NO. 84-320 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

IN THE MATTER OF THE ESTATE OF NINA 

KATHARYN HOGAN, Deceased.. 

THOMAS SKELTON, 

Contestant and Plaintiff/Appellant, 

EDNA SKELTON, Personal Representative of 

the Estate of Nina Katharyn Hogan, Deceased, 

Respondent and ~efendant/~espondent. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Henry Loble, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert T. Cummins, Helena, Montana 

Charles A. 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 is whether 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 

Skelton are ranchers from White Sulphur Springs, Montana. In 

1975 Edna Skelton began caring for Nina Hogan after she had 

an eye operation. Edna Skelton traveled to Helena 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 life was in a rest home. 

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 will was lost or 
destroyed but Nina Hogan signed a copy of that will on 

October 13, 1981. These three wills, all essentially the 

same, left the majority of her estate to the respondent, Edna 

Skelton. Edna Skelton was also appointed Nina Hogan's 

personal representative by the terms of the will. 

The October 20, 1981, will was submitted to probate but 

challenged on grounds of incompetence and undue influence. 

At a jury trial the District Court refused instructions on 

undue influence. The matter of incompetence went to the jury 

and they returned a verdict that Nina Hogan was 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. In order for this Court to 

reverse on the basis 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 re Maricich's Estate 
(1965), 145 Mont. 146, 162, 400 P.2d 873, 881. Of course, if 

the true intent of the testatrix is not manifest 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" the will to express what the ,-egislature has d-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 apparent authority 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 of mind or a grossly oppressive and 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 

attempting to 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 

affects his ability to withstand 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 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 inf luence, 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 (2d ed. 1953) ; I. 

Page on Wills § 15.5 (Bowe-Parker Revision 1960). 

Although important, these factors and elements give only 

a means of attempting to prove 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 six years. 

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 for undue influence. 

The testatrix was strong willed and independent of mind. 

However, the record shows that the testatrix's physical 
condition deteriorated in the last years of her life. She 

lost her sight and was confined to a wheel chair. There was 

conflicting evidence on the testatrix's mental condition. 

The record shows a deterioration of mental ability but the 

jury determined that the testatrix was competent to make her 

last will. That determination was 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 

spouse at the time of her death and no children. She had one 

sister but that sister was 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-ose friend and aid. 

The record does not d.isclose that the respondent made 

demands or urgent or persistent solicitations upon the 

testatrix. Respondent, as friend and aid, pla.yed a part in 

the events surrounding the execution of the wills but in such 

fashion that did not exceed the care and aid that she had 

been giving for several years. Interested and. influential 

the respondent may 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: 

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