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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Purcella v. Olive Kathryn Purcella Trust (4/18/2014) sp-6894

Purcella v. Olive Kathryn Purcella Trust (4/18/2014) sp-6894

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  



OLIVE KATHRYN PURCELLA,                                 )  

                                                        )        Supreme Court No. S-14770  

                            Appellant,                  )  

                                                        )        Superior Court No. 3AN-10-12346 CI  

         v.                                             )  

                                                        )        O P I N I O N  

OLIVE KATHRYN PURCELLA                                  )  

TRUST,                                                  )        No. 6894 - April 18, 2014  


                            Appellee.                   )  


                   Appeal from the Superior Court of the State of Alaska, Third  


                   Judicial District, Anchorage, Mark Rindner, Judge.  

                   Appearances:  Ted Stepovich, Law Office of Ted Stepovich,  


                   Anchorage,  for  Appellant.             Jonathon  A.  Katcher,  Pope  &  


                   Katcher, Anchorage, for Appellee.   

                   Before:  Fabe, Chief Justice, Winfree, Stowers, and Bolger,  


                   Justices.  [Maassen, Justice, not participating.]  

                   BOLGER, Justice.  

         I.        INTRODUCTION  

                   Olive Kathryn Purcella (Kathryn) filed a petition in the Anchorage superior  


court to reform or terminate the Olive Kathryn Purcella Trust (the trust).  The superior  

court held, after trial, that Kathryn had not shown by clear and convincing evidence that  


she did not intend to execute an irrevocable trust or that the trust was the product of undue  


----------------------- Page 2-----------------------

influence.  It accordingly denied her petition.  Kathryn appeals, arguing that the factual  


findings on which the superior court predicated its ruling were clearly erroneous.  We  


affirm the judgment of the superior court because Kathryn has not established that the key  

factual findings on which the superior court based its conclusion were clearly erroneous.  



          A.       Facts  

                   Kathryn is the widow of Tony Purcella.  She has five sons: Danny, Rick,  


Gorden, Steve, and Mark.  

                   Before Tony Purcella's death in 2000, he and Kathryn owned 52% of the  


stock in Anchorage Roofing and Contracting, Inc. (Anchorage Roofing), a closely held  


family corporation.  Although Kathryn was the devisee of Tony's shares, Rick, acting as  


the  personal  representative  of  Tony's  estate,  transferred  those  shares  back  to  the  

corporation without informing Kathryn or obtaining her consent.  Kathryn sued Rick and  


Anchorage Roofing, claiming breach of fiduciary duties and conversion.  The parties  

submitted their dispute to binding arbitration.  In an April 15, 2008 decision, the arbitrator  

found for Kathryn and ordered Rick, among other things, to pay Kathryn $3,500 per  

month  and  to  quitclaim  certain  real  property  to  her.    A  substantial  portion  of  these  


obligations have not been met.  

                    Sometime in 2007, Donna, Steve's wife and Kathryn's daughter-in-law,  

began helping Kathryn pay her bills.  At first, Donna helped Kathryn organize the bills  


and mail the checks.  When Kathryn began to have difficulty writing and signing the  


checks because of a hand tremor, however, she set up a joint account with Donna so that  


Donna could write and sign the checks herself.  Once the joint account was in place, at  


Kathryn's request all of her bills were sent directly to Donna's home.  

                   Donna  testified  that  she  discovered  that  Mark  was  "going  through  vast  

sums" of Kathryn's money; she testified that he spent "about a hundred thousand dollars  


                                                             -2-                                                       6894

----------------------- Page 3-----------------------

in one year."  Mark made "constant, aggressive, and unreasonable demands for money"  

from Kathryn and, later, from Donna.  Witnesses testified that Mark even orchestrated  

elaborate cons to convince Kathryn and Donna to give him money.  

                    At some point in 2008, Bill Ingaldson, Kathryn's attorney in the Anchorage  


Roofing  litigation,  began  discussing  with  Kathryn  the  possibility  of  creating  a  trust.  

Ingaldson testified that the trust came up in the context of a discussion about the money  


Kathryn was to receive through the Anchorage Roofing arbitration decision, Kathryn's  


future medical expenses, and Mark's frequent requests for money.  But it was disputed  


whether Ingaldson or Donna first suggested a trust to Kathryn.  The record suggests that  


Donna wrote an email to Ingaldson in August 2008, raising similar concerns about Mark  


and about Kathryn's medical care.  There was also testimony that Donna had several one- 


on-one conversations with Ingaldson about Mark's demands for money.  

                    As a result of his conversations with Kathryn, Ingaldson recommended that  


she meet with John Colver, who had done estate planning work for Kathryn and Tony in  


the past.  On August 10, 2008, Kathryn, Ingaldson, Donna, and Danny met with Colver.  

The group talked about "the Mark problem extensively."  Colver testified that, during this  

meeting, he "mentioned that probably an irrevocable trust was a good idea," both as a  

means to protect Kathryn from Mark and as a Medicaid planning device.  He also testified  

that he explained to Kathryn what an irrevocable trust was and how the trust would  

operate.  Ingaldson confirmed that the group talked about the "general idea of a trust,  

whether [Kathryn] wanted to set up a trust, what we'd put in the trust, [and] how a trust  


would work."  Colver testified that, at the end of the meeting, Kathryn told him that an  


irrevocable trust "looked good to her." So, after the meeting, Colver wrote up a draft trust  


for Kathryn.  

                    The family met with Colver again in December 2008 to talk about the draft  

trust. Colver testified that, during that meeting, he "went through the express provisions"  


                                                             -3-                                                        6894

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of the trust instrument.  There was testimony that Ingaldson asked Colver questions about  


the draft and helped translate some of its provisions into layman's terms to make sure that  


Kathryn  understood their legal effect.  Both Ingaldson and Colver testified that they  

explained  to  Kathryn  that  the  trust  was  irrevocable  and  that  the  trustee  would  have  


complete discretion over the distribution of trust funds.   

                     Kathryn  executed  the  trust  in  February  2009.    Before  she  signed  the  


instrument, she met privately with Colver.  Colver testified that he explained to Kathryn  


at that meeting that "when you put all your money into this irrevocable trust, you can't  


get it back.  It's gone."  He asked her whether she "really want[ed] to" create a trust and  


told  her  that  she  was  not  obligated  to  sign  the  trust  instrument.    According  to  his  


testimony, Kathryn confirmed that she wanted to create an irrevocable trust and signed  


the document.  

                     Colver testified that Kathryn "listened intently" during all of these meetings  


and that she confirmed many times that she understood what an irrevocable trust is and  


that she wanted to create one.  Ingaldson, Donna, and Danny all agreed that Kathryn  

actively  participated  in  the  trust  discussions  and  spoke  up  when  she  had  questions.  


                     However,  Kathryn  testified  at  trial  that  she  never  intended  to  put  her  


property into a trust and that she did not know what an irrevocable trust was at the time  


the trust instrument was drafted.  She testified that, had she known that once she put her  


property in the trust she could not get it back, she would never have executed the trust.  

                     The trust instrument states explicitly that the trust is irrevocable.  Consistent  


with Colver's recommendations, the trust appoints Donna trustee and provides that "[t]he  

Trustee shall manage [the trust] for the use and benefit of [Kathryn,] as primary lifetime  


Beneficiary of the trust."  The trustee has "sole and absolute discretion" over the amount  


and frequency of payments to Kathryn.  

                                                                 -4-                                                          6894

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                    Upon Kathryn's death, the remaining principal is to be distributed to Danny,  


Steve,  and  Mark.    The  trust  provides  for  no  distribution  to  Rick  or  Gorden.    This  


arrangement is consistent with a will Kathryn  drafted in 2002, which provided for a  


similar distribution of property.  

                    During her tenure as trustee, Donna had some conflicts with Kathryn over  


the administration of the trust.  For example, although Donna paid many of Kathryn's cell  


phone bills, there was one bill that she failed to pay.  Donna testified that Mark, who was  


on the same cell phone account, continuously accrued large charges on the account, and  

that she discussed this problem with Kathryn every month.  Donna tried to decrease the  


charges by changing to a different phone plan, but the bills continued to run into the  


hundreds of dollars.  The last bill, which Donna refused to pay, cost, according to her  

testimony, between $500 and $800.  

                    Kathryn also frequently asked Donna for money while Donna was trustee.  


Donna  testified  that  Kathryn  always  wanted  money  for  Mark;  she  never  wanted  for  

money for herself.  Each time Kathryn requested money, Donna would explain that there  

were  not  enough  funds  in  the  trust  to  both  satisfy  the  request  and  meet  Kathryn's  

outstanding expenses.  Donna testified that, whenever she had these conversations with  


Kathryn, they would discuss Donna's role as trustee.  

                    Meanwhile,  because  of  the  Anchorage  Roofing  litigation,  Kathryn  was  

estranged from Rick and his wife Kathy at the beginning of 2010.  However, in the spring  

of that year, Rick and Kathy started to invite Kathryn to lunch.   During the summer,  


Kathryn spent time on the Kenai River with Rick and his family and, in August, Kathryn  


moved  in  with  Rick  and  Kathy.    There  was  testimony  that  Kathryn's  other  family  

members had trouble contacting Kathryn after the move.  Ingaldson testified that he tried  


to  reach  Kathryn  in  2010  to  discuss  the  dispute  over  her  trust,  but  was  told  by  Ted  


Stepovich, Kathryn's attorney in this lawsuit, that Kathryn did not want to speak with  


                                                               -5-                                                         6894

----------------------- Page 6-----------------------

him.  However, Rick's wife Kathy denied that she had isolated Kathryn from the rest of  


her family.  Kathryn testified on cross-examination that she was not aware that Donna,  


Danny, and Steve had tried to contact her, and said that if she had known they wanted to  


spend time with her, she would have seen them.  

                    Starting in June 2010, Kathryn began making demands for a copy of the  


trust  from  Donna  and  Colver.    Although  Donna  allowed  Kathryn  to  read  the  trust  

instrument, she would not give Kathryn a copy of the instrument or allow her to take the  


original home.  Donna testified that she thought Mark was pressuring Kathryn to get a  


copy of the instrument, and she was afraid of what Mark would do if he obtained a copy  


of the trust.  

                    On July 26, 2010, Danny, Donna, and Kathryn went to Colver's office to  


address Kathryn's concerns about the trust.  When Colver spoke with Kathryn alone, she  


told  him  that  she  was  upset  because  Donna  had  not  paid  some  bills.    On  Colver's  

suggestion, Kathryn asked Donna to resign, and Danny succeeded her as trustee.  Colver  

agreed that Kathryn did not indicate at that time that she felt "she had been hoodwinked  


into signing an irrevocable trust that she never understood."  

          B.        Proceedings  

                    On November 23, 2010, Kathryn filed a petition to terminate or reform the  


trust in the Anchorage superior court.  She argued that the trust should be reformed "to  


conform to her intentions due to a mistake of fact or law in the expression of the trust  


and/or inducement to create the trust."  She alleged that "[i]t was not anticipated by Mrs.  


Purcella that the circumstance would arise where she would have no control as to when  


or  if  her  bills  would  be  paid,  or  when  or  how  her  money  was  to  be  spent"  and  that  

"[m]isrepresentations were made by Donna Purcella, Danny Purcella, and Michael Steven  

                                                               -6-                                                         6894

----------------------- Page 7-----------------------


Purcella  to  Mrs.  Purcella  in  regard  to  the  nature  and  purpose  of  the  documents  she  



                     Kathryn's petition was tried without a jury in May and August 2011.  On  


September 22, 2011, the court issued a decision denying Kathryn's petition.  It found that  


Kathryn had not shown by clear and convincing evidence that she "made mistakes in  


establishing  the  Trust"  or  "had  an  intention  which  was  contrary  to  that  which  she  

manifested  in  the  Trust  documents."    The  court  also  concluded  that  Kathryn  had  

"presented no evidence to support a claim of undue influence."  

                     Kathryn appeals.  


                     We review the superior court's findings of fact for clear error.2  



are clearly erroneous if a review of the entire record in the light most favorable to the  


party prevailing below leaves us with a definite and firm conviction that a mistake has  

been made."3  

                      We "grant particular deference to the trial court's factual findings when  


they are based primarily on oral testimony, because the trial court, not this court, performs  



the function of judging the credibility of witnesses and weighing conflicting evidence." 

          1          The  superior  court  construed  the  latter  allegation  as  stating  an  undue  

influence claim.  

          2         Alaska R. Civ. P. 52(a) ("Findings of fact shall not be set aside unless   

clearly erroneous . . . ."); Stewart v. Elliott, 239 P.3d 1236, 1239-40 (Alaska 2010).  

          3          Thea G. v. State, Dep't of Health & Soc. Servs., 291 P.3d 957, 961-62  


(Alaska 2013) (internal quotation marks omitted).  

          4         Day  v.  Williams ,  285  P.3d  256,  260  (Alaska  2012)  (internal  quotation  

marks omitted); see also Alaska R. Civ. P. 52(a) ("[D]ue regard shall be given to the  

opportunity of the trial court to judge the credibility of the witnesses.").  

                                                                -7-                                                          6894

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                    However, the superior court's  application of law to fact is reviewed de  


novo.   Therefore, we independently review the superior court's conclusion that, based  

on its factual findings, trust reformation was not warranted under the applicable law.6  



          A.        Trust Reformation  

                    On appeal, Kathryn argues that reformation is warranted because the trust  


instrument does not conform to her original intent, because unanticipated circumstances  


have arisen since the trust was executed, and because she, as "both . . . the settlor and sole  

life beneficiary of the trust," has the power to modify the trust by consent.  We address  

each of these arguments in turn.  


                    1.        Reformation to conform to the settlor's intent  

                    Alaska Statute 13.36.350(a) provides that  


                    [o]n petition by a trustee, settlor, or beneficiary, a court may  


                    reform  the  terms  of  an  irrevocable  trust,  even  if  the  trust  

                    instrument  is  not  ambiguous,  to  conform  to  the  settlor's  


                    intention if the failure to conform was due to a mistake of fact  


                    or law, whether in expression in the trust or inducement to  


                    create the trust . . . .  

          5         Reed v. Parrish , 286 P.3d 1054, 1057 (Alaska 2012);                             Riddell v. Edwards ,  

76 P.3d 847, 852 (Alaska 2003).  

          6         Cf.  Diblik  v.  Marcy,  166  P.3d  23,  25  (Alaska  2007)  ("Whether  a  

misrepresentation is material is a mixed question of law and fact."); Beavers v. State , 998  


P.2d 1040, 1044 (Alaska 2000) ("We review the trial court's determination concerning  

the voluntariness of [a] confession as a mixed question of law and fact.").  



                    Although Kathryn seeks to have the trust terminated, AS 13.36.350(a) only  

permits trust  reformation, not termination. However, it is possible the trust could be  

reformed to make it revocable rather than irrevocable.  

                                                               -8-                                                         6894

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                    To reform a trust under this provision, the petitioner must prove the settlor's  


intent by "clear and convincing evidence."   A fact is established by clear and convincing  

evidence if "the truth of the asserted fact[] is highly probable."9  

                    On appeal, Kathryn argues that the trial court clearly erred when it found  


"that Kathryn intended to create an irrevocable trust, that she understood the terms of the  


trust and the fact that it was final."                  She notes that, in her own testimony, she "clearly  


stated that she never intended to transfer all of her property into a trust," that "nobody  


ever explained to [her] and she did not understand that once she put her property into a  


trust, she no longer owned or had control of that property," and that, "[h]ad she been told  


that once she signed property over to the trust, she no longer owned that property, she  

would not have signed the property over or created the trust."  

                    But  Donna,  Colver,  Ingaldson,  and  Danny  all  testified  that  Kathryn  


understood the effect of the trust at the time it was executed and intended to transfer all  


of her property to the trust, and the superior court found their testimony more credible  

than  Kathryn's.    Because  we   give  deference  to  the  superior  court's  credibility  


          8         AS 13.36.350(a).  

          9         DeNuptiis v. Unocal Corp. , 63 P.3d 272, 275 n.3 (Alaska 2003) (internal  

quotation marks omitted).  

          10        Kathryn appears to attach some weight to the fact that the superior court   

adopted its factual findings more or less verbatim from the Trust's proposed findings.   

However, that fact has no bearing on our review of the superior court's findings. See  

Strack v. Miller, 645 P.2d 184, 186 n.1 (Alaska 1982) ("The 'clearly erroneous' standard  


is still to be applied when, as here, the trial court's findings of fact are adopted from  


those submitted by the prevailing party.").  

                                                               -9-                                                         6894

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determinations,11 the fact that Kathryn's testimony contradicted the testimony of these  

other witnesses is not a sufficient basis for finding clear error.  


                    In the alternative, Kathryn argues that, although one of the trust's primary  


purposes was to protect Kathryn's assets from Medicare or Medicaid, it does not actually  

fulfill that purpose.  She maintains that the "trust should be revokable or reformed" to  

meet her medical care planning goals.  But because Kathryn raised this argument for the  


first time in her reply brief, it is waived.12  

                    Because Kathryn has not established that the superior court's finding that  


the  trust  as  written  conforms  to  her  original  intent  was  clearly  erroneous,  we  are  

compelled to conclude that reformation under AS 13.36.350 is not warranted.  


                    2.        Unanticipated circumstances  

                    Alaska Statute 13.36.345(a) provides that  


                    [o]n petition by a trustee, settlor, or beneficiary, a court may  


                    modify        the   administrative   or   dispositive   terms                    of    an  


                    irrevocable trust or terminate an irrevocable trust if, because  

                    of circumstances not anticipated by the settlor, modification  

                    or   termination   would   substantially   further   the   settlor's  


                    purposes in creating the trust.  

          11        Fyffe  v.  Wright ,  93  P.3d  444,  450-51  (Alaska  2004)  ("[I]f  most  of  the  

evidence is oral testimony, or the superior court's factual determinations depend largely  


on  conflicting  testimony,  then  the  superior  court's  greater  ability  to  assess  witness  


credibility requires deferential review by this court.").  



                    See Alaska R. App. P. 212(c)(3);  Willoya v. State, Dep't of Corr., 53 P.3d  

1115, 1126 (Alaska 2002).  



                    In its Findings of Fact and Conclusions of Law, the superior court wrote  


that unanticipated circumstances must be proven by clear and convincing evidence.  This  

appears to be an error.  Although AS 13.36.350 explicitly provides that the settlor's  

intent must be proven by "clear and convincing evidence," AS 13.36.345 contains no  


analogous provision. However, because we conclude that the facts Kathryn alleges, even  



                                                              -10-                                                         6894

----------------------- Page 11-----------------------

                    In  her  petition,  Kathryn  argued  that  she  did  not  "anticipate[]  that  the  


 circumstance would arise where she would have no control as to when or if her bills  

 would be paid, or when or how her money was to be spent."  

                    But a misunderstanding about the effect of a legal instrument is not an  

 unanticipated circumstance.  Something "anticipated" is "foresee[n]," "give[n] advance  


 thought," or "expect[ed]."14  

                                           That is, unanticipated circumstances are facts about the  

future  that were not known to the settlor at the time the trust was executed and, if they had  


 been known, would have caused the settlor to draft the trust provisions differently.15  That  

 a settlor was mistaken about the legal effect of a trust is not an unforeseen fact about the  


 future but a mistake "in expression in the trust" that might warrant reformation under  


 AS 13.36.350(a).  

                    Therefore, as the superior court concluded, termination under AS 13.36.345  


 is not warranted.  

          13        (...continued)  

 if true, are not "unanticipated circumstances" within the meaning of AS 13.36.345, the  


 superior court's application of a higher burden of proof was harmless.  

          14        MERRIAM -WEBSTER 'S COLLEGIATE DICTIONARY 50 (10th ed. 1999).  



                    See, e.g., In re Trust D Created Under Last Will & Testament of Darby, 234  

 P.3d  793,  800  (Kan.  2010)  ("Courts  have  generally  been  more  willing  to  allow  

 modification for unanticipated circumstances where there are truly unforeseen events  

 resulting  in  economic  hardship,  the  incapacity  of  a  beneficiary,  the  impossibility  or  

 imprudence of a trust provision, or the diminution in value of a trust asset." (emphasis  


 added)); Niemann v. Vaughn Cmty. Church , 113 P.3d 463, 471 (Wash. 2005)  

 (" '[C]ircumstances not anticipated by the settlor' . . . include significant congregational  


 growth, limitations with the building and property, stricter development and building  


 codes, . . . and finally changes in the attitudes, expectations, and needs of parishioners  

 compared with the 1950s." (citation omitted)).  

                                                            -11-                                                      6894

----------------------- Page 12-----------------------


                    3.        Modification or termination by consent  

                    AS 13.36.360 provides that  


                    on petition by a trustee  settlor or beneficiary, a court may  

                    modify   or   terminate   an   irrevocable   trust   if   all   of   the  

                    beneficiaries consent and if continuation of the trust on the  

                    existing terms of the trust is not necessary to further a material  


                    purpose of the trust. However, the court, in its discretion, may  


                    determine that the reason for modifying or terminating the  


                    trust  under  the   circumstances  outweighs  the  interest  in  


                    accomplishing the material purposes of the trust.  

                    On appeal, Kathryn argues that termination is permissible under  

AS 13.36.360 because she petitioned the court to terminate the trust as "both . . . the  

settlor and sole life beneficiary of the trust."  

                    But  Kathryn  never  argued  before  the  superior  court  that  AS  13.36.360  


applies to this case.  Therefore, her argument that the trust may be terminated by consent  


is waived.16  

                    Even if this argument were not waived, because Kathryn is not the sole  


beneficiary of the trust,  AS 13.36.360 does not provide a basis for termination. Kathryn  


is correct that she is the "primary lifetime [b]eneficiary" of the trust, but several of her  


children are also future beneficiaries. Therefore, Kathryn cannot terminate the trust under  

AS 13.36.360(a) without obtaining the consent of the other beneficiaries, and the record  

gives no indication that they have consented to termination.  

          16        Maines v. Kenworth Alaska, Inc. , 155 P.3d 318, 329 (Alaska 2007) ("It is  


well-established that matters that were not made issues in the trial court . . . or that were  


not tried before the court will not be considered on appeal." (internal quotation marks  


and alterations omitted)).  

                                                              -12-                                                             6894  

----------------------- Page 13-----------------------

         B.        Undue Influence  

                   Kathryn's brief also suggests that the trust is invalid because it was the  

product  of  Donna's  undue  influence.    The  superior  court    concluded  that  "Kathryn  

presented no evidence to support a claim of undue influence."  


                   "A transfer in trust or declaration of trust can be set aside, or the terms of  


a  trust  can  be  reformed,  upon  the  same  grounds  as  those  upon  which  a  transfer  of  

                                                                        17   For example, a trust may be set  

property not in trust can be set aside or reformed."                        

aside if "its creation was induced by fraud, duress, or undue influence."18  

                   Undue influence is the exercise of such control over a person that the person  

is unable to exercise "free and deliberate judgment" or is coerced "into doing something  


that would not have been done absent the influence."19  

                                                                             In order to prove that a trust was  

the product of undue influence, a party must demonstrate that  

                   (1)      the  target  of  the  alleged  undue  influence  was  susceptible to  



                   (2)      another person had the opportunity to exert influence;  

                   (3)      improper influence was, in fact, exerted; and  

                   (4)      the trust shows signs of the improper influence.20  

                   Whether the influence exerted on the settlor was undue is determined using  

a subjective standard, that is, "considering [the settlor's] physical and mental condition,  


the  person  by  whom  [the  influence]  was  exerted,  the  time  and  place  and  all  the  


         17        RESTATEMENT (THIRD) OF TRUSTS  12 (2003).  

         18        Id.   12 cmt. b.  

         19        In re Adoption of S.K.L.H. , 204 P.3d 320, 328 n.41 (Alaska 2009) (quoting   

25 A 

       M .   JUR .   2D  Duress and Undue Influence   36 (2004)) (internal quotation marks   


         20        Id.  

                                                          -13-                                                    6894

----------------------- Page 14-----------------------

surrounding circumstances."21  Undue influence must be proven by clear and convincing  



                    Kathryn suggests that Donna's improper influence on Kathryn is evidenced  


by the fact that, contrary to the superior court's finding, Donna, not Ingaldson, was the  

primary proponent of the trust.  

                    But the superior court's finding that Ingaldson "encouraged  Kathryn to  


consult with attorney John Colver about establishing a trust" was not clearly erroneous.  

Ingaldson  testified  that  he  spoke  with  Kathryn  about  estate  planning  "many  times,"  


"literally when we first met on up," and that they discussed "some general issues dealing  

with setting up a trust and . . . putting assets into a trust and the pros and cons about doing  


that."    And  although  Donna's  testimony  suggests  she  was  concerned  about  estate  

planning and may have encouraged Kathryn to put her property in a trust, that evidence  


is not inconsistent with a finding that Ingaldson also recommended Kathryn execute a  


                    Moreover, even if the superior court did clearly err in finding that Ingaldson  


proposed creating the trust, that error would not require reversal.  That the trust was  


Donna's idea does not by itself constitute clear and convincing evidence that Donna  


exerted improper influence on Kathryn. There are many benign explanations for Donna's  


decision to propose and advocate for the trust.  

                    Kathryn also suggests that Donna had ample opportunity to exert improper  


influence on Kathryn because Kathryn placed significant trust in her. It is true that, at the  


          21        Crittell v. Bingo, 36 P.3d 634, 639 (Alaska 2001) (quoting 1  WILLIAM J.  



   OWE  &  DOUGLAS  H.  PARKER , PAGE  ON  THE  LAW  OF  WILLS    15.2,  at  715  (rev.  

ed.1960)) (internal quotation marks and alteration omitted) .  

          22        Laliberte v. Mead , 628 A.2d 1050, 1052 (Me. 1993); Wright v. Roberts, 797  

So. 2d 992, 998 (Miss. 2001); Peterson v. Peterson , 432 N.W.2d 231, 236 (Neb. 1988).  


                                                              -14-                                                         6894

----------------------- Page 15-----------------------

time  the  trust  was  executed,  Kathryn  relied  on  Donna  to  manage  her  finances.  

Eventually, Kathryn created a joint bank account with Donna so that Donna could pay  


Kathryn's bills directly.  Kathryn also depended on Donna and Danny for transportation  

to and from her meetings with Ingaldson and Colver because she has an eye condition that  

prevents her from driving.  


                       But Kathryn's relationship with Donna was not a confidential relationship  


such as would trigger a presumption of undue influence.                                                     

                                                                                                       A confidential relationship  



does not necessarily arise from a family relationship.                                            Nor does the fact that Donna  



helped Kathryn manage her affairs convert their relationship into a confidential one. 


                       At trial, Kathryn's attorney implied that undue influence is evident from the  

fact that the trust instrument only provides for distribution to three of her sons - Danny,  


Steve, and Mark - and excludes Rick and Gorden.  Kathryn's testimony suggested that  

            23         See Paskvan v. Mesich, 455 P.2d 229, 233 (Alaska 1969) ("[W]hen the                                     

principal or sole beneficiary under a will, who had a confidential relationship with the   

testator, participated in the drafting of the will, then a presumption of undue influence  


            24          Ware  v.  Ware,  161  P.3d  1188,  1194-95  (Alaska  2007)  (confidential  

relationship cannot be proven by "[t]he mere fact of a parent-child relationship").  

            25         Compare Ware, 161 P.3d at 1195 ("While the record shows evidence of  

Brandie helping Margaret by  checking her oil, cutting wood, and purchasing a new  


washing machine for her, these activities . . . do not change the relationship from parent- 


child to that of a fiduciary."), with Paskvan, 455 P.2d at 232 (concluding that a finding  


that a confidential relationship existed was not erroneous where "Mesich's actions in  


making Paskvan the managing partner in the Arctic Hotel enterprise, in giving Paskvan  

his power of attorney so that Paskvan could act and speak for Mesich, in executing his  


will in favor of Paskvan so that there would be a basis for their partnership venture, and  


in conveying to Paskvan a one-half interest in the Elbow Room property shows quite  

clearly that Mesich trusted Paskvan and reposed confidence in him - that he relied upon  


Paskvan to act in Mesich's best interests in handling his affairs.").  

                                                                       -15-                                                                  6894

----------------------- Page 16-----------------------

this was contrary to her intent.              However, it was undisputed that a will Kathryn executed       

in  2002  provided  for  a  similar   distribution  of  property.    Ingaldson  explained  this  

arrangement at trial:  "Rick and Gord[e]n had received their inheritance in the form of the  

[Anchorage Roofing] business . . . from  Day One, that was what they were to get."  


Therefore, as the superior court concluded, the "character and provisions of the trust were  


not such that it would have been unnatural for a person in Kathryn's position to create it."  


                    Although it is true that Kathryn was in her early 80s when the trust was  

drafted, there is ample evidence in the record that she participated actively in the trust  


drafting process and was fully capable of protecting her interests.  And, as the superior  

court  found,  "[t]he  strongest  evidence  against  undue  influence  is  that  Kathryn  had  

independent legal advice from two experienced, highly respected lawyers (Ingaldson and  


Colver), both of whom recommended Kathryn establish the Trust."  

                    Given the superior court's findings - none of which is clearly erroneous  

- we are compelled to agree that Kathryn has not established by clear and convincing  


evidence that the trust was the product of undue influence.  

V.        CONCLUSION  

                    The judgment of the superior court is AFFIRMED.  

                                                             -16-                                                       6894

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