McInturff, J.
This case involves three transfers of money from Florence Koppang to Leon and Delores Hudon. This money came from a credit union, a savings and loan institution, and proceeds from the sale of a mobile home. Mrs. Koppang claims Mrs. Hudon exerted undue [184]*184influence. Mrs. Hudon claims the transfers were gifts. The jury decided the transfer of the money from the savings and loan accounts was a gift and that Mrs. Hudon exerted undue influence in obtaining the other two transfers. We affirm.
Mrs. Hudon is Mrs. Koppang's niece. She knew Florence and Clarence Koppang since she was a young girl and lived with them for 1 year while in high school. Following her marriage to Leon, the Hudons remained on friendly terms with the Koppangs.
Clarence Koppang died on July 21, 1978. Mrs. Koppang became depressed and very confused. Mrs. Hudon would stop by Mrs. Koppang's home several times each week to see how she was doing. She began writing out Mrs. Koppang's checks to pay her bills.
On August 7, 1978, the two women went to an attorney's office and Mrs. Koppang granted a power of attorney to Mrs. Hudon. That same day they went to the Yakima City & County Employees Credit Union (credit union) and the Home Federal Savings and Loan Association (savings and loan) and added Mrs. Hudon's name to Mrs. Koppang's accounts.
On September 7, 1978, they returned to the credit union and transferred the moneys into a new account bearing only Mrs. Hudon's name. There was $71,410.15 in the credit union account. They next went to the savings and loan and withdrew $32,399.48 from the accounts and deposited the money in a new account bearing only Mrs. Hudon's name. A zealous employee prepared a memo, signed by Mrs. Koppang, which stated in part: "This is to certify that I am freely transferring the above-mentioned accounts to Dolores [sic] A. Hudon." The moneys from the credit union and the savings and loan were later withdrawn by the Hudons.
In February 1979, Mrs. Koppang received $19,000 from the sale of her mobile home. The proceeds from this sale were transferred to Mrs. Hudon.
In the fall of 1979, the two women had disagreements [185]*185which caused Mrs. Koppang to revoke the power of attorney she had previously granted to Mrs. Hudon. In January 1980, Mrs. Koppang commenced this action alleging Mrs. Hudon had exerted undue influence and had induced her to transfer the moneys from the credit union and the savings and loan, along with the mobile home proceeds, to Mrs. Hudon. Mrs. Hudon denied that she exerted undue influence and asserted, as an affirmative defense, that the transfers were gifts. The case was tried to a jury which determined the moneys from the savings and loan were a gift but that the credit union moneys and the mobile home proceeds had been obtained through the exercise of undue influence. A $90,410.15 verdict was entered in favor of Mrs. Koppang.
First, Mrs. Hudon contends the trial court did not properly instruct the jury on undue influence. The jury was instructed:
A gift obtained by undue influence is not valid.
Undue influence is something more than mere influence, and to invalidate a gift there must have been undue influence at the time a gift was made.
Undue influence consists of conduct interfering with the free will of the donor (person making the gift), and preventing the exercise of the donor's judgment and choice.
In determining whether there has been undue influence that would invalidate a gift, you may consider the relationship between the donor and donee; the donor's age; the donor's mental and physical health and condition; the amount of the money gifted; the financial condition in which the gift or gifts leave the donor; the donor's knowledge and understanding of the terms of the gift; the presence or absence of independent advice to the donor prior to the gift; the donor's prior intentions and concerns as to the disposition of the donor's property; the opportunity for the donee to exert undue influence; and the naturalness or unnaturalness of the gift.
(Italics ours.) Instruction 9.
The trial court refused to give Mrs. Hudon's instruction which was essentially the same instruction with the follow[186]*186ing change:
Undue influence consists of coercion destroying the free will of the donor (the person making the gift), and preventing the exercise of the donor's judgment and choice.
(Italics ours.)
Mrs. Koppang claims Mrs. Hudon exerted undue influence. The party asserting undue influence has the burden of proving it by clear, cogent and convincing evidence. In re Estate of Soderstran, 35 Wn.2d 448, 452, 213 P.2d 949 (1950). However, if a confidential relationship exists between the parties, the burden shifts to the defendant. McCutcheon v. Brownfield, 2 Wn. App. 348, 356, 467 P.2d 868 (1970). Mrs. Hudon admits a confidential relationship existed. Therefore, to prevail, Mrs. Hudon needed to establish by clear, cogent and convincing evidence the transfers were gifts, McCutcheon, at 357, and that she did not exert undue influence in obtaining them.
The issue presented is whether Mrs. Hudon had the burden to prove the lack of coercion or the lack of interference with the free will of Mrs. Koppang.
In analyzing the cases discussing undue influence, we are mindful of In re Estate of Martinson, 29 Wn.2d 912, 914, 190 P.2d 96 (1948):
Legal definitions of the term "undue influence" cannot be given that will serve as a safe and reliable test for every case. Each case depends to a very large extent upon the facts presented to the court.
In discussing undue influence, the older cases speak of coercion. In re Estate of Soderstran, supra at 462; In re Estate of Martinson, supra at 914; In re Estate of Bottger, 14 Wn.2d 676, 701, 129 P.2d 518 (1942). The later cases do not. Doty v. Anderson, 17 Wn. App. 464, 563 P.2d 1307 (1977); McCutcheon v. Brownfield, supra.
Whether the undue influence instruction must include the word "coercion" must be determined by the facts of each case. In the present case, there was an inter vivos transfer between parties in an admitted confidential [187]*187relationship. In reviewing jury instructions, the test is whether the instructions, as given, enabled a party to argue its theory of the case. Kjellman v. Richards, 82 Wn.2d 766, 514 P.2d 134 (1973); Hammond v. Braden, 16 Wn. App. 773, 559 P.2d 1357 (1977). Under these facts, the trial court's refusal to include the word "coercion" in its undue influence instruction was not error. Mrs. Hudon was able to argue her theory of the case from the instructions given.
Next, Mrs. Hudon contends the trial court erred by not allowing her to present evidence relating to the payment of a gift tax.
Free access — add to your briefcase to read the full text and ask questions with AI
McInturff, J.
This case involves three transfers of money from Florence Koppang to Leon and Delores Hudon. This money came from a credit union, a savings and loan institution, and proceeds from the sale of a mobile home. Mrs. Koppang claims Mrs. Hudon exerted undue [184]*184influence. Mrs. Hudon claims the transfers were gifts. The jury decided the transfer of the money from the savings and loan accounts was a gift and that Mrs. Hudon exerted undue influence in obtaining the other two transfers. We affirm.
Mrs. Hudon is Mrs. Koppang's niece. She knew Florence and Clarence Koppang since she was a young girl and lived with them for 1 year while in high school. Following her marriage to Leon, the Hudons remained on friendly terms with the Koppangs.
Clarence Koppang died on July 21, 1978. Mrs. Koppang became depressed and very confused. Mrs. Hudon would stop by Mrs. Koppang's home several times each week to see how she was doing. She began writing out Mrs. Koppang's checks to pay her bills.
On August 7, 1978, the two women went to an attorney's office and Mrs. Koppang granted a power of attorney to Mrs. Hudon. That same day they went to the Yakima City & County Employees Credit Union (credit union) and the Home Federal Savings and Loan Association (savings and loan) and added Mrs. Hudon's name to Mrs. Koppang's accounts.
On September 7, 1978, they returned to the credit union and transferred the moneys into a new account bearing only Mrs. Hudon's name. There was $71,410.15 in the credit union account. They next went to the savings and loan and withdrew $32,399.48 from the accounts and deposited the money in a new account bearing only Mrs. Hudon's name. A zealous employee prepared a memo, signed by Mrs. Koppang, which stated in part: "This is to certify that I am freely transferring the above-mentioned accounts to Dolores [sic] A. Hudon." The moneys from the credit union and the savings and loan were later withdrawn by the Hudons.
In February 1979, Mrs. Koppang received $19,000 from the sale of her mobile home. The proceeds from this sale were transferred to Mrs. Hudon.
In the fall of 1979, the two women had disagreements [185]*185which caused Mrs. Koppang to revoke the power of attorney she had previously granted to Mrs. Hudon. In January 1980, Mrs. Koppang commenced this action alleging Mrs. Hudon had exerted undue influence and had induced her to transfer the moneys from the credit union and the savings and loan, along with the mobile home proceeds, to Mrs. Hudon. Mrs. Hudon denied that she exerted undue influence and asserted, as an affirmative defense, that the transfers were gifts. The case was tried to a jury which determined the moneys from the savings and loan were a gift but that the credit union moneys and the mobile home proceeds had been obtained through the exercise of undue influence. A $90,410.15 verdict was entered in favor of Mrs. Koppang.
First, Mrs. Hudon contends the trial court did not properly instruct the jury on undue influence. The jury was instructed:
A gift obtained by undue influence is not valid.
Undue influence is something more than mere influence, and to invalidate a gift there must have been undue influence at the time a gift was made.
Undue influence consists of conduct interfering with the free will of the donor (person making the gift), and preventing the exercise of the donor's judgment and choice.
In determining whether there has been undue influence that would invalidate a gift, you may consider the relationship between the donor and donee; the donor's age; the donor's mental and physical health and condition; the amount of the money gifted; the financial condition in which the gift or gifts leave the donor; the donor's knowledge and understanding of the terms of the gift; the presence or absence of independent advice to the donor prior to the gift; the donor's prior intentions and concerns as to the disposition of the donor's property; the opportunity for the donee to exert undue influence; and the naturalness or unnaturalness of the gift.
(Italics ours.) Instruction 9.
The trial court refused to give Mrs. Hudon's instruction which was essentially the same instruction with the follow[186]*186ing change:
Undue influence consists of coercion destroying the free will of the donor (the person making the gift), and preventing the exercise of the donor's judgment and choice.
(Italics ours.)
Mrs. Koppang claims Mrs. Hudon exerted undue influence. The party asserting undue influence has the burden of proving it by clear, cogent and convincing evidence. In re Estate of Soderstran, 35 Wn.2d 448, 452, 213 P.2d 949 (1950). However, if a confidential relationship exists between the parties, the burden shifts to the defendant. McCutcheon v. Brownfield, 2 Wn. App. 348, 356, 467 P.2d 868 (1970). Mrs. Hudon admits a confidential relationship existed. Therefore, to prevail, Mrs. Hudon needed to establish by clear, cogent and convincing evidence the transfers were gifts, McCutcheon, at 357, and that she did not exert undue influence in obtaining them.
The issue presented is whether Mrs. Hudon had the burden to prove the lack of coercion or the lack of interference with the free will of Mrs. Koppang.
In analyzing the cases discussing undue influence, we are mindful of In re Estate of Martinson, 29 Wn.2d 912, 914, 190 P.2d 96 (1948):
Legal definitions of the term "undue influence" cannot be given that will serve as a safe and reliable test for every case. Each case depends to a very large extent upon the facts presented to the court.
In discussing undue influence, the older cases speak of coercion. In re Estate of Soderstran, supra at 462; In re Estate of Martinson, supra at 914; In re Estate of Bottger, 14 Wn.2d 676, 701, 129 P.2d 518 (1942). The later cases do not. Doty v. Anderson, 17 Wn. App. 464, 563 P.2d 1307 (1977); McCutcheon v. Brownfield, supra.
Whether the undue influence instruction must include the word "coercion" must be determined by the facts of each case. In the present case, there was an inter vivos transfer between parties in an admitted confidential [187]*187relationship. In reviewing jury instructions, the test is whether the instructions, as given, enabled a party to argue its theory of the case. Kjellman v. Richards, 82 Wn.2d 766, 514 P.2d 134 (1973); Hammond v. Braden, 16 Wn. App. 773, 559 P.2d 1357 (1977). Under these facts, the trial court's refusal to include the word "coercion" in its undue influence instruction was not error. Mrs. Hudon was able to argue her theory of the case from the instructions given.
Next, Mrs. Hudon contends the trial court erred by not allowing her to present evidence relating to the payment of a gift tax. The trial court refused to admit a gift tax return which reflected a $104,832.99 cash gift made on September 7, 1978, by Mrs. Koppang to the Hudons. The return was signed by Mrs. Hudon under her power of attorney on behalf of Mrs. Koppang. The gift tax amounted to $15,030.55 and was paid by the Hudons.
The trial court excluded all evidence related to the payment of the gift tax. It ruled such evidence was irrelevant because it had no bearing on Mrs. Koppang's intent and that even if it was relevant, it was properly excluded because it was highly prejudicial and confusing to the jury.
The Hudons' contention that the court erred in excluding all evidence of payment by the Hudons of a gift tax is without merit. The determination of whether evidence is relevant is discretionary with the trial court, State v. Turner, 29 Wn. App. 282, 289, 627 P.2d 1324 (1981); State v. Bonner, 21 Wn. App. 783, 793, 587 P.2d 580 (1978). The determination whether to admit or exclude relevant evidence is also discretionary. The trial court's decision will not be reversed absent manifest abuse, i.e., no reasonable person would take the view adopted by the trial court. State v. Woolworth, 30 Wn. App. 901, 906, 639 P.2d 216 (1981).
Here, Mrs. Hudon insists the filing of the gift tax return is probative on the gift issue. However, the gift tax return was not signed by Mrs. Koppang but rather by Mrs. Hudon, exercising her power of attorney. Mrs. Hudon contends Mrs. Koppang participated in the preparation of, [188]*188knew of, failed to object to, ratified and acquiesced in the gift tax by signing a check to an accountant for professional services rendered in preparing the tax returns. She also contends evidence Mrs. Koppang and Mrs. Hudon contacted an attorney regarding a gift was probative. However, the record shows that the attorney contacted was the Hudons' attorney, having prepared reciprocal wills for them; Mrs. Hudon made the arrangements for Mrs. Koppang to talk with the attorney; and Mrs. Hudon paid the attorney's fees for the meeting. In light of these facts, we cannot conclude "no reasonable person would take the view adopted by the trial court." Therefore, the trial court did not abuse its discretion in excluding the testimony and evidence.
In her cross appeal, Mrs. Koppang contends the trial court erred in not directing a verdict in favor of herself concerning the $32,399.49 transfer from the savings and loan. She contends Mrs. Hudon failed to establish by clear, cogent and convincing evidence that this transfer was a gift. A motion for a directed verdict can be granted only where it can be held as a matter of law that there is no evidence or reasonable inference therefrom to sustain a jury verdict for the nonmoving party. Browning v. Ward, 70 Wn.2d 45, 48, 422 P.2d 12 (1966).
Regarding the savings and loan transfer, the jury heard considerable testimony which supports the jury's finding of a gift. In particular, the savings and loan employee who handled the transfer testified that she questioned Mrs. Koppang on at least three occasions as to whether she wanted the transfer made. Despite Mrs. Koppang's repeated assurances that she knew what she was doing, the employee had Mrs. Koppang sign a statement that she was "freely transferring the above-mentioned accounts" to Mrs. Hudon. Thus, we conclude there is sufficient evidence to support the jury's determination that the bank transfer was a gift made without undue influence.
The judgment of the Superior Court is affirmed.
Munson, C.J., concurs.