NO. 91-064 IN THE SUPREME COURT OF THE STATE OFMONTANA

MARTHA TAYLOR, Plaintiff and Appellant, 

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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

IClerk

### Justice 

### R. C. McDonough delivered the Opinion of the Court.

The plaintiff Martha Taylor appeals the order of the Eighth Judicial DistrictCourt, 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 OswaldKosloskyexecutedtrustdocumentsdisinheritinghisdaughter Martha Taylor as a result of undue influence by his son? OnSeptember 25, 1984, 

### Oswald Koslosky created a trustwhereby his four childrenwere 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 tobe 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 fromany benefitsunder this trust result fromthe receipt or retention by his daughter of other property of the donor during the donorrslifetime which shall be deemed to be in lieu of any right, title, interest, benefits or distributions under this TrustAgreement. 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 declarethe trust amendment invalid,alleging threecounts: 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,hewas not competentto execute the changes to the trust agreement. She further alleged that because of animosity between her and the defendant, the defendant breachedhisduties asthedecedent's fiduciary and exercised undue influence over the father, causing her to be disinherited. The defendantmoved for summary judgmentand the District Courtgranted the motion on December 4th, 1990. From this judgment Taylor now appeals, alleging the District Court erred in determining that therewere nogenuine issues of material fact regarding whether the decedent executed the trust documents as a result of undue influenceby his son. Summary judgment is governed by Rule 56(c) of the Montana Rules of Civil Procedure,which provides inpertinent 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, 760P.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-movingparty 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 inwhom 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 indetermining whether adonormaking a gift or a testator

### executing a will was subject to undue influence at the time the gift was made or thewill executed. Cameronv. 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) Thephysical conditionof 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 theparticular donor taking into considerationthe 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),165Mont. 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. InMatter of Estate of Luqer, 

### sums, 797 P.2d at 231, the decedent devised his entire estate equallybetween Shodair Childrens*Homes and Intermountain Deaconess Childrens Home in his 1980 will. Decedent's charitable intent in thiswill was consistentwith his intent in a

### previous 1948will and anunsigned copy of a 

### 1976 will with the exception of adding Deaconessas abeneficiary inthe 1980 will. In addition, the decedent specifically stated that hisnieces and nephews were to receive nothing fromhis 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 exactlywhat thedecedent intended it todo. Taylormerely alleges that because her brother was acting as the decedent's fiduciary, and that because of alleged animositybetween 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. (Emphasisadded.) 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 amotion 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 fortrial. Ifhe does not sorespond, 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 thatmightbe offeredunderthepleadings. 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 thatthedecedentwas confusedanddisoriented attimes surrounding 

### the execution of the will and trust amendment. However, with respect towhether thedecedentwas 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 telephoneconversation counselhad with thedecedent'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 influencedby 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 fromthe receipt or retention by his daughter of other property of the donor during the donor's lifetime which shall be deemed to be in lieuof anyright, 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 lifetimewhich they failed topay back,and thedecedent 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 regardingwhether 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: ,, 

# : ,7'-
Chief JusticeJuly2, 1991 CERTIFICATEOFSERVICE Ihereby certifythat thefollowingorderwas sentby United Statesmail,prepaid, tothe followingnamed:

ThomasJ.Murphy Conklin,Nybo,LeVeque &Murphy #9-3rd St.No.,Ste.203 GreatFalls,MT 59403-2049 Joseph R.Marra Marra,Wenz,Johnson &Hopkins P.O.Box 1525 GreatFalls,MT 59403-1525 EDSMITH CLERKOFTHESUPREMECOURT