No




                                                               No. 97-607




                          IN THE SUPREME COURT OF THE STATE OF MONTANA




                                                              1998 MT 249




                                                    IN THE MATTER OF THE

                                        ESTATE OF EDNA MAE EGGEBRECHT,

                                                                Deceased.




                                                            APPEAL FROM: District Court of the Thirteenth Judicial
                                                                                District,

                                             In and for the County of Yellowstone,

                                     The Honorable G. Todd Baugh, Judge presiding.



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                                                     COUNSEL OF RECORD:




                                                             For Appellant:




     Gregory Paul Johnson, Billings, Montana (Co-Personal Representatives); Carla Bank, Brookfield,
                                           Wisconsin (pro se)




                                                            For Respondent:




  Brent R. Cromley, Moulton, Bellingham, Longo & Mather, Billings, Montana (David Eggebrecht);
                      Robert L. Stephens, Jr., Billings, Montana (minor heirs)




                                             Submitted on Briefs: March 19, 1998




                                                    Decided: October 20, 1998

                                                                   Filed:


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                                    __________________________________________

                                                                    Clerk

                        Justice James C. Nelson delivered the Opinion of the Court.



¶ This is an appeal by the co-personal representatives of the estate of Edna Mae
Eggebrecht from summary judgment entered by the Thirteenth Judicial District
Court, Yellowstone County, declaring certain trust documents executed by the
deceased, Edna Mae Eggebrecht, to be legally valid and effective. We affirm.

                                                                   ISSUE

¶ Did the District Court err in determining there was no genuine issue of material
fact regarding whether amendments which the decedent Edna Mae Eggebrecht
executed to certain trust documents were a result of undue influence by her
grandson, David Eggebrecht?



                                                          BACKGROUND

¶ Edna Mae Eggebrecht (hereinafter Edna or the decedent) died in Billings,
Montana, on October 7, 1995. A will and codicil dated February 3, 1993, were
admitted for formal probate and two of the decedent’s adult children, Dorothy
Suppes and Margery Hinman, were appointed co-personal representatives of the
estate pursuant to the terms of the will. Additional documents were also submitted to
the District Court, including a document identified as the Edna Mae Eggebrecht
Family Trust dated February 3, 1993, the Amendment to the Edna Mae Eggebrecht
Family Trust executed November 3, 1994, the Second Amendment to Trust

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Agreement dated July 10, 1995, the Irrevocable Trust Agreement dated July 10,
1995, the Irrevocable Trust Agreement dated September 8, 1995, and the Amended
and Restated Trust Agreement of Edna Mae Eggebrecht dated September 12, 1995
(collectively, the trust documents).

¶ The will and codicil contain "pour over" provisions in which the assets of the
decedent’s estate are transferred into the Edna Mae Eggebrecht Family Trust and
distributed according to the terms set forth in the trust documents. The co-personal
representatives contested the validity of the four trust documents executed in 1995.
In an order dated April 29, 1996, the District Court made an initial determination
that the February 3, 1993 will and codicil constituted the last will and testament of
the decedent but reserved jurisdiction to determine the validity and effect of the
various trust documents at a later date.

¶ At the close of discovery but before trial, David Eggebrecht (hereinafter David), the
grandson of the decedent and one of the primary beneficiaries of the 1995
amendments to the Family Trust, filed a motion for summary judgment that the 1995
documents executed by the decedent to amend the terms of the Family Trust were
valid and enforceable. The co-personal representatives opposed the motion on the
grounds that issues of material fact existed regarding whether David exercised undue
influence over his grandmother in the creation and execution of the 1995 trust
amendments. The District Court granted David’s motion, holding that the four 1995
trust documents were valid and would control the disposition of the assets in the
estate.

¶ The evidence before the District Court showed that Edna was an unmarried widow
living in Billings, Montana. Although she lived alone, Edna was visited daily by her
grandson, David, on whom she relied for assistance and company. In November
1995, Edna moved to Scottsdale, Arizona, to live with her daughter, Dorothy, for the
winter. She returned to her home in Billings, Montana, the following May and
resumed her daily relationship with David.

¶ Edna’s broker and long time financial advisor testified by affidavit that sometime
after her return from Arizona in 1995, Edna discussed with him her desire to effect
certain changes in the terms of the trust documents. The broker recommended the
services of a local attorney specializing in the area of estate planning.



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¶ Sometime later David contacted this attorney to consult him regarding the
handwritten changes Edna had been making to the trust documents and the
possibility of having all of those changes memorialized into a single document. Copies
of the marked-up trust documents were delivered to the attorney by David, and over
the course of approximately three months, the four documents at issue were drafted,
reviewed and executed. Although Edna never met in person with the attorney who
was drafting the trust amendments, he testified in his deposition that they had
spoken by telephone on several occasions to discuss the changes noted on the copies
delivered by David.

                                                  STANDARD OF REVIEW

¶ Our standard of review of the grant of summary judgment by the district court is
the same as that used by the district court under Rule 56(c), M.R.Civ.P. Estate of
Lien (1995), 270 Mont. 295, 298, 892 P.2d 530, 532. Summary judgment may be
granted where there are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. In a motion for
summary judgment the moving party has the initial burden of showing an absence of
material fact, upon which the burden shifts to the opponent to affirmatively
demonstrate that an issue of material fact exists. Owen v. Ostrum (1993), 259 Mont.
249, 255-56, 855 P.2d 1015, 1019. Mere denial or speculations will not suffice, the
nonmovant must show facts sufficient to raise a genuine issue. Taylor v. Koslosky
(1991), 249 Mont. 215, 217, 814 P.2d 985, 986. However, all reasonable inferences
that may be drawn from any offered proof will be made in favor of the party
opposing summary judgment. Lien, 270 Mont. at 299, 892 P.2d at 532.

                                                            DISCUSSION

¶ This Court has recognized that the imposition of undue influence as defined by
§ 28-2-407, MCA, can negate the free consent necessary for the valid creation and
enforcement of an express trust. Koslosky, 249 Mont. at 218, 814 P.2d at 986; Adams
v. Allen (1983), 209 Mont. 149, 153, 679 P.2d 1232, 1235.



                  Undue influence consists in: (1) the use by one in whom a confidence is
                  reposed by another or who holds a real or apparent authority over him of such


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                  confidence or authority for the purpose of obtaining an unfair advantage over
                  him; (2) taking an unfair advantage over another’s weakness of mind; or (3)
                  taking a grossly oppressive and unfair advantage of another’s necessities or
                  distress.



Section 28-2-407, MCA.

¶ The criteria for establishing undue influence are (1) a confidential relationship
between the trustor and the person attempting to influence the trustor; (2) a physical
or mental condition in the trustor that affects her ability to withstand the influence;
(3) an unnatural disposition of property reflecting a mind which is unbalanced or
susceptible to influence; and (4) demands or importunities made by the person
seeking to influence the trustor that may affect the trustor, taking into consideration
the time, place and all surrounding circumstances. Koslosky, 249 Mont. at 218, 814
P.2d at 987; Allen, 209 Mont. at 153-54, 679 P.2d at 1235. Each of these factors must
be established in order to prove the existence of undue influence. Lien, 270 Mont. at
304, 892 P.2d at 535.

¶ In its Memorandum and Order on Motion for Summary Judgment, the District
Court concluded that there were no genuine issues of material fact regarding
whether the decedent was under the undue influence of David at the time she
executed the 1995 trust amendments. The co-personal representatives contend that
material issues of fact exist with regard to all five of the requisite elements of undue
influence. Our review of the record convinces us that the evidence presented to the
District Court was not sufficient to give rise to a genuine issue of material fact
regarding the imposition of undue influence upon the decedent and that David is
therefore entitled to judgment as a matter of law.

¶ David concedes that a confidential relationship existed between himself and his
grandmother, and this issue is not in dispute.

¶ With regard to whether the decedent suffered from a physical or mental condition
affecting her ability to withstand undue influence, the co-personal representatives
point to the paucity of evidence submitted by David regarding the decedent’s
physical and mental well-being at the time the 1995 trust documents were signed. In


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particular, they argue, because neither David nor any of the affiants who testified as
to Edna’s mental and physical health prior to her death were personally present at
the very moment at which the documents were executed, there exists no evidence
whatsoever which satisfies the movant’s burden on this issue.

¶ We disagree. There is substantial evidence in the record that decedent’s physical
health was exceedingly good for a woman of her age. In addition, each of the
affidavits of Eunice Montgomery, who ran a boarding house in which decedent
stayed at night during the three months immediately preceding her death, Rhoda
Schlehuber, an administrative officer at decedent’s bank who handled the decedent’s
accounts, and Phillip Boggio, decedent’s broker and financial advisor, as well as
David’s own testimony before the District Court at a prior hearing, state that
throughout the months of July, August and September 1995, the decedent was in full
command of all her faculties, was not easily subjected to the influence of others, and
was possessed of very strong opinions which she communicated freely to others. The
time frame encompassed by this testimony includes the entire period in which the
decedent would have been effecting changes in and executing the amended trust
documents. The quality of this evidence is sufficient to place the evidentiary burden
upon the co-personal representatives to rebut these statements with evidence to the
contrary in order to raise a genuine issue of material fact.

¶ The co-personal representatives have failed to carry this burden. Evidence that the
decedent "undoubtedly suffered from some physical ailments from time to time,"
that she failed to pick up the eye-glasses prescribed for her by an eye doctor in
Arizona, that she had been unhappy residing in Arizona over the previous winter,
that she was 90 years old and had friends and family checking up on her, and that on
one occasion she was not immediately clear-headed upon waking are not sufficient to
raise a genuine issue of material fact on this point. Even if all reasonable inferences
which may be drawn from this evidence are considered, the cumulative effect of this
testimony is mere speculation as to the possibility of any mental or physical infirmity
which could have affected Edna’s ability to withstand attempted influence by
another.

¶ Likewise, there was insufficient evidence submitted to the District Court to raise a
genuine issue of material fact regarding the naturalness of the disposition of Edna’s
property. Although the changes to the trust documents increase the amount of
property being left to David and his sons to the detriment of the decedent’s daughters

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and other descendants, this is not, by itself, sufficient to demonstrate an unnatural
disposition. See Lien, 270 Mont. at 305, 892 P.2d at 536 ("Even the fact that a parent
might leave the majority of his or her assets to only one child, while excluding others,
is not in and of itself unnatural.")(citing Flikkema v. Kimm (1992), 255 Mont. 34, 41,
839 P.2d 1293, 1298). This is especially so in light of the decedent’s comments to
Eunice Montgomery, Rhoda Schlehuber and Phillip Boggio that her reasons for
amending the trust were that she was generally unhappy with her daughters as a
result of her visit to Arizona in the winter of 1994/1995 and that she felt she had
already adequately provided for them during her lifetime.

¶ Although the amendments increase the amount of property left to David and his
sons, they do not wholly eliminate all other recipients of property under the prior
trust documents as the co-personal representatives seem to imply. That David would
be the object of the larger part of Edna’s largesse appears natural in light of the fact
that it was upon David that Edna primarily relied to assist her with her routine
chores, errands and appointments. As we discussed in Lien, none of these actions are
unusual between relatives and are not, by themselves, cause for suspicion. 270 Mont.
at 305, 892 P.2d at 536.

¶ The co-personal representatives argue that the amendments reflect a "radical
change" from the terms of the earlier documents, demonstrating the unnaturalness
of the disposition. This argument is not persuasive because the change in
beneficiaries under the 1995 amendments is adequately explained by Edna’s
comments to third parties about her feelings toward the co-personal representatives
and their receipt of lifetime gifts from Edna’s estate. Edna’s close personal
relationship with her grandson, David, had existed for some time prior to her
execution of the amendments, and if she felt that other possible recipients were
adequately provided for, it would be natural to bestow a greater portion of her
property on a relative with whom she was especially close. None of the evidence
presented demonstrates a disposition so unnatural as to reflect a mind which was
unbalanced or susceptible to influence.

¶ Likewise, there is no evidence in the record suggesting that David made demands
or importunities upon Edna, seeking to influence her in the disposition of her
property. The co-personal representatives repeatedly argue that it was David who
chose the attorney who prepared the trust documents in 1995, that this attorney
never met with Edna, and that therefore the changes in the documents were made at

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David’s direction according to his instructions. This argument is not supported by
the evidence. Although David testified that he did initiate contact with the attorney
who drafted the trust amendments, Edna’s broker testified that he had been the one
to recommend this particular attorney. That David couriered the documents between
Edna and the attorney does not establish that the attorney was acting under David’s
direction. To the contrary, the attorney testified that in addition to following the
handwritten notations on the trust documents themselves, he had also spoken several
times with Edna by telephone to confirm the nature of the changes she wanted
drafted. The attorney also testified that it is not uncommon in an estate planning
practice to have trust documents sent to a client for signature without requiring the
client to appear in person and have her signature witnessed. The evidence presented
to the District Court on this issue was not sufficient to raise an issue of material fact
precluding summary judgment.

¶ We affirm the judgment of the District Court that the four 1995 trust documents
carry out the testamentary and estate planning intentions of the decedent and are
therefore effective to control the disposition of her real and personal property.




/S/ JAMES C. NELSON




We Concur:



/S/ J. A. TURNAGE

/S/ JIM REGNIER


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/S/ TERRY N. TRIEWEILER

/S/ KARLA M. GRAY




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