Weisensee v. Hoyt , 220 Or. 159 ( 1959 )

ON PETITION FOR REHEARING

Before McAllister, Chief Justice, and Rossman, Sloan and King, Justices.

Respondents’ Petition por, Rehearing

SLOAN, J.

The vigorous petition for rehearing in this case presents one issue which probably requires notice: It is said that the burden of proving undue influence was “erroneously imposed” upon the contesting brothers of the deceased. The reference to the burden of proof in the original opinion can stand clarification.

The opinion stated: “There is no doubt that a confidential relationship existed between Gertrude and Hoyt. However, as we have already seen, and from the evidence to be mentioned, it appears that the relationship was not ‘such as to indicate a position of dominance by the one in whom confidence is reposed over the other.’ ”, citing Doneen v. Craven, Executor et al, 204 Or 512, 522, 284 P2d 758. The opinion then proceeded to hold that contestants bore the burden of proof. The petition for rehearing contends that when a confidential relationship is established, that fact alone shifts the burden of proof to the proponent.

We have consistently held that a confidential relationship, in and of itself, does not place on the proponent of a will the burden of proving lack of undue influence. The cases touching the subject are discussed in 1 Jaureguy and Love, Oregon Probate Law and Practice, § 316, p 306, et seq.

Specific reference to some of these cases may help to eliminate any confusion resulting from the opinion in this case.

“The burden of proof of undue influence is ordinarily upon the party who asserts it and never shifts, but there may be circumstances when it is cast upon a beneficiary. Such is the rule when there is proof of the existence of a confidential relationship between the testator and the beneficiary, coupled with proof that the beneficiary actively participated in the will’s preparation. Evident activity of that character casts upon the latter the burden of disproving undue influence. [Citing eases]” In re Estate of Verd Hill, 198 Or 307, 334, 256 P2d 735.

The above language was quoted in In re Estate of Manillus Day, 198 Or 518, 529, 257 P2d 609. The latter case was, in turn, quoted with approval in Doneen v. Craven, supra. In an earlier case, In re Knutson’s Will, 149 Or 467, beginning at p 486, 41 P2d 793, Justice Bossman reviewed many of the decisions of this court on the same subject as well as decisions from other courts. The latter cases may be summarized in a quotation utilized by Justice Boss-man taken from 66 ALB, p 228:

“ ‘It is the generally accepted view that the mere existence of confidential relations between a testator and a beneficiary under his will does not raise a presumption that the beneficiary has exercised undue influence over the testator, and does not cast upon the beneficiary the burden of disproving undue influence. Those consequences, follow only when the beneficiary has been actively concerned in some way with the preparation or execution of the will.’ ” 149 Or at 487.

At 149 Or, p 488, the opinion in the Knutson casé concludes:

“From the above it is clear, therefore, that no presumption exists that the beneficiary exercised undue influence upon the testator, unless the evidence indicates that a confidential relationship existed between these two individuals, and that the beneficiary was actively concerned with the preparation of the will. * * See op cit at p 490, et seq.

The most recent expression by the court was by Justice O’Connell in In re Reddaway’s Estate, 214 Or 410, p 420, where it was also held that the burden does not shift from the contestant unless there are other suspicious circumstances in addition to a relationship of confidence.

In this case we found the evidence did not establish that there was any activity, dominance or “insidious” conduct requiring the proponent to assume the burden of proof. In this particular case we would find the issue to be immaterial. The proponent met the burden if it should be said that he carried it. The evidence was convincing to this court that the will was not the product of the claimed machinations of the proponent. The court is not disposed to reconsider the result reached in this case. It appeared necessary, however, to call attention to the rule which this court has firmly adopted with reference to the burden of proof.

The petition is denied.