Opinion Information Sheet

			

                                      No. 29192-8-III

       Sweeney, J. (concurring)  --  The majority opinion is probably correct given case 

law precedent in this state.  I concur specially to explain why I think that precedent is 

analytically flawed and to explain, why in this case in particular, the correct analysis 

(deferring to the trial judge's findings rather than revisiting those findings here on appeal) 

might well require that we affirm the judgment here. 

Burden of Proof

       In all cases, the burden of proof consists of two parts -- a burden of production and 

a burden of persuasion.  Fed. Signal Corp. v. Safety Factors, Inc., 125 Wn.2d 413, 433, 

886 P.2d 172 (1994); In re Dependency of C.B., 61 Wn. App. 280, 282-83, 810 P.2d 518 

(1991).  

Burden of Production

       The party with the burden of proof must meet its burden of production; that is,

make out a prima facie case or be subject to summary dismissal. Riehl v. Foodmaker,

Inc., 152 Wn.2d 138, 149-50, 94 P.3d 930 (2004).  A motion for summary dismissal 

(before, after or during the trial) tests whether the party with the burden of proof has 

satisfied its burden of production. See In re Det. of Capello, 114 Wn. App. 739, 747, 60 

P.3d 620 (2002).  Said another way, the burden of production tests whether there is the  

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

"quantity of evidence fit to be considered by the trier of fact." State v. Paul, 64 Wn. App. 

801, 806, 828 P.2d 594 (1992) (emphasis omitted).  The test is "substantial evidence." It 

is always a question of law for the courts and as such suited for resolution by courts of 

review.  State v. Zamora, 6 Wn. App. 130, 133, 491 P.2d 1342 (1971). That is because 

we can read the record, consider the elements of a crime or a cause of action or defense 

and then pass on whether the party with the burden of proof has made a sufficient 

showing (presented substantial evidence) to have warranted submitting the matter to a

trier of fact.  We need not, indeed, I will argue cannot, pass upon the credibility of the 

witnesses and the overall persuasiveness of the evidence produced because we have only 

the record of the proceedings. Boeing Co. v. Heidy, 147 Wn.2d 78, 87, 51 P.3d 793 

(2002).  It is a matter of institutional competency.  Courts of review do not have the 

capacity. 

Burden of Persuasion

       The burden of persuasion is for the trier of fact and tests how persuasive the 

showing, the evidence presented, is. Fed. Signal, 125 Wn.2d at 433 ("The burden of 

persuasion is 'the burden of persuading the trier of fact that the alleged fact is true'.  

[Edward M. Cleary,] McCormick on Evidence, at 947 [(3d ed. 1984)].  It comes into play 

'only if the parties have sustained their burdens of producing evidence and only when all 

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of the evidence has been introduced'.  McCormick on Evidence, at 947.").  The burden of 

persuasion specifies the degree of certainty that a trier of fact must find to make a finding 

of fact.  In re Det. of Skinner, 122 Wn. App. 620, 629, 94 P.3d 981 (2004).  The burdens 

of persuasion range from preponderance of the evidence to clear, cogent and convincing 

to beyond a reasonable doubt.  C.B., 61 Wn. App. at 282-83 ("Thus, depending on the 

type of case, the trier of fact must find that there is proof beyond a reasonable doubt, 

proof by clear, cogent and convincing evidence, or proof by a preponderance of the 

evidence.  McCormick, at 956-64."). It is a test uniquely suited to the trier of fact since 

the trier of fact sees the witnesses, can watch their reactions, listen to them testify, and 

place all of the testimony and evidence in the context of the ongoing drama that is the 

trial of a lawsuit.  In re the Estate of Lint, 135 Wn.2d 518, 542, 957 P.2d 755 (1998).  It 

is a task for which courts of review are unsuited since we have only the written record 

and cannot therefore pass on the credibility of witnesses and necessarily then the 

persuasiveness of the evidence produced during the trial.  We do not see the parties or 

their witnesses testify.  We do not see their facial expressions or those of their lawyers or 

listen to their intonations or do anything to help us pass on just how 

convincing -- persuasive -- they were.  

       The correct analysis would then limit our inquiry to something we are competent 

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to do, that is pass on whether sufficient evidence was produced, which if believed, would 

then support facts that would, in turn, support the necessary legal conclusion, here,

"undue influence." Anything more requires that this court of review weigh the evidence, 

pass on the credibility of witnesses and generally assume the function of the trier of fact 

who presided over the trial.  Again, we do not have the institutional capacity to do that.  

       I then disagree with the statement (and necessarily the authorities supporting the 

statement) that:  "When a challenged factual finding was required to be proved at trial by 

clear, cogent, and convincing evidence, we incorporate that standard of proof in 

conducting substantial evidence review." Majority at 17.  Significantly, we do not pass 

on the persuasiveness of evidence to meet other burdens of persuasion -- preponderance

or beyond a reasonable doubt -- even though the results of application of the beyond a 

reasonable doubt standard is frequently the loss of liberty.  There is no analytical or 

historical justification for courts of review to decide how persuasive evidence in the 

superior court was, in this one single area of the law.  Even an independent 

constitutionally-based review requires us to give due regard "to the trial judge's 

opportunity to observe the demeanor of the witnesses" and the trial court's determination 

as to credibility. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 

499-500, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984); State v. Read, 163 Wn. App. 853, 

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864, 261 P.3d 207 (2011).

       Here specifically, then, if left to my own devices, I would opt for an analytical 

approach that would limit us to passing on whether William or ultimately John met his

burden of production when the record is reviewed in a light most favorable to the 

prevailing party -- that is, reviewed for evidence that supports the court's findings.  See In 

re Estate of Bussler, 160 Wn. App. 449, 465-66, 470, 247 P.3d 821 (2011) (deferring to 

the trial court's conclusion that daughter challenging will had not met her burden of 

persuasion because the trial court's conclusion was based upon unreviewable credibility 

determinations).  

       The challenger to a will must produce sufficient evidence to find facts that support 

the conclusion of undue influence (the only claim here is of undue influence).   RCW 

11.12.160(2).  Indeed, if the showing is sufficient, a presumption of undue influence 

attaches:  

       "[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 . . . .
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              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.  In re Beck's Estate, 79 Wash. 331, 140 
       Pac. 340 [(1914)]."  

Lint, 135 Wn.2d at 535-36 (second alteration in original) (quoting Dean v. Jordan, 194 

Wash. 661, 672-73, 79 P.2d 331 (1938)).

       The trial judge here, sitting as the trier of fact, could have easily presumed, as a 

matter of law, that the will was the product of undue influence.  

       John Melter had a fiduciary or confidential relationship with Virginia Melter.  At 

the time the May 2003 will was executed, John was Virginia's attorney-in-fact and 

Virginia had been living with John and his wife for nearly seven months.  John actively 

helped procure the May 2003 will.  John wrote Steve Jolley directly to ask that he change 

Virginia's will.  Exhibit 31.  The trial court could also have inferred that John also wrote 

Virginia's letter to Mr. Jolley.  Like most of the letters written by John, Virginia's letter 

ends with "Thanks for your time."  Compare Exhibits 15 and 32, with Exhibits 32 and 24.  

And, Virginia's letter to Mr. Jolley echoes John's complaints about William Melter's 

mismanagement of their parents' affairs that John e-mailed to William repeatedly.  There 

are certainly inferences that could be drawn both ways from these facts.  But I would 

leave those inferences to the trier of fact.  Hizey v. Carpenter, 119 Wn.2d 251, 271-72,  

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830 P.2d 646 (1992) ("'A directed verdict or judgment n.o.v. is appropriate if, when 

viewing the material evidence most favorable to the nonmoving party, the court can say, 

as a matter of law, that there is no substantial evidence or reasonable inferences to sustain 

a verdict for the nonmoving party.'" (quoting Indus. Indem. Co. of Nw., Inc. v. Kallevig, 

114 Wn.2d 907, 915-16, 792 P.2d 520 (1990))).

       John then received 99 percent of the estate's residue while William received 

nothing.  This was a substantial change from Virginia's prior wills.  

       Other circumstantial evidence also supports the trial court's conclusion that John 

had undue influence over Virginia when she created her 2003 will.  Virginia was aware 

of John's animosity toward William.  John was controlling.  The e-mails between John 

and William supported an inference that John was emotionally manipulative.  The trial 

court could easily have inferred that Virginia executed the May 2003 will to appease 

John.  Also, while the evidence shows Virginia was competent, she did not live with John

and relinquish control over her financial affairs because she was in good health.  She 

needed care for her everyday needs.  She could not take care of herself.  In sum, 

substantial evidence was produced to support findings that in turn support the conclusion

that John exerted undue influence over Virginia when she executed her May 2003 will.

       And the same conclusion might well follow on whether there was undue influence 

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over Virginia when she made her inter vivos gifts to him. There is substantial evidence 

that John actively participated in the procurement of those gifts.  At the time of the gifts, 

John was Virginia's attorney-in-fact and capable of setting up accounts in both of their 

names.  The evidence suggests that he took Virginia to an attorney to have her sign an 

affidavit gifting him $5,000 each month.  And, the evidence shows that large amounts of 

Virginia's cash ended up in accounts belonging to John alone or John and his wife.  The 

testimony showed that Virginia did not want to handle her own money, so the trial court 

could easily have inferred that John did the leg work to execute Virginia's gifts to him.  

And, again, John received an unnaturally large share of Virginia's estate -- virtually all of 

her cash.  There was sufficient evidence for the trial court to find that John had undue 

influence over Virginia when she gifted him nearly her entire estate.  

        Ultimately, I would opt for an analysis that would defer to the trial judge's 

findings based on what evidence was produced rather than an analysis that requires us to 

evaluate the persuasiveness of that evidence.  But that, unfortunately, is not the current 

status of the law and I will therefore sign on to the majority opinion.

                                                    ______________________________
                                                    Sweeney, J.

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