     IN THE SUPREME COURT OF THE STATE OF WASHINGTON

                                           )
In the Matter of the Estate of             )
                                           )      No. 91488-5
EVA JOHANNA ROV A BARNES,                  )
                                           )
                    Deceased.              )      En Bane
                                           )
VICKI ROV A MUELLER, KAREN                 )
BOW, MARSHA ROV A, and JOHN                )
ROVA,                                      )      Filed      JAN 2 8 2016
                                           )
                    Petitioners,           )
                                           )
       v.                                  )
                                           )
MICHELLE WELLS and DENNIS                  )
WELLS,                                     )
                                           )
                    Respondents.           )
                     ·-'---------          )


      Yu, J.-This case involves a will contest and whether the will proponents

presented sufficient evidence to rebut a presumption of undue influence. The trial

court invalidated the will at issue, finding that it was the product of undue

influence. The trial court's factual findings were not challenged on appeal, but the
In re Estate of Barnes, No. 91488-5

Court of Appeals reversed and remanded for a new trial, holding that the trial court

failed to make findings of direct evidence to support its conclusion of undue

influence, relying solely on the presumption of undue influence to invalipate the

will.

        The proper inquiry here is whether the trial court's unchallenged findings of

fact support its conclusions of law. The Court of Appeals erred by reweighing

evidence that sufficiently supported the trial court's conclusions. We reverse the

Court of Appeals and reinstate the trial court's judgment invalidating the will as a

product of undue influence.

                        FACTUAL AND PROCEDURAL HISTORY

        The following summary of facts is based on the trial court's extensive and

detailed findings of fact and conclusions of law. Clerk's Papers (CP) at 1162-89.

Eva Johanna Rova Barnes was born on July 17, 1916, in Bellingham, Washington.

She died at her home in Poulsbo, Washington, on June 27, 2011, just a few weeks

before her 95th birthday. Barnes' will was admitted to probate on July 1, 2011.

Respondent Michelle Wells was appointed personal representative with

nonintervention powers but was later removed by the court and replaced by her

husband, Dennis Wells. Barnes' estate includes an acreage of land located on

Rova Road that was homesteaded by her parents. The property contains her




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In re Estate ofBarnes, No. 91488-5

residence and a rental property in which the petitioners (the Rovas) 1 shared a one-

half interest. Barnes' probated will completely disinherited the Rovas in favor of

Wells and her husband. Wells became acquainted with Barnes as Barnes' rural

mail carrier, and the two became friends after Barnes' husband and daughter

passed away. After Barnes suffered a fall in her home, Wells became her

caretaker.

      The Rovas challenged the validity of Barnes' will for lack of testamentary

capacity and undue influence by Wells. After a five-day bench trial, the trial court

issued 83 findings of fact and 23 conclusions of law, finding that while Barnes had

testamentary capacity when she executed the will in contest, the will was invalid as

a result of Wells' undue influence. The trial court found that Barnes' increasing

dependence on Wells coincided with Barnes' estrangement from her family and

that Wells made numerous false statements that "fanned the flame" of Barnes'

unfounded anger and mistrust of the Rovas. Id. at 1180-81 (Finding of Fact (FF)

73). Wells became the only person close to Barnes on a consistent basis,

eventually replacing Barnes' niece as her attorney-in-fact and assuming the role of

caretaker after Barnes fell in her home. Isolated from her family and friends,




       1
         Petitioners Vicki Rova Mueller, I~aren Bow, Marsha Rova, and John Rova are Barnes'
nieces and nephew from her brother Victor. Following the death of Barnes' husband and
daughter, the Rovas were Barnes' closest remaining family. CP at 1163 (Finding of Fact 3).



                                             3
In re Estate ofBarnes, No. 91488-5

physically and mentally impaired, 2 and totally dependent on Wells, it is

indisputable.that Barnes was highly vulnerable to undue influence. 3

       Throughout her relationship with Barnes, Wells and her husband were

struggling financially. 4 After Wells became more involved in her life, Barnes

began writing checks to Wells and Wells' family members for various services and

expenses. Just days before Barnes passed away, Wells paid her own mortgage

with a check issued from Barnes' personal bank account. Barnes was in or close to

being in a coma when Wells wrote this check. The check posted on the same day

that Barnes passed away.

       On appeal, Wells did not challenge the trial court's findings of fact but

assigned error to the conclusions that the Rovas had established a presumption of




       2
           Barnes was never diagnosed with dementia, but her physician Dr. Kina began noting
'"mild cognitive impairment'" in his medical reports as early as 2009. Id. at 1170 (FF 36). His
observations throughout Barnes' treatment reflected her "gradual mental deterioration." !d.
After Barnes suffered a second fall in 2011, which preceded her death a month later, Dr. Kina
observed that Barnes' cognitive impairment was "'[p]robably early Alzheimer's dementia"' Id.
at 1181 (FF 7 5). While the trial court did not find clear and convincing evidence that Barnes
lacked testamentary capacity when she signed the 2011 will, the facts establish that Barnes'
progressive cognitive impairment and susceptibility to undue influence coincided with Wells'
increasing involvement in her life.
        3
           Wells' manipulation of Barnes was apparent in an interview that was recorded with
Barnes as part of an oral history project conducted by the local church. See id. at 1180 (FF 71).
Barnes was often confused, and Wells substantially participated in the interview by "fill[ing] in
numerous blanks in Ms. Barnes' memory and appear[ing] to speak for Ms. Barnes at certain
times." !d. (FF 72). The trial court found that had Barnes signed the will on this day-just two
months after the 2011 will was executed-she would have clearly lacked testamentary capacity.
Id. (FF 71).
         4
           The court found it relevant to include that Wells was convicted of third degree theft
 during this time period. Id. at 1171 (FF 40).


                                                4
In re Estate ofBarnes, No. 91488-5

 undue influence that Wells failed to rebut, and that Barnes' will was invalid

 because it was a product of Wells' undue influence. In an unpublished opinion, the

 Court of Appeals reversed and remanded for a new trial, holding that Wells had

 sufficiently rebutted the presumption of undue influence. In re Estate of Barnes,

 noted at 186 Wn. App. 1004, 2015 WL 786791, at *5, review granted, 183 Wn.2d

 1025, 355 P.3d 1154. The Court of Appeals also found that the trial court did not

 make any findings of fact of" 'positive evidence,"' but had "wholly relied on the

 presumption" to find that there was undue influence sufficient to invalidate the

 will. 2015 WL 786791, at *5

                                 STANDARD OF REVIEW


        When reviewing a will contest, the appellate court's function is to determine

· whether the trial court's findings are supported by substantial evidence. In re

 Estate ofKlein/ein, 59 Wn.2d 111, 113, 366 P.2d 186 (1961); see also Thorndike v.

 H'esperian Orchards, Inc., 54 Wn.2d 570, 575,343 P.2d 183 (1959). We defer to

 the trial court's determinations ofthe weight and credibility ofthe evidence.

 Kleinlein, 59 Wn.2d at 113. Unchallenged findings are verities on appeal. In re

 Estate ofHaviland, 162 Wn. App. 548, 563,255 P.3d 854 (2011) (citing State v.

 Hill, 123 Wn.2d 641,644, 870 P.2d 313 (1994)).

        The trial court's extensive findings of fact in this case are not disputed.

 Thus, the only question is if the unchallenged facts support the trial court's



                                            5
In re Estate of Barnes, No. 91488-5

conclusions of law. Whether the facts rise to the level of undue influence that is

sufficient to invalidate a will is a question of law that we review de novo. !d.

                                       ANALYSIS

      The right to testamentary disposition of one's property is a fundamental right

protected by law. Dean v. Jordan, 194 Wash. 661, 668, 79 P.2d 331 (1938). A

will that is executed according to all legal formalities is presumed valid. RCW

11.24.030. Nevertheless, a will executed by a person with testamentary capacity

may be invalidated if "undue influence" existed at the time of the testamentary act.

In re Estate of Lint, 135 Wn.2d 518, 535, 957 P.2d 755 (1998) (citing Dean, 194

Wash. 661 ). "Undue influence" that is sufficient to void a will must be "something

more than mere influence but, rather, influence 'which, at the time of the

testamentary act, controlled the volition of the testator, interfered with his free will,

and prevented an exercise of his judgment and choice."' !d. (quoting In re Estate

of Bottger, 14 Wn.2d 676, 700, 129 P.2d 518 (1942)).

       The applicable legal framework for determining whether a will is the result

of undue influence was established in our seminal case Dean, 194 Wash. 661. For

nearly eight decades, Dean has remained the governing case on undue influence,

and it continues to be controlling precedent. The present case does not require us

to disturb settled law. The trial court properly invalidated the will in contest for

undue influence under the Dean framework.



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In re Estate of Barnes, No. 91488-5

A. Establishing the Presumption of Undue Influence

      When challenging the validity of a will, the will contestant bears the burden

of proving the will's illegality by "clear, cogent, and convincing" evidence. 5 Dean,

194 Wash. at 669, 671. Circumstantial evidence may be used to establish

suspicious facts that raise a presumption of undue influence. In re Estate of

Martinson, 29 Wn.2d 912, 914-15, 190 P.2d 96 (1948). Ifthe presumption is

raised, the will proponent must produce evidence to rebut the presumption. Dean,

194 Wash. at 672. The absen9e of rebuttal evidence may be sufficient to set aside

a will, but the contestant retains the ultimate burden of proof. I d.

      The court in Dean identified certain suspicious facts and circumstances that

could raise a presumption of undue influence:

      The most important of such facts are (1) that the beneficiary occupied
      a fiduciary or confidential·relation to the testator; (2) that the
      beneficiary actively participated in the preparation or procurement of
      the will; and (3) that the beneficiary received an unusually or
      unnaturally large part of the estate. Added to these may be other
      considerations, such as the age or condition of health and mental vigor
      of the testator, the nature or degree of relationship between the testator
      and the beneficiary, the opportunity for exerting an undue influence,
      and the naturalness or unnaturalness of the will.




       5
        "[C]lear, cogent, and convincing" evidence is a quantum of proof that is more than a
preponderance of the evidence, but less than what is needed to establish proof beyond a
reasonable doubt. Blandv. Mentor, 63 Wn.2d 150,154,385 P.2d 727.(1963).


                                               7
In re bstate ofBarnes, No. 91488-5

I d. Whether the existence of the so-called Dean factors raises a presumption of

undue influence is a highly fact-specific determination that requires careful

scrutiny of the totality of the circumstances. I d.

      The trial court properly held that the facts raised a presumption of undue

influence based on the presence of all the Dean factors and other considerations.

We reaffirm the Dean factors and find that the undisputed facts in this case

substantially support the trial court's conclusion of undue influence.

              ], ,Opportunity--existence of a fiduciary or confidential relationship

       The first Dean factor establishes that a confidential or fiduciary relationship

may give rise to a presumption of undue influence. The crux of these relationships

is a level of trust that leads the testator to believe that the bene±1ciary is acting in

his or her best interests, creating an opportunity for the beneficiary to exert undue

influence. Kitsap Bank v. Denley, 177 Wn. App. 559, 571, 312 P.3d 711 (2013).

       The trial court's findings of fact were sufficient to meet this Dean factor. A

fiduciary relationship inheres in the role of attorney-in-fact, see In re Estates of

Palmer, 145 Wn. App. 249, 263, 187 P.3d 758 (2008), and it is undisputed that

Wells was Barnes' attorney-in-fact at the time thewill in contest was signed, CP at

 1185 (Conclusion of Law (CL) 12). Wells exercised her power of attorney by

signing 9hecks on behalf of Barnes. Id. at 1176 (FF 54). These facts are sufficient

to find that a fiduciary relationship existed.



                                             8
In re Estate ofBarnes, No. 91488-5

              2. Causation-.active participation in procurement of the will

      The second Dean factor requires that the beneficiary's actions bring about or

affect the testamentary instrument.. In this case, although Wells was not present in

the room when Barnes signed the will, she was Barnes' sole means of

transportation and drove Barnes to the series of meetings that led to the execution

ofFhe new will. 6 !d. at 1177 (FF 61), 1175 (FF 51), 1176-77 (FF 57, 60).

       While the mere act of driving Barnes to the meeting with her attorney is not

sufficient in and of itselfto satisfy this Dean factor, see In re Estate of Malloy, 57

Wn.2d 565, 570, 358 P.2d 801 (1961), the new will was executed on the heels of

what appeared to be Wells' systematic manipulation ofBarnes. Wells alienated

Barnes from her family by making numerous false statements that "fanned the

flame" of Barnes' unfounded anger towards the Rovas. CP at 1181 (FF 73 ). Wells

suggested that the Rovas had deliberately destroyed Barnes' address book-an

irreplaceable item of great sentimental value to Barnes-when John Rova helped

Wells unclutter Barnes' home, which had been declared unsafe due to Barnes'

hoarding tendencies. !d. at 1175 (FF 50). She also accused John of trying to



       6
         Barnes had actually attempted to execute the new will two days prior. When Barnes
could not remember one of her niece's names, her attorney asked her to return on another day.
CP at 1176 (FF 57). Immediately before the meeting in which Barnes executed her new will,
Wells took Barnes to see Dr. Kina and requested that he "prescribe a medication to help Ms.
Barnes with her memory problems." !d. at 1177 (FF 59). The trial court did not draw any
conclusions directly from these facts, but they certainly support the conclusion that Wells
participated in procurement of the will.


                                               9
In re Estate ofBarnes, No. 91488-5

"throw Ms. Barnes under the bus" and stated that the Rovas wanted to put Barnes

in a nursing home--untrue statements that "acted to further poison" Barnes'

relationship with the Rovas. !d. at 1180 (FF 72). Wells also falsely told the rental

property tenants that the Rovas were "greedy villains" who intended to evict them

in order to sell the land, develop the property, and become millionaires. !d. at

1173-74 (FF 46). Wells further isolated Barnes by changing her long distance

calling plan, making it difficult for family and friends to reach her by phone. !d. at

1179 (FF 69).

      When viewed in the context of these actions, driving Barnes to the meeting

in which she executed a new will can be reasonably seen as the last act in Wells'

campaign to influence Barnes. These findings support the conclusion that the will

would not have come into being but for Wells' activities and influence on Barnes.

             3. Result--unusually or unnaturally large bequest

       Under the third Dean factor, the effect of undue influence must manifest in

the testamentary instrument in an "unnatural" or "unusual" way. See In re Estate

ofPeters, 43 Wn.2d 846, 864,264 P.2d 1109 (1953) ("If fraud or undue influence

had actually been exercised, we would expect to find some indication of this in the

way in which the property was devised and bequeathed."). "Unusualness" or

"unnaturalness" can be measured by comparison to the decedent's previous




                                          10
In re Estate of Barnes~ No. 91488-5

testamentary instruments, In re Estate ofChapman, 37 Wn.2d 682, 691, 225 P.2d

883 (1950), or bequests to other beneficiaries, .Malloy, 57 Wn.2d at 570.

      The trial court found that Barnes' new will was a "radical departure" from

her prior wills. CP at 1187 (CL 20). Both of Barnes' prior wills included the

Rovas: first as alternate beneficiaries, then as primary beneficiaries following the

death ofBarnes' husband and daughter. !d. at 1164 (FF 6, 8). The will in contest

completely disinherited the Rovas in favor of Wells and her husband as the sole

beneficiaries. Wells and her husband were never named as beneficiaries in Barnes'

prior wills, Verbatim Report of Proceedings at 612, yet they received the entirety

of Barnes' estate in the new will, leaving nothing to the prior beneficiaries. These

facts are suf±1cient to support the conclusion that the Wells received an unusually

and unnaturally large bequest.

             4. Other considerations

       In addition to the three main factors, Dean enumerates other considerations

that could weigh in favor of finding undue influence. 194 Wash. at 672. These

considerations speak to the testator's vulnerability to undue influence due to

mental or physical infirmity and the nature of the relationship with the beneficiary.

       The trial court properly concluded that all of the "'other considerations'"

enumerated by the Dean court were present. CP at 1186 (CL 16). Barnes was

elderly-nearly 95 when the will was executed-and "extremely vulnerable to



                                          11
In re E.'.;tate ofBarnes, No. 91488-5

undue influence clue to physical limitations, [and] some degree of cognitive

impairment." !d. (CL 15, 17). Barnes was dependent on Wells as her caregiver,

and Wells' constant presence created ample opportunity to exert undue influence

over Barnes. Id. at 1186-87 (CL 15, 19).

      The trial court cited the unnaturalness of the will as a "critical factor" in its

decision. ld. at 1187 (CL 20). A will is unnatural "when it is contrary to what the

testator, from his known views, feelings. and intentions would have been expected

to make." In reEstate ofMiller, 10 Wn.2d 258,267, 116 P.2d 526 (1941). The

bequest to the Wells was "unnatural" in that they were not natural objects of

Barnes' bounty: Wells was 51 years younger than Barnes, she and her husband

were unrelated to Barnes, and Wells became consistently involved with Barnes

only in the last few years of Barnes' life. CP at 1171 (FF 39, 40). In contrast, the

Rovas are Barnes' closest living relatives and direct lineal descendants of the

property's homesteaders. Id. at 1163-64 (FF 3, 5). They grew up near Barnes and

spent a significant amount of time on the property. Id. at 1163 (FF 4). Up until the

last few years of her life, the Rovas shared a close family relationship with Barnes,

celebrating her 90th birthday together and including her in important family

events, like the wedding of Karen Bow's daughter. !d. at 1165 (FF 12), 1172-73

(FF 44). Under these circumstances, the trial court stated that it "cannot conceive

of Ms. Barnes disinheriting the [Rovas] and making this absolutely radical and



                                           12
In re Estate ofBarnes, No. 91488-5

unnatural change to her prior wills unless she was subjected to undue influence that

the evidence suggests she was vulnerable to." !d. at 1187-88 (CL 20).

       The trial court's conclusion that all the Dean factors and other

 considerations were present is sufficiently supported by its fi.ndings of fact.

 B. Effect of the Presumption ofUndue Influence

       If the facts raise a presumption of undue influence, the burden of production

. shifts to the will proponent, who must then rebut the presumption with evidence

 sufficient to "balance the scales and restore the equilibrium of evidence touching

 the validity ofthe will." Dean, 194 Wash. at 672. However, the will contestant

 retains the ultimate burden of proving undue influence by "clear, cogent, and

 convincing" evidence. !d. at 671.

              1. Wells failed to rebut the presumption of undue influence

        The trial court properly found that the evidence presented by Wells was

 insufficient to overcome the presumption of undue influence in light of the totality

 of the evidence presented. CP at 1187 (CL 22). The Court of Appeals correctly

 stated that the scope of review is "limited to whether the unchallenged findings of

 fact support the conclusions of law." Barnes, 2015 WL 786791, at *2. However,

 the court reversed based on its own reweighing of the evidence in favor of an

 alternative theory for upholding the will--that "[t]he trial court's unchallenged

 findings of fact contain more than sufficient evidence that Barnes changed her will



                                            13
In re Estate of Barnes, No. 91488-5 ·

for a valid reason, unaffected by undue influence: that she had grown apart from,

was suspicious of, and disliked the Rovas." !d. at *4.

     · This was error-the appellate court's role is to review findings supporting

the conclusions the trial court did reach, not to look for evidence supporting an

alternate conclusion the court could have reached. Wells does not challenge any of

the trial court's findings or offer any evidence disputing the presence of the Dean

factors, but selectively restates the trial court's findings to support her alternative

theory for Barnes' will. While Wells' story may be persuasive in isolation, we

must defer to the weight given to all the evidence by the trial court and its

credibility assessment that the facts Wells points to do not balance the scales

against the overwhelming evidence of undue influence.

             2. The Rovas met their burden ofproving undue influence by clear,
                cogent, and convincing evidence

       Whether or not the presumption of undue influence is established or

rebutted, the will contestant bears the ultimate burden of proving the will's

illegality by "clear, cogent, and convincing" evidence. Dean, 194 Wash. at 671.

We have long recognized that Circumstantial evidence alone can be sufficient to

support a finding ofundue influence. In re Estate ofBush, 195 Wash. 416,425, 81

P.2d 271 (1938) (quoting Olson v. Washington, 18 Cal. App. 2d 85, 86-87, 63 P.2d

304 (1936)). However, a will contestant cannot rely solely on the weight of the

presumption to invalidate a will, Dean, 194 Wash. at 673, and "mere suspicion of

                                            14
In re Estate ofBarnes, No. 91488-5

undue influence is not enough," In re Estate of Mitchell, 41 Wn.2d 326, 353, 249

P.2d 385 (1952). Rather, the contestant must establish undue influence by

producing direct or circumstantial "positive evidence." 7 Dean, 194 Wash. at 673.

        Here, the trial court properly found that the evidence met the clear, cogent,

and convincing standard in order to find undue influence. CP at 1187 (CL 21).

The trial comi did not delineate which evidence went to any particular proposition,

.;but we have never held that evidence of the presumption could not also be

considered as direct or circumstantial evidence of actual undue influence. As the

taking of testimony unfolds at trial, the trial court must consider the evidence as a

whole, regardless of which party offers it. The trial court's extensive findings of

fact established an unrebutted presumption of undue influence based on the Dean

 factors, supported by further positive evidence of Wells' systematic influence over

 Barnes and active efforts to isolate and alienate Barnes from the Rovas. 8 Taken

 together, the findings are easily sufficient to establish undue influence.



        7 Neither    Dean nor its progeny are clear on what constitutes "positive evidence."
 However, to the extent that the Court of Appeals reversed because there was no direct (as
 opposed to circumstantial) evidence ofundue influence, this was error. See Barnes, 2015 WL
 786791, at *5. Our case law has long recognized that "[f]rom the very nature of things, undue
 influence can rarely be proved by direct evidence" and the "surrounding circumstances" are
 "competent sources for the guidance ofthe courts" when deciding will contests. In re Estate of
 Tresidder, 70 Wash. 15, 19, 125 P. 1034 (1912).
          8
            It is unclear what further evidence would be necessary, short of Wells dictating the
 terrns of the will or forcing Barnes to execute the testamentary instrument against her volition. If
 this is the quality of evidence required to invalidate a will, it would be nearly impossible to
 proye, wholly undermining the purpose and function ofthe presumption of undue influence
 doctrine.


                                                 15
In re Estate of Barnes, No. 91488-5

      The Rovas met their burden and, under the appropriate standard of review,

the trial court's conclusions are sustainable. We reverse the Court of Appeals and

reinstate the trial court's judgment.

C. Attorney Fees

      The Rovas request reasonable attorney fees pursuant to RCW 11.96A.l50.

Under RCW 11.96A.150(l ), we have the discretionary authority to award

reasonable attorney fees "to any party: (a) [f]rom any party to the proceedings; (b)

from the assets of the estate or trust involved in the proceedings; or (c) from any

nonprobate asset that is the subject of the proceedings."

       The Rovas properly requested attorney fees in accordance with RAP 18.l(b).

We grant the request for fees pursuant to RCW 11.96A.150(1) and order that the

fees be paid by respondents Michelle and Dennis Wells.

                                        CONCLUSION

       The Court.of Appeals exceeded the proper function of appellate review in

these types of cases. We reaffirm the Dean factors and reiterate that the substantial

evidence standard of review applies on appeal. Applying this precedent to the case

before us, we reverse the Court of Appeals and reinstate the trial court's conclusion

that Eva Johanna Rova Barnes' will is invalid due to undue influence exercised by

Michelle Wells.




                                            16
In re Estate of Barnes, No. 91488-5




WE CONCUR:




                                      17
