No. 81-446 INTHE SUPREME COURT OF THE STATE OF MONTANA i982

RICHARD A. DYBVIK, Plaintiff and Appellant,

VS

# . lvIARY DYBVIK, Defendant and Respondent.

INTHE MATTER OF THE ESTATE OF HJORDIS BINGHAM, Deceased.

IN THE PATTER OF THE ESTATE OF TRYGVIE A. DYBVIK, Deceased.

Appeal from: DistrictCourt of theFourteenthJudicial District, Inand fortheCounty of 14usseishell Honorable NatAllen, 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:

## DEc9

# -1982

ClerkMr. 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 originalact ionwas commenced by Richard Dybvik, allegingdamages and unlawful occupation of real property. The defendant, Mary Dybvik, filedan 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 fordamages for fradulent, malicious, and intentional actsof Mary Dybvik inher attempt 

### to deny him of his property. This action was later consolidated with 

### twoother probate causes. The judgment, entered on June 19, 1981, set aside a power of attorney, a will, and a deed; allon 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 therewas anyactof undue influence inprocurement of the power of attorney, the will, and the deed; and (3)if the District Court erred in itsjudgment, whether thiscase should be remanded for furtherproceedingsrelating 

### to plaintiff

### 's original complaint fordamages. 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 freewillof HjordisBingham. 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 inLosAngeles

# . Hospital personnel, concernedwith her ability 

### to care for herself and her affairs, sought to contact members of her family. The hospital contacted Thomas Ask, the family attorney inRoundup, Montana. Mr. Ask then contactedTrygvieDybvik, 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 

### methisaunt forthe first

### time. Within one week he obtained a general power of attorney allowing him to handle allof her affairs. Atthis 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 sufficientto 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 toMontana. An apartment 

### was rented inRoundup. Richard and his wife 

### were to live with and 

### care for Hjordis. Shortly after arriving inRoundup Hjordiswas again admitted 

### to hospital

care. 

### Doctor Davis of Roundup confirmed the diagnosisof doctors at Temple Community Hospital in Los Angeles; that Hjordis was suffering from chronic organic brain syndrome and otherphysical ailments. On June 13, 1979, Hjordis was discharged from the Roundup hospital to livewith her nephew and hiswife. Approximately one month later, on July 10, 1979, Hjordis executed a new will in which she leftallof her personal and real property to Richard Dybvik. Richard testified thatHjordis had asked him to contact Mr. Ask so thatarrangements could be made 

### to draftthe 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 seriouslyill 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 testimonyRichard asked himwhat to do and he advised him to be "appointed conservator 

### or guardian"

oratleastgeta power of attorneyfrom her so thatherbusiness matters, rent, hospital, medical, 

### etc. bills could be paid. Concerning the drawing of thewillhe testified he was called by Richard earlyin Julyto

### come see hisaunt about drawing a new willand that he did soon July 10. He went to her apartment to get the detailsof 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 controllingas to hermental condition thatday and it is set forth asfollows: "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 thephone, 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 seeingHjordis? 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 atlunch 

### or on theway 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 inon the conversationatall. 

### "Q. The will

### was executed July10, 1979. Can you explainthe 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 

### weworked it out atnoon 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 firstso 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 willwith Hjordiswhen you went? A. Yes, and apparently I left a copy there 

### too. A lotof people want anextra copy so theycanput the willintheirbox and a copy 

### to look at if they want 

### to, and that one you showed 

### me is the copy I made forher, because it 

### is my printing. "Q. On both of those occasions, July9, 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 otherthan that, I thought she 

### was competent and about the 

### same as she had alwaysbeen. "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 unusualthat shedidn't know what shewas doing. "Q. On both of these occasions, did Hjordis Bingham express a concern that this property not go 

### toMary 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 herboys 

### to have any of her property.

'IQ

# . Did she ever refer to Mary and her children as 'Mary and her chickens,

### ' thatyou can recall? A. I don't remember. I know that therewas ill-feeling between them, and I don't know how Mary felt about it, but I try tostayoutof 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 likeher

# ."

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 thisproperty 

### 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 inLewistown who 

### met with Hjordis for the signing. The same day Richard recorded the deed with theMusselshellCounty Clerk and Recorder. Eventually, the appellant, Richard Dybvik, took steps 

### to forcehis fatherand stepmother to vacate the ranch and thereafter commenced this action fordamages. 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 Mont

# .-- I -- -..

### ,625 P.2d 536, 539, 38 St.Rep. 416, 419, cautioning District Courtswho rely "tooheavilyon 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 maynot technically be the work product of the district judge, once they

### are signed theybecome his. InRe the Marriage of Jensen v. Jensen (1981)

## , - Mont

# . - - 

## , 631 P.2d 700, 38 St.Rep. 1109; City of Billingsv. Public Service Commission (1981), -- -- Mont

# .

-

## ,631P.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 "'confined 

### to determining whether there is substantial credible evidence 

### to support1 the findings of fact and conclusions of law." Cameron v. Cameron (1978), 179Mont. 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. WestGreat Falls Flood Control and DrainageDistrict (1970), 155Mont. 157, 468 P.2d 753. We have elaborated on this standard numerous times and several well-settled principles have emerged. Weview the evidence in the light most favorable 

### to the prevailing party. Cameron v. Cameron

## , supra; Olson v. Westfork 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 stillbe deemed 'substantialI and

# . .

# .substantial evidence may conflict with other evidence presented." Campeau v. Lewis (1965), 144Mont. 543, 547, 398 P.2d 960, 962; ----- Cameron, 179 Mont. at228, 587 P.2d at945. With the aboveprinciples inmind it 

### is helpful

### to review the 

### lawdealing specifically with undue in£luence. Undue in£luence hasbeen 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 

### orapparentauthorityoverhim of such confidence 

### or authority for the purpose of obtaining an unfairadvantage overhim; "(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 thatHjordis 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 settingaside the deed. With respect 

### to thewill, a differenttestof 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 Dybvik

# . ThisCourthasheld on numerous occasions thata willmay not be defeated on grounds of undue in£luence unless: "the testator is induced, by the means employed, 

### to executean instrument inform and appearancehiswill,but inrealityexpressing 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), 145Mont. 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. InBlackmer -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 elderlyperson (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 

### todetermine if the acts amounted to undue in£luence. Here, the uncontradicted testimony showed thatthe appellant

## , Richard, calledMr. Ask, the attorneywho 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 inthe 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 conversationsregarding the 

### terms of thewilland herreasons for leaving the ranch to Richard, her nephew. It was his conclusion thaton the day that the willwas drawn, July 10, 1979, thatshe

was not under the influence of any person whatsoever, and indeed that she knew what she was doing and was mentally no different than shehad been atdifferent

### times thathe had represented her. Here, there is no finding of theDistrict 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 insufficient, as a matter of law, because they fail to show that at the timeof 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 notestablished. Wereverse the trial court's finding that as to the willundue in£ luence 

### was used by the appellant and reinstate the lastwilland testament. The case is remanded to the trialcourt. The judgment of the District Court holding that the deed 

### was illegally procured is upheld, the findings and conclusions that the willand the power of attorney

### were obtained by undue in£luence is setaside and the will is reinstated and the cause 

### is remanded for further proceedingson the original complaint.

We concur: 

# u

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# ~~~e9q ChiefJustice

Ju tices 

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