Opinion Information Sheet

			

                                                                             FILED

                                                                        March 20, 2012

                                                                  In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In re the Matter of the Trust and Estate                  No.  29192-8-III
of MARY VIRGINIA MELTER,                        )
Deceased.                                       )
                                                )
WILLIAM R. MELTER,                              )
                                                )
                      Respondent,               )         Division Three
                                                )
       v.                                       )
                                                )
JOHN D. MELTER and SANDRA L.                    )
MELTER, husband and wife,                       )
                                                )
                      Appellants,               )
                                                )
JENNIFER L. WINKLER,                            )
                                                )         PUBLISHED OPINION
                      Defendant.                )
                                                )

       Siddoway, J.  --  A will is presumed valid but may be disregarded when a will 

contestant presents clear, cogent, and convincing evidence that it was the product of 

undue influence.  John and Sandra Melter appeal the trial court's decision to set aside the 

fourth and final will of John's mother, Mary Virginia Melter, and corresponding transfers  

No. 29192-8-III
In re Trust & Estate of Melter

of assets that effectively disinherited his brother, William Melter, and left nearly all of 

her estate to John.  

       The evidence supports the court's findings that John failed to account for, or 

clearly establish his mother's knowing consent to assets he transferred to himself during 

her lifetime.  It supports the court's finding that he shared responsibility with his brother 

for a contentious relationship between the two in which each withheld information from 

the other about preferential treatment they were seeking or received under their mother's 

estate plan.  Nonetheless, in light of the sustainable findings of the court and supporting 

evidence -- including the court's findings that Mary Virginia Melter had testamentary 

capacity at the time she signed her fourth will, had reasons for disinheriting William and 

favoring John, and explained her reasons and wishes to an attorney whom the court found 

to be acting in her interest -- the court's ultimate conclusion of undue influence was not 

supported by clear, cogent, and convincing evidence.  We reverse and remand for entry of 

judgment in favor of John and Sandra Melter.

                      FACTS AND PROCEDURAL BACKGROUND

       John and William Melter and their respective wives testified at trial to dramatically 

different versions of the sons' dealings with Mary Virginia Melter in the last five years of 

her life; ultimately the trial court found that the credibility of both sons was suspect and 

that neither came before the court with clean hands.  The following history is therefore 

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drawn virtually entirely from the factual findings of the trial court, in order to rely only 

on the evidence credited by the court.  What limited details we have added are 

undisputed.  The majority of the court's findings are unchallenged on appeal.  

       Mary Virginia Melter, who went by "Virginia," was born in 1921 and married 

John R. Melter in 1946. The couple had three children:  Mary Jane, John D., and 
William.1  John D., whom we refer to as John,2 was 8 years older than William, the 

youngest child.  Virginia and her husband executed reciprocal wills in 1995 under which 

the estate of the first to die would pass to the other, and the survivor's estate would pass 

in equal shares to their three children, per stirpes.  

       In May 2002, John R. and Virginia's daughter Mary Jane died of cancer.  

Virginia's husband became ill shortly thereafter and died in July 2002.  The closely-timed 

deaths of Virginia's only daughter and husband left her in a vulnerable state, physically 

and emotionally.  Virginia was unable to live on her own after her husband died; her 

original plan was to live with William and his wife in Kent, Washington.  

       Following John R.'s funeral and interment in a military cemetery in western 

Washington, William traveled to Florida to stay with his mother and help prepare for her 

move to the Pacific Northwest.  All of her possessions, including her car and furniture,

       1 First names are used for the purpose of clarity.  

       2 While there are three generations of "John" in the Melter family, we refer to only 
John D. Melter as "John" and refer to his father as John R. 

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were shipped to William's home in Kent. During the couple of months William spent 

with Virginia in Florida, he influenced her, in her weakened state, to make significant 

changes to her estate plan.  In a new will -- her second, executed in September 

2002 -- Virginia bequeathed her Florida home to William; left only $5,000 to Jennifer 

Winkler, Mary Jane's only child; and left the balance of the estate in equal shares to John 

and William. William obtained a power of attorney from his mother and took over 

management of her financial affairs.  He did not tell his brother, John, about the new will.  

When asked by John for copies of their parents' wills, he failed to provide them.

       In early October 2002, William flew with Virginia to Spokane, Washington.  He 

left her to stay temporarily with John and his wife Sandra, who lived in nearby Liberty 

Lake, while William traveled with his wife to a family wedding in Hawaii.  William

brought Virginia's legal documents with him from Florida, having promised to deliver

them to John, but then failed to do so, telling John he had inadvertently left them on the 

plane.  

       William suffered a serious heart attack in Hawaii and his extended recovery 

delayed Virginia's move to Kent.  With the passage of time, she became comfortable 

living with John and Sandra and decided to make her home with them instead.  Among

reasons for her change of heart was that she would have been required to live in a 

retirement home in Kent, since William's was a tri-level home whose stairs she was 

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unable to navigate.  She could get around in John's home, in which she had her own 

bedroom and bathroom.  She had not wanted to live in a retirement home, preferring to 

live with one of her sons.

       Virginia was aware that she had executed legal documents during the time William 

spent in Florida in the fall of 2002.  She was either not certain as to their substance or 

reluctant to acknowledge it, but whatever the case, there is evidence that by late 2002 she 

wished to change her will.  Despite John's repeated requests that William send their 

mother's legal documents to Virginia, William failed or refused to do so.  

       In December 2002, John helped arrange for his mother to meet with Spokane 

attorney Steve Jolley, who drafted a revocable trust and a new will -- her third -- which 

she executed in December. The trust and will left Virginia's estate to her two sons, in 

equal shares, with John being named her successor trustee under the trust and personal 

representative of her estate. William was named alternate trustee and alternate personal 

representative. Virginia also executed a durable power of attorney in favor of John.  It is 

undisputed that Virginia had testamentary capacity and was not subject to any undue 

influence at the time she executed the trust and third will.  

       John informed William that his mother had executed a new will, that it left her 

estate to the two sons equally, and that John was named personal representative and had 

been appointed his mother's attorney in fact.  

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       Virginia and John continued to press William to send Virginia's medical and 

financial records and other personal property that were in his possession, and in January 

2003, Mr. Jolley wrote to William on Virginia's behalf, enclosing her signed 

confirmation that she was insisting that her records be sent to her.  William complied.  It 

was on receiving the records sent by William that John learned for the first time of 

Virginia's second will executed in Florida, substantially benefitting William.  

       At this point, John began the course of conduct principally relied upon by the trial 

court for its later finding that he exerted undue influence leading to Virginia's execution 

of a fourth will several months later.  By late 2002 (if not earlier) John had a confidential 

relationship with his mother; by then, she relied upon John and his wife almost 

exclusively for her care.  John was angry to learn of the second will that William had 

facilitated and failed to disclose.  He was angry over William's refusal to return 

Virginia's personal possessions to her. The relationship between the two brothers 

became increasingly hostile.  John drafted a letter to Mr. Jolley, signed by Virginia, 

requesting that Mr. Jolley prepare a fourth will that would disinherit William.  John also 

hired a psychologist to verify that his mother was competent to execute a new will.  Mr. 

Jolley declined the engagement to prepare the fourth will for reasons discussed hereafter.  

He referred John to another law firm, Trunkenbolz & Rohr.  

       John arranged for Virginia to meet with attorney Pamela Rohr in May 2003.  At 

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the time of the meeting with Ms. Rohr, Virginia was disappointed and upset with William 

for a number of reasons that she was able to clearly articulate to Ms. Rohr.  Virginia had 

testamentary capacity at the time, was aware of her assets, knew the objects of her bounty 

and was clear about how she wanted her estate distributed.  She clearly articulated her 

reasons for wanting to disinherit William.  Ms. Rohr drafted and Virginia executed 

Virginia's fourth will, specifically disinheriting William, bequeathing 99 percent of her 

estate to John, and bequeathing the remaining 1 percent to her granddaughter, Jennifer

Winkler.  Virginia revoked the trust that had been prepared by Mr. Jolley.  

       Ms. Rohr testified that at Virginia's request, she sent only the revocation of trust to 

William; she did not provide him with the new will.  John did not inform William that 

Virginia had disinherited him or executed a new will.

       For the remaining 4½ years of her life, Virginia lived with John and Sandra.  John 

spent a great deal of time and energy directing his mother's estate affairs.  He transferred 

substantially all of her assets to himself and his wife before Virginia's death on 

March 21, 2007.  Her estate had amounted to some $617,000 after the sale of her Florida 

home in April 2005.  At the time of her death only $11,000 remained, in a joint tenancy 

account with John. William did not learn of the existence of the fourth will or become 

aware of John's transfers of assets until their mother's death.  

       John and his wife took excellent care of his mother during the years she lived with 

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them. Virginia benefited from an excellent quality of life with them; they were solicitous 

of her and assured she had good medical care.  

       On the other hand, John, like William, criticized the other to their mother; drawing 

her into a hostile family situation they created by their arguing over how her estate would 

be handled and which of them would be in charge. Virginia was estranged from William 

during the years she lived with John.  

       It is unclear what money or property William received from his mother during her 

lifetime.  He had been the recipient of many financial benefits and support from his 

parents and later his mother.  There is evidence that he obtained at least $16,000 from her 

funds during the fall of 2002.  

                                     TEDRA Proceeding

       When William learned that he would take nothing under his mother's will, he

commenced this action under the Trust and Estate Dispute Resolution Act (TEDRA), 

chapter 11.96A RCW, in January 2008, asking that her fourth will be invalidated, that her 

third will and revocable trust be admitted to probate, and that John be removed as 

personal representative.  In support of the relief, he alleged that John and his wife "kept 

. . . Virginia Melter secluded, without the opportunity to express her free will and wishes, 

during her stay with them from October 2002 to her death on March 21, 2007," that they 

"limit[ed] funds available for Ms. Melter to live on, monitor[ed] her telephone calls, 

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letters, and all correspondence to third parties including relatives, and refus[ed] to allow 

Ms. Melter to have contact with third parties or relatives."  Clerk's Papers (CP) at 8.  He 

alleged that as a result of John's and Sandra's actions, "Ms. Melter was coerced into 

executing documents which were not of her own free will including revocation of the 

Trust and Last Will and Testament dated December 11, 2002 and the execution of a Will 

dated May 8, 2003, effectively disinheriting William R. Melter."  Id.

       A four-day trial to the court began in early May 2010. At the conclusion of the 

trial, the court took the matter under advisement.  It issued a detailed written opinion, 

findings, and conclusions on June 16.  Among its findings were the following, to which 

John has assigned error, and that were therefore not recounted in the background facts set 

forth above:

       17.    . . . John D. demanded that attorney Jolley change his mother's will 
              (executed in December 2002).  John D. demanded that the will be 
              changed to bequeath everything to John D.
       . . . .
       20.    . . . John D. shared his anger and disappointment with William, with 
              his mother.  John located an attorney for his mother (attorney Rohr), 
              who would do what attorney Jolley refused to do, i.e., disinherit 
              William.  John D. drafted letters for his mother to sign.  These letters 
              directed attorneys to draft estate planning documents that 
              disinherited his brother William.
       . . . .
       26.    John D. and Sandra "fueled the fire" of [Virginia's] disappointment 
              in William.  John D. manipulated the situation and made direct 
              demands on [Virginia's] attorneys.
       . . . .
       30.    [Virginia's] final will, providing that John D. should inherit 99% of 

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              her estate was the result of overreaching on the part of John D.

CP at 111-12; Br. of Appellant at 1-3.  Also of note were the following findings by the 

court on matters of credibility and equitable standing:

       37.    John D.'s credibility is suspect as demonstrated in his 
              representations to and transactions with third parties.
       38.    William's credibility is suspect, based on the overall record and his 
              actions in this matter.
       39.    Both John D. and William come before the court with unclean 
              hands.

CP at 112.

       From these and other findings, the trial court concluded that the serial transfers of 

virtually all of Virginia's assets to John and her fourth will were invalid.  In reaching this 

conclusion, the trial court accepted William's argument, at least in part, that "the burden 

is on John D. to establish that he did not exercise undue influence."  CP at 118 

(Conclusion of Law 4) (emphasis added); and see id. (Conclusion of Law 5, stating that 

"John D. failed to prove he did not exercise undue influence").  Other conclusions 

suggest that the court nonetheless imposed the ultimate burden on William.  See id. 

("There is clear, cogent, and convincing evidence that John D. exercised undue influence 

over his mother in regard to the May 2003 will" (Conclusion of Law 4) and "[i]ndeed the 

evidence that [John] did exercise undue influence is overwhelming" (Conclusion of 

Law 5)).  

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       The trial court ordered an accounting of Virginia's lifetime transfers and 

estate; determined that Virginia's third, December 2002 will, should control the 

disposition of her estate; and determined that neither John, William, nor their 

wives should serve as personal representative. John and Sandra timely appealed.

                                         ANALYSIS

                                               I

       We first address the parties' competing positions on how we should approach the 

issues on appeal.  In the trial below, William urged an analysis of his claims that was 

chronological, focusing first on the disputed validity of the transfers made during 

Virginia's lifetime.  The inter vivos transfers happened first, and were so substantial that 

there was virtually nothing left to pass by will.  

       A chronological approach allows William to direct initial attention to a shifting 

burden of production and persuasion that favors him.  Generally, the party seeking to set 

aside an inter vivos gift has the burden of persuasion that the gift is invalid.  Endicott v. 

Saul, 142 Wn. App. 899, 922, 176 P.3d 560 (2008).  But if the recipient has a 

confidential or fiduciary relationship with the donor, as the parties agree was the case 

with John and Virginia, the burden of persuasion shifts to the donee to prove that the gift 

was intended and not the result of undue influence.  Id.; White v. White, 33 Wn. App. 

364, 368, 655 P.2d 1173 (1982) (citing Meyer v. Campion, 120 Wash. 457, 207 P. 670 

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(1922); McCutcheon v. Brownfield, 2 Wn. App. 348, 467 P.2d 868, review denied, 78 

Wn.2d 993 (1970)). Where a confidential relationship exists, evidence to sustain the gift 

must show that it "'was made freely, voluntarily, and with a full understanding of the 

facts . . .  If the judicial mind is left in doubt or uncertainty as to exactly what the status 

of the transaction was, the donee must be deemed to have failed in the discharge of his 

burden and the claim of gift must be rejected.'" McCutcheon, 2 Wn. App. at 356 

(alteration in original) (quoting 38 Am. Jur. 2d Gifts § 106 (1968)).  The standard of 

proof to satisfy the donee's burden of persuasion is clear, cogent, and convincing 

evidence.  Endicott, 142 Wn. App. at 922; Pedersen v. Bibioff, 64 Wn. App. 710, 720, 

828 P.2d 1113 (1992).  John's evidence that his transfers of funds from his mother's 

account to his personal account were gifts was limited to his own word and arguably the 

somewhat-supportive testimony of Ms. Rohr that in meeting to discuss changing her will, 

Virginia expressed the desire that John receive $5,000 a month for every month John and 

Sandra took care of her.  Ms. Rohr's testimony is only partially supportive, however, 

because -- while providing a rationale for the transfers -- it is not consistent with the 

amount actually transferred or with Ms. Rohr's testimony that she advised Virginia to 

address John's entitlement as a percentage of her estate instead.  RP at 418, 423-24.  

       For his part, John argues that we should first review the dispute over the fourth

will.  The effect of invalidating Virginia's lifetime transfers to John would be to restore 

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them to her estate.  The estate would then pass according to her will.  If her fourth will is 

valid, then there is no relief that a court can award to William even if John failed to meet 

the burden, shifted to him, of persuading the court that transfers of Virginia's assets were 

her free, knowing gifts.  Virginia's bequest of one percent of her estate to Jennifer 
Winkler under the fourth will was more than satisfied by John,3 so if the will is valid, 

John would be entitled to distribution of whatever assets were pulled back into Virginia's 

estate.  If the fourth will is valid, William lacks standing to attack the gifts.  See In re 

Estate of Frank, 146 Wn. App. 309, 326-27, 189 P.3d 834 (2008), review denied, 165 

Wn.2d 1030 (2009).  

       John's approach allows him to redirect our attention from his burden of persuading 

the trial court that Virginia's lifetime transfers were valid to William's burden of 

producing evidence that the fourth will was the product of John's undue influence.  A 

will is presumed valid.  It may be disregarded when a will contestant presents clear, 

cogent, and convincing evidence that the will was the product of undue influence.  In re 

Estate of Bussler, 160 Wn. App. 449, 466, 247 P.3d 821 (2011).  

       It is well-settled law that when a will is alleged to be the product of undue 

influence, certain circumstances may, in and of themselves, raise suspicion or concern

       3 Jennifer Winkler, now Jennifer Bohlman, testified to as much, as a co-defendant 
and witness for John and Sandra.  Report of Proceedings at 569; and see CP at 112 
(Finding of Fact 36).

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requiring countervailing evidence by the proponent of the will.  Dean v. Jordan, 194 

Wash. 661, 671-72, 79 P.2d 331 (1938), which is often relied upon as the earliest 

formulation of circumstances giving rise to concern, and their effect on the parties'

proofs, explains:

       [C]ertain facts and circumstances bearing upon the execution of a will may 
       be of such nature and force as to raise a suspicion, varying in its strength, 
       against the validity of the testamentary instrument.  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.
              The combination of facts shown by the evidence in a particular case 
       may be of such suspicious nature as to raise a presumption of fraud or 
       undue influence and, in the absence of rebuttal evidence, may even be 
       sufficient to overthrow the will. 

The combination of facts shown by the evidence can be sufficient to create "a 

presumption . . . of such strength as to impose upon the proponent the duty to come 

forward with evidence sufficient at least to balance the scales and restore the equilibrium 

of evidence touching the validity of the will."  Id. at 672.

       Unlike in the gift context, the existence of these cautionary circumstances does not 

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shift the ultimate burden of proof.  "The presence of these elements will not automatically 

invalidate a will; rather, they '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.'"  

Bussler, 160 Wn. App. at 466 (quoting Dean, 194 Wash. at 672).  The combination of 

facts may be so suspicious as to raise a question of undue influence and, "in the absence 

of rebuttal evidence, may even be sufficient to overthrow the will."  Dean, 194 Wash. at 

672.  But "the existence of [a question] does not relieve the contestants of the duty to 

establish . . . undue influence by clear, cogent, and convincing evidence" that the 

presumptively valid will should be disregarded.  In re Estate of Reilly, 78 Wn.2d 623, 

663, 479 P.2d 1 (1970); In re Estate of Lint, 135 Wn.2d 518, 535, 957 P.2d 755 (1998)
(same).4

       4 The Ninth Circuit Court of Appeals, applying Washington law in a diversity 
case, has assumed that decisions bearing on the shifting of the burden of persuasion 
where undue influence is alleged in the will context have equal application to cases 
involving undue influence in connection with the making of a gift.  Hilton v. Mumaw, 522 
F.2d 588, 599 (9th Cir. 1975) (applying holdings of Reilly, 78 Wn.2d 623 and In re 
Estate of Hansen, 66 Wn.2d 166, 401 P.2d 866 (1965) to challenge to lifetime transfers).  
But Meyer, a seminal case stating the burden borne by the donee of a lifetime transfer, 
observes that the rule as to inter vivos gifts is stricter, quoting with approval from In re 
Sparks' Will, 63 N.J. Eq. (18 Dick.) 242, 51 Atl. 118, 121 (1901):
              "The controlling reason is, I think, because by a gift a man strips 
       himself of that which he can still enjoy and of which he may have need 
       during his life; while by his will he disposes of that which can be of no 
       further use to him.  As he is, under ordinary conditions, so much the less 
       likely to do the first than the second, courts subject gifts to the sharper 
       scrutiny."
Meyer, 120 Wash. at 470.

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       Because the dispute over the will is potentially dispositive, we agree with John's 

position that we should examine it first.

                                               II

       John's appeal challenges several of the court's key factual findings underlying its 

conclusion that undue influence existed at the time Virginia executed her fourth will.  

The trial court's undue influence determination was its sole basis for invalidating 

Virginia's fourth and last will.

       There is some confusion in our case law as to whether the presence of undue 

influence is determined as an issue of fact or law.  Compare Pedersen, 64 Wn. App. at 

720 ("The existence of undue influence is a factual question") and McCutcheon, 2 Wn. 

App. at 356 (same proposition), with In re Estate of Haviland, 162 Wn. App. 548, 561-

65, 255 P.3d 854 (2011) (assuming, without discussion, that trial court properly treated 

undue influence as a conclusion of law) and Reilly, 78 Wn.2d at 676 (Finley, J., 

dissenting) (addressing "the legal question of undue influence").

       We are satisfied that the determination of undue influence presents a mixed 

question of fact and law.  Mixed questions involve the application of legal precepts to a 

particular set of factual circumstances, Erwin v. Cotter Health Ctrs., Inc., 161 Wn.2d 

676, 687, 167 P.3d 1112 (2007), precisely what is required of a court presented with a 

claim of undue influence.  They differ from pure legal conclusions, such as whether a 

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claim is barred by the statute of limitation, which follow necessarily from proof of certain 

critical historical facts.  William W. Schwartzer, Summary Judgment Under the Federal 

Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 470 (1984).  Although 

there is a divergence of opinion, other jurisdictions that have explored the distinction 

have also adopted the view that undue influence is a mixed question.  Stockwell v. 

Stockwell, 2010 S.D. 79, 790 N.W.2d 52, 58 (clarifying that "testamentary capacity and 

undue influence are mixed questions of law and fact and require a compound inquiry"); 

In re Ingersoll Trust, 950 A.2d 672, 692 (D.C. 2008) (explaining that "[u]ndue influence 

is a mixed question of fact and law, and our review of the legal issues is de novo").

       When a challenged factual finding is required to be proved at trial by clear, cogent,

and convincing evidence, we incorporate that standard of proof in conducting substantial 

evidence review.  A party claiming undue influence must prove it by clear, cogent, and 

convincing evidence.  In re Estate of Eubank, 50 Wn. App. 611, 619, 749 P.2d 691 

(1988).  When such a finding is appealed, the question to be resolved is not merely 

whether there is substantial evidence to support it but whether there is substantial 

evidence in light of the "highly probable" test.  In re Welfare of Sego, 82 Wn.2d 736, 

739, 513 P.2d 831 (1973); Reilly, 78 Wn.2d at 640 (recognizing that "[e]vidence which is 

'substantial' to support a preponderance may not be sufficient to support the clear, 

cogent, and convincing" standard).  We still view the evidence and all reasonable 

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inferences in the light most favorable to the prevailing party, Woody v. Stapp, 146 Wn. 

App. 16, 22, 189 P.3d 807 (2008) and, as in all matters, defer to the trier of fact on issues 

of credibility.  In re Welfare of L.N.B.-L., 157 Wn. App. 215, 243, 237 P.3d 944 (2010).

       We therefore review the findings of fact challenged by John applying the clear, 

cogent, and convincing standard of proof and review de novo whether the supported and 

uncontested findings amount to undue influence.

          Finding 17:  That "John D. demanded that attorney Jolley change his 
         mother's will (executed in December 2002).  John D. demanded that the 
                    will be changed to bequeath everything to John D."

       The evidence established that John typed the March 2003 letter to Mr. Jolley, 

signed by Virginia, that requested that Mr. Jolley prepare a new, fourth will, to disinherit 

William.  There was no evidence of any communication from John to Mr. Jolley other 

than this letter that can be characterized as the "demand" referenced in finding 17.  

       The relevant implication of the finding is that the letter reflected John's wishes and 

direction, not Virginia's.  But there is no positive evidence in the record that the letter 
reflected a demand by John rather than Virginia's wishes.5  

       William argues that the trial court was free (as it apparently did) to disbelieve 

John's testimony that he was merely relaying his mother's request and conclude the 

       5 John testified that he was only a scrivener of his mother's wishes and request, but 
in light of the trial court's finding that John was not credible, we disregard his testimony 
bearing on this and other findings challenged on appeal.  

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opposite: that he was the source of the requested changes.  Br. of Resp't at 28.  He cites

no authority, but his argument brings to mind Judge Learned Hand's oft-cited observation 

in Dyer v. MacDougall, 201 F.2d 265, 269 (2d Cir. 1952) that the testimony of a witness 

"may satisfy the tribunal, not only that the witness' testimony is not true, but that the 

truth is the opposite of his story." However, the decision in Dyer goes on to hold that 

only in "strict theory" could a party succeed in convincing a jury on the basis of disbelief

of a witness alone.  A court would have to direct a verdict against such a party, because 

the evidence would be insufficient to sustain the verdict on appeal.  Id.  Such evidence 

may, with other evidence, advance a party's burden of persuasion but does not satisfy its

burden of production.  A trial court's disbelief of a witness is not evidence in the record

that can support a finding.

       Where, as here, the standard of proof is clear, cogent, and convincing evidence, it 

is especially clear that the court's adverse view of John's credibility cannot satisfy 

William's burden of production.  "'Mere suspicion, even when accompanied by 

opportunity and motive, is insufficient to raise a substantial inference of undue 

influence.'"  In re Estate of Smith, 68 Wn.2d 145, 157, 411 P.2d 879, 416 P.2d 124

(1966) (quoting In re Estate of Hansen, 66 Wn.2d 166, 172, 401 P.2d 866 (1965)).  

Indeed, "'[n]either will mere suspicion, unaccompanied by evidentially supported 

implicating circumstances, give rise to a presumption of undue influence sufficient in 

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strength to require rebuttal evidence.'"  Id. (quoting Hansen, 66 Wn.2d at 172).

       To the extent that finding 17 states or implies that John initiated the March 2003

letter to Mr. Jolley, there is insufficient evidence to support it.  

          Finding 20 (challenged portion): That "John D. shared his anger and 
       disappointment with William, with his mother.  John located an attorney for 
        his mother (attorney Rohr), who would do what attorney Jolley refused to
                                 do, i.e., disinherit William."

       Nothing in the record establishes that John conveyed his anger and disappointment 

with William to his mother.  William makes no meaningful argument to defend the 

finding.  Br. of Resp't at 28.  

       If the finding is read to state or imply that Mr. Jolley stopped providing services to 

Virginia because he refused to disinherit William, there is no supporting evidence.  Mr. 

Jolley explained his reason for declining the engagement to prepare a fourth will as 

follows:

       Q      Did you make any of the changes requested in this letter?
       A      No. I declined to do that.
       Q      Why did you decline to do that?
       A      I felt at this point in time it would have been a conflict of interest for 
       me to do it, or at least would not look good.  So I didn't feel comfortable 
       changing the will.
       Q      From your point of view, what was the conflict of interest?
       A      Well, between the time I prepared those estate planning documents 
       and this letter, I had had some conversations with John Melter about 
       various business transactions that he had legal questions about that 
       concerned him personally, not his mother.  And I was just concerned that, 
       you know, it just wouldn't look right for me to be hav[ing] ongoing 
       transactions for both John and his mother, so I declined to make the 

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       changes to the will.

Report of Proceedings (RP) at 274.  John's testimony was in accord, although John's 

testimony suggested that threats William had made might have heightened Mr. Jolley's 

concern about creating even the appearance of a conflict.  

       No evidence supports the finding insofar as it might be read to mean that letters 

typed or otherwise prepared by John were ever received or reviewed by Ms. Rohr.  The 

testimony of Mr. Jolley and Ms. Rohr was consistent that Mr. Jolley never forwarded, 

and Ms. Rohr never saw, those letters.  

       No evidence supports the finding insofar as it might be read to mean that in 

locating Ms. Rohr, John sought to ensure she would be willing to prepare a particular will 

for his mother.  Even disregarding John's testimony, the evidence establishes that John 

was referred to Ms. Rohr and her firm by Mr. Jolley.  John did not independently locate 

her and there is no evidence that he had contact with her through which he could

determine what she would be willing to do in regard to his mother's estate.

          Finding 26:  That "John D. and Sandra 'fueled the fire' of [Virginia's] 
         disappointment in William.  John D. manipulated the situation and made 
                         direct demands on [Virginia's] attorneys."

       This finding is likewise not supported, since again there is no evidence that John 

or his wife spoke ill of William to Virginia or misrepresented facts to her.  William 

claims that circumstantial evidence supports this conclusion because the reasons Virginia

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provided to Ms. Rohr as to why she wanted to disinherit him were factually incorrect, and 

misinformation could only have come from John.  Br. of Resp't at 30.  However, 

Virginia's reasons as recounted by Ms. Rohr -- to the extent that they were not subjective 

opinions -- had a basis in fact.  The portion of the trial court's decision introducing its 

formal findings of fact recapped Ms. Rohr's testimony that Virginia specifically 

expressed unhappiness with William based on "the documents that were drawn up in 

Florida, how her possessions were handled and shipped to Seattle, where her husband 

was buried, that her car had been shipped to Seattle, that all her legal documents had been 

kept from her by William and she needed them.  She commented that 'Bill has taken so 

much money already.'" CP at 104.  The trial court's formal findings included 

uncontested findings that William influenced Virginia while she was vulnerable in 

September 2002 to execute a new will considerably more favorable to William and 

continued to withhold Virginia's September 2002 will and other records until sometime 

after the execution of the December 2002 will; the court also found that even by the time 

of trial William admitted that he still retained some of Virginia's personal belongings. 

       The finding that John "manipulated the situation and made direct demands on 

[Virginia's] attorneys" is also unsupported. The record reflects that John had no real 

contact with Ms. Rohr before the execution of the May 2003 will and that he made

nothing that can fairly be characterized as a "direct demand" of her.  At best, William 

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presented evidence that John notified Ms. Rohr's office staff of the prospect of a will 

challenge and his concern that the representation be handled to avoid an appearance of 

undue influence.  It is not improper in a contentious family situation to recognize and 

raise the prospect of a will challenge so that preparation of the will may be handled in a 

manner that avoids not only impropriety, but the appearance of impropriety. Standing 

alone, the fact that such a concern is expressed and heeded is not proof that it is a 

contrivance to create a false impression.  Cf. Reilly, 78 Wn.2d at 639 (discussion of 

prospect of will contest could not reasonably be construed as admission of legal trickery 

or a dishonest transaction).  

       Finally, Ms. Rohr testified that after William learned that he had been removed as 

trustee and personal representative, he sent her numerous e-mails and had at least two 

lengthy (approximately 40-minute) conversations with her, "want[ing] me to see his side 

of it." RP at 431.  Ms. Rohr spoke with Virginia, not John, about William's calls, and 

was given permission by Virginia to discontinue accepting and responding to William's 

contacts.  Id. at 432-33.  The trial court found no fault with Ms. Rohr's legal 

representation or other conduct.

       Finding 30:  That "[Virginia's] final will, providing that John D. should 
       inherit 99% of her estate was the result of overreaching on the part of John 
       D."

       Finally, we review de novo the trial court's finding 30 that the will "was the result 

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of overreaching" on the part of John, which we understand to be synonymous with its
undue influence determinations set forth in its fourth conclusion of law.6  

       The right to dispose of one's property by will is not only a valuable right, but one 

assured by law.  Reilly, 78 Wn.2d at 646 (quoting In re Estate of Schafer, 8 Wn.2d 517, 

519, 113 P.2d 41 (1941)).  In order to vitiate a will on this ground, "'there must be 

something more than mere influence. There must have been undue influence at the time 

of the testamentary act, which interfered with the free will of the testator and prevented 

the exercise of judgment and choice.'"  Id. (emphasis omitted) (quoting Schafer, 8 Wn.2d 

at 520). Undue influence has been described as "'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 In re Estate of Bottger, 14 Wn.2d 676, 700, 129 P.2d 

518 (1942)).  Actions such as "giving advice, arguments, persuasions, solicitations,

suggestions or entreaties" generally do not amount to undue influence unless such actions 

are so importunate, persistent, or coercive that they effectively subdue and subordinate 

the will of the testator and take away his or her freedom of action.  In re Estate of Marks, 

91 Wn. App. 325, 333, 957 P.2d 235, review denied, 136 Wn.2d 1031 (1998).

       The court was presented with evidence sufficient to raise a suspicion or 

       6 We need not reach challenged finding 31, which bears only on William's 
challenge to the validity of Virginia's inter vivos gifts.

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presumption against the validity of the fourth will.  Viewed in the light most favorable to 

William, the evidence established that John stood in a confidential relation to his mother;

that he facilitated creation of the will by making the contact with Mr. Jolley that led to the 

referral to Ms. Rohr, made the appointment with Ms. Rohr, and drove his mother to the 

appointment; and that he was bequeathed virtually her entire estate under that will.  

Nonetheless, as Dean and later cases make clear, these facts alone do not satisfy 

William's burden of producing clear, cogent, and convincing evidence of undue 

influence.

       In Dean, there was evidence that the testator was, at the time she executed the 

challenged will, elderly, infirm and had previously, during a period of despondency, been 

declared insane.  The proponent of her will -- one of her nieces -- stood in a confidential 

relationship to her aunt, had the opportunity to exercise undue influence, had participated 

in the procurement of the will, and had been substituted for other relatives as the sole 

beneficiary of the estate.  The court nonetheless found the niece's evidence sufficient to 

rebut the presumption and satisfy her burden of presenting evidence restoring the 

equilibrium of evidence touching the validity of the will.  194 Wash. at 673.  It attached 

significance to the fact that the contestants presented no positive evidence of undue 

influence, relying instead entirely on the presumption.  The niece, on the other hand,

presented evidence that her aunt, "though old and feeble was nevertheless capable of 

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understanding and did understand what she was doing," and that the aunt was 

"appreciative of what the niece had done for her."  Id.

       John's evidence is sufficient to rebut the presumption and satisfy his burden of 

restoring evidentiary equilibrium for similar reasons.  He established to the satisfaction of 

the trial court that Virginia "was disappointed and upset with William for a number of 

reasons which she was able to clearly articulate to attorney Rohr," CP at 112 (Finding of 

Fact 24); that she "had testamentary capacity when she executed the will[,] was aware of 

her assets, knew the objects of her bounty, . . . was clear about how she wanted her estate 

distributed," and "clearly articulated her reasons for wanting to disinherit William," id. 

(Finding of Fact 25); and that John and his wife "took excellent care of his mother and 

provided her with a comfortable home," id. (Finding of Fact 27).  This evidence was a 

sufficient counterbalance to William's reliance on the presumption.

       The findings that survive challenge on appeal do not support the trial court's 

ultimate conclusion that Virginia's fourth will was the product of undue influence.

       We note, first, that William did not prove the facts alleged in his complaint to 

establish undue influence:  the court did not find that John or Sandra kept Virginia 

secluded, limited funds available for her to live on, monitored her communications with 

third parties or relatives, or refused to allow her to have contact with third parties or 

relatives.  

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       William's evidence falls short of key elements commonly found in decisions 

recognizing undue influence.  There is no evidence outside of William and his wife's 

testimony that John attempted to exclude others from his mother.  William himself 

testified that he maintained regular contact with his mother from October 2002 through 

January 2003 via telephone, and after that the phone calls became less frequent.  Even the 

trial court recognized that "John D. may not have isolated his mother from William." CP 

at 111 (Finding of Fact 20).  Whether or not the proponent of a will isolated the testator 

from others has been identified as important evidence bearing on undue influence.  Lint, 

135 Wn.2d at 538; Bussler, 160 Wn. App. at 469.

       William has not demonstrated that John's role in facilitating creation of the 

May 2003 will was one that interfered with Virginia's free will or prevented the exercise 

of her judgment or choice. Unlike the beneficiaries in Lint and Eubank, who directly 

negotiated the terms of the invalidated wills with the testators' respective attorneys, John 

was absent when Virginia met with Ms. Rohr to discuss the terms of her final will. He 

was not present at the execution of the will several days later.  He did little more than 

schedule the appointment and drive Virginia to Ms. Rohr's office.

       There is no evidence that Virginia was mentally vulnerable or of unsound mind at 

the time she executed her final will.  Ms. Rohr, whose exclusive concern for her client, 

Virginia, was not doubted by the trial court, testified:

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No. 29192-8-III
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       Q       . . . [W]hen you met with Mrs. Melter, did you have an opportunity 
       to observe and inquire as to her mental faculties?
       A      Yes.
       Q      What do you recall about that?
       . . . .
       Q      What do you typically do?  What did you do in Virginia's case?
       A      Well, in her case, there was nothing that made me think she was 
       incompetent.  She spoke for almost an hour.  She always was consistent in 
       what she said.  She was consistent in what she wanted.  She was consistent 
       in the facts that she gave.  She presented herself as a competent person.
       Q      And is that the standard or customary practice you -- tell me -- let me 
       rephrase that.  What is your usual and customary practice with respect to 
       clients like Mrs. Melter?
       A      Well, the only thing that was different about Mrs. Melter or anybody 
       else who walked in was that she was older, and that does not mean 
       incompetent to me.  She did want to significantly change documents.  You 
       do pay attention as an attorney.  There is just nothing inconsistent about 
       what she was saying or what she wanted to do.  So I had no reason to think 
       that she might be incompetent.

RP at 416-17.  A testator's strength of mind is obviously important evidence, bearing 

directly on the prospect that his or her free will was overcome, and is often noted when 

declining to find undue influence.  See Reilly, 78 Wn.2d at 625; Smith, 68 Wn.2d at 151; 

In re Estate of Malloy, 57 Wn.2d 565, 570, 358 P.2d 801 (1961); In re Estate of 

Martinson, 29 Wn.2d 912, 919, 190 P.2d 96 (1948).  In contrast, courts have voided wills 

for undue influence where the testators demonstrated "little or no mental capacity."

Smith, 68 Wn.2d at 154 (citing In re Estate of Ganjian, 55 Wn.2d 360, 347 P.2d 891 

(1959); In re Estate of Jaaska, 27 Wn.2d 433, 178 P.2d 321 (1947); In re Estate of 

Tresidder, 70 Wash. 15, 125 P. 1034 (1912)); Lint, 135 Wn.2d at 523; In re Estate of 

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No. 29192-8-III
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Bush, 195 Wash. 416, 422-23, 81 P.2d 271 (1938).  The trial court's finding that Virginia

had testamentary capacity when she executed her final will is undisputed on appeal, and 

clearly supported by the evidence.  

       William has not demonstrated that the terms of the fourth will were unnatural or 

unexplained.  While they were different from the terms of the will Virginia had executed 

in December 2002, the court found that Virginia "was clear about how she wanted her 

estate distributed" and that she "clearly articulated her reasons for wanting to disinherit 

William."  CP at 112 (Finding of Fact 25).  On this score, Ms. Rohr testified:

       Q      At that first meeting, what did Mrs. Melter tell you about how she 
       wanted her will handled?
       A      Well, she wanted a provision for her granddaughter, the daughter of 
       her deceased daughter, and she wanted everything else to go to John.  And 
       so we discussed, you know, a number of different ways that that could be 
       accomplished.
       Q      And did you -- did she tell you why she wanted it to go to John?
       A      Well, because John was taking care of her and so was his wife 
       Sandra, and she was very happy there and she was very unhappy with Bill, 
       so she wanted everything to go to John.

RP at 420.  She testified further:

       Q      And what did she tell you about her son Bill?
       A      Well, she told me that she was very, very, unhappy with what 
       occurred during that period of time when her daughter died and very shortly 
       after that her husband died and she said she was very upset, stressed out. 
       She had trouble remembering things that happened in that time. However, 
       she does -- she did remember and know after the fact that Bill had had her 
       change estate documents and they were not the way she wanted them; that 
       her property was taken from Florida to Seattle and she wanted them in 
       Spokane.  When she asked for clothes and personal [e]ffects, she told me 
       she was sent a box of formal gowns, which were in Spokane.  What is she 

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       going to do?  That's what she had to wear.  She just -- she was not happy 
       with that situation.

Id. at 418.  When asked about her notes of her meeting with Virginia, Ms. Rohr testified:

       Q      . . . [I]n the middle of the page, it looks like, and maybe you can, if 
       I['m] reading this wrong, correct me, it says something do or something or 
       disinherit Bill, question mark, quote "absolutely!" end quote. Is that 
       accurate?
       A      Yes, it is.
       Q      And is that your handwriting?
       A      Yes, it is.
       Q      And can you explain that, why you have "absolutely!" What's going 
       on there?
       A        Well, when I asked her -- because disinheritance is such a big issue, 
       and it's such an unusual thing and she had mentioned it earlier that she 
       wanted that, and we were kind of reviewing some things.  And I asked her, 
       "So you want to disinherit Bill?" And the way she said "absolutely," she 
       was so emphatic and clear that I wrote it to reflect the way she said it.

Id. at 420-21.

       A prejudice or dislike that a testator might have for a relative is not ground for 

setting aside a will unless the prejudice and dislike cannot be explained on any other 

ground than that of an insane delusion in the sense of an unsound condition of the mental 

faculties, as distinguished from a process of reasoning from evidence, however imperfect 

the process may be or illogical the conclusion.  In re Estate of Meagher, 60 Wn.2d 691, 

693, 375 P.2d 148 (1962); In re Estate of Watlack, 88 Wn. App. 603, 609, 945 P.2d 1154 

(1997).

       What William did establish to the trial court's satisfaction was that John bore 

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No. 29192-8-III
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equal responsibility with William for a contentious relationship that contributed to 

Virginia's and William's estrangement.  William established to the court's satisfaction 

that John could not meet his burden of proving Virginia's informed approval of his asset 

transfers during her lifetime.  But on matters bearing on the validity of the fourth will, 

William proved, at most, that John may have had the opportunity to exert influence over 

Virginia.  

       William's burden is understandably much higher.  Virginia's assets were hers, to 

dispose of as she wished, including to favor one child over another.  When the court sets 

aside a will for undue influence, where, as here, the testator's competence is undisputed; 

the testator meets one-on-one with her lawyer, who has the opportunity to speak with the 

testator and assess her resolve; and there is no evidence the lawyer preparing the will was 

not acting independently, in what she believed to be the interest of the testator, one thing 

is guaranteed: the assets will not pass in the manner that the testator directed and assumed 

they would.  In this case, the invalidation of the fourth will in favor of the third will 

caused the disposition of Virginia's estate to revert to one she had arrived at before 

William withheld records and personal belongings from her; before she realized the 

extent of his breach of trust during her period of vulnerability; and before she arrived at 

her decision, reported to Ms. Rohr, to compensate John from her estate for his and 

Sandra's willingness to take her into their home.

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       It is because of the very real risk of frustrating the testator's right to dispose of her 

property that such things as advice, arguments, persuasions, solicitations, suggestions, or 

entreaties are not enough to establish undue influence.  William has not met his 

considerable burden of demonstrating that John actually exerted influence that 

"'controlled the volition of the testator, interfered with h[er] free will, and prevented an 

exercise of h[er] judgment and choice.'"  Lint, 135 Wn.2d at 535 (quoting Bottger, 14 

Wn.2d at 700). 

       Because the trial court's undue influence determination was its sole basis for 

invalidating the fourth will, its invalidation of the fourth will must be reversed.  In light of 

the validity of the fourth will, William has no standing to challenge lifetime transfers of 

his mother's assets.

       We reverse the trial court's orders set forth in its memorandum decision entered 

June 16, 2010 (1) invalidating Virginia Melter's fourth, May 2003 will; (2) declaring 

valid Virginia Melter's December 2002 will and trust and directing that they be admitted 

to probate; and (3) ordering an accounting.  We remand for entry of judgment in favor of 

John and Sandra Melter.  

       Both parties request attorney fees, although John requests them for the first time in 

his reply brief.  We deny the fee requests of both parties.

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                                                ___________________________________
                                                Siddoway, J.

I CONCUR:

____________________________________
Kulik, C.J.

                                               33