96-348

No. 96-348

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

IN RE THE ESTATE OF

CHRISTINE ELIZABETH TIPP,

Deceased.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable John W. Larson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Bryan Charles Tipp, Richard R. Buley, Tipp & Buley,

Missoula, Montana

For Respondent:

Clinton H. Kammerer, Kammerer Law Offices, Missoula,

Montana

Submitted on Briefs: December 12, 1996

Decided: February 4, 1997

Filed:

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__________________________________________

Clerk

Justice William E. Hunt, Sr. delivered the Opinion of the Court.

 Appellant Dorothy Shodin (Dorothy) appeals the decision of the

Fourth Judicial District Court, Missoula County, determining that

the testamentary will and property transfer of Christine Elizabeth

Tipp (Christine) were not entered into as a result of undue

influence, and admitting the will to probate. We affirm.

 ISSUE

 The sole issue presented on appeal is whether the District

Court erred in finding that Christineþs will and property transfer

were not the products of undue influence.

 FACTS

 Christine died in 1994 at the age of eighty-six. She and her

late husband, George, had seven children including Dorothy, the

appellant in this case, and Sylvia, the respondent.

 In 1984 or 1985, George became incapacitated by a medical

condition which resulted in partial paralysis. At this time,

Sylvia became involved in her parentsþ care, managing their

finances and transporting them around as needed. Christine did not

drive and, by this time, George was no longer able to do so. 

Because Sylvia so often took them to doctor appointments and ran

other necessary errands, George and Christine gave her their car.

 Because of Georgeþs partial paralysis, he was placed in a

nursing home. The entire family, however, was very dissatisfied

with the care he received and he was quickly brought home. In

1988, George died; Christine continued to occupy their home alone

after his death. Sylvia and another daughter, Virginia, would look

in on their mother and provide whatever assistance she needed. 

Sylvia continued to provide transportation and to manage

Christineþs financial affairs. By 1990, Christine had been

diagnosed with advanced breast cancer and was under the care of an

oncologist.

 In 1992, Christine fell at home and broke her hip. She

thereafter required more frequent and continual care, which Sylvia 

primarily provided. Also in 1992, Sylvia discussed with her mother

the possibility of Sylvia buying Christineþs house. Upon hearing

of the plan, Sylviaþs brother Ray obtained an appraisal of the

house. No other steps were taken in furtherance of such a sale.

 In March of 1993, Sylvia twice transported Christine to the

office of her attorney. Christine later revealed that the purpose

of the visits had been to change her will and to transfer the

ownership of her house to joint tenancy with right of survivorship

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between herself and Sylvia. In this way, Sylvia would receive the

house when Christine died.

 In April of 1993, Christine traveled to California to be with

her oldest son, who was himself dying of cancer. She made the trip

alone and unassisted, and returned to Montana in the same manner. 

During the time Christine was in California, Sylvia and her husband

Gordon moved into Christineþs home. Thereafter, Sylvia was almost

entirely responsible for her motherþs care. Christine became

increasingly ill and, in February, 1994, she passed away.

 Following Christineþs death, her other children became aware

of the will she had executed in March, 1993, as well as the

simultaneous transfer of the home to joint tenancy with Sylvia. 

Dorothy then brought suit to prevent the willþs admittance to

probate and to set aside the property transfer, asserting that the

will and transfer were the products of undue influence. After a

thorough hearing, the District Court determined that the will and

transfer were not in fact the products of undue influence. The

court then ordered the will admitted to probate. Dorothy appeals.

 STANDARD OF REVIEW

 The case law regarding the standard of review in estate cases

at equity is inconsistent and contradictory. On the one hand, this

Court has determined that the proper standard of review is whether

substantial credible evidence supports the district courtþs

findings. See, for example, Christensen v. Britton (1989), 240

Mont. 393, 784 P.2d 908; In re Estate of Palmer (1985), 218 Mont.

285, 708 P.2d 242; Cameron v. Cameron (1978), 179 Mont. 219, 587

P.2d 939. On the other hand, we have also declared that the proper

standard of review in such cases is whether the district courtþs

findings are clearly erroneous. See, for example, In re Estate of

Parini (Mont.1996), 926 P.2d 741, 53 St.Rep. 1062; Flikkema v. Kimm

(1992), 255 Mont. 34, 839 P.2d 1293; In re Estate of Flynn (1995),

274 Mont. 199, 908 P.2d 661.

 Cases using the "substantial credible evidence" standard of

review generally cite 3-2-204(5), MCA, which provides:

 [i]n equity cases and in matters and proceedings of an

 equitable nature, the supreme court shall review all

 questions of fact arising upon the evidence presented in

 the record, whether the same be presented by

 specifications of particulars in which the evidence is

 alleged to be insufficient or not, and determine the

 same, as well as questions of law . . .

In re Estate of Melvin (1993), 261 Mont. 408, 412, 862 P.2d 1159,

1162 (citations omitted); In re Estate of Barber (1989), 239 Mont.

129, 137, 779 P.2d 477, 482. Cases using the "clearly erroneous"

standard of review generally cite Rule 52(a), M.R.Civ.P., which

provides in part:

 In all actions tried upon the facts without a jury or

 with an advisory jury, the court shall find the facts

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 specially and state separately its conclusions of law

 thereon . . . . Findings of fact, whether based on oral

 or documentary evidence, shall not be set aside unless

 clearly erroneous, and due regard shall be given to the

 opportunity of the trial court to judge the credibility

 of the witnesses. . . .

Flikkema, 839 P.2d at 1296; In re Estate of White (1984), 212 Mont.

228, 231-32, 686 P.2d 915, 916-17. 

 While nothing in 3-2-204(5), MCA, precludes the use of the

"clearly erroneous" test, Rule 52(a), M.R.Civ.P., by its terms,

mandates that this more stringent test be applied to "all actions

tried upon the facts without a jury or with an advisory jury,"

without regard for whether the case arises at law or in equity. 

For this reason, we conclude that the proper standard of review in

estate cases at equity is whether the findings of the district

court are clearly erroneous. Absent a determination that the

findings are clearly erroneous, they will not be set aside. 

Flikkema, 839 P.2d at 1296. 

 DISCUSSION

 Did the District Court err in findings that Christineþs will

and property transfer were not the products of undue influence?

 In seeking to have the will and property transfer set aside,

Dorothy alleges that the testamentary changes were the products of

undue influence asserted upon Christine by Sylvia. Dorothy

contends that Sylvia was in a position to assert such influence

because of her role as primary care giver to Christine and because

of the fact that she lived with Christine. Dorothy further

contends that Christine was particularly susceptible to this

influence due to her advanced age and illness.

 Section 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.

Section 28-2-407, MCA. See In re Estate of Jochems (1992), 252

Mont. 24, 28, 826 P.2d 534, 536. In determining whether undue

influence was exercised, the court must consider the following:

 (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 the influence;

 (3) the mental condition of the testator as it affects

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 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.

Jochems, 826 P.2d at 536 (citing In re Estate of Luger (1990), 244

Mont. 301, 303-04, 797 P.2d 229, 231 and Christensen, 826 P.2d at

911). These same criteria are used in determining whether undue

influence existed regardless of whether the case involves a donor

making a gift or a testator making a will. Cameron, 587 P.2d at

945. Further, as this Court stated in Christensen, "[u]ndue

influence is never presumed and must be proven like any other

fact." Christensen, 784 P.2d at 911 (citations omitted).

 In this case, the evidence clearly showed that Christine and

Sylvia had a confidential relationship. Sylvia was not only

Christineþs daughter but her primary care giver, and she lived with

Christine. Nor is it disputed that Christineþs physical condition

might serve to render a donor susceptible to influence; Christine

was both elderly and seriously ill at the time she made her will

and property transfer. The parties contest, however, whether

Christineþs mental condition would render her susceptible to

influence. While Sylvia contends that Christine was alert and in

possession of all her faculties until just shortly before her

death, Dorothy contends that Christine was prone to forgetfulness

and confusion, indicating a mental state in which she might be

susceptible to undue influence. The testimony of the family

members on this point is directly contradictory and cannot be

reconciled.

 Several other individuals, however, also testified at the

hearing regarding Christineþs mental state around the time that she

made her will. These other witnesses, unrelated to the family,

consistently testified that Christine was fully capable of

appreciating her actions and their ramifications when she changed

her will and placed Sylviaþs name on the deed to her home. 

Christineþs doctor testified that as of April of 1993, Christine

was "very independent" and in control of her cognitive powers. The

secretary to the attorney who made Christineþs will, anticipating

possible problems from a will that essentially disinherited several

other children, made a point to observe Christineþs demeanor

closely while the will was being prepared. When questioned about

her impression, the secretary testified:

 Q. Is it your belief, based on your knowledge about

 Christine and your familiarity with her, at least since

 1986, that she was fully aware of what she was doing on

 this particular day?

 A. Yes.

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 Q. This March 31 of 1993, right?

 A. Yes.

 Q. Did there seem to be any confusion in her mind as

 far as what it was she was there for?

 A. No, sir.

The attorney who prepared the will similarly testified that he was

satisfied that Christine understood what she was doing and the

consequences of her acts. In addition, one of Christineþs

neighbors and two hospice workers testified that Christine remained

alert and self-possessed even months after the date on which she

changed her will. Furthermore, the evidence presented showed that

Christine independently planned a trip to California in the weeks

following the change to her will. Such a trip would have been

extremely difficult for an individual whose mental faculties were

impaired. Yet Christine undertook the trip with the encouragement

of her children, and apparently experienced no problems while

traveling alone.

 Given such evidence, the District Court determined that

Dorothy had failed to prove the third factor in the abovereferenced test for undue influence. While the testimony in this

case conflicted, Sylvia presented evidence which supported the

District Courtþs findings regarding Christineþs mental state, and

those findings are not clearly erroneous.

 Dorothy also contests the District Courtþs finding that she

had failed to prove the fourth factor necessary to establish undue

influence, the unnaturalness of the disposition.

 In arguing that the will and property transfer were unnatural

dispositions, Dorothy points out that the arrangements Christine

made effectively disinherited all of her children except Sylvia. 

This Court has held, however, that "the fact that a parent might

leave the majority of his or her assets to only one child, while

excluding others, is not in and of itself unnatural." In re Estate

of Lien (1995), 270 Mont. 295, 305, 892 P.2d 530, 535 (citing

Flikkema, 839 P.2d at 1298).

 Dorothy argues, however, that the evidence presented

nevertheless tended to prove an unnatural disposition in this case. 

In particular, Dorothy points out that Christine had another, older

will in place for over thirty years which split her estate evenly

between all her children, a commitment to "fairness" which she and

her husband had honored almost all their lives. Given this

history, Dorothy argues that it was unnatural for Christine to

decide, less than a year before her death, to leave the bulk of her

estate to only one child. 

 The fact that Christine already had a will drawn up at the

time she decided to change its provisions is largely irrelevant. 

No one disputes that she had the absolute right to destroy or

change her will at any time, should she choose to do so. Yet

Dorothy insists that the change must have been unnatural because it

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contradicted Christineþs previously articulated desire to treat all

of her children equally. There was no reason, Dorothy argues, for

Christine to independently wish to make such a radical alteration

in her estate planning; therefore, the new will must have been a

product of Sylviaþs undue influence.

 Yet the testimony of various witnesses at the hearing

illuminated probable reasons for Christine to make such a change:

her increasingly close relationship with Sylvia and her gratitude

to Sylvia for taking care of her. While it is not disputed that

all of Christineþs children loved her, it is also not disputed that

Sylvia assumed the greatest share of responsibility in caring for

Christine. Christine herself was apparently acutely aware of this

fact. As a hospice worker testified:

 [Christineþs] main concern was for Sylvia and she told

 me--this came about when I was talking to them both about

 long-range care plans and how they were going to manage

 if they planned to stay at home until her death with her

 care. [S]he said that, yes, that was, in fact, the

 agreement that she had made with Sylvia, because she did

 not want to go to a nursing home, and she had given her

 other children the opportunity to care for her, and they

 had chosen not to do it or not to do it in a fashion that

 she was comfortable with. [S]he told me, in fact, that

 she was leaving her home to Sylvia in exchange for taking

 care of her until she died, whether it was tomorrow or,

 you know, five years from now . . . 

The District Court noted that Christine obviously dearly loved all

the members of her family and, in her own way, remained close to

each of her children. Nevertheless, given Christineþs articulated

rationale for leaving her home to Sylvia and the fact that Sylvia

was Christineþs primary care giver, the District Court determined

that the will and property transfer in this case were not

unnatural. These findings are not clearly erroneous.

 Dorothy further argues that the District Court erred in

finding that she had failed to prove the fifth factor, the

existence of demands and importunities calculated to affect the

testator. She contends that the deed and will were made at a time

when Sylvia controlled all of Christineþs finances and assets. 

Dorothy further contends that the will and transfer were made under

a threat of institutionalization, a particular fear of Christineþs

in light of the substandard care her husband had received in a

nursing home years before.

 Sylviaþs management of Christineþs finances is not, in and of

itself, a "demand or importunity" made upon the donor. The

implication, however, is that Sylvia may have wielded this

financial power to force her mother to make a will in her favor. 

Yet this theory is pure speculation, unsupported by any of the

evidence presented. The District Court did not err in largely

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disregarding it. 

 Similarly, while certain family members testified that Sylvia 

had threatened Christine with institutionalization, Sylvia

categorically denied ever having done so. No independent evidence

or witnesses were presented to support this allegation, and it was

within the discretion of the District Court to disregard this

unsubstantiated theory as well. 

 After an extensive hearing, the District Court found that

Dorothy had failed to prove the existence of undue influence. It

consequently declined to set aside the will and property transfer. 

Having thoroughly reviewed the record, we determine that the

findings of the District Court are not clearly erroneous. Its

decision is therefore affirmed.

 /S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ TERRY N. TRIEWEILER

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