                       UNITED STATES COURT OF APPEALS
Filed 1/22/97
                                       TENTH CIRCUIT

 KENNETH RAY JOHNSTON,

                Plaintiff-Appellant,

 v.                                                   Case No. 95-6295

 DORTHA NELL GOSS, individually and                   (D.C. CIV-94-1465-A)
 as Trustee of the Ray Johnston Living                (Western District of Oklahoma)
 Trust,

                Defendant-Appellee.



                               ORDER AND JUDGMENT1


Before ANDERSON, HENRY, and MURPHY, Circuit Judges.


      In this appeal we consider whether the district court, sitting in diversity

jurisdiction, properly granted summary judgment to the defendants against a claim that an

Oklahoma inter vivos trust was obtained through undue influence. We determine that

jurisdiction is proper under 28 U.S.C. § 1332(a)(1) and Rule 4(a) of the Federal Rules of

Appellate Procedure.2 Because we conclude that the evidence raises a triable issue as to

      1
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

      Although we determine that jurisdiction is proper in this case, see Skrzypczak v.
      2

Kauger, 92 F.3d 1050, 1052 (10th Cir. 1996) (observing that if an appellate court has
whether the trust was obtained through undue influence, we vacate the judgment of the
questions about jurisdiction, it raises them sua sponte), we note that it is the rare case
where we will decide matters that could be resolved in the probate courts, and we express
serious reservations about reaching claims that are artfully pled so as to accomplish
federal jurisdiction. In deciding whether we have jurisdiction over an action that could be
brought in state probate court, we are guided by our decision in McKibben v. Chubb,
where we noted that “[f]ederal courts have only limited power in probate matters and may
not probate or administer a will.” 840 F.2d 1525, 1529 (10th Cir. 1988). We further held
in McKibben that “[w]hen a claim is brought charging undue influence or fraud in the
execution of a will, that action is ancillary to the challenge of the will and belongs in the
[state] probate proceedings, not in federal court.” Id. at 1530 (footnote omitted).
        Here, Mr. Johnston alleged in his complaint that the appellees “intentionally and
tortiously interfered with [his] expectancy of inheritance by exerting undue influence over
Father in obtaining the Trust. . . .” Aplt’s App. vol. I, at 6. As an alternative ground for
relief, he asked the court to vacate the trust. The fact that he challenges the validity of the
trust, rather than the will, would not prevent Mr. Johnston from bringing essentially the
same claim in probate court. Although the record does not reflect the precise relationship
between the challenged trust and the will that was executed on the same day, it appears
that Mr. Johnston’s claim is substantially similar to the claim that was brought in
Oklahoma probate court in Estate of Gerard v. Gerard, 911 P.2d 266 (Okla. 1995).
Nonetheless, the district court, after having the issue briefed by the parties, concluded that
because Mr. Johnston was challenging the validity of the trust, rather than the will itself,
federal jurisdiction was proper. The court reasoned:
        Pursuant to Okla. Stat. tit. 60 § 175.23, the district courts of Oklahoma have
        jurisdiction over trust agreements. This case involves an inter vivos trust,
        which, if dissolved, would affect the settlor’s testamentary scheme.
        Nevertheless, the Court finds that the action is properly before the Court, as
        such actions are not exclusively relegated to the jurisdiction of the probate
        courts.
Aplt’s App. vol. II, at 610 (the district court’s order). This reasoning is sound, and we
adopt it. See McKibben, 840 F.2d at 1529 (explaining that federal courts sitting in
diversity have subject matter jurisdiction over matters that state law prescribes to the state
courts of general jurisdiction).
        However, we emphasize that it is the involvement of the trust rather than the
characterization of the action as a tort that confers federal jurisdiction in this case.
Ordinarily, characterizing a will contest as a claim in tort for damages will not overcome
the jurisdictional hurdle described in McKibben. See Beren v. Ropfogel, 24 F.3d 1226,
1228 (10th Cir. 1994) (refusing jurisdiction over a tort claim “covering the time period
immediately preceding and including the actual execution of [a] will”).


                                              2
district court and remand for further proceedings consistent with this opinion.

       This case involves a challenge by plaintiff-appellant Kenneth Ray Johnston (“Mr.

Johnston”) to the validity of a revocable living trust executed in 1992 (“the Trust”) by his

now-deceased father, David Ray Johnston (referred to by the parties, and therefore in this

order, as “Father”). The younger Mr. Johnston, a resident of Florida, brought this action

in the United States District Court for the Western District of Oklahoma. Mr. Johnston

claims that his sister, defendant-appellee Dortha Nell Goss, exerted undue influence over

their father, who was ninety-three years old when he executed the challenged instrument,

resulting in a disposition of Father’s property that was, relative to two prior wills,

unfavorable to Mr. Johnston and his heirs and favorable to both Ms. Goss and a younger

sister, Dorris Kay McPherson, as well as their heirs. The defendants moved for summary

judgment. The district court granted the motion, holding that Mr. Johnston had failed to

raise a triable issue of fact as to the question of undue influence, in an order from which

Mr. Johnston now appeals.



                                    I. BACKGROUND

       Because we are reviewing a grant of summary judgment for the defendants, we

present the facts below as we are required to view them--in the light most favorable to

Mr. Johnston. See Multistate Legal Studies, Inc. v. Harcourt Brace Jovanovich Legal &




                                               3
Prof’l Publications, Inc., 63 F.3d 1540, 1545 (10th Cir. 1995), cert. denied, 116 S. Ct. 702

(1996).

       All three of the Johnston children were born and raised on a farm in Texas County,

Oklahoma. Mr. Johnston, the eldest of the children, went to college at Oklahoma A & M

and then went on to a career as a jet fighter pilot in the Air Force before retiring to

Tampa, Florida in 1977. Ms. Goss attended college in Oklahoma for a year and then

lived in various places in California, Oklahoma, Texas and New Mexico with her

husband, a Baptist minister, before settling in Adams, Oklahoma in 1981. Ms.

McPherson lives in Denver, Colorado. In addition to the farm in Texas County, family

land holdings included 240 acres of farm land with mineral rights, which the children’s

mother inherited from her parents (“the Jennings Place”). Their mother passed away in

1978, and Father never remarried.

       In 1983, Father executed a will (“the 1983 Will”) which would have provided each

of his three children with essentially equal shares of his property. Father also began a

four-year process of deeding specific portions of the Jennings Place to each child.

       Father experienced health problems beginning at least in 1979. After Ms. Goss

moved to Adams in 1981, she lived near Father and helped to care for him. She helped

him recover from kidney surgery; after he had hip replacement surgery, she went places

with him, assisted on the farm, and checked on him to make sure that he was okay. After

he had knee replacement surgery, Ms. Goss stayed with him several hours a day, and after


                                               4
he was discovered to have heart trouble, she went to his house several times a week to

help with the house, to do laundry, or to accompany him on visits to the doctor. For many

years Ms. Goss made daily phone calls to Father, and Father called her at the beginning

and end of each day.

       Father gave Ms. Goss access to his checking account, and she frequently drew

cash and paid some of her personal bills out of this account. Her son, Jack, leased

Father’s farmland on favorable terms and borrowed farming equipment and machinery

free of charge from Father.

       Ms. Goss knew a financial planner named Jess Murphy. Beginning in about 1990,

Ms. Goss would occasionally see Murphy in the street and would tell him that Father

needed to do some financial planning and that she would contact Murphy about it. In

October 1992, Ms. Goss called Murphy and scheduled an appointment for her and Father.

Ms. Goss brought Father to Murphy’s office on October 22, 1992, and the three of them

were present during a meeting in which the preparation of a trust was discussed. Murphy

testified that the meeting lasted two hours and that the following exchange took place at

the start of the meeting:

       First I asked [Father] if he would desire to meet with me alone or whether
       he would prefer to have Mrs. Goss in the meeting with us. He asked her if
       she wanted to be there and Mrs. Goss said, “That’s up to you, Dad.” And
       he said, “Well it’s fine with me if she’s here.”

Aplt’s App. vol. I, at 266 (Deposition of Jess Murphy). After the meeting, Murphy sent

Ms. Goss a letter which read:

                                             5
                                         OCTOBER 28, 1992

      MRS. DORTHA GOSS
      BOX 586
      ADAMS, OK. 73901

      DEAR DORTHA:

      I VERY MUCH ENJOYED VISITING WITH YOU AND YOUR
      FATHER. YOUR FATHER IS AMAZINGLY SHARP FOR HIS AGE.

      I’VE ENCLOSED A SUMMARY OF WHAT WE DISCUSSED AND AN
      OUTLINE OF THE TRUST. I VISITED WITH MIKE BORING
      BRIEFLY IN GENERIC TERMS AND HE STATED THAT THE FEES
      WOULD NOT RUN MORE THAN $1,500 AND WOULD PROBABLY
      BE LESS.

      I’LL GIVE YOU A CALL IN A COUPLE OF DAYS TO SEE IF YOU
      WANT TO PROCEED. AGAIN, I ENJOYED THE VISIT AND LOOK
      FORWARD TO THE POSSIBILITY OF BEING OF FURTHER
      SERVICE TO YOU IN THE FUTURE.


                                         SINCERELY,

                                         JESS MURPHY

Aplt’s App. vol. I, at 275. Murphy attached to this letter a summary of the proposed Trust

and a catalog of Father’s assets based on information that was gathered by Ms. Goss and

Father.

      Murphy’s day timer for November 1992 contains “reminders” that referred to

“Dortha Goss-Johnston” and “Dortha Goss” and an entry for November 13th which reads

“Dortha Goss/Mr. Johnston.” Murphy testified that he could not recall ever speaking to

Father on the phone prior to the execution of the Trust and that he probably called Ms.

                                            6
Goss to tell her about his discussion with the lawyer, James M. Boring.3 On November

13, 1992, Murphy, Ms. Goss and Father met again in Murphy’s office, probably for less

than an hour, to discuss Murphy’s consultation about the Trust with Boring, and to

schedule a date for the Trust closing.

       On November 19, 1992, Ms. Goss accompanied Father to the office of attorney

Boring for the Trust closing. Boring had not previously met Father and does not recall

whether he ever spoke to Father on the phone before the closing. Boring had prepared a

forty-five-page Trust based on a summary prepared by Murphy and conversations with

Murphy. Murphy had also provided Boring with a copy of the 1983 Will. Boring

testified that he went over the Trust with Father in the presence of Ms. Goss. Boring

testified that Father “wanted to skip Kenneth [Johnston]” as a successor trustee. Aplt’s

App. vol. I, at 111 (Deposition of James M. Boring). Boring also testified that Father said

he feared that Mr. Johnston would sell the property and that he did not want Mr. Johnston

to be able to do so, but Boring did not recall why Father thought Mr. Johnston would sell

the property. Boring further testified that Father had said he did not want any portion of

the Trust to go to Mr. Johnston’s heirs, but again did not recall Father indicating why that

was so. Id. at 116. Finally, Boring testified that during the meeting, Father asked Ms.

Goss for her opinion several times, and that each time Ms. Goss would answer, “Dad, this

is your property, it’s your Trust. It’s up to you. You do what you want to do.” Id. at 121.



       James M. Boring is sometimes referred to in the record as “Mike”.
       3



                                             7
       Boring was paid $1,500.00 by a check that was signed by Father but filled out by

someone other than Father or Ms. Goss. Murphy was paid $500.00 by a check that was

made out and signed by Ms. Goss.

       The Trust contained significant changes as compared with the 1983 Will in the

share of the estate that was to pass to Mr. Johnston and his heirs. Most significantly,

while all three children were to share equally in the income from the Trust during Mr.

Johnston’s lifetime, upon Mr. Johnston’s death the land and mineral rights were to be

deeded to Ms. Goss and Ms. McPherson or their heirs. Mr. Johnston’s children would

receive no share of that property. Aplt’s App. vol. I at 165-67 (The Ray Johnston Living

Trust Agreement).

       Ms. Goss and Father were named trustees, and Ms. McPherson and Jack Goss

were to succeed them. Mr. Johnston would never become a trustee; instead, a corporate

fiduciary was to succeed the named successor trustees. Id. at 152-54. In addition, Ms.

Goss was to receive certain other property immediately upon Father’s death.



                                    II. DISCUSSION

       Our review of the district court’s order is subject to the following standard:

              We review the grant or denial of summary judgment de novo,
       applying the same legal standard used by the district court pursuant to Fed.
       R. Civ. P. 56(c). Summary judgment is appropriate if the pleadings,
       depositions, answers to interrogatories, and admissions on file, together
       with the affidavits, if any, show that there is no genuine issue as to any
       material fact and that the moving party is entitled to judgment as a matter of

                                              8
       law. When applying this standard, we examine the factual record and
       reasonable inferences therefrom in the light most favorable to the party
       opposing summary judgment. If there is no genuine issue of material fact in
       dispute, then we next determine if the substantive law was correctly applied
       by the district court.

Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir. 1995) (citations omitted).

       In a diversity case, while we apply the federal summary judgment standard, the

determination of whether a party is entitled to judgment as a matter of law is made with

reference to substantive state law. Perlmutter v. United States Gypsum Co., 54 F.3d 659,

662 (10th Cir. 1995). Our review of the district court’s determinations of state law is de

novo. Id. In this case it is uncontested that the substantive law of Oklahoma applies.

       The Oklahoma Supreme Court has recently stated the legal standard for

determining “whether undue influence taints the procurement or preparation of a will.” In

re Estate of Maheras, 897 P.2d 268, 272 (Okla. 1995). Initially, the analysis consists of

two “prongs”:

       First, the court must search for the presence of a relationship which would
       induce a reasonably prudent person to repose confidence and trust in
       another--i.e., a confidential relationship. Second, the court must decide that
       the stronger party in the relationship assisted in the preparation of the
       weaker person’s testamentary instrument. Factors to be considered in
       applying this two-prong test include:
               1.     Whether the person charged with undue
                      influence was not a natural object of the
                      maker’s bounty;
               2.     Whether the stronger person was a trusted or
                      confidential advisor or agent of the will’s
                      maker;
               3.     Whether he/she was present and/or active in the
                      procurement or preparation of the will;

                                             9
              4.      Whether the will’s maker was of advanced age
                      or impaired faculties;
              5.      Whether independent and disinterested advice
                      regarding the testamentary disposition was
                      given to its maker.

Id. at 272-73 (emphasis in original) (citations omitted). The burden of persuasion is on

the contestant to establish that these two conditions have been met. Id. at 272. If the

contestant meets this burden, then a rebuttable presumption of undue influence arises. Id.

at 273. The burden then shifts to the defendant to produce evidence that either (1) the

confidential relationship had been severed before the critical events in controversy or (2)

the settlor actually received independent and competent advice about the disposition of

his estate. Id. Although Maheras involved a will, we, like the district court, apply the

same analysis by analogy to the instant claim of undue influence in the obtaining of a

trust. See Estate of Gerard v. Gerard, 911 P.2d 266 (Okla. 1995) (applying the Maheras

analysis in an equitable challenge to the validity of a living trust).



                           A. Presumption of undue influence?

       With respect to the first prong of Maheras, there is no dispute that Father and Ms.

Goss were in a confidential relationship. Moreover, there is abundant evidence in the

record to support that conclusion. See Estate of Gerard, 911 P.2d at 271 (defining a

confidential relationship as “one that exists whenever trust and confidence are placed by




                                               10
one person in the integrity and fidelity of another”); In re Estate of Beal, 769 P.2d

150,155 (Okla. 1989) (providing examples).

         We next turn to the second prong and determine whether Mr. Johnston has

presented evidence that raises a triable issue as to whether the stronger party in the

relationship assisted in the preparation or procurement of the weaker person’s

testamentary instrument. In doing so, we consider each of the five factors enumerated

above.



Natural object of the maker’s bounty? It is undisputed that as his daughter, Ms. Goss was

a natural object of Father’s bounty. See Maheras, 897 P.2d at 273 n. 22 (“The natural

object of a will-maker’s bounty is one related to him/her by consanguinity.”) (emphasis

omitted). This fact tends to lessen our suspicion of her beneficial treatment under the

trust and, as the district court correctly noted, distinguishes this case in that regard from

Maheras, 897 P.2d at 273 (beneficiary was unrelated to decedent), and Anderson v.

Davis, 256 P.2d 1099, 1105 (Okla. 1952) (same). However, while this informs our

inquiry it is not dispositive. See In re Estate of Seegers, 733 P.2d 418, 423 (Okla. Ct.

App. 1986) (holding that the testator’s nephew had obtained his uncle’s will through

undue influence). Cf. In re Estate of Lacy, 431 P.2d 366, 371 (Okla. 1967) (holding that

a testator lacked testamentary capacity, based in part on the conclusion that a will which




                                              11
left the bulk of the estate to one of eight children was “an unnatural will”). We therefore

proceed to consider the other Maheras factors.



Confidential relationship? As to the second factor, which is repetitive of the first prong,

there is no dispute that Father trusted Ms. Goss and, as the district court observed, they

had a confidential relationship. That Father gave Ms. Goss access to his checking

account is direct evidence of his trust and confidence.



Advanced age or impaired faculties? Jumping ahead, for the moment, to the fourth

factor, while it is undisputed that Father was ninety-three years old when the Trust was

made, there is conflicting evidence as to his health and the degree to which he may have

been subject to influence. Viewing the matter as we must in the light most favorable to

Mr. Johnston, see Multistate Legal Studies, 63 F.3d at 1545, the record provides support,

though weak support, for the claim that Father was in a vulnerable state. Mr. Johnston

testified that Father would get confused about names and dates, that he sometimes

referred to Dortha Goss by their mother’s name, that his eyesight was poor, that he

walked with two canes or a walker, and that Mr. Johnston was concerned about Father’s

ability to drive. While there is little independent evidence to support these claims, Ms.

Goss’s testimony confirms that Father had had a series of health problems in the years

immediately preceding the execution of the Trust and that he sometimes relied on Ms.


                                             12
Goss to help him with daily activities, and there is evidence that he did not write his own

checks or drive far by himself.

       No medical testimony was presented as to Father’s health or fitness. We note that

Mr. Johnston’s burden in asserting undue influence is not the same as it would be were he

asserting a claim of lack of testamentary capacity. See In re Estate of Carano, 868 P.2d

699, 703 (Okla. 1994) (explaining that “to have testamentary capacity a person must

know in a general way the character and extent of his property and understand his

relationship to the beneficiary of his gift as well as his relationship to those who ‘ought to

be in his mind,’ and he must understand the nature and the effect of his act”). Of course,

Ms. Goss does not bear the burden of producing evidence of Father’s health. But in the

absence of any independent rebuttal evidence, apart from her own testimony and that of

others who have an interest in the validity of the trust, we conclude that Father’s

advanced age and health history creates a triable issue as to his susceptibility to undue

influence. However, this issue is not material unless there is evidence of the third

Maheras factor, that Ms. Goss was “present and/or active in the procurement or

preparation of the will.” See In re Estate of Beal, 769 P.2d at 156 (“Only when [a

confidential] relationship is coupled with active participation in procurement or

preparation of the will does the presumption [of undue influence] arise.”).




                                              13
Present and/or active? Ms. Goss was present during both of Father’s meetings with

Murphy and throughout the Trust closing. Mr. Johnston argues that this, coupled with her

confidential relationship with Father, was sufficient to raise a presumption of undue

influence under Maheras. We disagree because we conclude that the formulation in

Maheras must be read in the context of prior cases which the Maheras court distilled.

Those cases cannot be read to say that the mere presence of a confidential advisor during

the preparation of the instrument raises a presumption of undue influence. See Hubbell v.

Houston, 441 P.2d 1010, 1016 (Okla. 1967) (finding no undue influence where the

evidence “showed a totally non-participating presence during the signing of the subject

will”); accord King v. Gibson, 249 P.2d 84, 86-87 (Okla. 1952). However, as we discuss

below, Mr. Johnston’s ability to defeat summary judgment does not depend on our

accepting his “mere presence” theory.

       In contrast to Mr. Johnston’s “mere presence” argument, the district court relied on

Hubbell, in which the Oklahoma Supreme Court held that “the mere presence of the

beneficiary at conferences or at the signing of the will [did not] constitute[] ‘active

participation’ in the preparation of such instrument so that when coupled with a

confidential relationship might give rise to a presumption of undue influence.” Id. at

1018. We note, however, that more recent cases appear not to require “active”

participation. See Estate of Gerard, 911 P.2d at 270 (holding that “the stronger party . . .

must have assisted in the preparation” and restating the third Maheras factor as “present


                                              14
and/or active in the procurement or preparation” (emphasis added)); Maheras, 897 P.2d at

272 (same). But see Maheras, 897 P.2d at 274 (using the phrase “actively participated” in

summarizing the standard). The district court also noted that Mr. Johnston had presented

no evidence “that would directly tend to show the influence.” Aplt’s App. vol. II, at 612.

We agree, but where an allegation of undue influence is concerned, direct evidence of

active procurement or participation may not be necessary if there is sufficient

circumstantial evidence of procurement or participation. As the Oklahoma Supreme

Court explained in In re Estate of Beal:

       Due in large part to the fact that the person claimed to have been the victim
       of undue influence is dead and cannot testify, we recognize that ordinarily
       the issue is capable of proof only circumstantially. The contestant is not
       confined to the facts he is able to present, but is entitled to the normal
       inferences which may be derived therefrom. . . .
               To establish undue influence it is not necessary that there be
               direct testimony that threats were made or even persistent
               entreaty or persuasion was brought to bear upon the mind of
               the testatrix. It is sufficient that, if from all the surrounding
               circumstances connected with the making of the will it
               appears that any undue influence has been exercised, the court
               should not admit the will to probate.

769 P.2d at 154 (citations omitted) (quoting McCarty v. Weatherly, 204 P. 632, 638

(Okla. 1922)); accord In re Estate of Seegers, 733 P.2d 418, 420 (Okla. Ct. App. 1986)

(citing In re Cook’s Estate, 175 P. 507, 509 (Okla. 1918)).

       In this case, there is considerable circumstantial evidence relating to Ms. Goss’s

participation in obtaining the trust. She knew Murphy while Father did not; she made the

initial contact with Murphy; she drove Father to all of the meetings relating to the trust,

                                             15
and she attended all of the meetings; there is evidence that she was the contact for both

Murphy and Boring; and she paid Murphy. And while we do not weigh the evidence, we

may note that all of the testimony for the defendants comes from those who have an

interest in maintaining the validity of the trust. While there is no direct evidence that Ms.

Goss was active in preparing the trust, there is much evidence that she “procured” it.

“Procurement” is defined as “[t]he action of causing, compassing, accomplishing or

bringing about, esp[ecially] through the instrumentality of an agent; management,

arrangement; authorization, instigation; prompting, contrivance.” 12 Oxford English

Dictionary 559 (2d ed. 1989). To “procure” is “to bring about.” Webster’s II New

Riverside Univ. Dictionary 938 (1988). Mr. Johnston has presented unrebutted evidence

that Ms. Goss contacted the necessary advisors, made the appointments, transported

Father to the meetings and wrote one of the checks. Hence, regardless of whether Ms.

Goss was “active” during the meetings, there is a triable question as to whether her

conduct constitutes “actively procuring” the trust.

       Mr. Johnston also presented circumstantial evidence suggesting that witnesses for

Ms. Goss could not adequately explain Father’s apparent decision to supersede his 1983

will. While a testator ordinarily need not convince a court of his reasons for the chosen

manner of disposition of his estate, when there is significant independent evidence that

the instrument was obtained as a result of undue influence, the rationality of the

disposition may be considered as evidence. See In re Estate of Seegers, 733 P.2d at 423


                                             16
(relying in part on the lack of a rational explanation for the departure from an earlier will

in finding a prima facie showing of undue influence). None of the witnesses who

testified that Father wanted to prevent his son from selling the family farm could explain

why Father had apparently come to that decision between 1983 and 1992, or how that

desire was served by eliminating Mr. Johnston’s inheritance of the mineral rights or by-

passing him as a trustee. The only witness with no interest in the validity of the trust, the

parties’ uncle, testified that he did not believe that Father “would have knowingly treated

one of his three children significantly different from the others in their inheritance.”

Aplt’s App., vol. I, at 257 (Affidavit of Robert R. Johnston). Nor does the explanation

that Father wanted to reward Ms. Goss for her kindness answer questions about why the

Trust benefited both Ms. Goss and Ms. McPherson to the detriment of Mr. Johnston and

his heirs.

       We recognize the authorities that state that undue influence involves wrongful

action. See In re Estate of Webb, 863 P.2d 1116, 1121 (Okla. 1993) (“‘[U]ndue

influence’ means a wrongful influence . . . .”) (citations omitted). While gifts made out of

affection certainly are not wrongful, see King, 249 P.2d at 88, the evidence as a whole

raises a question as to whether Father’s testamentary disposition reflects nothing more

than a desire to express affection or gratitude to Ms. Goss. We further recognize that the

“‘opportunity for undue influence, standing alone, is not sufficient to establish undue

influence.’” Matter of Estate of Beal, 769 P.2d at 154 (quoting McCarty, 204 P. at 638)


                                              17
(emphasis added). However, we cannot presume that a reasonable jury could not have

concluded from the circumstantial evidence presented by Mr. Johnston that Ms. Goss

actually exerted undue influence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986) (summary judgment may be defeated “if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party”).



                             B. The presumption rebutted?

       We conclude that Mr. Johnston has raised a triable issue as to whether Ms. Goss

participated in the procurement of the Trust so as to raise a presumption of undue

influence. Once such a presumption arises, the burden shifts to the defendant to produce

evidence that either (1) the confidential relationship had been severed before the critical

events in controversy or (2) the settlor actually received independent and competent

advice about the disposition of his estate. Maheras, 897 P.2d at 273. However, merely

demonstrating that there is a genuine triable issue as to whether a presumption of undue

influence has arisen is insufficient to defeat summary judgment. While the burden of

production shifts at this stage to the defendant, the burden of persuasion remains with the

plaintiff. See id. at 272 (holding that “the burden of persuasion in a will contest based on

undue influence rests on the contestant”); id. at 273 n. 19 (highlighting the distinction

between the burden of production and the burden of persuasion). Therefore, at the

summary judgment stage, the defendants must produce evidence sufficient to rebut the


                                             18
presumption of undue influence, and Mr. Johnston retains the ultimate burden of

demonstrating that there is a genuine factual dispute about the evidence they produce. Cf.

Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995) (discussing the application of

the summary judgment standard to a multi-stage, burden-shifting, substantive legal

standard).

       There is no question that the relationship between Father and Ms. Goss was not

severed before the execution of the trust. This leads us to consider the fifth Maheras

factor. The district court concluded that, because it found no triable issue as to the

presumption of undue influence, it did not need to consider whether Father had received

independent and competent advice from either Murphy or Boring. We therefore consider

this question de novo.

       The Oklahoma Supreme Court has held that the term “independent advice” means:

       that the donor had the preliminary benefit of conferring fully and privately
       upon the subject of the [instrument] with a person who was not only
       competent to inform him as to its effect, but who was, furthermore, so
       disassociated from the interest of the [beneficiary] as to be in a position to
       advise with the donor impartially and confidentially as to the consequences
       to himself of the proposed benefaction.

Estate of Gerard, 911 P.2d at 271 (quoting Estate of Carano, 868 P.2d at 707). We

conclude that the record does not reflect unambiguously that Father was given an

opportunity to consult independently with either of the advisors. As previously noted,

Ms. Goss was present at all of the meetings and made all of the contacts, and the record

does not reflect that she ever left Father alone with either advisor. Both Murphy and

                                             19
Boring testified that they did not recall ever speaking to Father on the phone before the

execution of the trust. We conclude that a reasonable jury could find that Ms. Goss did

not meet the burden of production required of a defendant to whom the presumption of

undue influence has attached. See In re Estate of Seegers, 733 P.2d at 424 (no

independent consultation where the lawyer who prepared the will was hired by the

beneficiary and had a “considerable” relationship with the beneficiary and his family).

       The district court emphasizes language in some of the Oklahoma cases requiring

that the influence be of the sort that “destroys the free agency of the [settlor] at the time

when the instrument is made and which, in effect, substitutes the will of another for that

of the [settlor].” Myers v. Myers, 266 P. 452, 455 (Okla. 1927) (citations omitted).

Similarly, the appellees argue that the influence “must destroy the grantor’s free agency, .

. . in effect, substituting the will of another for that of the grantor.” See Aple’s Br. at 19

(quoting In re Estate of Webb, 863 P.2d at 1121 (quoting Watkins v. Musselman, 239

P.2d 418, 423 (Okla. 1951))). While we have no reason to doubt that undue influence is

still defined in those terms, we can only observe that we are bound by the two-prong,

five-factor analytic framework that was established in Maheras and followed in the

Oklahoma Supreme Court’s most recent statements of the law in this area. See Estate of

Gerard, 911 P.2d 266 (Okla. 1995) (following the Maheras framework); Estate of Carano,

868 P.2d 699 (Okla. 1994) (same). In the same vein, excessive reliance must not be

placed on Hubbell, 441 P.2d 1010. To the extent that the law of Oklahoma has evolved in


                                              20
the period between Hubbell and the more recent decisions in Maheras and Estate of

Gerard, the analysis of these later cases of course controls our decisions.



                                    III. CONCLUSION

         While we recognize that this is a close case, and that most of the evidence

presented by Mr. Johnston is circumstantial, we conclude that Mr. Johnston has presented

sufficient evidence to warrant a trial. We therefore VACATE the judgment of the district

court and REMAND for further proceedings consistent with this opinion. The court

should apply the two-prong Maheras test. A trial will permit the finder of fact to observe

the witnesses who testified that Ms. Goss did not participate meaningfully in the meetings

with Murphy and Boring. The probative value of their testimony, as well as all of the

other evidence that there was no undue influence, should be weighed against both the

direct evidence and the circumstantial evidence relating to whether Ms. Goss procured the

trust.

         Because the validity or invalidity of the Trust has not been conclusively

determined, we do not reach the question of the application of the no-contest clause and

remand that issue to the district court. We also do not decide how any right that any party

might have to a jury trial is affected by our determination of the issues in this appeal.

         The mandate shall issue forthwith.

                                                   Entered for the Court,


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     Robert H. Henry
     Circuit Judge




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