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                                                              No. 00-370

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                            2001 MT 109

                                     IN THE MATTER OF THE ESTATE OF

                                                        AMY WITTMAN,

                                                               Deceased.

                 APPEAL FROM: District Court of the Thirteenth Judicial District,

                                         In and for the County of Yellowstone,

                               The Honorable Susan P. Watters, Judge presiding.

                                                  COUNSEL OF RECORD:

                                                           For Appellant:

 Bruce O. Bekkedahl, West, Patten, Bekkedahl & Green, Billings, Montana; Patricia D.
                            Peterman, Billings, Montana

                                                          For Respondent:

                        Elizabeth Honaker, Honaker Law Firm, Billings, Montana

                                          Submitted on Briefs: March 1, 2001
                                               Decided: June 28, 2001

                                                                   Filed:

                             __________________________________________

                                                                   Clerk

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Justice Patricia Cotter delivered the Opinion of the Court.

¶1 Appellant, James Wittman (James) appeals from the order of the Thirteenth Judicial
District Court, Yellowstone County, admitting the last will and testament of his mother
Amy Wittman to probate, after finding that she had testamentary capacity and was not
unduly influenced when she executed her will in September of 1997. We affirm.

¶2 The dispositive issue on appeal is whether the District Court's finding of no undue
influence is supported by substantial credible evidence, and is not clearly erroneous.

                                             Factual and Procedural History

¶3 Amy Wittman died on July 16, 1999, at the age of 95. She had thirteen children, with
nine of them surviving her. From 1953 to 1997 she made four different wills. The final
two, made in 1994 and 1997, are at issue in this proceeding. Amy's son James argues that
the 1994 will, and not the 1997 will, should have been admitted to probate. The 1994 will
left Amy's entire estate to James, so long as he survived her. In the event he predeceased
her, the 1994 will dictated the estate would go to the remaining children in equal shares.
The 1997 will, however, divided the estate equally among the children.

¶4 James had lived with Amy for most of his life, ultimately moving out in 1998, after a
series of disagreements with his mother and siblings. Amy suffered from a series of
illnesses toward the end of her life, including two strokes. The first was in 1995 and the
second in 1997. The state of Amy's health varied during this period, alternating between
deterioration and improvement. It ultimately became clear that full time care was
necessary, and several of Amy's daughters assumed care for her starting in July of 1997.

¶5 After having some disagreements with James, several of the children spoke with Amy
concerning James' handling of Amy's finances. It appears that while he was living in her
home, James may have been neglecting to pay certain bills for her home, and may also
have been spending money from Amy's Social Security and VA checks for his personal
use. Finally, at least in part at the urging of her children, Amy decided to make a new will.
The children therefore contacted attorney Ingrid Gustafson, who met with Amy regarding
the new will, and then prepared a revised will. The fourth and final will, made in


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September of 1997, divided the estate equally among the children, with shares left to
certain grandchildren as lineal descendants of the deceased children.

¶6 Ms. Gustafson testified that Amy read her previous will and indicated she wanted to
make a new one. Amy and Gustafson met alone to discuss the making of the new will.
Gustafson testified that she questioned Amy carefully to determine that Amy understood
what she was doing. She spoke with her about a variety of issues, including the division of
her estate. According to Gustafson, Amy was alert, understood the significance of
changing her will, and understood that the new will would divide her estate among her
children equally. Although several of her children brought Amy to the attorney's office,
none of them were in the room when Amy and her attorney discussed the provisions of
Amy's new will.

¶7 James brought this proceeding in District Court, petitioning for formal probate of the
will dated May 24, 1994. David K. Wittman, the respondent, opposed the probate of the
1994 will on the grounds that a valid later will was executed by Amy. He requested that
the District Court probate the 1997 will. James contested the 1997 will on the grounds that
Amy Wittman lacked testamentary capacity and was unduly influenced. Following a
hearing, the District Court concluded that the decedent had testamentary capacity and was
under no undue influence when executing her 1997 will. The District Court ruled that the
1997 will was entitled to probate and that David Wittman was a suitable person to be
personal representative.

¶8 James does not appeal from the court's finding that Amy had testamentary capacity, but
does appeal from the court's finding that there were no specific acts of undue influence
exercised over Amy by his siblings.

                                                       Standard of Review

¶9 On appeal, this Court will uphold findings of fact in an equitable case unless they are
clearly erroneous. Matter of E.P. (1990), 241 Mont. 316, 319, 787 P.2d 322, 325. Rule 52
(a), M.R.Civ.P. We first inquire into whether the findings are supported by substantial
evidence. Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d
1285, 1287. The evidence is reviewed in the light most favorable to the prevailing party,
and the credibility of witnesses and the weight given to the testimony are the responsibility
of the trial court. Interstate Production Credit, 250 Mont. at 324, 820 P.2d at 1287. Our
standard of review of questions of law is whether the district court's interpretation of the


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law is correct. Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459,
469, 898 P.2d 680, 686.

                                                               Discussion

¶10 Whether the District Court's finding of no undue influence was supported by
substantial, credible evidence and is not clearly erroneous.

¶11 James argues that the District Court's findings were not supported by substantial,
credible evidence. Among other things, he argues that the District Court should have
weighed testimony by Amy's physician more heavily than it did, and that the District
Court should not have relied so strongly on the testimony of the attorney who drafted
Amy's will. He further argues that the District Court did not make sufficient findings on
the elements of undue influence. We disagree.

¶12 As the contestant of the will, James had the burden of establishing that undue
influence was exerted over Amy in the making of the will. Section 72-3-310, MCA,
provides:

        In contested cases, petitioners who seek to establish intestacy have the burden of
        establishing prima facie proof of death, venue, and heirship. Proponents of a will
        have the burden of establishing prima facie proof of due execution in all cases and,
        if they are also petitioners, prima facie proof of death and venue. Contestants of a
        will have the burden of establishing lack of testamentary intent or capacity, undue
        influence, fraud, duress, mistake, or revocation. Parties have the ultimate burden of
        persuasion as to matters with respect to which they have the initial burden of proof.

¶13 In Montana, undue influence is defined by statute. Section 28-2-407, MCA, provides
that undue influence is:

        (1) the use by one in whom a confidence is reposed by another 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 advantage of another's
        weakness of mind; or (3) taking a grossly oppressive and unfair advantage of
        another's necessities or distress.

In determining whether undue influence has occurred in the making of a will, the statutory
requirements must control. In re the Estate of Bradshaw, 2001 MT 92, ¶ 16, ___ Mont.

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___, ¶16, ___ P.3d ___, ¶ 16. In addition, the court may consider the following five
criteria: (1) the existence of a confidential relationship between the person alleged to be
exerting undue influence and the testator; (2) the testator's physical condition as it affects
her ability to withstand undue influence; (3) the testator's mental condition as it affects her
ability to withstand undue influence; (4) the unnaturalness of the disposition which would
show an unbalanced mind or a mind easily susceptible to undue influence; and (5) the
demands and importunities that may have affected the testator, taking into consideration
the time, place, and surrounding circumstances. Estate of Maricich (1965), 145 Mont. 146,
161, 400 P.2d 873, 881, Cameron v. Cameron (1978), 179 Mont. 219, 229, 587 P.2d 939,
945. While the court may consider these five criteria in determining the existence of undue
influence, all five criteria need not be present. Estate of Bradshaw, ¶ 16.

¶14 Undue influence is never presumed and must be proven like any other fact. Estate of
Lein (1994), 270 Mont. 295, 304, 892 P.2d 530, 535 (overruled, in part, on other grounds).
Moreover, we have held that the mere opportunity to exercise influence on the testator is
not sufficient to prove undue influence and invalidate a will. Dybvik v. Dybvik (1982), 201
Mont. 389, 397, 654 P.2d 989, 993.

¶15 We turn now to the five criteria set forth in Cameron, 179 Mont. at 229, 587 P.2d at
945. Examining the facts before us, the first criterion of the existence of a confidential
relationship has been met. There was clearly a confidential relationship between Amy
Wittman and the children who discussed with Amy the option of her changing her will.
Amy was being cared for by her children and saw them on a daily basis. Especially during
her periods of illness, she required extensive care which was provided by them.

¶16 In evaluating the second and third criteria, we look at the mental and physical
condition of the testator to determine if either might affect her ability to withstand
influence. It is clear that Amy's physical condition was compromised later in life. She
became ill in 1989, and suffered a stroke in June of 1995 and a second stroke in October
of 1997. Her physical condition and her dependence on others for everyday tasks might
well have made her susceptible to the influence of those caring for her.

¶17 Following her stroke in 1995, Amy was treated by Dr. John Byorth. Dr. Byorth
testified at trial that following this stroke, Amy's health was compromised and that she
could have been subject to undue influence. However, it appears from the record that
Byorth hadn't seen Amy for some time when she made her 1997 will, and that her health
had, in the interim, improved dramatically. Furthermore, it does not appear from the

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medical records that Byorth ever made any evaluation of Amy's mental status. On the
other hand, the District Court found significance in Amy's attorney's uncontroverted
testimony that when the will was executed, Amy was mentally alert and oriented, that she
understood the nature of her property, and that she understood the impact of the change in
the disposition of her estate.

¶18 The fourth element to be considered is the unnaturalness of the disposition. James
argues that the change in the will was unnatural because he had lived in the family home
for 55 years and was disabled, and the 1997 will deprived him of most of his interest in
that home. It is clear that Amy and James cared for each other and depended on each other
for many years. Moreover, in both the 1989 and the 1994 wills, Amy demonstrated her
intent to leave her estate entirely to James.

¶19 The findings of fact indicate that the three children who helped take care of Amy after
she became ill, discovered and told Amy that James had used Amy's Social Security and
VA checks for his personal use, especially in local bars; had failed to pay some utilities;
and had failed to pay her real estate taxes for three years. The District Court also found
that when shown the past due notices, bank account statements reflecting overdrafts,
canceled checks to bars, and the real estate tax bills in arrears, Amy became hurt and
upset. Under these circumstances, the change in disposition makes sense. Furthermore,
absent unusual circumstances, it would be surprising for any court to find a will dividing
an estate equally among the decedent's children unnatural.

¶20 The fifth element concerns the demands and importunities that may have affected the
testator, taking into consideration the time, place, and surrounding circumstances. James
argues that his siblings were unhappy with him because of their belief he was misusing his
mother's money, and that they decided the will had to be changed, and arranged for a
lawyer to handle the arrangements. Thus, he concludes, they encouraged her to make the
change in her testamentary disposition.

¶21 At most, James has shown that his siblings had the opportunity to exercise undue
influence. However, the opportunity to exercise undue influence on the testator is not
sufficient to prove undue influence and invalidate a will. Rather, the opportunity to
exercise undue influence is to be considered and correlated with the alleged acts of
influence to determine if the acts amount to undue influence. Estate of Lien, 270 Mont. at
304, 892 P.2d at 535. This Court has previously stated:



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        Mere general influence in the affairs of life or method of living at the time of the
        execution of a will by a testator is not proof of undue influence in the contemplation
        of our statute, and, in order to establish it as a fact, it must be shown by proof that it
        was exercised upon the mind of the testator directly to procure the execution of the
        will. Mere suspicion that undue influence may have or could have been brought to
        bear is not sufficient. It is never presumed, and must be proven like any other fact.
        (Citation omitted).

Here, while James may have suspected that undue influence was brought to bear on his
mother by his siblings, the District Court found no overt proof of it.

¶22 James makes the assertion that the District Court mis-weighed the evidence, and urges
this Court to re-weigh the evidence in his favor. We will not do so. Where there are
conflicts in the evidence, it is the trial court's responsibility, and not this Court's, to weigh
that evidence. In making a determination whether undue influence was exercised in a case
where the credibility of witnesses is of prime importance, the determination of the weight
to be given to the testimony is the primary function of the trial judge. Cameron, 179 Mont.
at 228-29, 587 P.2d at 945.

¶23 The District Court found that there were no specific incidences of undue influence
exerted over Amy Wittman in the making of her 1997 will. Having reviewed the record,
we find substantial evidence to support this finding, and conclude that the District Court
did not err in this regard. There being no specific incidences of undue influence, and the
District Court having found that Amy had the requisite testamentary capacity to make the
1997 will, there is no basis for invalidating it. The judgment of the District Court is
therefore affirmed.

                                                    /S/ PATRICIA COTTER

                                                              We Concur:

                                                      /S/ KARLA M. GRAY

                                                         /S/ JIM REGNIER

                                               /S/ W. WILLIAM LEAPHART

                                                /S/ TERRY N. TRIEWEILER
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