Estate of Jones v. Jones

Citation759 P.2d 345
Decision Date08 August 1988
Docket NumberNo. 880121-CA,880121-CA
PartiesIn the Matter of the ESTATE OF Herbert Lee JONES, Deceased, v. Robert Lee JONES, Appellant.
CourtCourt of Appeals of Utah

Stephen D. Swindle, R. Stephen Marshall (argued), Thomas E. Nelson, Salt Lake City, for appellant, Robert Lee Jones, Van Cott, Bagley, Cornwall & McCarthy.

Alan M. Williams (argued), West Jordan, for respondent, Linda Cameron.




Robert Lee Jones appeals from the judgment and order denying his objections to probate of a will drafted by his sister, Linda Cameron, and concluding he was not entitled to a share of his father's estate as a pretermitted child. He presents three principal issues: (1) Should the trial court have presumed as a matter of law that there was undue influence exerted by his sister either because of the mere fact of the father/daughter relationship or because she was the drafter of the will and its sole beneficiary? (2) Even without the operation of such a presumption, is the trial court's failure to find either a confidential relationship or no undue influence clearly erroneous? (3) Even if the will is valid, is he nonetheless entitled to an intestate share of his father's estate as a pretermitted child? We vacate the judgment and order of the trial court.

Linda Cameron ("Cameron") and Robert Lee Jones ("Robert") are the surviving natural children of Herbert Lee Jones ("Jones"), who died in Salt Lake County on July 5, 1985 after living with Cameron for approximately two months. In late April, 1985, Jones was admitted to a California hospital for cancer surgery. When Cameron found this out, she travelled to California and visited Jones in the hospital on April 30. He expressed concern about his salvage grease business affairs and bills and asked her to take care of them. After looking through his papers for many hours that night, she returned to the hospital on May 1 and told Jones he needed to sign a power of attorney so she could put her name on his checking account and conduct his affairs. When he assented, she handwrote the contested document, which initially stated:

1 May 1985

I, HERBERT LEE JONES grant power of ATTORNEY to my daughter; LINDA M. CAMERON.

During the ensuing conversation, as reported by Cameron, Jones indicated that--if he didn't make it--he didn't want Robert to get anything from his estate; he wanted Cameron to have it all. Cameron told him if that was so, he needed a will, to which Jones responded, "Okay. Do it." Cameron then changed the period after her name to a comma and added the following words to the previously drafted document:


Cameron then read the document to her father. He looked at it and signed it in the presence of two witnesses, Volita Jones and Terri Hurst. The trial court found that the second part had already been added to the document when Jones signed it, although Robert disputed that point.

Robert agreed that the May 1 document qualified as a will, but challenged its admission to probate on the grounds that his father lacked testamentary capacity and that the document was obtained by Cameron's undue influence. He also claimed that, even if the will was not so obtained, he was entitled to an intestate share of his father's estate as a pretermitted child under Utah Code Ann. § 75-2-302(1) (1978) because the will itself did not show an intention to disinherit him. At trial, Robert repeatedly objected to the admission of statements made by Jones to Cameron and others to prove Jones's intent to disinherit his son, including statements that Jones believed Robert had stolen some money from him.

The trial judge made the following relevant findings: Jones had testamentary capacity when the will was executed; there was no confidential relationship between Cameron and her father at the time she drafted the document for him; and the making of the will was not procured by her undue influence. The trial judge concluded that the language of the will itself showed the intent of the decedent to intentionally omit Robert from the will, thereby precluding him from taking any part of Jones's estate by virtue of the operation of the pretermitted child statute. He added that, if the extrinsic evidence of Jones's oral declarations was considered, it would only reinforce that conclusion.


A confidential relationship arises when one party, after having gained the trust and confidence of another, exercises extraordinary influence over the other party. Webster v. Lehmer, 742 P.2d 1203, 1206 (Utah 1987). If a confidential relationship exists between two parties to a transaction, and if the superior party (in whom trust has been reposed) benefits from the transaction, a presumption of undue influence 1 is raised. Von Hake v. Thomas, 705 P.2d 766, 769 (Utah 1985); Robertson v. Campbell, 674 P.2d 1226 (Utah 1983). In such a case, the burden shifts to the superior party to prove the absence of any unfairness by a preponderance of the evidence. Baker v. Pattee, 684 P.2d 632, 637 (Utah 1984).

A few relationships are presumed to be confidential, such as that of attorney and client. Webster, 742 P.2d at 1206; see In re Swan's Estate, 4 Utah 2d 277, 293 P.2d 682 (1956). In all other relationships the existence of a confidential relationship is a question of fact. Webster, 742 P.2d at 1206; Baker, 684 P.2d at 636.

On appeal, Robert asserts that, as a matter of law, a confidential relationship should have been presumed between Jones and Cameron as parent and child, giving rise in turn to a presumption that she exerted undue influence over him in order to be named as his sole beneficiary under the will.

The doctrine of confidential relationship rests upon the principle of inequality between the parties and implies a position of superiority occupied by one of the parties over another. Bradbury v. Rasmussen, 16 Utah 2d 378, 401 P.2d 710, 713 (1965). However, the mere relationship of parent and child does not constitute evidence of such confidential relationship as to create a presumption of undue influence. Nelson v. Nelson, 30 Utah 2d 80, 513 P.2d 1011, 1013 (1973); Bradbury, 401 P.2d at 713. 2

While kinship may be a factor in determining the existence of a legally significant confidential relationship, there must be a showing, in addition to the kinship, a reposal of confidence by one party and the resulting superiority and influence on the other party.... Mere confidence in one person by another is not sufficient alone to constitute such a relationship.

Bradbury, 401 P.2d at 713.

Without distinguishing Nelson and Bradbury, in which the transacting parties were parents and their child or one raised as their child, appellant bases his argument on the general statement, in a case involving only a trustor/trustee relationship, that "[t]here are a few relationships (such as parent-child, attorney-client, trustee-cestui) which the law presumes to be confidential." Blodgett v. Martsch, 590 P.2d 298, 302 (Utah 1978). This unsupported obiter dictum was, unfortunately, reiterated in Baker, 684 P.2d at 637, another case in which no familial relationship between the transacting parties was claimed.

Notwithstanding this dicta, we believe that the rule in Bradbury reflects the current state of Utah law, i.e., the relationship of parent and child does not, in and of itself, establish a confidential relationship giving rise to a presumption of unfair dealing. The Bradbury opinion has been recently cited and quoted with approval for its pronouncements on confidential relationships in general. See Webster, 742 P.2d at 1206; Von Hake, 705 P.2d at 769. More importantly, subsequent to Baker, the unanimous court cited Nelson and Bradbury as authority for its conclusion that a relationship as brother and sister-in-law is not sufficient, standing alone, to prove a confidential relationship, although the existence of a confidential relationship could be proved otherwise. Cunningham v. Cunningham, 690 P.2d 549, 553 (Utah 1984).

Because there is no presumption of a confidential relationship arising solely from the fact that parties to a transaction are parent and child, the trial court correctly declined to find a confidential relationship as a matter of law and left the burden on Robert to prove that there was, in fact, a confidential relationship and undue influence. 3

In its findings of fact, the trial court determined that no such relationship existed at the time the will was drafted and executed and that no undue influence had been exerted on Jones. The findings of the trial court on these questions must be given considerable deference and will only be reversed on appeal if they are clearly erroneous. Webster, 742 P.2d at 1206. See Utah R.Civ.P. 52(a). Because there is substantial record evidence to support these findings, we will not disturb them on appeal.


Appellant next argues that he is entitled to an intestate share of his father's estate in spite of the May 1 will because the language of the will itself does not sufficiently evidence Jones's intent to disinherit him.

The relevant provisions of the statute in effect at the time of Jones's death state:

(1) If a testator fails to provide in his will for any of his children or issue of a deceased child, the omitted child or issue receives a share in the estate equal in value to that which he would have received if the testator had died intestate unless:

(a) It appears from the will that the omission was intentional[.]

Utah Code Ann. § 75-2-302(1)(a) (1978) (emphasis added). 4

Construing a prior pretermission statute allowing a child omitted from a parent's will to take an intestate share "unless it appears that such omission was intentional," 5 the Utah Supreme Court held that the testator's failure to provide for a child or issue of a deceased child constituted a rebuttable...

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