Montana Woman’s Will, Deed To Home Both Held To Be Valid

DECEMBER 1, 1997 VOLUME 5, NUMBER 22

Christine and George Tipp lived in Missoula, Montana. They had seven children, including daughters Sylvia and Dorothy.

George Tipp became ill in the mid-80s, and was briefly placed in a nursing home. When the entire family became dissatisfied with his care, they arranged to bring him home to be cared for by Christine. For the next few years, she was helped out by Sylvia and another daughter. Since Christine did not drive and George could no longer do so, they gave their car to Sylvia; she used it to take them to medical appointments and run their errands.

After George Tipp died in 1988, Christine continued to live in the family home. A few years later, she was diagnosed with breast cancer; two years later, she fell and broke her hip. During all these medical setbacks, daughter Sylvia continued to provide help for her mother.

In early 1993, Sylvia took her mother to two office appointments with Christine’s attorney. The appointments were arranged by Christine herself, and Sylvia was apparently not advised of the purpose of the visits. Later, Christine told Sylvia that she had transferred her home into joint tenancy with Sylvia, and had executed a new will leaving everything to Sylvia.

One month after the new will and deed were signed, Christine traveled to California to visit her ill son. She made the trip by herself, but when she returned Sylvia and her husband moved in with her and provided additional care.

In less than a year, Christine died. Upon her death, the other children learned for the first time of her transfer of the property to Sylvia and the new will. Daughter Dorothy brought suit in the Montana courts to try to block admission of the will to probate, and to invalidate the transfer of the home.

The trial court conducted extensive hearings, and ultimately decided that Christine had acted on her own in making the changes. Dorothy, unhappy with that result, appealed to the Montana Supreme Court.

Dorothy argued that her sister Sylvia had been in a position to exercise undue influence over Christine. She pointed out that Sylvia took care of her mother’s finances, paying bills and providing care. She also noted that Christine was physically ill and susceptible to undue influence.

The attorney who prepared Christine’s will, his secretary, a hospice worker and a neighbor of Christine’s all had testified that she was aware of what she was doing until long after the will and property transfer were completed. Several witnesses also testified about the trip to California Christine made, without assistance, a month after the documents were signed.

Montana’s highest court decided that Dorothy had failed to produce enough evidence to set aside the will and deed. Specifically, the court ruled that there was insufficient evidence of any mental deficiency which would have made Christine unable to resist Sylvia’s influence. The transfer of the house and Christine’s new will were both upheld. In re Estate of Tipp, Montana Supreme Court, February 4, 1997.

Arizona law is very similar to Montana law on undue influence. Under Montana law, there are five elements which the court must consider to determine the likelihood of undue influence, including the confidential nature of the relationship between the parties, the physical disabilities of the individual under influence, his or her mental limitations, the unusual distribution of property, and the demands made on the person. Arizona law applies a similar test, though it consists of seven indicators. The principal difference: in a case such as Christine Tipp’s, daughter Sylvia would have had the burden of showing that she did not exercise undue influence, rather than Dorothy having to prove that she had.

©2017 Fleming & Curti, PLC