No. 91-372 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

AUDREY FLIKKEMA, WINONA VANDER 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Larry W. Moran, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Douglas Ritter, Nash, Guenther, Zimmer & Screnar, 

Bozeman, Montana 

For Respondent: 

J. David Penwell, Attorney at Law, Bozeman, Montana 

Filed: 

Submitted on Briefs: July 2, 1992 

Decided: October 14, 1992 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Plaintiffs brought suit in the District Court of the 

Eighteenth Judicial District, Gallatin County, alleging, among 

other things, undue influence and actual fraud. The court, sitting 

without a jury, found for plaintiffs and entered judgment in the 

amount of $104,190.96. We affirm. 

The following issues are presented for review by this Court: 

1. Was respondentsv action barred by the applicable statute 

of limitations? 

2. Was the District Court's finding that there was undue 

influence clearly erroneous? 

3. Did the District Court err in the award of punitive 

damages? 

4. Did the District Court err in disallowing personal 

representative fees and attorney fees paid by the estate of the 

decedent? 

This matter involves a dispute over the distribution of the 

estate of Alice Kim. Alice Kimm, a widow, died on February 8, 

1987, at the age of 85. The respondents in this case, Audrey 

Flikkema, Winona Vander Molen, and Willemina Van Egmond are all 

daughters of the decedent. The appellant, Clarence J. Kimm, is the 

son of the decedent. Decedent had another daughter who is not a 

party to this action. 

The decedent's will, dated June 23, 1976, provided that her 

residuary estate should be divided equally between the parties to 

this action. Further, the will designated respondent Willemina 

2 
Van Egmond as personal representative. In September 1980, the 

decedent suffered the first in a series of debilitating strokes. 

From the time of her first stroke until her death, the decedent was 

considerably disabled. The District Court found that decedent had 

fluctuating periods when she could be considered generally mentally 

competent, but her physical abilities were always limited. During 

this time period it is uncontroverted that decedent and appellant 

shared a close and confidential relationship. Shortly after her 

first stroke, the decedent added a codicil to her will. The 

codicil changed the personal representative from Willemina to 

appellant. During this same time period, the District Court found 

that assets owned solely by the decedent were systematically 

transferred to the decedent and appellant as joint tenants. At 

trial, appellant alleged that at the time of these transfers he had 

no knowledge of the effect of joint tenancy, i.e., that upon the 

death of one joint tenant, property so owned would pass by 

operation of law to the surviving joint tenant. 

Appellant initiated a probate proceeding following the 

decedent's death. Decedent's will was filed on March 24, 1987, and 

appellant was appointed and issued letters as personal 

representative on May 22, 1987. In July 1987, one of the 

respondents requested from appellant an itemized list of the 

residual monies left in the decedent's estate. Appellant then sent 

a note setting forth the various assets which remained and 

indicating that all three of the respondents would share equally 

with him in the distribution of these assets. Appellant alleges 

3 
that at some point after he had sent this note to respondents he 

learned that as the surviving joint tenant he was not obligated to 

distribute any of the property. On September 19, 1988, appellant 

filed the inventory and appraisement listing all the assets held 

jointly by himself and the decedent. Appellant then filed the 

final accounting, which respondents objected to. 

On April 2, 1990, respondents filed suit alleging that the 

appellant had used undue influence and fraud to obtain the bulk of 

their mother's estate. Following a nonjury trial, the District 

Court found in favor of respondents. The court found that 

appellant had exercised undue influence in obtaining control over 

the decedent's assets. As a result of this unjust enrichment, the 

assets were subject to a constructive trust for the benefit of all 

four parties equally. Additionally, the court found appellant 

acted with actual malice and that the acts in question constituted 

actual fraud. Following a separate hearing on the matter, the 

court awarded punitive damages. The final judgment was for 

$lO4,190.96, which was to be divided between the three respondents. 

From the entry of this judgment appellant brought this appeal. 

I 

Was respondents' action barred by the applicable statute of 

limitations? 

The District Court in this case decided both factual and legal 

questions. Prior to addressing appellant's first issue concerning 

the statute of limitations it is necessary to set out the 

appropriate standard of review in this case. On appeal, this Court 
will not disturb the district court's findings of fact in a nonjury 

trial unless they are clearly erroneous. In the Matter of the 

Mental Health of E.P. (1990), 241 Mont. 316, 787 P.2d 322; Rule 

52(a), M.R.Civ.P. Our standard of review of questions of law is 

simply whether the district court's interpretation of the law is 

correct. Schaub v. Vita Rich Dairy (1989) , 236 Mont. 389, 770 P. 2d 

522. The basis for this standard of review is that no discretion 

is involved when a tribunal arrives at a conclusion of law. The 

tribunal either correctly or incorrectly applies the law. Steer, 

Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601. 

This Court will also give due regard to the opportunity of the 

district court to judge the credibility of the witnesses. In the 

Matter of the Mental Health of R.J.W. (1987), 226 Mont. 419, 736 

P.2d 110. 

Appellant alleges the action brought by respondents should 

have been barred for failing to commence the action within the 

applicable statute of limitations, which both parties agree was two 

years, with the cause of action not to be deemed to have accrued 

until discovery by respondents of the facts constitutingthe claim. 

Section 27-2-203, MCA. Additionally, 5 27-2-102, MCA, provides in 

part that: 

When action commenced. (1) For the purposes of 

statutes relating to the time within which an action must 

be commenced: 

(a) a claim or cause of action accrues when all 

elements of the claim or cause exist or have occurred, 

the right to maintain an action on the claim or cause is 

complete, and a court or other agency is authorized to 

accept jurisdiction of the action; 
(b) an action is commenced when the complaint is 

filed. 

(2) Unless otherwise provided by statute, the 

period of limitation begins when the claim or cause of 

action accrues. Lack of knowledge of the claim or cause 

of action, or of its accrual, by the party to whom it has 

accrued does not postpone the beginning of the period of 

limitation. 

(3) The period of limitation does not beqin on anv 

claim or cause of action for an iniurv to person or 

property until the facts constitutinq the claim have been 

discovered or, in the exercise of due diliqence, should 

have been discovered bv the iniured partv if: 

fa) the facts constitutinq the claim are bv their 

nature concealed or self-concealinq; or 

(b) before, durinq, or after the act causinq the 

iniurv, the defendant has taken action which prevents the 

iniured party from discoverins the iniurv or its cause. 

[Emphasis added.] 

Respondents filed their action on April 2, 1990. Appellant 

alleges that respondents either discovered the facts constituting 

their claim, or in the exercise of due diligence should have 

discovered the facts constituting their claim, well before April 

1988. Therefore, appellant argues that respondents' filing in 

April 1990 is untimely pursuant to the two-year statute of 

limitations. 

At trial, appellant elicited testimony from a friend of the 

respondents in an attempt to show that respondents, through the 

exercise of due diligence, should have discovered the facts 

constituting their claim. This witness testified that even prior 

to the death of their mother, respondents were concerned about the 

possibility that appellant was exercising undue influence over 

their mother's assets. Also introduced at trial was a letter from 

6 
an attorney advising respondents to "take such steps that might be 

necessary to protect your interests in your mother's property." 

This letter was dated May 15, 1987, several months after their 

mother's death. While this letter clearly did not put respondents 

on notice of any of the particular facts which constitute their 

present claim, it might be considered sufficient to require further 

inquiry on their part. 

Respondents testified that prior to receiving the letter from 

the attorney on May 15, 1987, appellant had refused to communicate 

any information to them regarding their mother's estate. In July 

1987, approximately two months after receiving the letter, one of 

the respondents requested from appellant an itemized list 

describing the residual monies left in her mother's estate. 

Appellant sent a note setting forth the various assets which 

remained and specifically indicated that these assets would be 

shared equally between appellant and the three respondents. At 

trial, all three respondents indicated that they relied upon this 

representation. When appellant was asked if there was any reason 

why respondents should not have relied on this representation, he 

replied, "probably not." 

On September 19, 1988, appellant filed the inventory and 

appraisal listing all of the assets of the decedent and indicating 

that most of the assets were held in joint tenancy with him. 

Respondents allege that it was not until September 1988, when 

appellant filedthe inventory and appraisal, that they become aware 

of the facts constituting their claim, and that by filing in 
April 1990 they were well within the two-year statute of 

limitations. Appellant argues reliance must be reasonable and 

that respondents' reliance on his representation that they would 

all share equally in their mother's estate was not reasonable. 

Turley v. Turley (1982), 199 Mont. 265, 649 P.2d 434. Further, 

appellant contends that at the time he made the representation he 

did not understand that as a joint tenant he alone was entitled to 

all of the assets jointly held. The District Court specifically 

found appellant's testimony in this regard to not be credible. 

Respondents point out that as personal representative of the 

estate appellant had a fiduciary duty to them which included the 

duty of full disclosure. Skierka v. Skierka Bros., Inc. (1981) , 

192 Mont. 505, 629 P.2d 214. Not only did appellant not comply 

with this duty of full disclosure, but he took affirmative steps to 

conceal from respondents the information necessary to bring their 

suit. The District Court found that appellant "continuously 

misrepresentedthe overall situation to [respondents], leading them 

to believe each would share equally with [appellant] in settling 

their mother's 'estate'." 

There was conflicting evidence presented at trial as to when 

respondents either discovered or should have discovered the facts 

constituting their claim. The District Court Judge, after hearing 

all of this evidence and weighing the credibility of the witnesses, 

determined that the action had been timely filed. We hold that the 

District Court's finding that respondents1 action was brought 
within the applicable statute of limitations was not clearly 

erroneous. 

I1 

Was the District Court's finding that there was undue 

influence clearly erroneous? 

Appellant argues that respondents did not meet their burden of 

proof concerning the alleged undue influence and that the District 

Court's finding of undue influence is clearly erroneous. This 

Court, in Christensen v. Britton (1989), 240 Mont. 393, 784 P.2d 

908, set out the criteria which must be satisfied in order to find 

undue influence. The five criteria are: 

(1) Confidential relationship of the person 

attempting to influence the testator; 

(2) The physical condition of the testator as it 

affects his ability to withstand influence; 

(3) The mental condition of the testator as it 

affects his ability to withstand the 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 demands and importunities as they may 

affect the particular donor taking into consideration the 

time, the place, and all the surrounding circumstances. 

Christensen, 784 P.2d at 911. Each one of these criteria must be 

satisfied in order to prove an assertion of undue influence. We 

must, therefore, apply the evidence in this case to each of the 

criteria. 

There appears to be agreement between the parties that 

appellant had a confidential relationship with the decedent. The 
second and third criteria relate to the decedent's physical and 

mental condition and whether her condition affected her ability to 

withstand influence. The District Court, after hearing testimony 

concerning both the decedent's physical and mental condition, 

determined that decedent's mental condition fluctuated during the 

time period in question, while her physical condition was 

continuously limited. The decedent was a widow, elderly, and by 

all accounts in very poor physical health. Clearly, decedent's 

mental and physical condition made her susceptible to influence. 

The fourth criteria is the unnaturalness of the disposition as 

it relates to showing either an unbalanced mind or a mind easily 

susceptible to undue influence. Decedent's will provided that 

appellant and respondents would share equally in her estate. The 

distribution provided for in the decedent's will was never changed 

and is an indication of her intent that the parties to this action 

would share equally in her estate. 

Respondents argue that in this situation the transfer of most 

of the decedent's assets to appellant was unnatural. The fact that 

a parent might leave the majority of his or her assets to only one 

child, while excluding others, is not in and of itself unnatural. 

In fact, decedent's will did specifically exclude one of her 

daughters who is not a party to this action. However, considering 

the transfers in question in light of the fifth criteria clarifies 

why the transfers were unnatural. The fifth criteria requires an 

examination of the time, the place, and all the circumstances 

surrounding the transfers. In this case, there is a clear intent 
that the parties to this action were to share equally in the 

estate. However, several years before the decedent's death most of 

her assets were transferred into joint tenancy with appellant. 

These transfers occurred at a time when appellant was clearly in a 

position to exercise influence over the decedent. Additionally, 

all of this occurred at a time, when due to her advanced age and 

illness, decedent was susceptible to such influence. The District 

Court's finding that appellant was unjustly enriched by exercising 

undue influence is not clearly erroneous. The District Court was 

correct in concluding that all of the assets coming under the 

control of appellant as a result of this undue influence were 

properly the subject of a constructive trust for the benefit of 

himself and respondents equally. 

I11 

Did the District Court err in the award of punitive damages? 

Section 27-1-221, MCA, provides that "reasonable punitive 

damages may be awarded when the defendant has been found guilty of 

actual fraud or actual malice." The District Court in this case 

found that appellant was guilty of both actual fraud and actual 

malice, and in a separate hearing on the matter awarded punitive 

damages in the amount of $30,000. Appellant argues that there was 

no basis for a finding of actual fraud, and therefore, the award of 

punitive damages was inappropriate. This matter need not be 

addressed by this Court, as the finding of actual malice, which is 

uncontested on appeal, is sufficient basis for the award of 

punitive damages. 
Section 27-1-220, MCA, provides that punitive damages may be 

awarded for the sake of example and for the purpose of punishing a 

defendant. Section 27-1-221, MCA, sets forth the criteria to be 

followed by the district court in determining a punitive damage 

award and requires that the court clearly state the reasons for 

making the award. The District Court clearly followed the 

requisite criteria in determiningthe amount ofthe punitive damage 

award. In light of the statutory criteria and the circumstances of 

this case, we hold the District Court did not err in awarding 

$30,000 in punitive damages. 

IV 

Did the District Court err in disallowing personal 

representative fees and attorney fees paid by the estate of the 

decedent? 

The District Court determined that appellant should be charged 

with repayment of personal representative fees and attorney fees 

previously paid by the estate. Apparently this decision was not 

based on a dispute over the calculation of the fees, but rather 

based on the court's conclusion that appellant had breached his 

trust. The review of fees paid or taken by a personal 

representative is left to the sound discretion of the District 

Court. The District Court's determination concerning fees will not 

be overturned absent a showing of an abuse of discretion. Estate 

of Stone (1989), 236 Mont. 1, 768 P.2d 334. The reasonableness of 

any challenged fee is determined in part by whether the services 

rendered were beneficial to the estate. Stone, 768 P.2d at 336. 
In this case the services rendered were not beneficial to the 

estate. The District Court's determination concerning the fees was 

not an abuse of discretion. 

Affirmed. 

We concur: 

// < 

/ Chief Justice 
October 14, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Douglas Ritter 

Nash, Guenther, Zimmer & Screnar 

P.O. Box 1330 

Bozeman, MT 59771-1330 

J. David Penwell 

Attorney at Law 

125 W. Mendenhall 

Bozeman, MT 59715 

ED SMITH 

CLERK OF THE SUPREME COURT