No. 81-446 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

i982 

RICHARD A. DYBVIK, 

Plaintiff and Appellant, 

VS . 

lvIARY DYBVIK, 

Defendant and Respondent. 

IN THE MATTER OF THE ESTATE OF 

HJORDIS BINGHAM, Deceased. 

IN THE PATTER OF THE ESTATE OF 

TRYGVIE A. DYBVIK, Deceased. 

Appeal from: District Court of the Fourteenth Judicial District, 

In and for the County of 14usseishell 

Honorable Nat Allen, Judge presiding. 

Counsel of Record : 

For Plaintiff: 

Linda L. Harris, Biilings, Montana 

Alan J. Lerner, Big Fork, Montana 

For Defendant: 

Rerndon, Harper & Munro, Billings, Montana 

Submitted on briefs: July 29, 1982 

Decided: December 9, 1982 

Fiied: DEc 9 - 1982 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from a judgment entered in the Fourteenth 

Judicial District in and for the County of Musselshell. The 

original act ion was commenced by Richard Dybvik, alleging damages 

and unlawful occupation of real property. The defendant, Mary 

Dybvik, filed an answer and cross-complaint denying the principal 

allegations of the complaint and further alleging that Richard 

Dybvik had obtained title to the real property through undue 

in£ luence . Richard Dybvik answered by denying any undue 

in£ luence and cross-claimed for damages for fradulent, malicious, 

and intentional acts of Mary Dybvik in her attempt to deny him of 

his property. This action was later consolidated with two other 

probate causes. The judgment, entered on June 19, 1981, set 

aside a power of attorney, a will, and a deed; all on grounds of 

undue in£ luence . The appellant raises the following issues on appeal: (1) 

whether the District Court's findings of fact, conclusions of 

law, and opinion are supported by substantial evidence; (2) 

whether or not there was any act of undue influence in procurement 

of the power of attorney, the will, and the deed; and (3) if the 

District Court erred in its judgment, whether this case should be 

remanded for further proceedings relating to plaintiff 's original 

complaint for damages. 

We found no error in the trial court's decision to set aside 

the deed but reverse the findings and conclusions of the court 

that respondent established , by clear and convincing evidence, 

that the will and the power of attorney were acquired through 

means and in£ luence of the beneficiary, Richard Dybvik, and not 

done with the free will of Hjordis Bingham. 

In March of 1979, Hjordis Bingham, an elderly lady in her 

seventies, was in poor health. At that time she was living in 

California. On or about March 30 she was admitted to Temple 

Community Hopsital in Los Angeles . Hospital personnel, concerned 
with her ability to care for herself and her affairs, sought to 

contact members of her family. The hospital contacted Thomas 

Ask, the family attorney in Roundup, Montana. Mr. Ask then contacted Trygvie Dybvik, the brother of Hjordis . Trygvie contacted 

his son, Richard Dybvik, who agreed to go to California to see 

what could be done. Richard went to California and met his aunt 

for the first time. Within one week he obtained a general power 

of attorney allowing him to handle all of her affairs. At this 

time Hjordis Bingham had four different bank accounts totaling 

$32,131.09. There was extensive testimony at trial regarding the 

subsequent expenditure of these funds. It is sufficient to note 

that when Richard Dybvik gained control over the four accounts, 

the funds were soon depleted. 

After obtaining the power of attorney, Richard moved Hjordis 

from the hospital to Virgil Convalescent Home, located in Los 

Angeles. Toward the end of May arrangements were made to move 

Hjordis to Montana. An apartment was rented in Roundup. Richard 

and his wife were to live with and care for Hjordis. Shortly 

after arriving in Roundup Hjordis was again admitted to hospital 

care. Doctor Davis of Roundup confirmed the diagnosis of doctors 

at Temple Community Hospital in Los Angeles; that Hjordis was 

suffering from chronic organic brain syndrome and other phys ical 

ailments. 

On June 13, 1979, Hjordis was discharged from the Roundup 

hospital to live with her nephew and his wife. Approximately one 

month later, on July 10, 1979, Hjordis executed a new will in 

which she left all of her personal and real property to Richard 

Dybvik. Richard testified that Hjordis had asked him to contact 

Mr. Ask so that arrangements could be made to draft the new will. 

Mr. Ask had previously probated the estate of the deceased's 

father, and had known the deceased for a number of years. He 

testified that he was called by the hospital administrator in 

California in April 1979 because some of his letterheads were 

found in her apartment. He was advised that she was seriously 
ill and asked to contact her brother, Trygvie. He did so and 

found him too ill to travel so Trygvie contacted his son Richard 

in Arizona and got him to go to California to check up on his 

aunt. According to Mr. Ask's testimony Richard asked him what to 

do and he advised him to be "appointed conservator or guardian" 

or at least get a power of attorney from her so that her business 

matters, rent, hospital, medical, etc. bills could be paid. 

Concerning the drawing of the will he testified he was called 

by Richard early in July to come see his aunt about drawing a new 

will and that he did so on July 10. He went to her apartment to 

get the details of the new will but before doing so he visited 

with her for it was the first time he had seen her since she 

returned to Roundup. His testimony of this visit is important 

and controlling as to her mental condition that day and it is set 

forth as follows: 

"Q. Did she tell you what she wanted done 

with her property for purposes of the will? 

A. Yes. 

"Q. And what was that? A. Well, she was 

always concerned about her brother, Trygvie 

Dybvik, but she told me when I visited her on 

that day that she had visited with him, or 

talked to him on the phone, and he was in, you 

know, poor health, but she felt that he was 

getting the veteran's pension and he was at 

the Veteran's Hospital in Miles City and drew 

Social Security, so she thought he was pretty 

well taken care of. And she wanted to make 

her will leaving all of her property to her 

nephew, Richard Dybvik. 

"Q. Did she make any comments about Mary 

Dybvik at that time? A. Yes. Over the 

years, she and Mary, I guess, have had a feud 

for many years, and she definitely, on that 

day, said she didn't want Mary to have her 

property if anything happened to her; and 

that's why she wanted to give it to Richard, 

and she felt that Trigger was taken care of, 

you know, and so she didn't have that much 

obligation to him. 

"Q. Do you recall who contacted you with 

regard to seeing Hjordis? A. I think Richard 

told me she wanted to see me, and probably 

about the 9th, I suppose, in the morning, I 

told him, 'Well, I'll stop either going home 

at lunch or on the way back from lunch. ' 

"Q. Who else was present when you talked to 

Hjordis? A. No one. Just Hjordis and 

myself. 
"Q. Do you recall how long you talked to her? 

A. Oh, I suppose I was there maybe 20 

minutes. I think Richard and his wife may 

have been there when I got there. They kind 

of had a--she was still ill. She was in a 

housecoat, and I think they left when I got 

there. I know they weren't in on the conversation at all. 

"Q. The will was executed July 10, 1979. Can 

you explain the circumstances under which that 

was executed? A. Well, I told her that I 

would fix it and I would come up the next day, 

so we worked it out at noon that we would stop 

on the way home, and the witnesses were John 

Pratt, my partner, and Julie Ann, our secretary, so we all stopped on our way home from 

lunch. I got there first so she would have a 

chance to look over the will, and then John 

Pratt came and our secretary came. She had 

read the will, and I went over it with her; 

and she signed it and they witnessed it and I 

notarized it. 

"Q. Did you leave the will with Hjordis when 

you went? A. Yes, and apparently I left a 

copy there too. A lot of people want an extra 

copy so they can put the will in their box and 

a copy to look at if they want to, and that 

one you showed me is the copy I made for her, 

because it is my printing. 

"Q. On both of those occasions, July 9, 1979, 

and July 10, 1979, did you make any observations about Hjordis' mental state? A. 

Well, it seemed to me that she was about the 

way I always remember her, other than she had 

been sick, it was obvious. She was thinner 

and weaker, but other than that, I thought she 

was competent and about the same as she had 

always been. 

"Q. At that time did she know who she was? 

A. Oh, yes. 

"Q. Did she know who you were? A. She knew 

who I was, and we visited. 

"Q. Did she know who Richard was? A. Oh, 

yeah. 

"Q. Did she know the ranch she was disposing 

of in the will? A. Yeah, she talked about 

that, because over the years, her brother, 

Trigger, has used the ranch and run cattle on 

there; and this was apparently part of their 

arrangement that she was kind of helping him 

that way, that he had the use of it, but she 

talked about things. There was nothing unusual that she didn't know what she was doing. 

"Q. On both of these occasions, did Hjordis 

Bingham express a concern that this property 

not go to Mary Dybvik? A. Oh, yes. 

"Q. Was she very adament about that? A. 

Yes, and she had been over the years. She 

wanted Trigger taken care of --her brother, 
that's his nickname--but she didn't want Mary 

or her boys to have any of her property. 

'I Q . Did she ever refer to Mary and her 

children as 'Mary and her chickens, ' that you 

can recall? A. I don't remember. I know 

that there was ill-feeling between them, and I 

don't know how Mary felt about it, but I try 

to stay out of personalities. 

"Q. But to the best of your knowledge, had 

this been a long-standing feud between Mary 

Dybvik and her? A. Yes, Mary ran a nursing 

home, and her mother was there , and Hjordis 

came up and visited, and I suppose they had 

arguments; and I don't know--like I say, I 

don't want to get involved with them, but she 

didn' t like her ." 

Before her death she executed a deed. Hjordis owned a ranch 

near Roundup that her brother Trygvie had been managing. On 

August 27, 1979, she deeded this property to her nephew, Richard 

Dybvik. Richard testified that Hjordis requested this transaction so she would be eligible for Medicaid benefits. Richard 

again contacted Mr. Ask to do the legal work. Mr. Ask prepared 

the deed and gave it to Richard who then drove to Lewistown to 

get it executed. He contacted an attorney in Lewistown who met 

with Hjordis for the signing. The same day Richard recorded the 

deed with the Musselshell County Clerk and Recorder. Eventually, 

the appellant, Richard Dybvik, took steps to force his father and 

stepmother to vacate the ranch and thereafter commenced this 

action for damages. 

The appellant argues that the record will not support a 

finding of undue influence. In conjunction with this issue he 

urges this Court to reconsider the standard of review of a 

District Court's findings. In this case the District Court 

adopted the respondent's findings of fact verbatim. While we 

have focused on this situation before, Tomaskie v. Tomaskie 

(1981) I Mon t . -- I -- - .. 

, 625 P.2d 536, 539, 38 St.Rep. 416, 

419, cautioning District Courts who rely "too heavily on the proposed findings and conclusions submitted by the winning party,'' 

we are not compelled to change the rule. "Findings of fact shall 

not be set aside unless clearly erroneous. . . " Rule 52(a), 

M.R.Civ.P. As we have noted before, although the findings may 
not technically be the work product of the district judge, once 

they are signed they become his. In Re the Marriage of Jensen v. 

Jensen (1981) , - Mont . - - , 631 P.2d 700, 38 St.Rep. 1109; 

City of Billings v. Public Service Commission (1981), -- -- Mont . 

- , 631 P.2d 1295, 38 St.Rep. 1162. 

Other decisions have further defined the limits of our 

inquiry. Of foremost importance, we cannot deviate from our 

function as an appellate court. Our functions do not include a 

retrial of the case. We will not substitute our judgment for 

that of the trial court. We are "'conf ined to determining 

whether there is substantial credible evidence to support1 the 

findings of fact and conclusions of law." Cameron v. Cameron 

(1978), 179 Mont. 219, 227, 587 P.2d 939, 944; In the Matter of 

the Estate of LaTray (1979), - - Mont . - - -. - .-- , 598 P.2d 619, 36 

St.Rep. 1514; Olson v. Westfork Properties, Inc. (1976)r 171 

Mont. 154, 557 P.2d 821; Hornung v. Estate of Lagerquist (1970), 

155 Mont. 412, 473 P.2d 541; State Highway Comm. v. West Great 

Falls Flood Control and Drainage District (1970), 155 Mont. 157, 

468 P.2d 753. 

We have elaborated on this standard numerous times and 

several well-settled principles have emerged. We view the evidence in the light most favorable to the prevailing party. 

Cameron v. Cameron , supra; Olson v. Wes tfork Properties , Inc . , 

supra; Hellickson v. Barrett Mobile Home Transport, Inc . ( 1973 ) , 

161 Mont. 455, 507 P.2d 523. "The evidence may be inherently 

weak and still be deemed 'substantial I and . . . substantial evidence may conflict with other evidence presented." Campeau v. 

Lewis (1965), 144 Mont. 543, 547, 398 P.2d 960, 962; ----- Cameron, 179 

Mont. at 228, 587 P.2d at 945. 

With the above principles in mind it is helpful to review the 

law dealing specifically with undue in£ luence. Undue in£ luence 

has been defined by section 28-2-407, MCA: 

"Undue in£ luence 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 evaluating whether there is substantial credible evidence 

to support a finding of "undue influence" with respect to the 

deed we find subsection 1 of section 28-2-407, MCA, to be 

controlling. There is evidence to support a finding that Hjordis 

reposed confidence in her nephew, Richard Dybvik and that pursuant to the terms of the deed Richard gained an advantage over 

Hjordis. While Hjordis was still alive, she divested herself in 

her interest in real property and conveyed it to Richard. The 

District Court therefore had evidence that Richard, in a trust 

relationship with his aunt, gained an unfair advantage over her 

which supports setting aside the deed. 

With respect to the will, a different test of undue influence 

must be applied. Hjordis, through the will, is making a disposition of property to occur after her death. The testamentary 

disposition creates a con£ lict between Richard Dybvik and Mary 

Dybv ik . 

This Court has held on numerous occasions that a will may not 

be defeated on grounds of undue in£ luence unless: 

"the testator is induced, by the means 

employed, to execute an instrument in form and 

appearance his will, but in reality expressing 

testamentary dispositions which he would not 

have voluntarily made, and that to defeat a 

will, the undue influence must have been 

directed toward the particular testamentary 

act and at the time thereof, or so near 

thereto as to be operative. In the Matter of 

the Estate of Maricich (1965), 145 Mont. 146, 

159, 400 P.2d 873, 880. 

Furthermore, as noted by this Court in Blackmer v. Blackmer 

(1974) , 165 Mont. 69, 525 P.2d 559, undue influence or incompetence is never presumed and must be proven, like any other 

fact. In Blackmer - although there was a showing of an opportunity 

to exercise undue influence on the testator, it was not suf- 
ficient to prove undue in£ luence and invalidate the will. Under 

the facts of the Blackmer case, the testator was an elderly person (as in this case) and had infirmities associated with old 

age, including poor eyesight , failing memory , occasional confusion and senility. These facts did not render the testatrix 

testamentally incapacitated, but were matters to be taken into 

consideration and corrolated with the alleged acts of in£ luence 

to determine if the acts amounted to undue in£ luence. 

Here, the uncontradicted testimony showed that the appellant , 

Richard, called Mr. Ask, the attorney who had represented Hjordis 

since the 19601s, and that the call was made at her specific 

request and instructions . There is not even the slightest 

suggestion in the findings and conclusions of the District Court 

that Richard participated in the preparation of the will or that 

he dictated the will's terms. It would appear to us, the converse is true since Mr. Ask's testimony was not impeached. Mr. 

Ask had known the testator for a period of time and knew her 

feelings regarding the Dybvik ranch. He testified about their 

conversations regarding the terms of the will and her reasons for 

leaving the ranch to Richard, her nephew. It was his conclusion 

that on the day that the will was drawn, July 10, 1979, that she 

was not under the influence of any person whatsoever, and indeed 

that she knew what she was doing and was mentally no different 

than she had been at different times that he had represented her. 

Here, there is no finding of the District Court nor any evidence 

to show "a mirrored prior solicitation," on the appellant, 

Richard's, part. 

We find the District Court's findings and conclusions and 

opinion as to undue influence regarding the will to be insuff icient, as a matter of law, because they fail to show that at 

the time of the execution of the will, the proponent, did a specific act to procure the new will or to in£ luence his aunt, 

Hjordis. Without an act of procurement or a specific act to 

influence it is clear that a case of undue influence was not 
established. We reverse the trial court's finding that as to the 

will undue in£ luence was used by the appellant and reinstate the 

last will and testament. 

The case is remanded to the trial court. The judgment of the 

District Court holding that the deed was illegally procured is 

upheld, the findings and conclusions that the will and the power 

of attorney were obtained by undue in£ luence is set aside and the 

will is reinstated and the cause is remanded for further proceedings on the original complaint. 

We concur: u 

%4&4\~&, ~~~e9q 

Chief Justice 

u Ju tices