                                                                                               COURTFILED
                                                                                                        OF
                                                                                                             APPEALS
                                                                                                    DIVISION II
                                                                                              2015 FEB 24
                                                                                                             All 9: 27
                                                                                              SATE OF
                                                                                                        WASHINGTON
                                                                                              BY
                                                                                                         CITY



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                      DIVISION II


 IN RE ESTATE OF                                                                         No. 45069 -1 - II


      EVA JOHANNA ROVA BARNES,

                                           Deceased.
                                                                                  UNPUBLISHED OPINION




          SUTTON, J. — Michelle Wells'               and   Dennis Wells ( collectively " the Wells ") appeal the trial


court' s order on the petition of the Rovas, invalidating Eva Johanna Rova Barnes' s 2011 will for
                       2
undue     influence.        The Wells        argue   that ( 1)   they presented sufficient evidence to rebut the

presumption of undue             influence; ( 2) the trial court' s findings of fact of undue influence were not


based on clear, cogent and convincing evidence; and ( 3) the trial court erred as a matter of law in

invalidating Barnes' s will. We agree and reverse and remand for a new trial.




    Michelle Wells,        one of   the   appellants,   became Barnes'         s caretaker.   We refer to Michelle Wells
as Michelle for clarity. We intend no disrespect.
2
    The   respondents      are   Barnes'   s nieces and nephew:          Vicki Rova Mueller, Karen Bow, Marsha
Rova,     and   John Rova. We collectively            refer   to them   as "   the Rovas."     We intend   no   disrespect.
No. 45069 -1 - II



                                                            FACTS3




                           I. BARNES' S RELATIONSHIP WITH THE ROVAS AND MICHELLE


           Barnes died          on   June 27, 2011    at   94   years old.     Barnes' s surviving family included her

brother'   s   four   children,      the Rovas.    Barnes came to know Michelle as her rural mail carrier and,


by the end of Barnes' s life, Michelle had become her caretaker.

           In March 2009, emergency medical responders found Barnes on her kitchen floor, where

she had fallen two and a half days earlier. After she recovered, medical professionals believed that


Barnes should temporarily reside at an assisted living facility; the Rovas concurred, as they were

  desperate '         to   help   Barnes.    Clerk' s Papers ( CP)       at   1132 (   Finding   of   Fact ( FF) 23).   Barnes


refused to comply with this advice, and Dr. George Kina, her physician, did not believe he could

deny her       demand to          return   home.   Before the fire department would allow her to return home,

however, Barnes'           s   home     needed   to be   made    safe   due to her     hoarding. In response to the fire

department' s order, the Rovas and Michelle cleared and discarded newspapers and magazines from


walkways and heat sources.


           Barnes returned home, but this event was " the beginning of the end" of her relationship

with   the Rovas.          CP   at   1134 ( FF 29).   Barnes felt that her privacy had been invaded, she believed

that the Rovas had destroyed her address book, and that the Rovas wanted to place her in a nursing

home for the rest of her life, which she feared.4 Barnes became paranoid and suspicious of the

Rovas.




3 Because this case was tried as a bench trial, we derive these facts from the trial court' s findings .
of fact.


4 The trial court found that .Barnes' s beliefs about the Rovas were not true.


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No. 45069 -1 - II



         From April 2009         until    her death, Barnes   grew      increasingly     dependent   on   Michelle. The


 gap" between Barnes and the Rovas widened and Barnes told Michelle that she felt ostracized by

the Rovas.     CP   at   1136 ( FF 41).    After May 2010, Michelle provided all of Barnes' s transportation

and   took   her to every     appointment with     Dr. Kina       and   Barnes'   s   attorney, Jeff Tolman.   Michelle


became the only person consistently available and close to Barnes. Barnes was a " strong- minded"

woman, and she chose not to maintain her relationship with the Rovas. CP at. 1132 ( FF 19)

                                           II. BARNES' S ESTATE. PLANNING


         Barnes' s property was homesteaded by her parents, and she lived there from 1918 until her

death. In 2005, after her husband and child died, Barnes executed a will providing that upon her

death her estate was to be distributed to the Rovas in four equal shares; she also named Vicki Rova


Mueller as her attorney in fact.

         In November 2010, Barnes decided that she wanted to remove Mueller as her attorney in

fact.   On November 17, Tolman set up a meeting in which he acted as mediator between Barnes

and Mueller in an attempt to resolve Barnes' s dispute with the Rovas, but Barnes did not want to

reconcile.     In December 2010, Barnes named Michelle her new attorney in fact and in January,

2011, Michelle began writing checks for Barnes.

         Tolman had invited Michelle to participate in the November 17 mediation meeting, where

Michelle stated in Barnes' s presence that the Rovas had thrown out Barnes' s address book; this

upset   Barnes further.       Michelle' s comments at the mediation meeting and subsequently to others




                                                              3
No. 45069 -1 - II



 fanned the flame" of Barnes' s anger toward the Rovas. 5 CP at 1146 ( FF 73).

          On March 1, 2011, Barnes met with Tolman to execute a new will, but Tolman believed


that Barnes was not feeling well so he sent her home when she could not remember the name of

one of her nieces. Two days later, Barnes returned to Tolman' s office.6 Before Barnes executed

her new will, Tolman engaged in a colloquy with her and he prepared a memorandum that Barnes

signed, setting forth her reasons for changing her will. Both Tolman and Dr. Kina, who Barnes

had visited just before coming to her appointment to change her will, believed that Barnes had the

necessary mental capacity to execute her will that day. Barnes' s new will completely disinherited

the Rovas      and named "     Dennis Wells       and   Michelle Wells"   as   her   sole   beneficiaries.   CP at 3


 capitalization omitted).



                                                  III. PROCEDURE


          Shortly after Barnes' s death, the Rovas petitioned the trial court to invalidate Barnes' s 2011

will, claiming that Barnes lacked the necessary mental capacity to execute it and that the will was

the product of the Wells' undue influence. The Rovas' petition was tried without a jury. After a




5 Michelle made derogatory comments about the Rovas on at least two other occasions in addition
to the meeting        with   Tolman:      The Rovas and Barnes jointly owned a rental house located on
Barnes'   s   property.   In October 2010, Barnes had accused the renters of not paying rent and sent
Michelle to confront them. Michelle told the renters that the Rovas wanted to " evict them so that
they [ the Rovas]      could sell   the     develop the properties, and become millionaires," which was
                                          land,
not   true. CP   at   1138 ( FF 46).   In May 2011, Michelle stated during an interview at Barnes' church
that John Rova tried to " throw [ Barnes] under the          bus   a couple   times."   CP at 1145 ( FF 72).


6 Michelle provided Barnes transportation to the meeting but was not present when Barnes'
executed the will.


7 Michelle was named as the personal representative, with Dennis Wells designated as the alternate
personal representative.
No. 45069 -1 - I1




lengthy bench trial, the trial court entered 83 findings of fact and 23 conclusions of law. The trial

court ruled that Barnes had the mental capacity to execute the 2011 will, but invalidated the will

as the product of Michelle' s undue influence.


                                                    ANALYSIS


                                            I. STANDARD OF REVIEW


            The Wells do not challenge any of the trial court' s findings of fact. Unchallenged findings

of   fact   are verities on appeal.   In   re   Estate of Lint, 135 Wn.2d 518, 533, 957 P. 2d 755 ( 1998).


Accordingly, we accept as true all of the trial court' s findings of fact.

            Though the Wells do not challenge the findings of fact, they assign error to conclusions of

law 11,     and   13 through 22.   We review conclusions of law de novo and our review is limited to


whether the unchallenged findings of fact support the conclusions of law. In re Estate ofHaviland,

162 Wn.       App.   548, 561, 255 P. 3d 854 ( 2011);    Fuller v. Emp' t Sec. Dep' t, 52 Wn. App. 603, 605,

762 P. 2d 367 ( 1988).      We consider the findings in the light most favorable to the prevailing party,

here the Rovas. Scott' s Excavating Vancouver, LLC v. Winlock Props., LLC, 176 Wn. App. 335,

342, 308 P. 3d 791 ( 2013), review denied, 179 Wn.2d 1011 ( 2014).


                                                II. UNDUE INFLUENCE


            The law presumes that a facially rational, legally executed will is valid. Dean v. Jordan,

194 Wash. 661, 668, 79 P. 2d 331 ( 1938).            The trial court' s function is not to assess the soundness


of the testator' s disposition of his or her property because the testator is allowed to dispose of

property in any lawful manner. In re Bottger' s Estate, 14 Wn.2d 676, 708, 129 P.2d 518 ( 1942).

            A trial court may set aside a will, however, if a will contestant proves with clear, cogent,

and convincing evidence that the will is a product of undue influence. Haviland, 162 Wn. App. at



                                                           5
No. 45069 -1 - II




558.   Clear, cogent, and convincing evidence must convince the trier of fact that the fact is highly

probable by weighing and evaluating evidence and making credibility determinations. Haviland,

162 Wn. App. at 558.

            To invalidate a will for undue influence, a will contestant must show more than " mere


influence."       Dean, 194 Wash.            at   671.       Undue influence is influence that controlled the testator' s


volition,    interfering      with   the testator'       s   free will   and   destroying    free agency. Haviland, 162 Wn.


App.   at   557 -58; Bottger 's Estate, 14 Wn.2d                  at   700. The influence       must   be "` tantamount to force


or fear which destroys the testator' s free agency and constrains him to do what is against his will.'"

Lint, 135 Wn.2d          at   535 ( quoting Bottger, 14 Wn.2d                at   700). The mere fact that the will proponent


offered " advice, arguments, persuasions, solicitations, suggestions or entreaties [ is] not enough to

establish undue         influence."        In re Melter, 167 Wn. App. 285, 313, 273 P. 3d 991 ( 2012).

            The   seminal      Dean    opinion      outlined " certain            facts   and circumstances"   that may raise a

rebuttable 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.    The weight of any of such facts will, of course, vary
            according to the         circumstances of    the particular case. Any one of them may, and

            variously should, appeal to the vigilance of the court and cause it to proceed with
            caution and carefully to scrutinize the evidence offered to establish the will.

Dean, 194 Wash. at 671 -72.


            Significantly, the will proponent does not have the burden to disprove undue influence to

overcome       the   presumption.           Kitsap Bank v. Denley, 177 Wn. App. 559, 578 -79, 312 P. 3d 711



                                                                         6
No. 45069 -1 - II



 2013).    To rebut this presumption, the will proponent must produce evidence " sufficient at least


to balance the scales and restore the equilibrium of evidence" regarding the will' s validity. Dean,

194 Wash. at 672. The presumption does not shift the ultimate burden of proving undue influence,

which remains with       the   will contestant.   Melter, 167 Wn.   App.   at   299. The will contestant must


provide " positive evidence" to support its claim of undue influence and cannot rely on the " force

of the presumption" alone. Dean, 194 Wash. at 673.


                         III. REBUTTING THE PRESUMPTION OF UNDUE INFLUENCE


          The trial court correctly concluded that there was sufficient evidence to support a

presumption of undue influence. The trial court also entered conclusions of law 21 and 22, both

of which concluded that the Wells did not produce sufficient evidence to overcome the


presumption of undue influence. Conclusions of Law 21 and 22 stated as follows:

                   21. Michelle Wells did not produce evidence that this Court finds sufficient
           to " at least to balance the scales and restore the equilibrium of evidence touching
           the validity of the will." In re Estate of Burkland, 8 [ Wn.]. App. 153, [ 160], 504
           P. 2d 1143 ( 1972), [   review    denied], 82 [ Wn].2d 1002 ( 1973).      Clear, cogent and

           convincing evidence establishes that the will signed by Ms. Barnes on March 3,
           2011 was the product of ongoing undue influence by Michelle Wells.

                   22.   The evidence that was presented on behalf of Ms. Wells was not
           sufficient to overcome the presumption of undue influence, based not only on the
           fiduciary relationship, the active participation in procuring the Will and the
           unnatural disposition, but on all of the other considerations that the Supreme Court
           says are appropriate to consider, age, health, incapacity, mental vigor, nature and
           degree of relationships, opportunity for influence and the unnaturalness of the
           disposition. The will that Ms. Barnes executed on March 3, 2011 is invalid because
           it was the product of undue influence by Michelle Wells.

CP   at   1152 -53 ( Conclusions    of   Law 21, 22). The Wells argue that the trial court' s findings of fact


do not support these conclusions. We agree.




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No. 45069 -1 - II



         In order to rebut the presumption of undue influence, to " balance the scales and restore the


equilibrium of evidence,"               the Wells had to come forward with evidence that supported an equally

plausible explanation             for Barnes'       s   testamentary disposition. Dean, 194 Wash.          at   672. The trial


court' s unchallenged findings of fact contain more than sufficient evidence that Barnes changed


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

suspicious of, and disliked the Rovas.


         As Barnes' s mental and physical condition deteriorated after her fall in 2009, Barnes

became "   increasingly           involved"        and "   increasingly   dependent"   on   Michelle. CP at 1135 ( FF 38).


Michelle became Barnes' s " caretaker" while Barnes became " less involved" with the Rovas. CP

at   1136 ( FF 39).        Michelle          was   the " only   person close    to [ Barnes] on a   consistent   basis."   CP at


1144 ( FF 70).        Michelle provided all of Barnes' s transportation needs because Barnes stopped


driving.    Barnes became "                  suspicious"    of the Rovas after they cleaned her home and after they

suggested that Barnes should enter into an assisted living facility, which Barnes was " desperately

afraid" of   doing.        CP     at   1134 -35 ( FF 34). Barnes told Michelle that she " felt ostracized" from the


Rovas. CP       at   1137 ( FF 44).            The Rovas did not choose to become less involved in Barnes' s life.

Instead, " it   was [      Barnes'      s]   choice"     to become " less involved" with the Rovas.         CP at 1136 ( FF


39).    Barnes       was    a "   strong- minded"          woman.    CP    at   1132 ( FF 19).   These facts are sufficient


evidence to rebut the presumption of undue influence under Dean to at least " balance the scales"

compared to the Rovas' evidence that created the presumption. Dean, 194 Wash. at 672.




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No. 45069 -1 - II



         The Rovas argue that the trial court' s conclusion of law 22, that the will was the product


of   Michelle'   s    undue   influence, is       supported        by    sufficient     evidence.   The trial court did not,


however,      make     any findings      of   fact   of " positive evidence"            of undue influence to specify what

constituted    Michelle'      s undue    influence. Dean, 194 Wash.                at   673.   Instead, the trial court wholly

relied   on   the    presumption    in making its            conclusions      of   law regarding     undue   influence.   This


reliance on the presumption was error.



         The trial court' s conclusions of law 21 and 22, stating that the 2011 will was the product

of undue influence and that the Wells had failed to overcome the presumption, are not supported


by the findings of fact. We hold that conclusions of law 21 and 22 were made in error as a matter

of law. Accordingly, we reverse and remand for a new trial.

                                                       IV. ATTORNEY FEES


         The Rovas request that we award them attorney fees under RCW 11. 24. 050 and RCW

11. 96A. 150.        They   argue   that      such     an award would         be   equitable    because the Wells' " factual


challenge"     is    meritless.   Br.   of   Resp' t   at   48.   Because the Wells' appeal is not meritless, we deny

the Rovas' request for an award of attorney fees.

         We reverse and remand for a new trial, holding that the trial court erred as a matter of law




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No. 45069 -1 - I1




in determining that the Wells did not rebut the presumption of undue influence.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040,

it is so ordered.




We concur:




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