would belong 

to Renada and Adeline if William should die and then to Adeline if Renada should die, both 

indicated that that was exactly what they wanted. 

Merrill points to no evidence which would show that, in fact, Adeline did not sign the 

signature cards or that William and Renada lacked a donative intent. He fails to indicate how 

the District Court's findings are clearly erroneous or establish that the District Court erred 

as a matter of law. We affirm the District Court's findings. 

Affirmed. 
-- 

Justices I 
August 14, 1997 

CERTIFICATE OF SERVICE 

I hereby certifj that the follouing certified order was sent by United States mail. prepaid, to the 

follo\\ing named: 

CHARLES F. MOSES, ESQ 

MOSES LAW FIRM 

PO BOX 2533 

BILLINGS MT 59103-2533 

Gary L. Beiswanger 

Attorney at Law 

PO BOX 20562 

BILLINGS MT 59104-0562 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA