NO. 84-320 INTHE SUPREME COURT OF THE STATEOF MONTANA 1985

INTHEMATTER OF THE ESTATE OF NINA KATHARYNHOGAN,Deceased..

THOMAS SKELTON, Contestant and Plaintiff/Appellant,

EDNA SKELTON,Personal Representative of the Estate ofNina KatharynHogan, Deceased, Respondentand ~efendant/~espondent.

APPEAL FROM: DistrictCourt of the First Judicial District, Inand for the County of Lewis & Clark, The Honorable Henry Loble, Judgepresiding.

COUNSELOF RECORD: ForAppellant: RobertT. Cummins,Helena,Montana CharlesA. Smith, Helena,Montana For Respondent: Small, Hatch,Doubek & Pyfer;Floyd Small, Helena, Montana

Submitted on Briefs: Aug. 15, 1985 Decided: November 14, 1985

Filed:Mr. Justice William E. Hunt, Sr., delivered.the Opinion of the Court.

The appellant, Thomas Skelton, contested the will of Nina Hogan on the grounds of incompetence and undue influence. The District Court denied jury instructions on the matter of undue influence. The jury found Nina Hogan competent. The appellant appeals the denial of instructions. We affirm. The issue presented iswhether the District Court erred in refusing the appellant's offered instructions on undue influence. Nina Hogan, testatrix, a long time resident of Helena, Montana, died at age 88 on November 5, 1981. Her husband predeceased her. Only one of her seven siblings, a sister, Lee Sweeney, survived her, but she had a number of nieces, nephews, and children of nieces and nephews living at the time of her death. By the terms of her will the major portion of her estate went to the respondent,Edna Skelton, the wife of one of her nephews, Bill Skelton. Edna and Bill Skeltonare ranchers fromWhite Sulphur Springs,Montana. In 1975 Edna Skelton began caring for Nina Hogan after she had

an eye operation. Edna Skelton traveled toHelena frequently to care for her, doing housework and errands, up until her death. The record does not show that other relatives extended such care to her. The last few months of Nina Hogan's lifewas in a resthome. The will in question was executed by Nina Hogan on October 20, 1981. This date was about two weeks before her death. The will is essentially the same as a will she executed May 5, 1981. The original of that willwas lost ordestroyed but Nina Hogan signed a copy of that will on October 13, 1981. These three wills, all essentially the same, left themajority ofher estate to the respondent, Edna Skelton. Edna Skelton was also appointed Nina Hogan's personal representativeby the terms of thewill. The October 20, 1981,willwas submitted to probate but challenged on grounds of incompetence and undue influence. At a jury trial the District Court refused instructions on undue influence. Thematter of incompetencewent to the jury and they returned a verdict thatNina Hoganwas competent to make a last will. and testament at the time of signing the instrument offered for probate as her will. The appellant, Thomas Skelton, contestant of the will, appeals from the District Court's refusal to instruct upon undue influence. It is fundamental that a party is not prejudiced by the failure of the trial court to give requested instructions where the evidence does not support the giving of instructions. Magnuson v. Rillmayer (Mont. 1980)

## , 616 P.2d 368, 371, 37 St.Rep. 1597, 1600. A party is not prejudiced by a refusal of proposed instructions where the subject matter of the instruction is not applicable to the facts or not supported by the evidence introduced at trial.. Associated Agency of Bozeman, Inc. v. Pasha (Mont. 1981), 625 P.2d 38, 42, 38 St.Rep. 344, 348. Inorder for this Court to

reverse on thebasis of the denial to give instructions it is necessary that the evidence supported such instructions. The intention of a testatrix as expressed in her will controls the legal effect of her disposition. Section 72-2-501, MCA. Courts have neither the right nor the power to reframe the will of a decedent or to overthrow the expressed intent therein contained. In reMaricich's Estate(1965),145Mont. 146, 162, 400P.2d 873, 881. Of course, if the true intentof the testatrix is notmanifest in her will because of undue influence the will is not valid, see, Maricich's Estate, 400 P.2d at 880, and the law will "rewrite" thewill to expresswhat the ,-egislature hasd-eemed to be the true intent of the testatrix, usually through application of the laws of intestate succession. See, S 72-2-201,MCA. The contestant of a will.has the burden of establ-ishing undue influence. Section 72-3-310,MCA. Undue influence is the use of a confidence or real or apparentauthority for the purpose of obtaining an unfair advantage over another or it may also be the taking of an unfair advantage of another's weakness ofmind or a grossly oppressiveand unfair advantage of another's necessities or distress. Section 28-2-407, MCA; see also, Elack's Law Dictionary 1370 (rev. 5th ed. 1979), citing Calif. Civil Code S 1575. This definition of undue influence is contained in the statutes on Montana contract law but it has been applied ir,will cases. See, Adams v. Allen (Mont. 19841, 679 P.2d 1232, 1235, 41 St.Rep. 610, 613; Dybvik v. Dybvik (Mont. 1982), 654 ~.2d 989, 993, 39 St-Rep.2184, 2189. Montana case law has established several factors that may be considered in reaching a determination on undue influence: 1. Confidential relationship of the person attemptingto influence the testator; 2. the physical condition of the testator a.s it affects his ability to withstand the influence; 3. the mental condition of the testator as it affectshis ability towithstand influence;4. the unnaturalness of the disposition as it relates to showing an unbalanced mind or a. mind easily susceptibletoundue influence;and 5. the deman.ds and importunities [urgent or persistent solicitations] as they may affect particular testator taking into consideration the time, the place, and all the surrounding circumstances. Maricich's Estate 

## , 400 P.2d at 881; Adams, 679 P.2d at 1235. These factors relate closely to what commentators have considered to be the elements of undue influence as that concept applies to wills. The elements of undue influence usually include a testatrix subject to or susceptible of undue influence, an opportunity to exercise undue influence, a disposition to exert undue influence, a.nd a result appearing to be the effect of und.ue influence. Thomas E. Atkinson, Handbook of the Law of Wills 256 (2ded. 1953); I. PageonWills § 15.5 (Bowe-ParkerRevision 1960). Although important, these factorsand elements give only

a means of attempting toprove or a means of analyzing undue influence. For there to be undue influence it is necessary that there be a destruction of free agency. See,Maricich's Estate, 400 P.2d at 879-881 and cases cited therein; accord-, Atkinson, supra, at p. 255 and Page - on Wills, supra, at $

The record shows that the respondent obtained a close relationship with the testatrix. The respondent was a frequent friend and aid to the testatrix for about sixyears. This was a long time association between the respondent and the testatrix and the testatrix's acceptance of the respondent's aid created a close relationship sufficient to provide an opportunity forundue influence. The testatrixwas strongwilled and independentofmind. However, the record shows that the testatrix's physicalcondition deteriorated in the last years of her life. She losther sight and was confined to a wheel chair. Therewas conflicting evidence on the testatrix's mental condition. The record shows a deterioration of mental ability but the jury determined that the testatrixwas competent tomake her last will. That determinationwas not appealed and it goes far towards establishing that her mental condition was not critically susceptible to undue influence in the absence of contrary evidence. The disposition in the will was, in a technical sense, unnatural as it left the majority of the testatrix's estate to the wife of a nephew. However, this disposition is not unexpected or surprisi.ngly unusual. The testatrix had no spouseat the time ofher death and no children. Shehad one sisterbut that sisterwas alienated from the testatrix. Her only surviving relatives were nieces and nephews and the children of nieces and.nephews, none of whom extended much care to her. The primary beneficiary was married to one of her nephews. The beneficiary was a cl-osefriend and aid. The record does not d.isclosethat the respondent made demands or urgent or persistent solicitations upon the testatrix. Respondent, as friend and aid,pla.yeda part in the events surroundingthe execution of the willsbut in such fashion that did not exceed the care and aid that she had been giving for several years. Interested and.influential the respondentmay have been but not to the extent of taking

an unfair advantage or destroying the testatrix's free agency. The appellant's arguments on appeal that the respondent committed wrongdoing are largely based on speculation..Evidence in the record does not create a question of fact on undue influence. We hold that the evidence introduced at trial did not support the giving of the appellant's instructions on undue influence. The District Court did not err in Zenying those offered instructions. Affirmed.

We Concur: /7



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