NO. 91-064 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

MARTHA TAYLOR, 

Plaintiff and Appellant, JUl- 2 FM 

v. 

JOHN AUSTIN KOSMSKY, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

Filed: 

For Appellant: 

Thomas J. Murphy; Conklin, Nybo, LeVeque & Murphy, 

Great Falls, Montana 

For Respondent: 

Joseph R. Marra; Marra, Wenz, Johnson & Hopkins, 

Great Falls, Montana 

Submitted on Briefs: E'ay 23, 1991 

I 

Clerk 
Justice R. C. McDonough delivered the Opinion of the Court. 

The plaintiff Martha Taylor appeals the order of the Eighth 

Judicial District Court, Cascade County, granting summary judgment 

to the defendant John Koslosky. The court determined that Taylor 

failed to raise a genuine issue of material fact and that there 

was no evidence of actual or constructive fraud, undue influence 

or breach of fiduciary responsibility. We affirm. 

Taylor raises the following issue on appeal: 

Did the District Court err in determining that there was no 

genuine issue of material fact regarding whether the decedent 

Oswald Koslosky executedtrustdocuments disinheriting his daughter 

Martha Taylor as a result of undue influence by his son? 

On September 25, 1984, Oswald Koslosky created a trust whereby 

his four children were to receive equal shares of the trust corpus 

existing at the time of his death. Oswald Koslosky died testate 

in Great Falls, Montana in July of 1987 at the age of 85. He was 

survived in part by four adult children: Marjorie Wolford, of 

Klamath Falls, Oregon; Mary Lawrence of Little Falls, Minnesota; 

Martha Taylor of North Home, Minnesota, plaintiff here; and John 

Koslosky of Great Falls, Montana, the defendant. 

Prior to his death, the decedent contemporaneously executed 

a will and an amendment to the trust agreement on September 2, 

1986. The will is a pour-over will leaving all of Oswaldls 

property to be disposed in accordance with the amended trust. The 

amended trust document provides: 
The donor has four children, namely, MARJORIE LOUISE 

WOLFORD, MARY FRANCIS LAWRENCE, MARTHA JEAN TAYLOR, and 

JOHN AUSTIN KOSLOSKY; it is understood and agreed, 

however, that MARTHA JEAN TAYLOR shall not be a rrchildrr 

or one of the "childrenrr for purposes of benefitting or 

becoming a beneficiary under this Trust Agreement. The 

donor's purpose and intent in excluding MARTHA JEAN 

TAYLOR from any benefits under this trust result from the 

receipt or retention by his daughter of other property 

of the donor during the donorrs lifetime which shall be 

deemed to be in lieu of any right, title, interest, 

benefits or distributions under this Trust Agreement. 

Thus, the new will and trust amendment disinherited his daughter, 

Martha Taylor, the plaintiff. The other three children remain as 

beneficiaries under the trust. 

The plaintiff filed a complaint on September 2, 1988 to 

declare the trust amendment invalid, alleging three counts: breach 

of fiduciary responsibility and undue influence, actual fraud and 

constructive fraud. Taylor alleged that due to the decedent's 

suffering from Parkinson's disease, he was not competent to execute 

the changes to the trust agreement. She further alleged that 

because of animosity between her and the defendant, the defendant 

breached his duties as the decedent's fiduciary and exercised undue 

influence over the father, causing her to be disinherited. The 

defendant moved for summary judgment and the District Court granted 

the motion on December 4th, 1990. From this judgment Taylor now 

appeals, alleging the District Court erred in determining that 

there were no genuine issues of material fact regarding whether the 

decedent executed the trust documents as a result of undue 

influence by his son. 

Summary judgment is governed by Rule 56(c) of the Montana 

Rules of Civil Procedure, which provides in pertinent part: 
The judgment sought shall be rendered forthwith if the 

pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any, 

show that there is no qenuine issue as to any material 

fact and that the movinq Dartv is entitled to iudqment 

as a matter of law. (Emphasis added.) 

This Court has held that in order for summary judgment to issue, 

the movant must show there is no genuine issue as to all facts 

considered material in light of the substantive principles 

entitling the movant to a judgment as a matter of law. Frigon v. 

Morrison-Maierle, Inc. (1988), 233 Mont. 113, 117, 760 P.2d 57, 60; 

Cerek v. Albertsonts, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 

509, 511. If the movant meets this burden, the burden then shifts 

to the non-moving party to demonstrate a genuine issue of a 

material fact. Friaon, 760 P.2d at 60. "Mere denial or 

speculation will not suffice, the non-moving party must show facts 

sufficient to raise a genuine issue." Friqon, 760 P.2d at 60; 

Gamble Robinson Co. v. Carousel Properties (1984), 212 Mont. 305, 

In Montana, undue influence is defined by statute. The 

statute provides: 

28-2-407. What constitutes undue influence. 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 construing this definition, Montana courts consider the same 

criteria in determining whether a donor making a gift or a testator 
executing a will was subject to undue influence at the time the 

gift was made or the will executed. Cameron v. Cameron (1978) , 179 

Mont. 219, 229, 587 P.2d 939, 945. The criteria are well-settled 

in Montana case law. They are: 

(1) Confidential relationship of the person attempting 

to influence the testator; 

(2) The physical condition of the testator as it affects 

his ability to withstand 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 

the particular donor taking into consideration the time, 

the place, and all the surrounding circumstances. 

Matter of Estate of Luger (Mont. l99O), 797 P.2d 229, 231, 47 

St.Rep 1642, 1644; Christensen v. Britton (1989) 240 Mont. 393, 

398, 784 P.2d 908, 911; Blackmer v. Blackmer (1974), 165 Mont. 69, 

75, 525 P.2d 559, 562. To prove an assertion of undue influence 

one must satisfy each of these criteria. Christensen, 784 P.2d at 

This Court recently held that summary judgment is proper in 

a case where the party contesting a will failed to demonstrate a 

material fact issue regarding the naturalness of the disposition. 

In Matter of Estate of Luqer, sums, 797 P.2d at 231, the decedent 

devised his entire estate equally between Shodair Childrens* Homes 

and Intermountain Deaconess Childrens Home in his 1980 will. 

Decedent's charitable intent in this will was consistent with his 

intent in a previous 1948 will and an unsigned copy of a 1976 will 

with the exception of adding Deaconess as a beneficiary in the 1980 

will. In addition, the decedent specifically stated that his 
nieces and nephews were to receive nothing from his estate because 

of previous inheritances from the decedent's deceased parents1 

estates. A nephew contested the will on the ground of undue 

influence. Examining the criteria set forth above, we held that 

the nephew failed to demonstrate a material fact issue regarding 

the naturalness of the disposition. Luaer, 797 P.2d at 231. 

In this case, Taylor has also failed to meet her burden of 

showing disputed material facts regarding whether the disposition 

was unnatural. In her deposition, the plaintiff did not present 

any facts to controvert that the decedent's will accomplished 

exactly what the decedent intended it to do. Taylor merely alleges 

that because her brother was acting as the decedent's fiduciary, 

and that because of alleged animosity between her and her brother, 

he exercised undue influence over the decedent to have her cut out 

of the will. This is insufficient: 

Mere general influence in the affairs of life or method 

of living at the time of the execution of a will by a 

testator is not proof of undue influence in the 

contemplation of our statute, and, in order to establish 

it as a fact, it must be shown by proof that it was 

exercised uDon the mind of the testator directlv to 

procure the execution of the will. Mere sus~icion that 

undue influence may have or could have been brousht to 

bear is not sufficient. It is never presumed, and must 

be Droven like any other fact. (Emphasis added.) 

Blackmer, 525 P.2d at 563. In Blackmer, this Court reversed a 

trial court's finding of undue influence. This case is an appeal 

from summary judgment. When a motion for summary judgment is made 

and supported an adverse party may not rest upon the mere 

allegations or denials of his pleading, but his response must set 

forth specific facts showing that there is a genuine issue for 
trial. If he does not so respond, summary judgment, if appropriate 

shall be entered against him. Rule 56(e), M.R.civ.P. Thus, on a 

motion for summary judgment 

the party opposing the motion must present facts in 

proper form--conclusions of law will not suffice; and 

the opposing party's facts must be material and of a 

substantial nature, not fanciful, frivolous, gauzy, nor 

merely suspicious. 

The trial court . . . has no duty to anticipate 

possible proof that might be offered under the pleadings. 

Asking for such foresight demands clairvoyance not 

possessed by even a trial judge. 

Silloway v. Jorgenson (l965), 146 Mont. 307, 310, 406 P.2d 167, 

169. Taylor introduced into evidence nurses1 reports indicating 

that the decedent was confused and disoriented at times surrounding 

the execution of the will and trust amendment. However, with 

respect to whether the decedent was competent to execute the trust 

amendment or was subject to undue influence from his son, these 

notes are speculative at best, The deposition testimony of the 

attorneys who worked on the amendment indicates that the decedent 

was competent at the time the trust amendment was executed. 

Furthermore, Taylor also offered the affidavit of her own counsel 

regarding a telephone conversation counsel had with the decedent's 

treating physician. In the transcription of the phone call the 

physician indicated that he believed that the decedent was 

competent to execute the trust amendment and that he saw nothing 

to indicate that he was unduly influenced by anyone. 

The testator's intent in excluding Martha was clear in the 

trust instrument: "The donor's purpose and intent in excluding 

MARTHA JEAN TAYLOR from any benefits under this trust result from 
the receipt or retention by his daughter of other property of the 

donor during the donor's lifetime which shall be deemed to be in 

lieu of any right, title, interest, benefits or distributions under 

this Trust Agreement." Both attorneys who worked on the trust 

amendment, the decedent's doctor, who was a witness to decedent's 

execution of the will, and three of Oswald's children testified 

that the decedent was of sound mind and knew why he wanted to 

exclude the plaintiff. The record indicates that Martha and her 

ex-husband had borrowed significant sums of money during the 

decedent's lifetime which they failed to pay back, and the decedent 

felt that they had already received their share of his property 

during his lifetime. 

In light of the uncontroverted evidence in the record, there 

was no question of material fact regarding whether the disposition 

was natural, the result of undue influence, or that the decedent 

was incompetent to execute the trust amendment and will. 

The order of the District Court is 

AFFIRMED. 

I? 

We Concur: ,, 

Chief 

: ,7'- 

Justice 
July 2, 1991 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Thomas J. Murphy 

Conklin, Nybo, LeVeque & Murphy 

#9-3rd St. No., Ste. 203 

Great Falls, MT 59403-2049 

Joseph R. Marra 

Marra, Wenz, Johnson & Hopkins 

P.O. Box 1525 

Great Falls, MT 59403-1525 

ED SMITH 

CLERK OF THE SUPREME COURT