Lewis v. Estate of Lewis

• Citation: 725 P.2d 644,45 Wn.App. 387
• Decision Date: 22 September 1986
• Docket Number: No. 14665-3-I,14665-3-I
• Parties: Gladys L. LEWIS, Appellant, v. The ESTATE OF Orin W. LEWIS, Jr., Respondent.
• Court: Court of Appeals of Washington

Page 387

45 Wn.App. 387

725 P.2d 644

Gladys L. LEWIS, Appellant, v. The ESTATE OF Orin W. LEWIS, Jr., Respondent.

No. 14665-3-I.

Court of Appeals of Washington,

Division 1.

Sept. 22, 1986.

Donald L. Thoreson, Thoreson, Yost, Berry & Matthews, Seattle, for appellant Gladys L. Lewis.

Charles Moriarty, Watson B. Blair, Margaret D. Fitzpatrick, Reed, McClure Moceri & Thonn & Moriarty, Seattle, for respondent Estate of Orin W. Lewis, Jr.

WEBSTER, Judge.

Orin W. Lewis, Jr. died intestate in 1982. His estate includes deeds, executed in 1973, to approximately 24 acres of land located in Maple Valley. The deeds bear the signature of his mother, Gladys L. Lewis, as grantor. Mrs. Lewis brought this action seeking to set aside the transfer. The trial court quieted title to the property in the estate and Mrs. Lewis now appeals. We affirm.

Generally, one seeking to set aside an inter vivos gift has the burden of showing the invalidity thereof. In re Estate of Soderstran, 35 Wash.2d 448, 213 P.2d 949 (1950); Koppang v. Hudon, 36 Wash.App. 182, 672 P.2d 1279 (1983); White v. White, 33 Wash.App. 364, 655 P.2d 1173 (1982). The burden shifts, however, if the donor and donee shared a confidential relationship. Koppang v. Hudon, supra; White v. White, supra; McCutcheon v. Brownfield, 2 Wash.App. 348, 467 P.2d 868, review den'd, 78 Wash.2d 993 (1970). The donee must then prove that a gift was intended and that it was not the product of undue influence. Koppang v. Hudon, supra; McCutcheon v. Brownfield, supra. See 38 Am.Jur.2d, Gifts, § 93 (1968).

After hearing the evidence, the trial court in this case found that no confidential relationship existed between Mrs. Lewis and her son at the time of the transfer. Mrs. Lewis argues that the evidence does not support the trial court's conclusion.

On appeal, our review is limited to whether or not substantial evidence supports the findings of fact and in turn whether or not the findings of fact support the conclusions of law. Nichols Hills Bank v. McCool, 104 Wash.2d 78, 701 P.2d 1114 (1985); Ridgeview Props. v. Starbuck, 96 Wash.2d 716, 638 P.2d 1231 (1982). " 'Substantial evidence is evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premise.' " Nichols, 104 Wash.2d at 82, 701 P.2d 1114 (quoting Holland v. Boeing Co., 90 Wash.2d 384, 390-91, 583 P.2d 621 (1978)).

Preliminarily, we note that Gladys Lewis has not assigned error to the findings of fact as required by RAP 10.3(g). Findings of fact not specifically challenged become the established facts on appeal. Davis v. Department of Labor and Indus., 94 Wash.2d 119, 615 P.2d 1279 (1980). However, RAP 10.3(g) allows review when a claimed error is "clearly disclosed in the associated issue pertaining thereto." See Ruddach v. Don Johnston Ford, Inc., 97 Wash.2d 277, 644 P.2d 671 (1982). Because Mrs. Lewis' brief clearly indicates that she is challenging the finding that no confidential relationship existed, we will permit review of the findings upon which that conclusion is based.

Findings 13 and 14 form the basis of the conclusion that Mrs. Lewis and her son did not share a confidential relationship:

13. Bill [Orin, Jr.] was an older child in the Lewis family. Petitioner lived with him between 1947 and 1982 for the longest amount of time because he was single, had a good job, and was financially able to assist her. Petitioner did not, however, at any time depend on Bill to make decisions for her.

14. In May of 1973, petitioner was fully competent and not suffering from any physical or mental disability. Her hearing at that time was less than normal and impaired. She was able to read and write. Petitioner often sought advice from her children, but always made her own decisions. She did not rely on any of her children to the extent that any made decisions for her. Her decision to give the Maple Valley property to Bill on May, 1973, was made independently by petitioner and was arrived at without any fraud, misrepresentation, or undue influence by Bill.

The evidence presented supports these findings. Mrs. Lewis testified that she decided with whom to live and that she could live with any of her children. At the time of the transfer she had lived with Orin for less than 18 months. During that time, Mrs. Lewis took care of her son's home. Further, she suffered from neither physical nor mental problems. Her hearing, though impaired, was adequate. She testified that she had sold property in the past, and some of her children testified that she made her own decisions regarding her property.

The court's findings lead to the conclusion that Mrs. Lewis and Orin did not share a confidential relationship. While a confidential relationship is more likely to exist between parent and child, parentage alone does not create the relationship. McCutcheon v. Brownfield, supra. Additional factors are required. This court described such a situation in McCutcheon, 2 Wash.App. at 357, 467 P.2d 868:

[T]he parent may become dependent upon the child, either for support and maintenance, or for care or protection in business matters as well, or for both, and the child, by virtue of factors of personality and superior knowledge and the assumption of the role of adviser accepted by the parent, may acquire a status, vis-a-vis the parent, that will bring about the confidential relationship.

Actual domination goes to the existence of undue influence and need not be shown to prove a confidential relationship. Peters v. Skalman, 27 Wash.App. 247, 617 P.2d 448 (1980). The essential elements of a confidential relationship are (1) that the parent reposes some special confidence in the child's advice and (2) that the child purports to advise with his parent's interests in mind. McCutcheon, 2 Wash.App. at 357, 467 P.2d 868. In this case the trial court made no specific findings on these essential points. We therefore construe them against Mrs. Lewis. "[I]f there is no express finding upon a material fact, the fact is deemed to have been found against the party having the burden of proof." McCutcheon, at 356, 467 P.2d 868. Pilling v. Eastern & Pac. Enters. Trust, 41 Wash.App. 158, 702 P.2d 1232 (1985).

The court did find, however, that Gladys Lewis "did not ... depend on Bill [Orin, Jr.] to make decisions for her." Such a finding indicates the quality of the relationship the two shared: Although Mrs. Lewis valued Orin's opinions, she was not dependent on his advice to form the basis of her decisions. The opportunity for overreaching was therefore not present. Consequently, Gladys Lewis has not met her burden of showing a confidential relationship, and the burden of showing the invalidity of the gift remains with her.

Mrs. Lewis argues that even absent a confidential relationship the deeds in this case are presumptively fraudulent. Two situations lead to a presumption of fraudulence: (1) when the consideration is so grossly inadequate as to shock the conscience of the court, Binder v. Binder, 50 Wash.2d 142, 309 P.2d 1050 (1957); Vossen...