No. 83-427 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

CURTIS R. ADU4S, as personal representative 

of the Estate of IDA MAY ADAMS, Deceased, 

Plaintiff and Respondent, 

ILA ALLEN, a/k/a ILA ANDERSON, 

Defendant, Third Party Plaintiff 

and Appellant, 

CURTIS ADAMS and JOHN FAIRBAIRN, 

Third Party Defendants and 

Respondents. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert PI. Holter , Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John L. Petersen, pe is sou la, Montana 

For Respondents: 

David W. Harman, Libby, r~lontana 

Submitted on Briefs: December 22, 1983 

Decided: April 5, 1984 

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Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Ila Allen, a/k/a Ila Anderson appeals the judgment of 

the District Court for the Nineteenth Judicial District, 

Lincoln County, which declared void a trust agreement, a deed 

and a power of appointment signed by Allen's friend, Ida 

Adams. We affirm the judgment. 

Ida Adams was a resident of Libby, Montana, and at her 

death, the owner of the Cherry Creek Trailer Court. During 

her lifetime she undertook various businesses and 

occupations. She had two natural sons and numerous foster 

children. Dora Fairba-irn was a very close friend and Adamc 

treated her like a daughter. Fairbairn lived in Adams' 

trailer court and during Adams' last years, spent 

considerable time taking care of Adams. 

On March 17, 1974, Ada.ms executed a will granting Dora 

Fairbairn a life estate in the trailer court, with the 

remainder to Adams' sons, Curtis and Robert. 

Adams suffered from diabetes, angina pectoris and 

cerebral strokes for at least the Last two years of her life. 

As a result of the diabetes, she lost her sight almost 

completely; thus, she required much assistance in getting 

around. Adams was hospitalized in the Libby Hospital nine 

times between December of 1978 and February of 1980 and her 

treating physician was Dr. W. D. Matthews. 

In March of 1980, Adams traveled to Spokane, Washington, 

with Ila Allen to attend a wedding and to undergo physical 

examinations by Spokane physicians. When not in Sacred Heart 

Hospital, Adams stayed with Allen. Sometime during Adams ' 

stay in Spokane, Allen telephoned Charles Cruikshank, her 
attorney in Great Falls, Montana. Based on the call, 

Cruikshank prepared a quitclaim deed and a trust agreement 

which would transfer the Libby trailer court to a trust, with 

Allen as trustee. The income from the trust was to go to 

Adams during her lifetime; the property was to be transferred 

to Allen upon Adams' death. 

Cruikshank drove to Spokane on March 16, 1980 and 

visited Adams in the hospital. While there, Cruikshank first 

spoke with Adams' doctors and reviewed her records. He then 

spent approximately one hour explaining the trust agreement 

to Adams. She signed the agreement, the deed and a 

handwritten power of appointv-ent and the deed was 

acknowledged by Cruikshank as a Montana notary public. 

Allen, who was at the hospital, signed both the 

agreement and the power of appointment. At the same time, 

Adams assigned a potential- Black Lung case to Allen, as 

trustee, which was then transferred to the trust. The 

parties also discussed a potential malpractice case a.qainst 

Adams ' Libby physician. 

On April 6, 1980, Dora Fairbairn arrived in Spokane and 

took Adams out of the hospital and back to Libby. 

Approximately nine hours later Adams died while at 

Fairbairn's home. 

Curtis Adams, as the personal representative of Ida 

Adams' estate, brought suit against Allen, seeking to have 

the trust agreement and the deed set aside. Allen 

counterclaimed against Adams' estate and crossclaimed against 

Curtis Adams and John Fairbairn (Dora's brother) seeking rent 

due. After a hearing held June 7, 1983, the District Court 

entered its findings, conclusions and order. It found that 

Ida Adams "evidenced a decline in mental capacity, i.ncluding 
increased forgetfulness, hallucinations and instability. She 

was incapable of making major decisions because of the 

fluctuating condition of her mind." As to Allen's 

relationship with Adams, the court found that although Allen 

had been acquainted with Adams for a number of years, she had 

not previously been a part of the circle of Adams' closer 

friends. The District Court found that Adams did not talk to 

anyone but Cruikshank regarding the papers she signed while 

in Spokane, and that the only evidence presented as to Adams' 

condition at the time of signing was testimony by Cruikshank 

and Allen. The court rejected the testimony as inconsistent 

with the descriptions of Adams' condition just prior to and 

after the date of signing. 

Based on the foregoing, the District Court concluded 

that (1) Adams' physical condition prevented her from 

withstanding the influence of Allen; (2) Adams' mental 

condition before, on, and after March 16, 1980 "afflicted" 

her ability to withstand Allen's influence; (3) Adams' 

disposition of her property by execution of the deed and 

trust agreement was unnatural, as it did not include gifts to 

the natural objects of her bounty, her two sons and Dora 

Fairbairn; and (4) the trust agreement was not based on 

consideration, was not properly notarized or timely filed and 

was signed by Adams as a mistake as she thought she was 

signing some other papers. 

The District Court declared the trust agreement, the 

deed and the power of appointment void. Allen appealed, 

raising the following issues: 

1. Did the District Court properly find that Allen 

exerted undue influence over Adams so as to make her sign the 

trust agreement, power of appointment, and deed? 
2. Did the District Court properly find the trust 

agreement void because (1) no consideration passed from Adams 

to Allen; (2) it was improperly notarized; and (3) Adams was 

mistaken as to what she signed? 

The standard of review in this case is whether there was 

substantial evidence to support the District Court's 

findings. Viewing the evidence in a light most favorable to 

the prevailing party, we are free to reverse the judgment 

only if there is a 1-ack of substantial evidence to support 

the judgment. Dybvik v. Dyhvik (Mont. 1982), 654 P.2d 989, 

39 St.Rep. 2184; In re LaTray's Estate (1979), 183 Mont. 141, 

598 P.2d 619. The findings of fact must be clearly 

erroneous. Rule 52(a), M.R.Civ.P. 

It is well settled in Monta.na case law that undue 

influence must be proven by the person contesting a will or 

contract. Blackmer v. Blackmer (1974), 165 Mont. 69, 525 

P.2d 559; In re Maricich's Estate (1965), 145 Mont. 146, 400 

P.2d 873. Undue influence negates the free consent necessary 

for the proper formation of a contract. Sections 28-2-301 

and 28-2-401, MCA. Section 28-2-407, MCA, defines undue 

influence: 

"Undue inf luence consists in: 

" (1) the use by one in whom a confidence is reposed 

by another or who holds a real or apparent 

authority over him of such confidence or authority 

for the purpose of obtaining an unfair advantage 

over him: 

" (2) taking an unfair advanta-ge of another's 

weakness of mind; or 

" (3) taking a grossly oppressive and unfair 

advantage of another's necessities or distress." 
This Court, in Maricich, 145 Mont. at 161, 400 P.2d at 

881, held that the following factors are to be considered in 

determining whether undue influence exists: 

" (1) Confidential relationship of the person 

attempting to influence the testator; 

" (2) Th.e physical condition of the testator as 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 infl-uence; and 

" (5) The demands and importuniti.es as they may 

affect particular testator taking into 

consideration the time, the place, and all the 

surrounding circumstances." 

Allen concedes that a confidential relationship existed 

between Adams and her and that the disposition of Adams' 

property under the trust agreement was unnatural. 

As to Adams' physical condition, there was testimony at 

trial that her illness had greatly affected her ability to 

move around freely. She required aid because she could not 

see and because medication had to be administered regularly. 

The time spent in the Libby hospital and then the Spokane 

hospital is evidence of her serious illnesses. 

There was also testimony presented as to Adams' 

deteriorating mental condition. Her treating physician in 

Libby, Dr. W. D. Matthews, testified. that because her life 

was becoming so inhibited by her illnesses, she was 

considerably unhappy. Moreover, she was forgetful and would 

sometimes hallucinate. Testimony by one of the registered 

nurses who cared for Adams in the Libby hospital indicated 

that, during the nights of her last stay in Janua-ry and 

February, Adams would exhihit forgetfulness and irritability. 
Other friends of Adams testified that she was getting harder 

to converse with as she was forgetful and unable to maintain 

a train of thought. She appeared overly concerned about 

being taken care of by friends and family rather than being 

placed in a nursing home. 

As to the fifth factor, we must consider the time, pla.ce 

and circumstances of any demands and importunities made by 

Allen. There was no evidence presented at the trial of this 

case of specific demands or importunitj-es by Allen. But 

there was no testimony by anyone other than Allen and 

Cruikshank as to the circumstances surrounding the 

solicitation of Cruikshank as Adams-ttorney or the signing 

of the papers at the Spokane hospital. The District Court 

concluded that the sequence of events, starting with Adams' 

travel to Spokane with Allen, was evidence sufficient to find 

that Allen had. influenced Adams unduly to have papers drawn 

to transfer her property to Allen. 

The District Court went a step further and declared in a 

post-trial memorandum that the case involved a presumption 

that evidence - not produced as to Adams1 mental capacity at 

the time she signed the papers was adverse to Allen's case. 

The court stated tha.t: 

". . . In cases of incompetency, or suspected 

incompetency, the usual practice is to call upon 

doctors and nurses from the confining hospital to 

clearly show mental capacity at that time. Because 

Defendant [Allen], through her attorney, chose the 

trust dispositional device, the whole transaction 

becomes odious. Hence, and under these special 

circumstances, the failure to involve persons 

knowledgeable of decedent's condition at the time 

of signing and as witnesses at this trial certainly 

raises the presumption under Section 26-1-602 (6) 

MCA, in spite of the fact that the burden is on the 

Plaintiff to show undue influence. Thus, and again 

in these peculiar circumstances, the lack of 

evidence is in itself evidence." 
Section 26-1-602(6), MCA, states as a disputable presumption 

that "[mlore satisfactory evidence would be a.dverse if weaker 

and less satisfactory evidence is offered and it is within 

the power of the party to offer more satisfactory evidence. " 

Allen contends that the lack of evidence produced on 

this issue should be held against the plaintiff as a failure 

to sustain the burden of proof of undue influence. 

Therefore, she argues that the Lack should not be the basis 

for a presumption which works against Allen. Adams argues 

that, although this Court has denounced such a presumption in 

previous cases, it would be appropriate in cases like this. 

It is true that in Blackmer v. Blackmer (1974), 165 

M.ont. 69, 74, 525 P.2d 559, 562, this Court stated: 

"Argument by the parties concerns the connotation 

of the presumption as used by the trial court in 

its conclusion of law No. 2. Disregarding matters 

raised outside the record we will only comment that 

these circumstances in Montana raise no presumption 

of any kind. Undue influence or incompetence is 

never presumed and must be proven, like any other 

fact. In re Cocanougherls Estate, 141 Mont. 16, 

375 P.2d 1009." 

This holding is consistent with previous Montana case law, 

including In re Cocanougher's Estate (1962), 141 Mont. 16, 

375 P.2d 1009, which rejected any shifting of burdens of 

proof as to undue influence. 

The presumption noted and used by the District Court in 

this case regards only a presumption as to the type and lack 

of evidence of demands and importunities by Allen. The 

presumption does not effect Adams1 burden of proof of undue 

influence. We find no error in use of the section 

26-1-602 (6) , MCA, presumption where it leaves undisturbed a 

plaintiff's burden of proof. 
The record provides evidence of Allen's alleged purposes 

for taking an interest in Ida Ad.ams. Claiming that she 

wanted to know what Adams' medical condition was before 

agreeing to take care of: her, and that Adams' preferred 

treatment in a Spokane clinic to that she got in Libby, Allen 

took her to Spokane. As to how her attorney became involved, 

Al.len testified: 

"Q. You said Mr. Cruikshank represented you in a 

private matter, is that correct? A. Yes. 

"Q. All right. Was he representing you, at the 

time, February and March of 1980? A. I don't 

think so. 

"Q. How long a. period of -- before that, had he 

represented you? A. A couple of years, I think. 

"9. Now, did you call him and -- in regard to Ida 

Adams? A. Yes. I called him an.d asked him if he 

would consider representing her. 

"Q. And did she tell you to call him? A. Yes. 

"Q. Did you discuss Mr. Cruikshank with her? 

A. Yes. 

"Q. What -- where did you call from? A. The 

first time I -- I think I called from the house, 

here in Libby. 

"Q. Uh-huh. Did you describe what was going on to 

him? A. I don't remember. 

"Q. Did he ever meet with Ida Adams before meeting 

with her in the hospital in Spoka.ne? "A. Not 

personal-ly. He talked to her over the telephone. 

"Q. And he has represented you since that time, as 

I understand it, is tha.t correct? "A. No -- other 

than in this case? No. 

Mr. Cruikshank testified. regarding his visit with Adams 

in the Spokane hospital: 

". . . I did have extensive discussions with her 

for, approximately an hour, where I went paragraph 

by paragraph of the Trust Agreement and discussed 

it with her, read it to her, explained it to her, 

answered her questions, which I recall were not 

very much, and finally said, 'Do you want Ila to 
take care of you and worry about your property and 

get this Black Lung thing collected and manage the 

trailer court, and just make it so you don't have 

any problems a-nd you would never have to go in the 

trailer court?' And she said, 'That's exactly what 

I want. ' I said, 'I am competent [sic] with you 

signing the Trust and Assignment.' And she did 

execute it at that point. 

"Q. In your estate planning of Ikey [Ida], did you 

ever ask her about her Will? A. Yes, sir, I did. 

"Q. Did you obtain a copy of that Will? A. No, I 

did not. 

"Q. When Ikey and you were in the day room, did 

she have her gl.asses on? A. I don't recall her 

having glasses on. 

"Q. Did she have a magnifying glass? A. J!Jot that 

I know of. 

"Q. Was she dressed in hospital garb at that time? 

A. Yes, sir. 

"Q. Did you read the Trust Agreement to her? 

A. Yes, sir. 

"Q. Did she read it? A. NO, sir. 

"Q. I believe your testimony was that you had 

asked Ikey if she wanted Ila to take care of her 

affairs and then had the Agreement signed, is that 

correct? A. That was at the tail end of the 

conversation -- or something to that affect, yes." 

Cruikshank's testimony that Adams , the hospital meeting, 

was lucid and acting voluntarily does not negate the fact 

that she was seriously ill and incapable of even reading what 

she was signing. 

The nature of undue influence is that the will of the 

persuading person substituted for the will the person 

who is unable to withstand the persuasion. When free agency 

and free consent are lost, the agreement in question must be 

declared void. Applying the five factors of Maricich here, 

we conclude that the findings of the District Court are 

supported by substantial evidence and are not clearly 
erroneous. Therefore, consideration of the second issue is 

unnecessary. 

Affirmed. 

c::'p4L 4,Xb~4~ 

Justice 

We Concur: i/ 

e4 3. &ac, &B, Chief usei ice