COURTFILED OF

## APPEALS 

# DIVISION II 2015 

### FEB 24 

## All 9: 27 SATE OF

## WASHINGTON BY CITY 

### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II IN RE ESTATE OF EVA JOHANNA ROVA BARNES, Deceased. No. 45069 -1 - II

UNPUBLISHED OPINION SUTTON, J. — Michelle Wells' and Dennis Wells (collectively " the Wells ") appeal the trial 

### court's order on the petition ofthe Rovas, invalidating Eva Johanna Rova Barnes' s 2011 will for
undue influence. 2 The Wells argue that ( 1) 

### they presented sufficient evidence to rebut the presumption of undue influence; (2) the trial court' s findings offact of undue influence were not 

### based on clear, cogent and convincing evidence; and (3) the trial court erred as a matter oflaw in invalidating Barnes' swill. We agree and reverse and remand for anewtrial.

Michelle Wells, one of the appellants, became Barnes' s caretaker. We refer to Michelle Wells 

### as Michelle for clarity. We intend no disrespect. 2 The respondents are Barnes' s nieces and nephew: Vicki Rova Mueller, Karen Bow, Marsha Rova, and John Rova. We collectively refer to them as " the Rovas." We intend no disrespect.No. 45069 -1 - II

FACTS3 I. BARNES' S RELATIONSHIP WITH THE ROVAS AND MICHELLE Barnes died on June 27, 2011 at 94 years old. 

### Barnes' s surviving family included her brother' s four children, the Rovas. Barnes came to know Michelle as her rural mail carrier and, 

### bythe end ofBarnes's life, Michelle had become her caretaker. In March 2009, emergency medical responders found Barnes on her kitchen floor, where she had fallen two and a halfdays earlier. After she recovered, medical professionals believed that 

### Barnes should temporarily reside at an assisted living facility;the Rovas concurred, as theywere desperate ' to 

### help Barnes. Clerk' s Papers ( CP) at 1132 ( 

### Finding of Fact (FF) 23). Barnes 

### refused to comply with this advice, and Dr. George Kina, her physician, did not believe he could deny her demand to return home. Before the fire department would allow her to return home, however, Barnes' s home needed to be made safe due to her 

### hoarding. In response to the fire department' s order,the Rovas and Michelle cleared and discarded newspapers and magazines from walkways and heat sources. 

### Barnes returned home, but this event was " the beginning ofthe end" of her relationship
with the Rovas. CP at 1134 ( FF 29). 

### Barnes feltthat herprivacyhad been invaded,she believed thatthe Rovas had destroyed her address book, and thatthe Rovas wanted to place her in anursing home for the rest of her life, which she feared.4 Barnes became paranoid and suspicious ofthe Rovas.
3 Because this casewas tried as a bench trial, we derive these facts from the trial court's findings . offact. 

### 4 The trial court found that . Barnes' s beliefs aboutthe Rovas were nottrue. 2No. 45069 -1 - II
From April 2009 until her death, Barnes grew 

### increasingly dependent on Michelle. The 

### gap" between Barnes andthe Rovas widenedand Barnestold Michellethatshe feltostracized by the Rovas. CP at 1136 ( FF 41). 

### AfterMay 2010, Michelle provided all ofBarnes' stransportation
and took her to every appointment with Dr. Kina and Barnes' s attorney, Jeff Tolman. Michelle 

### becamethe onlyperson consistentlyavailable and closeto Barnes. Barnes was a " strong-minded" woman, and she chose notto maintain her relationship with the Rovas. CP at.1132 (FF 19) II. BARNES' S ESTATE.PLANNING 

### Barnes's propertywas homesteaded by herparents, and she livedthere from 1918 until her death. In 2005, after her husband and child died, Barnes executed a will providing that upon her death her estate was to be distributed to the Rovas in four equal shares; she also named Vicki Rova 

### Mueller as her attorney in fact. In November 2010, Barnes decided that she wanted to remove Mueller as her attorney in fact. 

### On November 17, Tolman set up a meeting in which he acted as mediator between Barnes and Mueller in an attempt to resolve Barnes' s dispute with the Rovas, but Barnes did not want to
reconcile. 

### In December 2010, Barnes named Michelle her new attorney in fact and in January, 2011, Michelle began writing checks for Barnes. Tolman had invited Michelle to participate in the November 17 mediation meeting, where Michelle stated in Barnes' s presence that the Rovas had thrown out Barnes' s address book; this upset Barnes further. Michelle' s comments at the mediation meeting and subsequently to others

3No. 45069 -1 - II



### fannedthe flame" ofBarnes' s angertoward the Rovas.5 CP at 1146 (FF 73). On March 1, 2011, Barnes met with Tolman to execute a new will, but Tolman believed 

### that Barnes was not feeling well so he sent her home when she could not rememberthe name of one ofher nieces. Two days later, Barnes returnedto Tolman' s office.6 Before Barnes executed 

### her newwill,Tolman engaged in a colloquywith her and he prepared a memorandum that Barnes 

### signed, setting forth her reasons for changing her will. Both Tolman and Dr. Kina, who Barnes 

### had visitedjust before coming to her appointmentto change herwill,believed that Barnes had the 

### necessary mental capacityto execute herwill thatday. Barnes' s newwill completely disinherited the Rovas and named " Dennis Wells and Michelle Wells" as her sole beneficiaries. CP at 3 capitalization omitted). III. PROCEDURE 

### ShortlyafterBarnes'sdeath,the Rovas petitionedthetrial courtto invalidate Barnes's2011 will,claiming that Barnes lackedthe necessary mental capacityto execute it andthatthewill was the product ofthe Wells' undue influence. The Rovas' petition was tried without ajury. After a


### 5 Michellemade derogatorycomments aboutthe Rovas on atleasttwo otheroccasions in addition to the meeting with Tolman: 

### The Rovas and Barnes jointly owned a rental house located on Barnes' s property. 

### In October 2010, Barnes had accused the renters of not paying rent and sent Michelle to confront them. Michelle told the renters that the Rovas wanted to " evict them so that they [the Rovas] could sell the land, 

### develop the properties, and become millionaires," which was not true. CP at 1138 ( FF 46). 

### In May2011, Michelle stated during an interviewat Barnes' church that John Rova tried to " throw [Barnes] under the bus a couple times." CP at 1145 ( FF 72). 

### 6 Michelle provided Barnes transportation to the meeting but was not present when Barnes' executed the will. 7 Michelle was named as the personal representative,with Dennis Wells designated as the alternate personal representative.No. 45069 -1 - I1



### lengthy bench trial, thetrial court entered 83 findings offact and 23 conclusions oflaw. The trial court ruled that Barnes had the mental capacity to execute the 2011 will, but invalidated the will as the product of Michelle' s undue influence. ANALYSIS I. STANDARD OF REVIEW 

### The Wells do notchallenge anyofthetrial court's findings offact. Unchallenged findings
of fact are verities on appeal. In re Estate of Lint, 135 Wn.2d 518, 533, 957 P.2d 755 ( 1998). 

### Accordingly,we accept as true all ofthe trial court's findings offact. Though the Wells do not challenge the findings offact,they assign errorto conclusions of law 11, and 13 through 22. We review conclusions of law de novo and our review is limited to 

### whethertheunchallenged findings offact supportthe conclusions oflaw. In re Estate ofHaviland, 162 Wn.

### App. 548, 561, 255 P. 3d 854 (2011); 

### Fuller v. Emp'tSec. Dep't,52 Wn.App. 603, 605, 762 P.2d 367 ( 1988). 

### We considerthe findings inthe light most favorable to the prevailing party, 

### here the Rovas. Scott's Excavating Vancouver, LLC v. WinlockProps., LLC, 176 Wn.App. 335, 342, 308 P.3d 791 ( 2013), review denied, 179 Wn.2d 1011 ( 2014). II. UNDUE INFLUENCE 

### The law presumes that a facially rational, legally executed will is valid. Dean v. Jordan, 194 Wash. 661, 668, 79 P.2d 331 ( 1938). The trial court' s function is not to assess the soundness 

### ofthe testator's disposition ofhis or her property because the testator is allowed to dispose of 

### property in any lawful manner. In re Bottger's Estate, 14 Wn.2d 676, 708, 129 P.2d 518 ( 1942). A trial court may set aside a will, however, ifa will contestant proves with clear, cogent, and convincing evidence thatthewill is aproductofundue influence. Haviland, 162 Wn.App. at
5No. 45069 -1 - II

558. 

### Clear, cogent, and convincing evidence must convince the trier offact that the fact is highly probable by weighing and evaluating evidence and making credibility determinations. Haviland, 162 Wn.App. at 558. To invalidate a will for undue influence, a will contestant must show more than " mere influence." Dean, 194 Wash. at 671. Undue influence is influence that controlled the testator' s volition, 

### interfering with the testator' s free will and 

### destroying free agency. Haviland, 162 Wn. 

### App. at 557 -

58; Bottger ' s Estate, 14 Wn.2d at 700. The influence must be "` tantamount to force 

### orfearwhich destroysthetestator'sfree agencyand constrains himto do whatis againsthis will.'" Lint, 135 Wn.2d at 535 ( quoting Bottger, 14 Wn.2d at 700). The mere fact thatthe will proponent offered " advice, arguments, persuasions, solicitations, suggestions or entreaties [ is] not enough to
establish undue influence." 

### In re Melter, 167 Wn.App. 285, 313, 273 P.3d 991 (2012).

The seminal Dean opinion outlined " certain facts and circumstances" that may raise a rebuttable presumption ofundue influence:

The most important of such facts are: ( 

### 1) Thatthe beneficiary occupied afiduciary or confidential relation to the testator; (

### 2) that the beneficiary actively participated in the preparation or procurement ofthe will; and (3) that the beneficiary received an unusually or unnaturally large part of the estate. 

### Added to these may be other considerations, such as the age or condition of health and mental vigor of the testator, 

### the nature or degree of relationship between the testator and the 

### beneficiary,the opportunityforexerting an undue influence, and the naturalness or unnaturalness of the will. 

### The weight of any of such facts will, of course, vary according to the circumstances of the particular case. 

### Any one ofthem may, and 

### variously should, appeal to the vigilance ofthe court and cause itto proceed with caution and carefully to scrutinize the evidence offered to establish the will. Dean, 194 Wash. at 671 -72. 

### Significantly,the will proponent does not have the burden to disprove undue influence to

overcome the presumption. 

### Kitsap Bank v. Denley, 177 Wn. App. 559, 578 -79, 312 P.3d 711
6No. 45069 -1 - II

2013). To rebut this presumption, the will proponent must produce evidence " sufficient at least 

### to balance the scales and restore the equilibrium ofevidence" regarding the will's validity. Dean, 

### 194 Wash.at672. The presumption does not shiftthe ultimate burden ofproving undue influence,
which remains with the will contestant. Melter, 167 Wn. 

### App. at 299. The will contestant must 

### provide "positive evidence" to support its claim ofundue influence and cannot rely on the "force ofthe presumption" alone. Dean, 194 Wash. at 673. III. REBUTTING THE PRESUMPTION OF UNDUE INFLUENCE 

### The trial court correctly concluded that there was sufficient evidence to support a presumption of undue influence. The trial court also entered conclusions of law 21 and 22, both of which concluded that the Wells did not produce sufficient evidence to overcome the presumption of undue influence. Conclusions of Law 21 and 22 stated as follows:

21. Michelle Wells did not produce evidence thatthis Court finds sufficient to " at least to balance the scales and restore the equilibrium of evidence touching the validity of the will." In re Estate ofBurkland, 8 [ Wn.]. 

### App. 153, [ 160], 504 P.2d 1143 ( 1972), [ review denied], 82 [ Wn].2d 1002 ( 1973). Clear, cogent and 

### convincing evidence establishes that the will signed by Ms. Barnes on March 3, 2011 was the product ofongoing undue influence by Michelle Wells.

22. The evidence that was presented on behalf of Ms. Wells was not 

### sufficient to overcome the presumption ofundue influence, based not only on the 

### fiduciary relationship, the active participation in procuring the Will and the unnatural disposition, but on all ofthe other considerations that the Supreme Court 

### says are appropriate to consider, age, health, incapacity, mental vigor, nature and 

### degree of relationships, opportunity for influence and the unnaturalness of the disposition. The will that Ms. Barnes executed on March 3, 2011 is invalid because 

### itwas the product ofundue influence by Michelle Wells. CP at 1152 -

53 ( Conclusions of Law 21, 22). The Wells argue that thetrial court' s findings offact do not support these conclusions. We agree.

7No. 45069 -1 - II In order to rebut the presumption ofundue influence, to " balance the scales and restore the equilibrium of evidence," 

### the Wells had to come forward with evidence that supported an equally plausible explanation for Barnes' s testamentary disposition. Dean, 194 Wash. at 672. The trial court' s unchallenged findings of fact contain more than sufficient evidence that Barnes changed 

### her will for a valid reason, unaffected by undue influence: that she had grown apart from, was suspicious of,and disliked the Rovas. As Barnes' s mental and physical condition deteriorated after her fall in 2009, Barnes became " 

### increasingly involved" and " 

### increasingly dependent" on Michelle. CP at 1135 ( FF 38). Michelle became Barnes' s " caretaker" while Barnes became " less involved" with the Rovas. CP
at 1136 ( FF 39). Michelle was the " only person close to [ Barnes] on a consistent basis." CP at 1144 ( FF 70). Michelle provided all of Barnes' s transportation needs because Barnes stopped 

### driving. Barnes became " suspicious" 

### ofthe Rovas after they cleaned her home and after they 

### suggested that Barnes should enter into an assisted living facility,which Barnes was "desperately
afraid" of

### doing. CP at 1134 - 35 ( FF 34). Barnes told Michelle that she " felt ostracized" from the Rovas. CP at 1137 ( FF 44). The Rovas did not choose to become less involved in Barnes' s life. Instead, " it was [ Barnes' s] choice" to become " less involved" with the Rovas. CP at 1136 ( FF 39). Barnes was a " strong-minded" woman. CP at 1132 ( FF 19). These facts are sufficient evidence to rebut the presumption of undue influence under Dean to at least " balance the scales" compared to the Rovas' evidence that created the presumption. Dean, 194 Wash. at 672.

8No. 45069 -1 - II The Rovas argue that the trial court' s conclusion of law 22, that the will was the product
of Michelle' s undue influence, is supported 

### by sufficient evidence. The trial court did not, however, make any findings of fact of " positive evidence" 

### of undue influence to specify what
constituted Michelle' s undue influence. Dean, 194 Wash. at 673. 

### Instead, the trial court wholly
relied on the presumption in making its conclusions of law regarding undue influence. This reliance on the presumption was error. 

### The trial court's conclusions oflaw 21 and 22, stating that the 2011 will was the product of undue influence and that the Wells had failed to overcome the presumption, are not supported 

### bythe findings offact. We hold that conclusions oflaw21 and 22 were made in error as a matter oflaw. Accordingly,we reverse and remand for a newtrial. IV. ATTORNEY FEES 

### The Rovas request that we award them attorney fees under RCW 11. 24.050 and RCW 11. 96A. 150. 

### They argue that such an award would be equitable because the Wells' " factual challenge" is meritless. Br. of

### Resp' t at 48. 

### Because the Wells' appeal is not meritless, we deny the Rovas' request for an award ofattorney fees. 

### We reverse and remand for a newtrial, holding thatthetrial court erred as a matter oflaw

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### in determining thatthe Wells did not rebutthe presumption ofundue influence. 

### A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, butwill be filed for public record in accordance with RCW2.06.040, it is so ordered.

We concur:

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