WILL CHALLENGED FOR FRAUD AND UNDUE INFLUENCE
A mother with two grown children lived in rural Oklahoma. She was in her eighties. She lived in the home she was raised in. She did not want to ever end up in a nursing home. Both children lived out of state. The daughter came back home to look after her mother. The son helped his mother the best he could but was working overseas. The mother ended up changing her will significantly to favor the daughter. After the mother died the son filed a will contest. In the Matter of Estate of Rivenburg 2023 OK 109 the Supreme Court decided the law for challenging a will on the grounds of fraud and undue influence as follows: ¶11 The standard treatise on Oklahoma probate law (citing cases from other jurisdictions) describes fraud in the procurement of a will as follows:
On the whole, the requirements are not different from the necessary ingredients of actions for deceit. The representations must be made to the testator, either by the person benefiting under the will, or at least by someone in his or her behalf. The statements must be false, although under some circumstances suppression of the facts may be sufficient. Furthermore, the representation must be known to be false by the person making it. Innocent misrepresentation therefore does not invalidate the will. As in the case of deceit, the false statements must be made with the intention of procuring the will in question. Hence, a representation made after the execution of the will does not affect the validity of the instrument. Fraud that does not result in the making of the will is immaterial upon the question of whether the will should be admitted to probate.1 Okla. Prob. Law & Prac. § 6.7 (3rd ed.) (footnotes omitted). Another treatise describes the elements this way:
[Fraud in the making of a will] consists either of a material misrepresentation of fact known by the declarer to be false, or made with reckless disregard for the truth of the statement made, or a false concealment of fact, or an unprivileged nondisclosure by a person, with a duty to disclose, who intends to cause decedent, acting upon fraudulently induced mistake, to do or not to do a testamentary act which otherwise would not have been done.Eunice L. Ross & Thomas J. Reed, Will Contests (2nd ed.) § 8:10. We hereby adopt the following elements in the context of will contests, which are (as the Oklahoma treatise notes) essentially the same as those for other types of fraud: (1) a representation to the testator, made by one benefiting under the will or on their behalf; (2) which is false; (3) which is known to be false by the person making it; (4) which is made with the intention of procuring or affecting the will in question; and (5) which is shown to have had such effect.
¶12 After acknowledging some of the evidence which supported Austin’s claim of fraud, the COCA found Rivenburg’s execution of the will before a judge, without her daughter present, to be “compelling” evidence that Bridget did not participate in the drafting of the will. It also noted that Bridget claimed not to know the terms of the will before her mother executed it. These facts alone convinced the COCA that Austin had not met his burden of proof on the issue of fraud. We believe this to be error.
¶13 Fraud and undue influence are separate and distinct concepts. Rood v. Newberg, 718 N.E.2d 886, 892 (Mass.App. 1999); 1 Okla. Prob. Law & Prac. § 6.5. Fraud may play a part in an attempt to unduly influence a testator, but it does not have to. Undue influence alleges that the testator’s mind was subtly coerced; fraud alleges that it was deceived.6 False information can come from anyone, anytime, and linger within the testator’s mind until she is convinced that she must act, by making or changing her will.7
¶14 When a will is challenged on the basis of undue influence on the testator, the challenger can shift the burden of producing evidence to the will proponent by establishing that the influencer (1) enjoyed a “confidential relationship” with the testator, and (2) “actively assisted in the preparation or procurement of the will.” Holcomb, 2002 OK 90, ¶ 18, 63 P.3d 9. Facts commonly weighing against a presumption of undue influence include that the alleged influencer was absent when the will was executed; that she played no part in securing a lawyer for the testator; and that she was unaware of the terms of the will. See generally Ross & Reed, Will Contests (2nd ed.) § 7:5; see also Holcomb, 2002 OK 90 at ¶ 38. However, if the presumption of undue influence is successfully rebutted, the analysis does not end there:
The will proponent's successful rebuttal of the presumption restores the case to the procedural posture it would have had if the presumption had never been operative. This means that contestants must prove the existence of undue influence by a preponderance of the evidence without the aide [sic] of the presumption.Holcomb, id. at ¶ 42 (footnotes omitted; emphasis added). In other words, while certain facts (such as one’s absence when the testator executed her will) are of value to rebut a presumption of undue influence, they have no other special significance. Even after the presumption of undue influence has been rebutted, whether the will contestant has made a prima facie case for his challenge is still an open question, to be decided by considering all of the evidence.8
¶15 Furthermore, the rebuttable presumption so often discussed in undue-influence cases has no application to allegations of fraud. See e.g. Silk v. Phillips Petroleum Co., 1988 OK 93, ¶ 13, 760 P.2d 174 (fraud is never presumed from the circumstances, but must arise from a preponderance of all of the evidence). To be sure, whether Bridget participated in the will-drafting process is relevant to whether she intended to deceive her mother, and whether there was a causal connection between any false statement and the making of the will. But it is simply one factor to be considered, along with everything else, to determine whether the evidence of fraud preponderates to the will challenger.9
¶16 We believe the evidence presented thus far preponderated in Austin’s favor on the claim of fraud. Our starting point — and a fact never addressed by Bridget in her brief on appeal — was what Rivenburg told the court about why she was changing her will. When presented with Rivenburg’s new will, the judge asked if she had any questions about the proceedings. She replied:
No. I only want you to understand that part of the reason that this was changed was the comments and things my son had done. [Austin] is not completely out of this will, but he will not get any of the land because he has told too many people that he wanted me to [be] declared incompetent, take over, and sell everything...Unless there is a challenge to a testator’s mental capacity (and there is none here), her own explanation for why her will was made is obviously entitled to considerable weight. Cf. Holcomb, 2002 OK 90, ¶ 38 & n.34, 63 P.3d 9 (claim of undue influence was successfully countered by testator’s own explanation to lawyer of why she was changing her will).
¶17 Rivenburg’s statement to the court establishes a causal link between Austin’s supposed plan and her testamentary act, which was less favorable to Austin and more favorable to Bridget than her previous wills. The remaining questions are whether the evidence preponderated in support of Austin’s claims that his mother’s fears were (1) based on false information, (2) communicated by Bridget with knowledge that the information was false, and (3) communicated for the purpose of gaining advantage in the distribution of their mother’s assets upon her death.
¶18 The reason Rivenburg gave for changing her will was quite specific.10 It is the same reason that she and Bridget gave to the lawyer when they first met to discuss the guardianship process. Bridget emphasizes that her mother’s decision to change her will was one she made independently, without Bridget’s knowledge. But we find the relationships between Rivenburg, the lawyer, and Bridget — indeed, the entire guardianship process that ultimately produced the will — to be decidedly murky.
¶19 Shortly after Bridget arrived from Tennessee, she and her mother visited a local lawyer. The objective, according to testimony from the lawyer, was to discuss “different legal strategies” to prevent Austin from becoming Rivenburg’s guardian, gaining control of her assets, and “be able to sell any farmland, or put [Rivenburg] in a nursing home.”11 To that end, they decided to give Bridget control of Rivenburg’s assets. Rivenburg’s general competency was never in question; according to the lawyer, the guardianship was intended to “allow[] Bridget to help [her mother] with finances.”
¶20 Strangely, however, the guardianship process was abandoned as soon as Rivenburg executed her new will — even though they are ostensibly aimed at different goals (protection of assets while living versus distribution of assets after death).12 According to the lawyer, in the final analysis the guardianship “really didn’t matter because the strategy was to make sure we would have proof that Velda was competent to revise her will.” 13 Given this evidence, we are not persuaded that Bridget stood at arm’s length from the testamentary act.
¶21 “Rumor” appears to be the appropriate word for Rivenburg’s fears. She never claimed — to her friends, to her lawyer, or to the court — that her son made these threats directly to her. As for the source of the rumor, several witnesses testified either that (1) Bridget told them personally that this was Austin’s plan; (2) Rivenburg told them personally that, according to Bridget, this was Austin’s plan, or (3) they heard Bridget relate Austin’s supposed plan to Rivenburg.14 One witness was a bank officer, who met with Bridget and her mother shortly after Austin had returned to his job overseas. The officer recalled that Bridget introduced herself as Rivenburg’s guardian. The purpose of the meeting was to have Bridget named as joint owner or beneficiary on “just about all” of her mother’s bank accounts. This witness specifically recalled Bridget talking to her mother about Austin’s supposed plan to “put her in a nursing home” as the reason for making these changes.15
¶22 Austin, of course, adamantly denied ever expressing a desire to take control of his mother’s assets and place her in a nursing home. His statement to the court, after receiving notice of the guardianship action, was consistent with this position.16 Bridget was called as a witness at the hearing. She denied ever telling her mother that Austin had such a plan.17 Thus, Bridget’s testimony was inconsistent with that of several presumably disinterested witnesses who traced the rumor to her.18
¶23 On a claim of undue influence in the making of a will, one relevant fact is whether the testator received independent advice from third parties. Matter of Estate of Maheras, 1995 OK 40, ¶ 8, 897 P.2d 268. Attempts to control information that the testator receives are relevant to a claim of fraud as well. See Matter of Estate of Lint, 957 P.2d 755, 763 (Wash. 1998) (evidence supported finding of fraud in the procurement of a will, where perpetrator isolated the testator from family and friends, and falsely told her that her family wanted to put her in a nursing home and seize her estate). Austin presented evidence suggesting that Bridget isolated their mother from friends and associates. This lent some credence to the idea that Bridget was the source of Rivenburg’s fears, since the best way to keep a false idea alive is to ward off those who might expose it.19
¶24 A will contestant is entitled to the normal inferences which may be derived from the facts. White v. Palmer, 1971 OK 149, ¶ 26, 498 P.2d 1401 (regarding undue influence). An allegation of fraud almost always relies on circumstantial evidence. Griffith v. Scott, 1927 OK 361, ¶ 18, 261 P. 371. Each case depends on its own facts, and all relevant circumstances should be considered together in determining whether fraud has been proven. Id. Prior similar dealings by the alleged wrongdoer may be relevant. Silk, 1988 OK 93 at ¶ 14, 760 P.2d 174. Prior dealings may shed light on motive and witness credibility. Austin presented evidence that, aside from receiving considerable financial help from their mother over the years, Bridget had a history of questionable transactions involving their parents’ assets.20
¶25 We are always reluctant to second-guess trial courts on questions of fact. Rogers v. Pennington Grocery Co., 1925 OK 489, ¶ 4, 239 P. 126. Nevertheless, having clarified the legal analysis of fraud in the inducement of a will, our careful review of the record compels us to conclude that the totality of evidence thus far presented by the will challenger preponderated in his favor, and shifted the burden of production to the will proponent.
CONCLUSION
¶26 Fraud and undue influence are independent grounds for challenging a will. They may overlap, but the concepts are distinct. The presumption of undue influence in certain situations has no application in cases of fraud. By the same token, facts that rebut such a presumption carry no special weight in analyzing claims of fraud. The Court of Civil Appeals erred by conflating the concepts of fraud and undue influence, and by treating certain facts as essentially dispositive as to both. The trial court should consider all relevant facts to decide if a testator’s will was motivated by statements known to be false by the person making them. Here, ruling on a demurrer in a case of equitable cognizance, the question for the trial court was whether the evidence presented thus far preponderated in Austin’s favor. We believe the evidence cleared that hurdle. While the ultimate burden of persuasion remains with Austin as challenger to the will, the burden of producing evidence to rebut an inference of fraud shifted to Bridget. Accordingly, the trial court’s order admitting Rivenburg’s will to probate is reversed, and the case is remanded to give Bridget an opportunity to present evidence on the issue of fraud