Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. BP101076, Reva G. Goetz, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Mazur & Mazur, Janice R. Mazur and William E. Mazur, Jr., for Defendants and Appellants.
Law Office of Cory C. Brendel and Cory C. Brendel for Plaintiffs and Respondents.
TURNER, P. J.
I. INTRODUCTION
Defendants, Mary L. Lepper and William F. Lepper, appeal, following a court trial, from a February 22, 2008 probate court order regarding real property. Substantial evidence supports the trial court’s findings. We affirm the order.
II. BACKGROUND
At the time of trial, Floran Frank was 83 years old and had lived in her Burbank home since 1960. She had acquired the home as her separate property in or about 1970, when she was divorced from her former husband. Ms. Frank was intimately involved with the local community; she had been president of the Burbank Rancho Homeowners Association since around 1968. Her home was adjacent to Griffith Park and its 57 miles of riding trails where Ms. Frank rode her horses. Her property was also in easy driving distance to the Los Angeles Zoo. Ms. Frank had been a docent at the zoo for 40 years. There was no evidence of infirmities in Ms. Frank’s physical or mental condition. Ms. Frank was fully competent to look after her own affairs.
Ms. Frank has two daughters, Ms. Lepper and Carol Frank. (For the sake of clarity, we refer to Carol Frank by her first name.) Ms. Lepper is married to Mr. Lepper. Defendants have no children together. But Mr. Lepper has two children by a prior marriage, Mary Fauth and Scott Lepper. Defendants reside in Whitefish, Montana. Carol resides in Golden, Colorado. She has an 18-year-old son, Ian Squier. Mr. Squier is Ms. Frank’s only natural grandchild. Prior to the property dispute at issue here, Ms. Frank had a very close relationship with defendants, but not with Carol. Mr. Lepper visited Ms. Frank when he was in town on business trips. He had helped her with chores around her property.
In January 1997, Ms. Frank executed a living trust, The Trust of Floran Frank, Dated January 10, 1997 (the 1997 trust). At the same time, Ms. Frank executed a quitclaim deed transferring her Burbank property from herself, an individual, to herself as trustee of the 1997 trust. Ms. Lepper was named first successor trustee of the 1997 trust. Mr. Lepper was named second successor trustee of the 1997 trust. Both Ms. Lepper and Carol were beneficiaries of the 1997 trust. The trust assets were to be split equally between them, with Carol’s share held in trust and distributed in installments. The 1997 trust was prepared by Norman Molyneux, who was not an attorney.
In 1997 or 1998, Ms. Lepper’s name was added to Ms. Frank’s checking account as a joint account owner. This was done so that in the event of illness or accident, Ms. Lepper could pay Ms. Frank’s bills. Ms. Lepper never took any money from the account or wrote any checks on it. Ms. Lepper was taken off the account in 2005 as a result of the present dispute.
In January 2004, Ms. Frank authorized her investment advisor, David Stevens, to send defendants duplicate copies of her account statements. Ms. Frank wanted Mr. Lepper to be able to talk to Mr. Stevens. This was so Mr. Lepper could then explain Ms. Frank’s investments to her. Mr. Lepper had three or four conversations with Mr. Stevens in early 2004. Mr. Lepper made a suggestion to Mr. Stevens concerning an adjustment to Ms. Frank’s portfolio. Mr. Lepper did not know whether any changes were made because Ms. Frank made the ultimate investment decisions.
Defendants developed concerns about the 1997 trust. Defendants thought money should be set aside so that, in the event of Ms. Frank’s death, they could care for her many animals and transport them to Montana. In addition, they were unhappy about the distributions to Carol and did not want to be her “‘guardians.’”
A meeting was held at Ms. Frank’s house on January 15, 2004. Ms. Frank, Mr. Molyneux, Frank Manfred, a notary, and defendants attended the meeting. According to the stipulated facts, “Mr. Molyneux advised [Ms. Frank and defendants] regarding a MediCal Home Trust designed to avoid the state recovery lien in the event [Ms. Frank] should be required to enter a nursing home and in the further event [Ms. Frank] had received MediCal benefits during her lifetime.” Mr. Molyneux told defendants the MediCal home trust was a vehicle to put the Burbank property into a trust in the event Ms. Frank went into a nursing home. On January 15, 2004, Ms. Frank, as transferor, and Ms. Lepper, as settlor and trustee, signed The Home Trust For The Family Of Floran Frank Dated January 15, 2004 (the Home Trust). Pursuant to the Home Trust, the trust property was to be divided equally between Ms. Lepper and Carol. Although Carol’s share was to be held in trust and distributed over time. The Home Trust documents also provided that Ms. Frank would have a “retained right of occupancy” in the Burbank home. Ms. Lepper testified she was aware when she signed the Home Trust documents as settlor and trustee that Ms. Frank had a personal right of occupancy. The Home Trust documents further granted Ms. Frank, as transferor, a right to revoke the Home Trust estate with the consent of Ms. Lepper, as trustee.
The Home Trust documents provided in part: “Revocation during Transferor’s Life: [¶] The Transferor may at any time request the Trustee to revoke the Home Trust estate in whole or in part by a written document delivered to the trustee that the trustee may require to be acknowledged. If agreeing to revocation, the trustee shall promptly deliver by deed to the Transferor or designee the revoked portion of the Home Trust estate, which shall become the Transferor’s separate property. . . . [¶] . . . Powers of Revocation and Amendment Personal [¶] The Transferor’s powers to revoke or amend this trust are with the required agreement of the Trustee but are personal to the Transferor, and no guardian, conservator, or other person shall exercise them.”
During the January 15, 2004 meeting, someone proposed that Ms. Frank change her estate plan. The parties stipulated that, “[I]t was not agreed who made the proposal or why.” It was suggested Ms. Frank’s estate be left to Ms. Lepper, except for a $1,000 per month payment to Carol. According to the stipulated facts, “[Ms. Frank] agreed to this in the meeting on January 15, 2004.” Defendants testified that at the January 15 meeting, Ms. Frank was adamant about cutting Carol out. Ms. Frank had to be convinced not to do so. Mr. Molyneux drafted a new trust (a 2004 revision of the 1997 trust) consistent with the new estate plan. However, as the parties stipulated, “[T]hat trust was never finalized.” Mr. Molyneux also prepared a deed transferring the Burbank property from the 1997 trust “as amended on January 15, 2004” to Ms. Lepper as trustee of the Home Trust. The deed was “probably” signed by Ms. Frank on January 15, 2004. That deed was never recorded. Ms. Frank, Mr. Molyneux, and defendants also met on January 17, 2004. However, no documents were signed on that date.
Within two weeks of the January meetings, Mr. Lepper noticed that the Home Trust document contained language reflecting an equal split of Ms. Frank’s estate between Ms. Lepper and Carol. Carol’s share was to be held in trust, as had been set forth in the 1997 trust. Mr. Lepper testified this language was contrary to Ms. Frank’s decision on January 15, 2004, to leave the estate to Ms. Lepper. Mr. Lepper spoke to Mr. Molyneux about this issue. They agreed to try to come up with language that would be acceptable to Ms. Frank about how to pay Carol $1,000 a month. Mr. Molyneux drafted language and presented it to Mr. Lepper, but no further documents were signed by Ms. Frank. The Home Trust—pursuant to which Ms. Frank’s property was to be equally divided between her children—was never revoked by a written instrument. Ms. Frank and Ms. Lepper never discussed revoking the Home Trust.
Sometime in 2004, after the Home Trust was created, Ms. Frank and defendants learned that Mr. Molyneux had been accused of defrauding senior citizens in connection with juke box investments. This made them uncomfortable with the work he had done for them. Ms. Lepper consulted an attorney in her hometown of Whitefish, Montana—Jack Quatman. Defendants did not retain Mr. Quatman as their attorney; they merely sought his advice. Ms. Lepper asked Mr. Quatman to review the Home Trust. Mr. Quatman did not think the trust was valid; he did not really understand what it was about. Mr. Quatman suggested three options: leave things as they are; rewrite the trust; or, if Ms. Frank wanted defendants to have the Burbank house, she could gift it to them. Ms. Lepper told Ms. Frank about Mr. Quatman’s advice. Ms. Lepper testified: Ms. Frank then decided she wanted to give the house to defendants; but Ms. Frank was to stay in the house; and thus nothing would change. Ms. Frank did not recall defendants saying she could live in the house for as long as she was alive; she did not think there was any discussion on that subject. According to Mr. Lepper, he and his wife discussed with Ms. Frank over a four to six-week period the possible transfer of the Burbank property.
Shortly before July 30, 2004, Ms. Lepper prepared a deed transferring the Burbank property from Ms. Frank, for no consideration. Defendants received the Burbank residence as their community property with a right of survivorship. The grant deed did not reserve a life estate in the property for Ms. Frank. The deed also deprived Carol of any interest in the Burbank property. According to the stipulated facts: “[Defendants] traveled from Montana to Burbank on July 30, 2004. [Defendants] took the deed to [Ms. Frank’s] house. [Ms. Lepper] drove [Ms. Frank] to a local Downey Savings and Loan, where [Ms. Frank] signed the deed before a notary, and the deed was notarized. [Ms. Lepper] then drove to the County Recorder’s office and had the deed recorded.” Ms. Lepper specifically remembered Ms. Frank was present at the recorder’s office. Ms. Lepper testified she had to be let back into the office which closed at 3 p.m. Ms. Frank denied going to the recorder’s office with Ms. Lepper. The probate court subsequently noted the deed reflected a 2:41 p.m. recording time. The probate court found Ms. Lepper’s testimony that Ms. Frank went to the County Recorder’s office was not credible.
Ms. Lepper did not discuss the July 30, 2004 deed with Carol, Mr. Molyneux, or Mr. Stevens, before Ms. Frank signed it. Ms. Lepper never advised Ms. Frank to speak to an attorney or to Mr. Molyneux before signing the July 30, 2004 deed. Ms. Lepper testified Mr. Molyneux had nothing to do with their private affairs. Ms. Lepper did not advise Ms. Frank the deed did not provide a life estate in the Burbank residence and defendants could sell or give the property to anyone. Further, Ms. Frank was not told she could not convey the property to other relatives or that the deed was inconsistent with the Home Trust. Ms. Lepper testified: ‘“My mother told us that she trusted Bill and I to take care of Carol and Ian as we saw fit, and that is what we promised, and that is our agreement with her.” There was never a discussion as to what would happen to the Burbank property if defendants died simultaneously in a common accident as they had never thought about it. After the July 30, 2004 deed was recorded, Ms. Frank continued to pay property taxes, insurance, and maintenance on the house.
Mr. Lepper testified he never advised Ms. Frank to consult an attorney because, “We didn’t see any reason to.” Mr. Lepper said he advised Ms. Frank that gifting the house to Ms. Lepper and him was something she could not “go back on” if she later changed her mind. Mr. Lepper told Ms. Frank nothing would change; Ms. Frank would continue to live in the house. According to Mr. Lepper, that was the agreement. Mr. Lepper testified Ms. Frank insisted on gifting the house to them. Mr. Lepper did not think about what would happen if he and his wife died in a common accident. According to Mr. Lepper, the gifting of the house was not tied to the Home Trust or the 2004 revisions to the 1997 trust.
Ms. Frank denied intending to give the Burbank property to defendants in a way that would not guarantee her a place to live for the rest of her life. Nor did she intend to give her property away in a manner that precluded her from later changing her mind. When she signed the July 30, 2004 deed, Ms. Frank believed the Home Trust was still in effect. Ms. Lepper never said the Home Trust was void or invalid. Ms. Frank trusted defendants to do the right thing. Ms. Frank thought the July 30, 2004 deed had to do with the living trust. Ms. Frank did not have the advice of counsel before signing the deed. Ms. Frank did not read the deed before she signed it. Ms. Frank believed that if anything happened to defendants she would get the property back. Ms. Frank did not realize that defendants could throw her out of the Burbank residence. Carol described Ms. Frank’s attitude, “[S]he did not mean to give her home away and have no right to it . . . .”
In January 2005, Ms. Frank telephoned defendants. Ms. Frank said: she was upset; she was concerned about the effect of the July 30, 2004 deed; and she wanted to know what would happen to the Burbank property if defendants were killed in a plane crash or other common accident. Mr. Lepper then spoke to Ms. Frank and told her that in the event of a common accident, the property would go to his children. According to Ms. Frank, she “freaked out” immediately.
Ms. Frank told her friend and neighbor, Michael Scandiffio, she had discovered the house was in defendants’ names and she was absolutely in shock. Mr. Scandiffio testified that in early 2005, Ms. Lepper telephoned asking whether he could support an assertion Ms. Frank had diminished mental capacity. Mr. Scandiffio said no. According to Mr. Scandiffio, Ms. Lepper said: “‘My mother is leaving me everything. Don’t tell Carol.’” Mr. Scandiffio found the comment kind of odd and out of context. Ms. Frank testified, “Mary has called three different people and asked them to please state that I am non composmentis in order to put me away in an institution so they could sell the house.”
In or about April 2005, the parties discussed granting Ms. Frank a life estate in the Burbank property. Ms. Frank was being advised by an attorney, Lorraine Loder. Life estate documents were drafted but never signed. Then, according to Ms. Lepper, Ms. Frank fired Ms. Loder and, “That was the end of that.” Mr. Lepper testified that Ms. Frank fired Ms. Loder and “stonewalled” them. Ms. Frank retained a new attorney, Cory C. Brendel. In July 2005, Mr. Brendel spoke to Ms. Lepper through her counsel, John Gerro. Mr. Brendel wanted Ms. Lepper to execute a revocation of the Home Trust and a quitclaim deed transferring the Burbank property back to Ms. Frank, as trustee of the 1997 trust. Mr. Brendel also asked defendants to execute a quitclaim deed transferring the property back to Ms. Frank, as trustee of the 1997 trust. Ms. Lepper testified she was advised by Mr. Gerro not to execute the documents. During settlement negotiations, Ms. Lepper never offered to give the Burbank house back to Ms. Frank. When asked why she did not want to return the Burbank residence, Ms. Lepper testified: “At that point, a lot of accusations, a lot of lies. My mother and I went from being mother and daughter to I am being—I’m being accused of just horrible things . . . .” When asked whether there was a reason she did not want to return the property, Ms. Lepper testified, “Because all of a sudden we go from being mother/daughter to almost overnight just being totally different person, and I didn’t know what was going on, and I did not feel comfortable doing that . . . .”
On October 13, 2006, Ms. Frank, individually, and as trustee of the 1997 trust, and Carol filed a petition under Probate Code sections 850, 859, 16004, 16420, and 17200 and Civil Code section 1577 for relief with respect to the Home Trust and the Burbank property. A court trial ensued pursuant to a June 1, 2007 joint trial statement setting forth extensive uncontested and stipulated facts. The probate court found Ms. Frank did not have a complete understanding of the transfer to defendants. The probate court made the following orders: the July 30, 2004 deed—transferring the Burbank property to defendants—was void; defendants were to immediately execute a deed transferring the property back to Ms. Frank as trustee of the 1997 trust; and the Home Trust, which was in existence on July 30, 2004, was declared terminated.
III. DISCUSSION
A. Standard of Review
Defendants assert it was legal error to find: the Home Trust was valid; Ms. Lepper had breached a fiduciary duty; and the July 30, 2004 deed was invalid. Trial was before the probate court which issued a statement of decision. We review the probate court’s findings for substantial evidence. (McMillian v. Stroud (2008) 166 Cal.App.4th 692, 702; Estate of Young (2008) 160 Cal.App.4th 62, 79-82.)
B. The Home Trust
The probate court found, among other things: the Home Trust was a valid trust, that is, it did not have an illegal purpose and did not violate public policy; the Home Trust “was in existence on July 30, 2004” (when the deed gifting the Burbank property to defendants was signed and recorded); Ms. Frank transferred the Burbank property to Ms. Lepper as trustee of the Home Trust; and Ms. Lepper, as trustee of the Home Trust, breached her fiduciary and loyalty duties. The fiduciary and loyalty duties were owed to Carol. These duties were breached when Ms. Lepper caused Ms. Frank to gift the Burbank property to defendants. The probate court ordered the Home Trust was terminated. Defendants argue: it was legal error to find the Home Trust to be “valid”; it was never “finalized” because Ms. Frank ultimately decided not to leave an interest in the Burbank property to Carol; and the trust was never funded because the grant deed from Ms. Frank to the Home Trust was never signed. (Prob. Code, § 15202 [“A trust is created only if there is trust property”].) We disagree. It was undisputed that on January 15, 2004, Ms. Frank, as transferor, and Ms. Lepper, as settlor and trustee, executed the Home Trust documents. Further, the probate court found Ms. Frank concurrently executed a deed transferring the Burbank property from the 1997 trust to Ms. Lepper as trustee of the Home Trust. Hence, substantial evidence supported the probate court’s conclusion the Home Trust was in existence on July 30, 2004.
It is true that the grant deed states, “For no consideration, Floran Frank, as trustee of The Trust of Floran Frank Dated January 10, 1997 (revised January 15, 2004), hereby grant[s] . . . .” (Italics added.) It is also true that any proposed 2004 revision to the 1997 trust never took effect. Defendants argue that Ms. Frank, as trustee of the 1997 trust “revised January 15, 2004,” could not transfer the Burbank property to Ms. Lepper as trustee of the Home Trust. This was because Ms. Frank was acting as the trustee of a non-existent trust. But the 1997 trust was an existing trust. And defendants cite no legal authority for the proposition that the language “(revised January 15, 2004)” rendered the 1997 trust nonexistent. Nor do defendants cite any authority for the proposition Ms. Frank was prevented from transferring the Burbank property from the 1997 trust to Ms. Lepper as trustee of the Home Trust.
Defendants argue it was legal error to conclude Ms. Frank signed the deed transferring the Burbank property to Ms. Lepper as trustee of the Home Trust. Defendants assert the probate court prejudicially disregarded evidence Ms. Frank never signed the grant deed transferring the Burbank property to the Home Trust. Defendants acknowledge the parties stipulated that, “A deed . . . transferring the [Burbank] property from [Ms. Frank’s] 1997 trust ‘as amended on January 15, 2004’ to [Ms. Lepper] ‘as trustee of the new Home Trust’ . . . was probably signed by [Ms. Frank] on January 15, 200[4], concurrently with the Home Trust.” (Italics added.) Defendants assert, however, there was other evidence, including Ms. Frank’s testimony, tending to show the deed was not signed and the probate court “prejudicially failed to consider” that other evidence. Ms. Frank testified at first that she did not think she had signed the deed placing the Burbank property in the Home Trust. But Ms. Frank subsequently testified she did not know whether she had ever signed the deed. Ms. Frank’s testimony did not directly contradict the stipulation. Moreover, defendants cite no legal authority for the proposition the stipulation was insufficient as a matter of law to support a finding Ms. Frank executed the deed. There was substantial evidence Ms. Frank signed the deed transferring the Burbank property from the 1997 trust to Ms. Lepper as trustee of the Home Trust.
Finally, defendants argue the Home Trust was never funded because, when Ms. Frank delivered the grant deed to Ms. Lepper as trustee of the Home Trust, Ms. Frank did not have a present intent to transfer the property. The Supreme Court has held: “[A] valid delivery [of a deed] is accomplished when the conduct and acts of a grantor manifest a present intent to dispose of the title conveyed by the deed. No particular form of delivery is necessary, but any act or thing which manifests such an intent is sufficient to establish it. . . . [However,] the transfer of possession must be with the intent of presently passing title, and must not be hampered by any reservation of right of revocation or recall.” (Follmer v. Rohrer (1910) 158 Cal. 755, 757-758; accord, Danenberg v. O’Connor (1961) 195 Cal.App.2d 194, 201-202; Azevedo v. Azevedo (1934) 1 Cal.App.2d 504, 506.) Whether there has been a valid delivery with the requisite intent is a question of fact subject to substantial evidence review. (Gonzales v. Gonzales (1968) 267 Cal.App.2d 428, 431, 435-437; Azevedo v. Azevedo, supra, 1 Cal.App.2d at p. 506 .)
We find there is substantial evidence Ms. Frank transferred the Burbank property to Ms. Lepper as trustee of the Home Trust with a present intent to dispose of title. There was evidence Ms. Frank, Mr. Molyneux, and defendants met and discussed the purposes of the Home Trust. There was further evidence that, following that discussion, and with Ms. Frank’s informed consent, she executed the deed in question. Ms. Frank testified that she did not remember the specifics, but whatever Mr. Molyneux had come up with, they all agreed it was okay.
C. Fiduciary Duty
The probate court found in part: “Civil Code [section] 1575 [defining undue influence] is applicable to the instant set of circumstances and that [Ms. Lepper] exerted undue influence on [Ms. Frank] by taking advantage of her fiduciary relationship as Trustee of the Home Trust, her close relationship with [Ms. Frank] as her daughter, and took advantage of [Ms. Frank’s] trust by creating and drafting a deed that did not address or protect [Ms. Frank’s] consistently stated positions . . . .” Defendants argue the probate court’s conclusion Ms. Lepper breached a fiduciary duty “is simply wrong” because the Home Trust never came into effect. Therefore, defendants argue, Ms. Lepper never became trustee of the Home Trust and owed no fiduciary duty to Carol. We disagree for the reasons set forth above.
Civil Code section 1575 provides: “Undue influence consists: [¶] 1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; [¶] 2. In taking an unfair advantage of another's weakness of mind; or, [¶] 3. In taking a grossly oppressive and unfair advantage of another's necessities or distress.”
D. The July 30, 2004 Deed
Evidence Code section 662 states: “The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof.” As the Court of Appeal has explained, “The clear and convincing proof requirement operates in the trial, and not the appellate, court. The substantial evidence rule that applies on appeal, applies without regard to the standard of proof applicable at trial.” (In re Marriage of Ruelas (2007) 154 Cal.App.4th 339, 345; California-Nevada Annual Conference of United Methodist Church v. St. Luke’s United Methodist Church (2004) 121 Cal.App.4th 754, 764, disapproved on another point in In re Episcopal Church Cases (Jan. 5, 2009, S155094) __ Cal.4th ___, ___ [2009 WL 18700, *16].) The Evidence Code section 662 presumption of full beneficial title may be rebutted by substantial evidence a deed was procured by undue influence. (See In re Marriage of Mathews (2005) 133 Cal.App.4th 624, 630-632; In re Marriage of Haines (1995) 33 Cal.App.4th 277, 301-302.) Moreover, there is a presumption of undue influence in the circumstances of this case. This case involves a parent who relies on a child for advice. The parent then gifts property to that child without consideration and in the absence of independent advice. (Estate of Stephens (2002) 28 Cal.4th 665, 677; Sparks v. Mendoza (1948) 83 Cal.App.2d 511, 514.)
Defendants argue: the evidence was insufficient to rebut the Evidence Code section 662 presumption; there was insufficient evidence they exerted undue influence on Ms. Frank; and even if there was sufficient evidence supporting a presumption of undue influence, it was soundly rebutted by evidence Ms. Frank was a competent, independent woman who handled her own affairs. We find substantial evidence supported the probate court’s finding defendants exerted undue influence over Ms. Frank resulting in the July 30, 2004 deed gifting the Burbank property to them. There is evidence Ms. Frank was very close to defendants and was largely estranged from Carol. Ms. Frank trusted defendants to watch out for her interests. As of July 30, 2004, Ms. Frank trusted defendants more than anyone else. Ms. Frank trusted defendants to do the right thing. Ms. Lepper was added as a co-owner of Ms. Frank’s checking account. Ms. Frank authorized her investment advisor, Mr. Stevens, to provide her account information to Mr. Lepper. Mr. Stevens was authorized to discuss Ms. Frank’s investments with Mr. Lepper. This was so Mr. Lepper could assist Ms. Frank with her investments. Ms. Frank named Ms. Lepper as successor trustee of the 1997 trust and as trustee of the Home Trust. Prior to July 30, 2004, when the deed gifting the property to defendants was executed and recorded, Ms. Frank’s trust and estate plan documents provided for an equal distribution of her property as between her two daughters. There was no evidence Ms. Frank intended to give her home to defendants prior to their suggesting that she do so. Prior to July 30, 2004, Ms. Frank had always retained a right of occupancy in her home for life. Prior to July 30, 2004, the Burbank property had been held in trust, first in the 1997 trust, and then in the Home Trust, and had not been gifted to anyone. It was defendants who approached Ms. Frank about changing the existing plan and giving them her real property. They testified they acted on advice from Mr. Quatman. But there was no independent evidence Mr. Quatman had recommended such a plan. Further, rather than Mr. Quatman, Ms. Lepper prepared the deed. Ms. Lepper traveled to California from Montana to have the deed signed and recorded. Neither Ms. Lepper nor Mr. Lepper ever advised Ms. Frank the deed changed her intent to leave her property to both her daughters. They never suggested she consult a lawyer prior to signing the deed. This was substantial evidence of undue influence.
IV. DISPOSITION
The February 22, 2008 order is affirmed. Plaintiffs, Floran Frank, individually and as Trustee of The Trust of Floran Frank Dated January 10, 1997, and Carol Frank, are to recover their costs on appeal from defendants, Mary L. and William F. Lepper.
We concur: ARMSTRONG, J. MOSK, J.