Estate of Tipp, In re, 96-348

Citation281 Mont. 120, 933 P.2d 182
Case DateFebruary 04, 1997
CourtUnited States State Supreme Court of Montana

Page 182

933 P.2d 182
281 Mont. 120
In re the ESTATE OF Christine Elizabeth TIPP, Deceased.
No. 96-348.
Supreme Court of Montana.
Submitted on Briefs Dec. 12, 1996.
Decided Feb. 4, 1997.

[281 Mont. 121] Bryan Charles Tipp, Richard R. Buley, Tipp & Buley, Missoula, for Appellant.

Clinton H. Kammerer, Kammerer Law Offices, Missoula, for Respondent.

HUNT, Justice.

Appellant Dorothy Shodin (Dorothy) appeals the decision of the Fourth Judicial District Court, Missoula County, determining that the testamentary will and property transfer of Christine Elizabeth Tipp (Christine) were not entered into as a result of undue influence, and admitting the will to probate. We affirm.


The sole issue presented on appeal is whether the District Court erred in finding that Christine's will and property transfer were not the products of undue influence.


Christine died in 1994 at the age of eighty-six. She and her late husband, George, had seven children including Dorothy, the appellant in this case, and Sylvia, the respondent.

Page 183

In 1984 or 1985, George became incapacitated by a medical condition which resulted in partial paralysis. At this time, Sylvia became involved in her parents' care, managing their finances and transporting them around as needed. Christine did not drive and, by this time, George was no longer able to do so. Because Sylvia so often took them to doctor appointments and ran other necessary errands, George and Christine gave her their car.

[281 Mont. 122] Because of George's partial paralysis, he was placed in a nursing home. The entire family, however, was very dissatisfied with the care he received and he was quickly brought home. In 1988, George died; Christine continued to occupy their home alone after his death. Sylvia and another daughter, Virginia, would look in on their mother and provide whatever assistance she needed. Sylvia continued to provide transportation and to manage Christine's financial affairs. By 1990, Christine had been diagnosed with advanced breast cancer and was under the care of an oncologist.

In 1992, Christine fell at home and broke her hip. She thereafter required more frequent and continual care, which Sylvia primarily provided. Also in 1992, Sylvia discussed with her mother the possibility of Sylvia buying Christine's house. Upon hearing of the plan, Sylvia's brother Ray obtained an appraisal of the house. No other steps were taken in furtherance of such a sale.

In March of 1993, Sylvia twice transported Christine to the office of her attorney. Christine later revealed that the purpose of the visits had been to change her will and to transfer the ownership of her house to joint tenancy with right of survivorship between herself and Sylvia. In this way, Sylvia would receive the house when Christine died.

In April of 1993, Christine traveled to California to be with her oldest son, who was himself dying of cancer. She made the trip alone and unassisted, and returned to Montana in the same manner. During the time Christine was in California, Sylvia and her husband Gordon moved into Christine's home. Thereafter, Sylvia was almost entirely responsible for her mother's care. Christine became increasingly ill and, in February, 1994, she passed away.

Following Christine's death, her other children became aware of the will she had executed in March, 1993, as well as the simultaneous transfer of the home to joint tenancy with Sylvia. Dorothy then brought suit to prevent the will's admittance to probate and to set aside the property transfer, asserting that the will and transfer were the products of undue influence. After a thorough hearing, the District Court determined that the will and transfer were not in fact the products of undue influence. The court then ordered the will admitted to probate. Dorothy appeals.


The case law regarding the standard of review in estate cases at equity is inconsistent and contradictory. On the one hand, this Court has determined that the proper standard of review is whether [281 Mont. 123] substantial credible evidence supports the district court's findings. See, for example, Christensen v. Britton (1989), 240 Mont. 393, 784 P.2d 908; In re Estate of Palmer (1985), 218 Mont. 285, 708 P.2d 242; Cameron v. Cameron (1978), 179 Mont. 219, 587 P.2d 939. On the other hand, we have also declared that the proper standard of review in such cases is whether the district court's findings are clearly erroneous. See, for example, In re Estate of Parini v. Montana Dept. of Revenue (Mont.1996), 926 P.2d 741, 53 St.Rep. 1062; Flikkema v. Kimm (1992), 255 Mont. 34, 839 P.2d 1293; In re Estate of Flynn (1995), 274 Mont. 199, 908 P.2d 661.

Cases using the "substantial credible evidence" standard of review generally cite § 3-2-204(5), MCA, which provides:

[i]n equity cases and in matters and proceedings of an equitable nature, the supreme court shall review all questions of fact arising upon the evidence presented in the record, whether the same be presented by specifications of particulars in which the evidence is alleged to be insufficient or not, and determine the same, as well as questions of law ...

In re Estate of Melvin (1993), 261 Mont. 408, 412, 862 P.2d 1159, 1162 (citations omitted);

Page 184

In re Estate of Barber (1989), 239 Mont. 129, 137, 779 P.2d 477, 482. Cases using the "clearly erroneous" standard of review generally cite Rule 52(a), M.R.Civ.P., which provides in part:

In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon.... Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses....

Flikkema, 839 P.2d at 1296; In re Estate of White (1984), 212 Mont. 228, 231-32, 686 P.2d 915, 916-17.

While nothing in § 3-2-204(5), MCA, precludes the use of the "clearly erroneous" test, Rule 52(a), M.R.Civ.P., by its terms, mandates that this more stringent test be applied to "all actions tried upon the facts without a jury or with an advisory jury," without regard for whether the case arises at law or in equity. For this reason, we conclude that the proper standard of review in estate cases at equity is whether the findings of the district court are clearly erroneous. Absent a determination that the findings are clearly erroneous, they will not be set aside. Flikkema, 839 P.2d at...

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3 cases
  • Luke v. Gager, 00-106.
    • United States
    • Montana United States State Supreme Court of Montana
    • December 28, 2000
    ...Absent a determination that the District Court's findings are clearly erroneous, they will not be set aside. In re Estate of Tipp (1997), 281 Mont. 120, 123, 933 P.2d 182, 184. The evidence is reviewed in the light most favorable to the prevailing party, and the credibility of witnesses and......
  • In re Estate of Harms, 03-828.
    • United States
    • Montana United States State Supreme Court of Montana
    • December 7, 2006
    ...the majority of his or her assets to only one child, while excluding others, is not in and of itself unnatural." In re Estate of Tipp, 281 Mont. 120, 126, 933 P.2d 182, 185 ¶ 30 In arguing that the 2001 Will was an unnatural disposition, Bo points out that he gave up his high school educati......
  • Carlson v. Estate of Nickels, DA 22-0588
    • United States
    • Montana United States State Supreme Court of Montana
    • March 28, 2023 planning is not, in and of itself, unnatural or sufficient to require the setting aside of a will or trust. In re Estate of Tipp, 281 Mont. 120, 126, 933 P.2d 182, 185 (1997). We first observe that Jack excluded, in addition to Robin, his son-Jack, Jr.-and also made limited distribut......

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