JACOB KAPRELIAN v. Defendant and Appellant. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Shortly before his death and immediately after a formerly estranged niece re-entered his life, Vartan Barsamian executed will and trust documents that significantly changed his estate plan in the niece's favor.   After Barsamian's death, Jacob Kaprelian, Megan Kaprelian, and Jamie Kaprelian filed a petition to determine the validity of the trust established by their great-uncle and separately petitioned to have his prior holographic will admitted to probate.   After taking evidence, the probate court concluded that Barsamian lacked testamentary capacity at the time he executed the relevant documents, and that the documents were invalid due to undue influence by the formerly estranged niece, Kerri Harstad.   The court further ordered that Barsamian's earlier holographic will be admitted to probate.   Harstad appeals.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Barsamian made a holographic will in 1998.   In 2007, he was suffering from renal failure and other health issues.

A. Early/Mid-September 2007:  Paul Kaprelian's Visit, Barsamian's Condition

1. Care Arrangements and Relationships

Maria Rodriguez was a longtime friend and bookkeeper/secretary for Barsamian who also was training to be a nurse.   When Barsamian was ill, he would call on Rodriguez to help him.   She took him to the hospital, picked up his mail, canceled his newspaper, went to his home, and took care of Barsamian's office business, including paying bills, when he was unable to do so.   When Barsamian had a kidney transplant, she cared for him as he recovered, bathing him, feeding him, helping him into and out of bed, providing medications, cleaning his home, and doing laundry.   She was assisted in caring for Barsamian by Abraham Gonzalez, the shop supervisor at Barsamian's company.   When she was caring for Barsamian, she wrote checks on his behalf and was authorized to do so.   Barsamian had never questioned any check she had written, and she had never paid for her personal bills with Barsamian's office or personal checkbooks.¹

Paul Kaprelian ² had a close relationship with his uncle, Barsamian, over many years, although as Barsamian's health declined his visits to the Kaprelian family in Wisconsin ceased.   Barsamian spoke with the Kaprelians roughly three times per month.   In contrast, Barsamian was estranged from his brother Hairabad Barsamian ³ and from Hairabad's family.

Rodriguez telephoned Paul in early September 2007 and told him that Barsamian was very ill and that he should come to visit him.   Paul spent six days in California with Barsamian, who was in a rehabilitation facility.   During the visit, Paul and Barsamian discussed Barsamian's dialysis treatment, and Barsamian expressed that he no longer wanted heroic measures to prolong his life.   Paul encouraged Barsamian to complete documents stating his wishes with respect to life-saving treatments, but Barsamian refused.   Paul did not believe that Barsamian clearly understood what a health care directive was, for Barsamian kept saying that he would tell the doctors his wishes.

Paul observed occasional confusion on the part of his uncle while he visited.   At times they were able to have good conversations with understandable responses.   On one occasion, Barsamian believed that they were in Canada.   He told Paul that he needed to get him dressed so they could go home to his parents for dinner.   Paul saw him sitting in his wheelchair in a corner trying to open a locked door and saying that it was time to go.

Rodriguez also found that Barsamian was sometimes confused at this time.   At times, he would ask her why he was “in this Russian house” and she would have to explain that he was in a nursing facility.   She thought Barsamian would be “in and out” of confusion.

During this hospitalization, as with previous hospitalizations, Rodriguez paid Barsamian's bills at his request.   She did not charge her personal expenses to his credit cards or pay her personal expenses from his checkbook, although she did write one check to herself for $1,000 at Barsamian's direction.   Barsamian directed her to do so during a visit with him and Paul-he told her to make a check out to herself in that amount for her schooling expenses and to write a check to Paul in the same amount for the expenses of traveling to see him.   Barsamian had given her some monetary gifts in the past.

On September 7, 2007, psychiatrist Helen Duncan evaluated Barsamian because he had been refusing medications.   She noted that he was paranoid regarding the facility, its staff, and about Russia or Russians but that he was able to clearly discuss politics and finances.   She considered Barsamian capable of making an informed decision concerning his health care and finances.   Her view about his finances was informed by the fact that Barsamian had a clear plan:  he told her his nephew was coming to care for him, and then the nephew appeared.   He had a home and was able to tell her that he wanted to go there and that he did not want to stay in the nursing home.   This, to her, showed capacity despite his delusions.   As she put it, “[H]e was paranoid regarding the Russians, but that didn't seem to have an impact on his ability to tell me what his plan was at that time.”

2. Paul Held

Barsamian asked Paul to contact attorney Paul Held. Held had previously met with Barsamian in 2006 to discuss estate planning, although no documents had been drawn up because Barsamian had not decided on specific dispositions and agents to act on his behalf.   During those 2006 discussions, Barsamian wanted to leave the bulk of his estate to specific causes, contemplating only one bequest to a person:  Jacob Kaprelian, Paul's son.

Held met privately with Barsamian three times in September 2007.   At the first meeting, on September 7, Barsamian was clear about his real estate holdings but was uncertain about his liquid assets.   He wanted to leave assets to Jacob Kaprelian, Rodriguez's daughter, and Paul and Mary Kaprelian, but he also vacillated a lot as to recipients.   He seemed to believe that Paul had only one child, Jacob, but that was not accurate.   Barsamian never mentioned Harstad or Hairabad but said he did not wish to make dispositions to his siblings.   Held could see that Barsamian became exhausted after about 45 minutes of discussion and could not continue.

After this first meeting, Held consulted with three other attorneys because he had concerns about Barsamian's competency.   Barsamian did not recall numerous assets.   He jumped around when discussing the disposition of his assets.   He was less alert than he had been on earlier occasions.

On September 9, Held visited Barsamian again.   Barsamian did not recognize him.   Barsamian was unable to proceed with a conversation about estate planning.   He was confused and disoriented.   He told counsel he had few assets and that he already had a will that he did not want to change.   At this point, Held spoke with Paul about possibly visiting with a social worker and establishing a conservatorship.   On this date Paul gave Held a handwritten will that he had found in Barsamian's papers.

Held returned to see Barsamian on September 15.   Barsamian believed Held was a doctor.   Their meeting was very brief.   Barsamian was unable to follow the conversation and was again confused.   He told Held that he had a million dollars in a mutual fund that would be paid on his death in part to Paul. This was not consistent with Held's knowledge of Barsamian's assets;  Held knew that the year before, there was a mutual fund with approximately half that amount.

The decline in Barsamian's alertness between 2006 and 2007 was “huge,” and Held believed that there was a change in Barsamian's mental capacity as well.   During the first visit, there was a period of time when Barsamian was able to “track” a conversation, but he was not certain of his preferred disposition of assets.   On the second and third visits, he was not able to communicate the status of his estate.   Held never prepared any estate planning documents for Barsamian.   He believed that “certainly” Barsamian lacked testamentary capacity on September 9 and 15 and that as of their first session on September 7, Barsamian's condition was such that Held “had concerns” as to his competency.

Held spoke with Paul several times.   He was aware that Paul was anxious to address the issue of a health care directive and a power of attorney, but they never discussed substantive estate planning arrangements.   Held was aware that Paul was trying to secure Barsamian's return home, as Barsamian wished.

3. Plans to Return Home

While Barsamian was in the nursing home, he refused medications and declined dialysis.   He said he wanted to go home, and Paul began making arrangements for him to be released.   Paul could not complete arrangements before he had to return to his home.   Paul planned to return to California as soon as he could and trusted that Rodriguez and Gonzalez would care for Barsamian until Paul could return.   Rodriguez contacted Barsamian's attorney Charles Funaro.

Funaro, with his office manager Robert Erb, visited Barsamian in the convalescent hospital on September 14, 2007.   The primary topic of discussion was that Barsamian wanted to go home, but they had a number of discussions, “[s]ome of them rambling.   Some of them focused.   They all hovered around the issues of extracting him from the convalescent home and returning him to his home.”   Funaro found Barsamian to be confused.   He knew where he was and did not want to be there, and Funaro believed he was oriented as to time and as to people, but he was confused about some of the people around him and what Funaro was there to do.   Barsamian drifted in and out of coherence.   He stated that he believed Funaro was there to take him to England.   Barsamian spoke to Funaro and Erb of his belief that the convalescent hospital was full of Russians, although there did not appear to be any Russians there-the employees appeared to be Mexican or Filipino.   Barsamian was angry at Paul because, he believed, Paul would not help him return home and had left him with the Russians.   Neither Erb nor Funaro could identify anyone at the facility who appeared to be Russian.

Barsamian remained confused when Funaro visited him again at the facility, and he was frequently agitated.   During Funaro's visits, Barsamian raised the issue of his estate plan.   Funaro changed the subject when this topic was raised because he “felt that his state of mind-his physical and his state of mind were not sufficiently stable to-to allow him to make decisions regarding estate planning issues.”

Erb and Funaro began to work toward Barsamian's release from the facility, meeting with the administrator, ordering a hospital bed and other special equipment to be delivered to Barsamian's home, arranging for 24-hour nursing care, and addressing the requirements of the nursing staff that provided Barsamian's dialysis.   One of these requirements was that portable valuables be removed from Barsamian's home.

Funaro and Erb successfully arranged for Barsamian's return to his home, which was at that time clean and in good order.   Funaro described it as “immaculate.”   Before Barsamian came home, Rodriguez cleaned his house, moved furniture to accommodate a hospital bed, shopped for groceries, did Barsamian's laundry, cleaned out the refrigerator, and prepared the home for his return.   Erb and Funaro searched the house, found a few pieces of jewelry and a checkbook, and gave them to Rodriguez for safekeeping.   Funaro advised Barsamian of the requirement to remove valuables from the residence and Barsamian consented to their removal.   Rodriguez placed three watches, two bracelets, some rings, and credit cards in a safety deposit box.   She kept his checkbook, wallet, and American Express card for him because she knew these items would be needed.   At times, Barsamian would forget what happened to these items and ask Rodriguez about them, and she would remind him that most items were in his safety deposit box and the checkbook and wallet at her home.   Funaro also reported that twice Barsamian inquired about his personal property and they reminded him that Rodriguez had it.

Barsamian returned home on September 19, 2007.

B. Late September:  Kerri Harstad Assumes Care and Control

After Paul returned to Wisconsin, he informed his uncle Hairabad of Barsamian's illness.   On the evening of September 20, 2007, Hairabad asked Harstad to go see and check on Barsamian.   Harstad had not seen Barsamian since the 1990's.

1. September 21

On September 21, Harstad visited Barsamian, who had recently returned home.   Barsamian greeted her with a “very emotional, tearful greeting and embrace.”   Barsamian asked Harstad, “Help me, Kerri.   Help me.   Please help me, Kerri.”

Harstad observed on this visit that Barsamian's home was not clean and was in disarray.   Barsamian confided in Harstad that “certain people had taken his property and done things against his wishes, [and] were not following his orders.   And he was angry and very, very upset at what people had done to him.”   Barsamian said that Paul had come to the convalescent hospital with power of attorney documents and ordered him to sign them, but he had refused.   According to Barsamian, he had been upset and ordered Paul to leave.   Barsamian made sense to Harstad at the time.

While Harstad was visiting, Rodriguez arrived and made a poor impression on Harstad, who characterized Rodriguez's behavior upon arrival as “loud and rude.”   Rodriguez had called out to Barsamian that she loved him as she entered the house, and when she found him, she knelt, rubbed Barsamian's head, and kissed his head and forehead.   Barsamian was “shocked.”   When she introduced herself to Rodriguez, Rodriguez “abruptly stormed” out of the living room, retrieved and sorted the mail, and left the house.   Harstad could tell that Rodriguez had been driving Barsamian's Mercedes, and she had learned from the caregiver that Barsamian had been angry at Rodriguez for driving his car.   Barsamian then told Harstad that Rodriguez had driven his car and that she had his jewelry, and that he wanted them back.

Rodriguez described Harstad as mean and very aggressive at their first meeting.   Harstad pushed Rodriguez into the kitchen and wanted to know who she was.   Rodriguez felt very unwelcome and uncomfortable.   She cut short her visit after about 15 minutes.

According to Harstad, Barsamian asked her to call attorney Charles Funaro, stating that he wanted to speak with Funaro because Funaro was the one who had permitted Rodriguez to become involved with Barsamian and that both of them had done things that were against his wishes;  he wanted to discuss the things that were upsetting him.   Barsamian claimed that Paul, Rodriguez, and Funaro had taken his documents and his possessions.

Funaro first spoke with Harstad on September 21.   According to Harstad, when she spoke with Funaro, she articulated her concerns as well as Barsamian's, and Funaro said that her concerns were valid.   He refused, however, to meet with Barsamian.   Funaro “was not responding like somebody that was concerned about what he had just heard.”   Funaro told Harstad that Barsamian was delusional, that “everything was in place,” and that he would not meet with Barsamian because “everything will be handled through probate.”   Eventually, Harstad said, Funaro agreed to meet with them the following day after Barsamian's dialysis treatment.

2. September 22

Funaro visited Barsamian during dialysis on September 22 to discuss an advanced medical directive, caregiver preferences, and to set up a larger meeting about Barsamian's care for September 24.   Funaro went to dialysis to meet with Barsamian in order to speak with him at a time when he would have the most mental acuity.   Barsamian told him that he wanted Rodriguez to care for him because she had been his assistant for a decade or more and she had helped him whenever he was hospitalized.  “[H]is attitude was always, as a businessman, if it works, don't fix it.   He was interested in keeping a successful model operating, so I think his choice was Maria [Rodriguez].”   Barsamian, however, did contemplate Harstad and Rodriguez sharing responsibility for him in some way.

According to Harstad, on September 22 Funaro called Harstad shortly before the planned meeting time and informed her that he had met with Barsamian during his dialysis.   Harstad claimed that Funaro said that even though Barsamian told him his wishes, he was not going to change anything and was going to leave Rodriguez in charge of “everything.”   Funaro did agree to meet with her the following Monday, September 24.

Harstad testified that Barsamian was upset by his meeting with Funaro.   He told Harstad that he had instructed Funaro that he wanted Harstad to take care of him but Funaro would not replace Rodriguez with Harstad.   To Harstad Barsamian did not appear confused during this discussion, and his account of the conversation was consistent with her understanding from speaking with Funaro.   Barsamian directed Harstad to collect specific documents, deeds, and other items from different locations in the house;  she found that the items were missing.

Also on September 22, Rodriguez returned to Barsamian's house to find Harstad and her son there.   Harstad left, and Rodriguez, who “didn't have a good feeling about them at all,” went upstairs to Barsamian's office to check whether anything was missing.   The documentation for bills she had recently paid for Barsamian and documents from Barsamian's accountants were missing.

3. September 24

a. Funaro's Account

Funaro called a meeting for September 24 “to get everybody in the same room around the same table who were interested in Vartan Barsamian and collectively work on whatever issues he had.”   Barsamian said to everyone that he wanted Harstad to assume his care.   This was such a departure from previous instructions that Funaro felt it important to speak with Barsamian privately.   During that conversation, Barsamian was not able to inform Funaro clearly who he wanted to manage his personal and financial affairs, instead giving inconsistent answers.   He indicated that he wanted Rodriguez to continue managing his personal and financial affairs, and did not say that he wanted Harstad to take over from Rodriguez, but he was also confused.   For a few minutes he responded to questions clearly, but then he began to drift and lose focus, and he could no longer carry on a coherent conversation.  “He would cycle through relatively quickly with maybe ten minutes at a time of lucid behavior and then lose focus and then would return.   So we just never knew when those ten minutes would be or how long that would last.”   He mentioned his real estate holdings and assets, but it was clear to Funaro that Barsamian was misinformed about how much Funaro knew about his assets.   Funaro said, “His thinking was not clear.”   Barsamian “drifted into other even less focused discussions that told me he was not in a mentally acute state to be making important decisions.”

Funaro and Erb returned to the house and met with Harstad, Rodriguez, Gonzalez, and the caregiver who was there that day.   Funaro told everyone that he believed that Barsamian was not “sufficiently composed in his mind” to make any significant issues about caregiving that day.   Funaro suggested that they meet again after a dialysis treatment when Barsamian might be better equipped to make decisions.

During the course of this meeting, Funaro became concerned that not only was Barsamian confused, but that he was also being led and directed by Harstad.   For years Funaro had known Barsamian to be a curmudgeon, but he was now passive and not spontaneous in his reactions, and he appeared to be “performing in compliance with Ms. Harstad's direction.”   In the discussion about caregiving and management of Barsamian's affairs, Barsamian drifted between leaving Rodriguez in that role and having Harstad assume some or all of the responsibilities.  “And it was not clear that he had a real grasp of even what he was saying.”   Then, at one point, Harstad turned to Barsamian and said, “Uncle Vartan, you want me to take care of everything, don't you?” and Barsamian repeated “robotically” that he wanted her to take care of everything.

Harstad's behavior also alarmed Funaro.   He perceived her as engaging in “very controlling behavior.”   She was “basically gluing herself to Mr. Barsamian and doing everything for him, pushing everybody else away in the process so that there was less opportunity for him to interact with anybody.”   Harstad was isolating Barsamian from everyone else.   Her solicitousness was saccharin and excessive.

Barsamian had never before told Funaro that he wanted Harstad to assume exclusive control of his affairs.   He might have mentioned on September 22 that this was something to consider, but it had not been finalized or resolved that she would take over from Rodriguez as opposed to providing some care while Rodriguez provided other care.   Even at this meeting Barsamian did not say that he wanted nothing to do with Rodriguez.

Harstad asked Funaro to prepare documents to establish her as Barsamian's conservator.   Barsamian did not make this request.   Funaro declined and told Harstad he did not believe that Barsamian was capable of making caregiver decisions.   Harstad said that if he would not comply with her request then she would find someone who would.

Barsamian had not said that he did not want Funaro to continue as his attorney, and he did not kick them out of his home.   He did not accuse them of taking his personal property.   Nonetheless, based on the tenor of the meeting, Funaro concluded that day that he could no longer serve as Barsamian's attorney.

As a result of his meetings with Barsamian during September 2007, Funaro believed that Barsamian lacked testamentary capacity at that time.   Barsamian was less alert than he had been previously.   He had periods of lucidity that were matched by periods when he was not lucid.   Funaro could not predict how long the lucid moments would last.   Moreover, he did not retain information, asking the same questions from day to day.   Funaro believed that Barsamian was being unduly influenced by Harstad.   He held this opinion not only because of Barsamian's behavior and “automaton-like” responses he made during conversations with Harstad, but also because Barsamian had very deliberately disinherited Harstad's side of the family and felt that the “entire side of the family could rot in Hell as far as he was concerned.”   For Harstad's statements that she would have provided care had she known he was ill to have “radically alter[ed] Barsamian's attitude concerning the family, tells me that there's something else going on than just, it's nice to see you, dear.   Thanks for coming.   He was, in my opinion, thoroughly under her control.”

b. Harstad's Account

Funaro insisted on speaking to Barsamian without Harstad being present, but she stood where she could hear their conversation.   Funaro said that Harstad wanted to take over care of him but that nothing would change and Rodriguez would remain in charge.   Barsamian said that he wanted Harstad to care for him and Funaro refused.   According to Harstad, Erb said to Funaro that they had a problem because Barsamian wanted a change.   Funaro replied, “Don't worry.   Any judge will accept a handwritten will.”

When they all were in the same room again, Funaro said, “Well, Vart, that was a good meeting,” that everything was straightened out, and that he would see Barsamian the following day.   Harstad spoke up and said that there had been no meeting, to which Funaro responded that he had nothing to say to her.   Barsamian reiterated that he wanted Harstad to be in charge.   Funaro told Barsamian that he was delusional, that he did not know what he was saying, that he was not lucid, that he was not in his right mind, and that the meeting was over.   Harstad demanded to have a meeting and to know who the people were at the meeting and why they were there.   She complained that no one was listening to her uncle's wishes.   Funaro told her that Barsamian was delusional and was under the impression while in the convalescent home that Harstad was going to accompany him to England and then to Russia.   Funaro said that Barsamian had not known his own name, the date, or where he was, so he was not going to accede to Barsamian's wishes.

Harstad had not seen behavior from Barsamian consistent with Funaro's claims.   He did claim that the convalescent hospital was like a Russian concentration camp.   At Harstad's prompting, Barsamian listed his location, his birth date, his home address, and the identities of those in the room.   He repeated his desire to have Harstad care for him.   Funaro reiterated his view that Barsamian was incompetent.   Rodriguez shouted at Harstad, “where the hell have you been for 25 goddamn years when I've been taking care of him[?]”  Barsamian told her not to speak to Harstad that way and ordered Rodriguez, Gonzalez, and Funaro out.   Funaro “smirked and kind of shook his head as if he thought something was a joke.”   Rodriguez, Gonzalez, Funaro, and Erb left.

c. Erb's Account

Robert Erb testified that the meeting at Barsamian's house began with a private conversation between Funaro, Erb, and Barsamian to discuss the need to undergo dialysis or die.   Barsamian did not want to talk about dialysis, preferring to discuss his properties and other subjects.   Barsamian was not able to tell the men clearly what he wanted.   He was unable to follow the flow of the conversation and would not answer questions that were put to him.   He said he wanted the dogs and cats to stop coming in and out of his house, but there were no dogs or cats around.   Barsamian was not angry;  he never indicated that he did not want Funaro to continue to represent him, and there was no argument between the men.   Erb and Funaro did not discuss the probate of Barsamian's assets.   Barsamian did not accuse Funaro or Rodriguez of being a thief.   He did not state any desire to have Rodriguez, Gonzalez, Erb or Funaro stop helping him with his personal and financial matters.

After that discussion, Erb testified, they all went inside and met with Rodriguez, Gonzalez, and Harstad.   This meeting was heated, because Harstad “wanted to take care of Mr. Barsamian and all of his needs and to take care of everything and she didn't need us to do anything.   So this was a surprise for us.”   Erb characterized Harstad as being hostile, angry, and aggressive.   Erb described Harstad as posing questions to Barsamian:  “[S]he would state to him, you want me to take care of your health and you want me to take care of everything for you.   And he would reply, yes, I want you to take care of everything for me.”   Barsamian's responses seemed automatic, as if he was simply repeating what he was being told.   This was contrary to Barsamian's instructions in the past, when he had wanted Rodriguez to assist him with the help of Gonzalez, Funaro, and Erb.

Barsamian appeared to be confused during the meeting and did not appear to understand what was happening, although he appeared to understand the meeting inside better than the conversation he had with Funaro and Erb outside.   He spoke to Funaro about going to England, although there were no plans for Barsamian to travel.   Barsamian did not request that Funaro prepare any documents.   The subject of Rodriguez having Barsamian's personal property was discussed;  Barsamian did not accuse Funaro of stealing his property.   Barsamian did not tell Funaro he was fired.   The situation, Erb reported, was sad and uncomfortable.   Erb felt that Barsamian was not being left in good care with Harstad, for it had taken many people to coordinate care for Barsamian and he could not envision how one person could assume all care.   He believed that Harstad planned to exclude Rodriguez, Gonzalez, Funaro and himself from caring for Barsamian.

d. Rodriguez's Account

When Rodriguez arrived at Barsamian's house for the meeting, Barsamian was meeting with Erb and Funaro.   She observed Barsamian when he re-entered the house, and he looked weak, tired, and confused.   When everyone assembled, “Charles Funaro and Mr. Barsamian wanted everyone to know that Mr. Barsamian had agreed for me to continue to take care of Mr. Barsamian there at his home, to continue paying his bills, continue whatever it was that I was doing before Kerri came into the picture.”   Funaro asked Barsamian to confirm this to everyone, and Barsamian did.

Harstad got “very angry.   She said, no, that is not true, right, Uncle Vart? That is not true.   You want me to take care of you.   That's what she yelled out.”   Barsamian then agreed with Harstad that he wanted her to care for him.   Funaro pointed out to Barsamian that just a few minutes earlier he had said that he wanted Rodriguez to continue taking care of him.   It did not appear to Rodriguez that Barsamian was able to respond clearly to the questions that were being asked of him.   He was confused.

Rodriguez, upset, said to Harstad, “Where were you for the past 25 years?”   This prompted Barsamian to tell Rodriguez to shut up, and Rodriguez did.   An angry Harstad told Funaro that she was going to “find herself another attorney and that he was fired.”   Barsamian did not fire Funaro or eject Rodriguez from the house.

4. End of September:  New Estate Plans

Rodriguez paid one more visit to Barsamian's house after Harstad's appearance.   She had come to pay the caregivers with checks she had written on Barsamian's accounts.   Rodriguez was not given the opportunity to speak with Barsamian that day.   As Rodriguez explained, “They wanted me out of the picture completely.   I felt it and I knew it right from the beginning.   They did everything just to completely get me out of the way.”   Rodriguez did not attempt to visit Barsamian again because she knew she was not welcome.

According to Harstad, after the September 24 meeting Barsamian asked Harstad to find an attorney for him so that he could make changes and take care of “what had just happened.”   That same day, Harstad's husband and son contacted attorney Robert Dyess, who then contacted Barsamian and set up a meeting.   Dyess had to speak slowly and deliberately to Barsamian but found that Barsamian made sense when he spoke.   According to Dyess, Barsamian said that he was unhappy with his prior attorney because that attorney was not listening to him and refused to make his desired changes in his estate plan.   Barsamian also believed that possessions had been taken from his home, and he wanted them back.   Finally, he “expressed a concern that ․ other people were out to get him or out to take control of his assets.   And that he wanted to make sure that he was in control of what he had and wanted to put an estate plan in place that would ․ make sure that things were properly set forth the way he wanted.”   Dyess asked Harstad to gather information and records for his use concerning Barsamian's assets.

On September 25, 2007, according to Harstad, Barsamian told her that he wanted to contact the police to report that Paul, Rodriguez, and Funaro had stolen his things.   Harstad contacted the police.   They met with Barsamian and then spoke with Harstad, who confirmed that Barsamian had terminated the services of Funaro and had ordered Rodriguez out of the house.   She told the police that Barsamian's belongings had been requested at the meeting but that he had not received his personal items back, and that she had been looking for the items Barsamian had stated were missing but was unable to find them.   Funaro then arrived at the house;  some time later, so did Rodriguez.   Rodriguez left the house twice and returned with items belonging to Barsamian.

Rodriguez explained that a police officer arrived at her home and demanded that she return Barsamian's valuables.   At his instruction, she went to the bank, emptied the safety deposit box, and took those items directly to Barsamian's house.   She handed Harstad's son three watches, the bracelets, and the rings.   Harstad accused Rodriguez of stealing from Barsamian and demanded his checkbook.   Rodriguez, hesitant because she did not know Harstad, said she did not have it, but when the police officer advised her to turn it over she went home to retrieve it and Barsamian's wallet and turned them over.   Harstad then demanded that she produce keys to a Lexus, but Barsamian did not own a Lexus and the keys to the car he did own were at his home.

During the return of Barsamian's possessions, Funaro and Harstad had a heated conversation in which she accused him of improprieties as an attorney and he accused her of unduly influencing Barsamian.

Harstad said that Barsamian did not believe that all his possessions had been returned and wanted to press charges.   No one was arrested and charges were not filed.

On September 25, 2007, Harstad advised Barsamian's dialysis providers that she would be obtaining a power of attorney for Barsamian.   A clinical social worker noted of Barsamian that day that he appeared confused, and that while he confirmed that Harstad was his niece he could not remember her name.

The following day, September 26, 2007, Dyess came to Barsamian's house.   This was the first time Dyess had ever met Barsamian.   Dyess had prepared an engagement letter, a letter terminating Funaro's services, and a durable power of attorney giving powers to Harstad, all of which he had faxed over in advance.   Because Barsamian had been “a little indecisive” on the phone about his bequests, he also brought over three sets of estate planning documents:  one leaving Barsamian's estate to Harstad;  one leaving it to specific educational recipients;  and one with blanks.   That way, he said, he was prepared for whatever Barsamian's plans turned out to be.

Dyess asked Barsamian who he wanted to take care of his assets and of him while he was alive, and Barsamian said he wanted Harstad in that role.   Dyess asked for a backup person, and Barsamian did not have anyone else.   Barsamian also said he wanted Harstad to be his health care agent and to have a power of attorney.   Dyess proposed setting up a trust, and Barsamian wanted Harstad to be the trustee.   When Dyess asked to whom Barsamian wanted his assets to go when he died, he named Harstad.   Dyess pointed out that this was somewhat inconsistent with his statements regarding charities, and Barsamian said that Harstad would know what to do.   Dyess said that was not sufficient for legal effect:  if he wanted to give assets to charities they needed to put that in writing, or else she would get everything.   Barsamian said, “No, I want her to have it.”   Dyess had no doubt that Barsamian understood what Dyess was saying and what was going on.   Barsamian was able to describe his assets, state who his relatives were, and describe where he wanted his assets to go after his death.

Dyess explained to Barsamian general information about the documents he had brought:  a trust agreement, will, health care directive, durable power of attorney, general grant and assignment, certification of trust, deeds and a preliminary change of ownership form for each deed, and an assignment of a promissory note.   After the explanations, Dyess summoned a notary and Barsamian executed the documents.   The notary believed Barsamian to be competent.

Although Harstad was vague as to the exact timing and content of these requests, Dyess asked Harstad “to get information and handle different things.”   She described her conversations with Dyess as concerning “The managing of the caregivers.   The information requested.   Gathering any files.   Putting paperwork together.   Care of my uncle.   After everything was signed and I was into place more, then there were more things for me to do.   So if at any given time I needed to consult with Mr. Dyess in reference to something that needed to be handled or something that came up, then we'd have a conversation about that.”

Harstad was present in the house during Dyess's visit.   Harstad claimed that she did not know until after the papers were signed that she was a beneficiary of Barsamian's new estate plan, although she also admitted that at the time she signed, she knew she was signing legal papers that made her the trustee of her uncle's trust.   By September 28, 2007, however, she had learned that she was named as the sole residuary beneficiary of Barsamian's estate.

5. Remainder of Barsamian's Life

Harstad came to Barsamian's house every day until he passed away in November 2007, and moved into the house in mid-October.   Harstad's parents and one sister also came to Pasadena to see Barsamian.

Barsamian modified his trust multiple times.   Harstad understood that the first change pertained to Barsamian's church but was not aware of the nature of the second change to the documents.   The first amendment, dated October 19, 2007, grew out of what Dyess described as Barsamian's “clarification as to what he wanted to do about” charitable bequests.   The second amendment, dated November 9, 2007, deleted one charitable beneficiary, specified a minimum dollar amount the trustee would allocate to each remaining charitable beneficiary, and specifically disinherited Barsamian's sister's side of the family.   Barsamian had not previously mentioned anything about disinheriting this side of the family.   Dyess believed that Barsamian was competent to make these decisions.

Rodriguez never saw Barsamian again after the meeting with the lawyers at his house.   When Rodriguez telephoned, she was not permitted to speak with Barsamian.   A week or two after the meeting at Barsamian's home, Rodriguez, who had lived in an apartment building Barsamian owned for many years, was served with an eviction notice despite being current on her rent.

Gonzalez had a final visit with Barsamian at his house in Harstad's presence.   Barsamian immediately asked for Rodriguez, but Harstad, standing behind Barsamian, signaled not to discuss her with Barsamian.   Gonzalez stayed only a few minutes because there was no way to talk with Barsamian with Harstad continually interrupting the conversation.   She also told Gonzalez that he would not be permitted to visit again unless he (1) brought documentation related to his purchase of a business from Barsamian;  and (2) stopped speaking with Rodriguez.

The final time Gonzalez spoke to Barsamian was at a court hearing.   Barsamian affirmed that the company Gonzalez had bought from Barsamian the previous year in fact belonged to Gonzalez, and then he briefly spoke to Gonzalez privately.   Barsamian said, “Stay away from me.   Stay away from them.   They're going to attack you again.”   He continued, “We end our friendship right now,” and “They're going to hurt you.   They're going to go after you.   You better go.   Run. Don't look for me no more.”   Gonzalez understood Barsamian to be referring to Harstad and himself:  “Because it looked like Kerri was representing, you know, Mr. Barsamian.”

Another niece of Barsamian, Nicolette Hauenstein, filed a petition for a temporary conservatorship over Barsamian's person and estate in October 2007 as well as a petition for a general conservatorship.   Barsamian had a court-appointed attorney, Rebecca Thyne.   Thyne spoke with Barsamian on October 19, 2007, and she was surprised at his ability to converse.   He was able to articulate that he was at court for a hearing on his lucidity and his ability to care for himself.   After speaking with Barsamian and reviewing documents, Thyne reported to the court her belief that there was no need to appoint a temporary conservator.   The court denied the petition for a temporary conservatorship on October 19, 2007.   The hearing on the general conservatorship was set for November 16, 2007.

Prior to the next court hearing, Barsamian visited Richard Wear, M.D. on October 29, 2007.   Wear was meeting Barsamian for the first time.   He felt that Barsamian's judgment, mood, and affect were appropriate;  he was oriented;  and his memory was normal.   Wear saw Barsamian again on November 12, 2007, on the subject of mental competency.   Wear spoke with Barsamian, reviewed his history, discussed Barsamian's symptoms, performed a psychiatric evaluation, and then conducted a mini-mental exam to assess Barsamian's cognitive functioning.   Wear concluded that Barsamian had sufficient cognitive ability to understand decisions and the consequences of those decisions.   That would include making estate decisions.

Elizabeth Torres Jaquez, a probate court investigator, was appointed to investigate the matter in conjunction with the conservatorship petition.   She spoke with Harstad to make an appointment with Barsamian and found Harstad to be aggressive, questioning why she would come to see Barsamian.   On October 29, 2007, Jaquez interviewed Barsamian.   Barsamian was unable to tell her the complete date.   He was confused about the details of his recent hospitalization.   He said that Paul had taken his jewelry, but also said he had not seen or spoken to Paul in 20 years.   Barsamian also said that he was evicting Rodriguez because he was raising the rent and she could not afford it and because he did not want her as a tenant or a friend.   He said that he had been loaded with medication and that Rodriguez had allowed him to lie on the floor.   Barsamian did not understand who the proposed conservators were.

Jaquez also spoke with Harstad, her parents, and the caregivers;  with Paul;  and with Rodriguez.   Hairabad alleged that Barsamian had been brought home by a previous attorney and that he was neglected.   Hairabad also alleged financial abuse by Rodriguez.   Hairabad's wife, Margaret Barsamian, contended that Barsamian had been overly medicated.   Jaquez spoke to Paul about his contacts with Barsamian and learned about the recent visit, and she also discovered that Rodriguez, the proposed conservator, had placed Barsamian's valuables in a safety deposit box.   Rodriguez described her long relationship with Barsamian and how she had assisted him while he was ill, managing his bills and providing care, until Harstad came along.   Rodriguez described Harstad throwing her out of the home and telling her not to attend Barsamian's eventual funeral.   She reported that Harstad would no longer permit her to see Barsamian and that she was concerned for his well-being.   Jaquez found Harstad's behavior unusual and suggestive that something suspicious, namely financial or mental abuse, was occurring.

Jaquez was not concerned about the physical care that Barsamian was receiving-he was clean and appropriately dressed-but she was concerned about undue influence upon him.   Harstad had suddenly supplanted a longtime caregiver and friend, showing that Barsamian was being isolated.   Harstad behaved aggressively and possibly was controlling access to Barsamian.   Harstad had estimated a cost for full-time care that was three to five times more expensive than Jaquez knew that care to cost.   Jaquez recommended that Barsamian would benefit from a conservatorship of his person and his estate because she believed that he may have been under undue influence, and so she recommended that a court-appointed attorney further investigate the appropriateness of a conservatorship.

Barsamian's court-appointed counsel Thyne met again with him on November 5, 2007.   While Barsamian exhibited some signs of minor memory loss, he was alert, oriented, and rational.   He had acted to ensure that he was properly cared for without the necessity of a conservatorship, and he was pleased with the care he was receiving.   Thyne concluded that no conservatorship was necessary, although she noted that she had some concern that Harstad was possibly exerting undue influence.   However, as there were no specific allegations of misuse of funds, Barsamian was confident in Harstad, and Wear had opined that Barsamian did not suffer from dementia and was capable of giving informed consent to medical treatment, she concluded that Barsamian was able to resist any undue pressure.   The probate court concluded that Barsamian seemed to be “of sound enough mind” to make his own decisions and denied the petition for conservatorship.   At the conservatorship hearing none of the parties focused on testamentary capacity;  the main issues before the court were whether Barsamian was cared for and whether he had enough capacity to make medical decisions.

Barsamian died November 24, 2007.   When Barsamian died, Harstad did not notify the Kaprelian family of the timing or date of the funeral.   Harstad claimed she believed that the funeral home had given the information to that side of the family.   Gonzalez was too afraid of Harstad to go to Barsamian's funeral, but his children chose to attend.   Harstad told them that they were not welcome and that she would call the police to have them escorted out.   She claimed that they might open the coffin and steal Barsamian's jewelry and said that she would “knock” one of Gonzalez's daughters down if she did not leave.   Someone took pictures of her car's license plate and a man approached Gonzalez's son in a threatening manner.   Ultimately, they ended up waiting until the family had gone before paying their respects.   Harstad's husband denied that they were told they could not attend the funeral, although he admitted that he said he was going to call security.

6. Subsequent Legal Proceedings

In May 2008, Paul's children filed a petition to determine the validity of the trust Barsamian established at the end of his life and a petition to probate Barsamian's 1988 holographic will.   They alleged that Barsamian had lacked testamentary capacity to create the trust and alter his estate plans, and that Harstad had exercised undue influence over Barsamian.

In the resultant legal proceedings, Michael Blumenkrantz, M.D. reviewed Barsamian's medical records and testified as an expert witness.   He opined that during the last three months of his life, Barsamian suffered from a cognitive impairment.   This impairment, as well as an inability to communicate, was documented extensively in mid-September 2007 when Barsamian was discharged from the convalescent hospital.   His condition worsened over the next months when Barsamian declined dialysis.   Blumenkrantz testified to numerous medical problems that may have contributed to Barsamian's cognitive impairment.

Blumenkrantz testified that Barsamian missed multiple dialysis appointments during the last three months of his life.   He opined that the impact of missing dialysis was to reduce Barsamian's cognitive ability “down to zip, to zero.”   While he could make basic decisions about whether he was hungry or wanted a dialysis treatment, “he couldn't really think about things.   I mean, he could give you-he was awake so he could give you some responses, but he certainly couldn't make complicated cognitive decisions.”   As a result of the missed dialysis, Barsamian would have been confused, would have suffered from memory loss, would have been weak, and would have experienced increased susceptibility to influence from others.   Blumenkrantz believed that had Barsamian had daily dialysis for a two-week period during the time from September to his death, perhaps he would have regained enough mental clarity to be able to make a complicated decision, but he lacked that ability in the condition he was in.

Barsamian's documented refusal of numerous medications also, in Blumenkrantz's view, impacted his cognitive abilities.   Failure to take his thyroid medication would slow his thinking processes.   Barsamian's medical records showed that he was not absorbing an effective amount of thyroid medication, so he was either failing to take it or taking it in an ineffective manner.

Blumenkrantz found support for his assessment of Barsamian in cognitive evaluations performed by the staff of the convalescent hospital on September 14, 2007.   These assessments showed that Barsamian experienced short-term and long-term memory loss;  impaired cognitive skills for daily decision-making;  impaired ability to understand others;  delirium;  cognitive decline;  communication defects;  and a decline in mood.   The convalescent staff noted that Barsamian's status was deteriorating while he was in the facility.   He was withdrawing from activities of interest, resisting care, engaging in socially inappropriate and disruptive behavior, making negative statements, reducing his social interaction, and exhibiting signs of sadness and worry.   Barsamian exhibited symptoms of dementia.

Blumenkrantz believed that Barsamian's dementia persisted until his death and worsened after the assessments were made.   Blumenkrantz had no doubt that in September, October, and November 2007 Barsamian's cognitive abilities were severely impaired, he could not fully comprehend anything but basic matters and he lacked the ability to fully understand legal documents.

The probate court concluded that Harstad exercised undue influence over Barsamian with respect to the estate plans and that he lacked testamentary capacity from September 2007 through the date of his death.   The court held his 2007 trust documents, will, and power of attorney invalid and ordered that Barsamian's earlier holographic will be admitted to probate.   Harstad appeals.

DISCUSSION

I. Testamentary Capacity

Harstad contends that the record does not support the finding that Barsamian lacked testamentary capacity on September 26, 2007,⁴ when he executed will and trust documents.   A person is not mentally competent to make a will at the time of the making of the will if he or she does not have the mental capacity to understand the testamentary act;  to understand the nature and situation of his or her property;  or remember and understand his or her relations to living descendants, spouse, and parents, and those whose interests are affected by the will.  (Prob.Code, § 6100.5, subd. (a)(1).)   A testator also lacks mental capacity to make a will if he or she has a “mental disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual's devising property in a way which, except for the existence of the delusions or hallucinations, the individual would not have done.”   (Prob.Code, § 6100.5, subd. (a)(2).)

Harstad argues that there is no basis in the record for concluding that Barsamian lacked capacity at the time of execution of the documents because there was no diagnosis of senility, dementia, or a similar disorder, and because she presented evidence that he improved in her care.   Harstad may dismiss the extensive evidence of Barsamian's incapacity as consisting solely of “alleged confusion, purported delusions, and general intermittent disorientation,” but as we have set forth in great detail above, there was abundant evidence from which the probate court could reasonably have concluded that Barsamian lacked testamentary capacity at the times relevant to this matter:  the expert testimony of Blumenkrantz ⁵ as well as the testimony of Funaro, Erb, Rodriguez, and Held. Nursing home assessments from September 2007 showed that Barsamian experienced delirium, cognitive loss, and dementia;  short-term and long-term memory loss;  impaired cognitive skills for daily decision-making;  and an impaired ability to understand others.   In September 2007 attorneys Funaro and Held separately refused to draw up legal documents for Barsamian because they believed he lacked competence to make testamentary dispositions due to his mental confusion and decline.   Held, in particular, noted that Barsamian was confused about his assets and about the members of his family.   In two of their three conversations in September 2007, Barsamian was not able to communicate to Held the status of his estate and made representations about his assets that were inconsistent with what Held knew of the assets.   Blumenkrantz testified to his opinion that in September, October, and November 2007 Barsamian's cognitive abilities were severely impaired, he could not fully comprehend anything but basic matters, and he lacked the ability to fully understand legal documents.   This evidence amply supports the probate court's conclusions.

Harstad's arguments against the sufficiency of the evidence are largely invitations to reweigh the evidence in her favor:  she repeatedly focuses on the evidence that supports her argument;  characterizes the contrary evidence as “suspect” There were clearly many conflicts in the evidence presented over the many days of this hearing-including the differing assessments by various attorneys, medical professionals, family members, and friends-but the court has already resolved the evidentiary conflicts and we view the record in the light most favorable to the judgment.  (Estate of Gelonese (1974) 36 Cal.App.3d 854, 861.)   The fact that other evidence was presented, which, if believed by the probate court, could have supported a different conclusion does not establish that there was no evidence to support the rulings of the court.

II. Undue Influence

Our conclusion that this basis for the probate court's ruling is supported by the evidence makes it unnecessary for us to address Harstad's contention that no substantial evidence supported the other ground on which the probate court relied, testamentary incapacity, but we do so nonetheless for clarity.   With respect to undue influence, the probate court concluded, “Ms. Harstad arranged for and participated in the preparation of the new estate planning documents.   She unduly benefited from the new documents by being named the sole residuary beneficiary.   Ms. Harstad directly influenced the testamentary act by isolating Mr. Barsamian, cultivating distrust and untruths that she knew would allow her to over[ ]power her uncle's independent judgment and have it supplanted by her own.”   Harstad contends that the record does not support the probate court's conclusion that she unduly influenced Barsamian's testamentary decisions.   We review the court's conclusion for the sufficiency of the evidence and find that the evidence supported the probate court's determination.

Undue influence is “pressure brought to bear directly on the testamentary act, sufficient to overcome the testator's free will, amounting in effect to coercion destroying the testator's free agency.”  (Rice v. Clark (2002) 28 Cal.4th 89, 96.)  “Although a person challenging the testamentary instrument ordinarily bears the burden of proving undue influence ( [Prob.Code,] § 8252), [California courts] have held that a presumption of undue influence, shifting the burden of proof, arises upon the challenger's showing that (1) the person alleged to have exerted undue influence had a confidential relationship with the testator;  (2) the person actively participated in procuring the instrument's preparation or execution;  and (3) the person would benefit unduly by the testamentary instrument.”  (Id. at pp. 96-97.)

Here, the evidence was sufficient to permit the probate court to presume undue influence.   First, the court could reasonably have concluded that Harstad had formed a confidential relationship with Barsamian:  as soon as she arrived on the scene, she interjected herself into Barsamian's affairs, attempting to direct Funaro, demanding meetings and alterations to the systems in place to care for Barsamian, purporting to represent Barsamian's interests in dealings with others, and exercising control over access to Barsamian.   Just four days after she had arrived on the scene, Harstad advised Barsamian's dialysis providers that she would be obtaining a power of attorney for Barsamian.   In her first visit to the Barsamian home on September 21, Harstad initiated a physical conflict with Rodriguez, pushing her into the kitchen to demand to know who she was, and she made Rodriguez feel so uncomfortable and unwelcome that she left within 15 minutes.   By the next day, Rodriguez could tell that financial documents were already missing from Barsamian's office.   Within days Harstad called the police to report that Rodriguez had stolen from Barsamian, and she personally accused Rodriguez of theft.

Also on her first day with Barsamian, Harstad was already calling Funaro to speak on behalf of Barsamian, as well as articulating concerns and demands for a meeting on her own.   Within three days Funaro had become alarmed by Harstad's controlling and isolating behavior, and he perceived Barsamian to be completely under her control already.   Harstad on September 24 pushed to assume all care for Barsamian and claimed that this was Barsamian's wish, prompting Barsamian when she wanted his agreement.   She insisted that no one was listening to Barsamian's wishes and claimed to know that he wanted her to care for him.   She demanded that Funaro initiate proceedings to name her Barsamian's conservator, and when he refused, told Funaro she would find another attorney who would comply with her demands.   Based on the events at the September 24 meeting, only days after Harstad's appearance, Funaro resigned as Barsamian's attorney because his attempts to act in that capacity were “being frustrated.”

The evidence supported the conclusion that Harstad quickly ran off Rodriguez and Funaro and took over all care and management of all aspects of Barsamian's life such that she purported to speak and act for him and Barsamian relied on her entirely.   This is sufficient to demonstrate a confidential relationship.   (Estate of Sanders (1985) 40 Cal.3d 607, 615 [confidential relationship exists when one party gains the confidence of another and purports to act or advise with the other's interests in mind];  Estate of Baker (1982) 131 Cal.App.3d 471, 480 [confidential relationship exists “whenever trust and confidence is reposed by one person in the integrity and fidelity of another”].)   Harstad contends that she simply had not been present long enough for her to have established a confidential relationship with her uncle in the five days preceding his execution of new estate planning documents, but she cites no authority, nor are we aware of any, that requires a certain duration of relationship before it may be considered confidential in nature.   Certainly Harstad demonstrated alacrity in displacing Barsamian's longtime support and care providers, and she placed herself at the nucleus of his affairs and life with great speed.   Her efficiency does not tend to undermine the conclusion that she established herself in a confidential relationship with her isolated, highly vulnerable, confused, paranoid, and delusional uncle.

Second, the probate court could easily have concluded that Harstad actively participated in the procurement of the 2007 estate planning documents.   She fomented disagreement and distrust between Barsamian and Funaro, told Funaro that he would be fired if he did not draw up conservatorship documents naming her the conservator of Barsamian's person and estate, and then, when Funaro failed to comply with her demands, arranged for an attorney who had previously provided services for her son to meet with Barsamian about his estate plans.   She caused the new attorney to be contacted, worked directly with the attorney, took instructions from him on gathering documents and information, was present during some of the conversation between Barsamian and the new attorney drafting the estate planning documents, and provided records and information to him pertaining to Barsamian's assets.   Harstad was present in the house each time attorney Dyess met with Barsamian and was in and out of the room while the two met.   Although Harstad seeks to distance herself from the process of drafting the estate planning documents, she argues for drawing different conclusions from selected evidence rather than demonstrating that no evidence supports the conclusion reached by the probate court.   She has not established that the probate court could not reasonably have concluded based on the evidence that she actively participated in the procurement of the will.

Third, the evidence supports the probate court's conclusion that Harstad unduly benefitted from the new estate plan she arranged for an attorney to come draft.   The determination of whether influence was undue “entails a qualitative assessment of the relationship between the decedent and the beneficiary;  to know what influence was ‘undue’ requires knowledge of what influence, if any, would qualify for a more benign interpretation.”  (Estate of Sarabia (1990) 221 Cal.App.3d 599, 607.)   The trier of fact “derives from the evidence introduced an appreciation of the respective relative standings of the beneficiary and the contestant to the decedent in order that the trier of fact can determine which party would be the more obvious object of the decedent's testamentary disposition.  [Citation.]  That evidence may include dispositional provisions in previous wills executed by the decedent [citation], or past expressions of the decedent's testamentary intentions.  [Citations.]  It may also encompass a showing of the extent to which the proponent would benefit in the absence of the challenged will.  [Citation.]”  (Ibid.) Here, the evidence showed that Harstad had been disinherited by Barsamian's prior will and estranged from Barsamian for well over a decade, but within days of arriving at Barsamian's house Harstad was suddenly his trustee, the holder of a durable power of attorney, and the sole residuary beneficiary of his estate-despite repeated statements in the past by Barsamian that he wanted his estate to go to the children of his nephew Paul and that he did not want his brother Hairabad or Hairabad's family to share in his estate at all.   In light of the longstanding close relationship between the Kaprelians and Barsamians, Barsamian's prior testamentary arrangements, and his expressed desire to disinherit Harstad's side of the family in favor of the Kaprelians, the probate court could reasonably conclude that the Kaprelians were the more obvious objects, as well as the previously designated objects, of Barsamian's bounty.   Harstad argues that the Kaprelian children, as grand-nieces and grand-nephew do not by virtue of that blood relationship have any status as natural objects of Barsamian's bounty, but this is irrelevant-that these heirs were the obvious beneficiaries is based not on a status conferred by the degree of relationship but on the prior relationship they enjoyed with Barsamian, the prior will designations, and Barsamian's previously-stated intent to provide for the Kaprelians by means of his will.

Based on the evidence presented, the probate court could reasonably have concluded that the presumption of undue influence arose and that Harstad failed to rebut it.   Harstad argues that there could not have been any undue evidence because Barsamian latched onto Harstad as soon as she arrived, asking for her help.   Harstad reasons, “the undue influence must have been exerted at the time of or prior to the execution of the will.  [Citations.]  This factor, alone, fatally weakens Petitioners' claim.   Kerri [Harstad] and Vassilian [another witness] testified that Vartan [Barsamian] made his choice immediately upon first embracing Kerri [Harstad], before Kerri [Harstad] did or could have done anything to influence him.”   This allegation does not bear even the slightest scrutiny.   It does not follow that because a distressed, delusional person reaches out to a formerly estranged relative and asks for “help” that the help he seeks is how to secure a new estate plan with her as the sole residuary beneficiary, nor is it reasonable to assume that just because Barsamian desired her presence and wanted unspecified help from her that it would have been impossible for her to have unduly influenced him during the days before she secured a new attorney to draw up new estate planning documents that made her his sole residuary beneficiary.

It is not clear, moreover, that the probate court relied upon the presumption of undue influence to conclude that Harstad unduly influenced Barsamian's testamentary disposition.   The court noted Barsamian's sudden abandonment of his prior, oft-articulated desire to bequeath his estate to the Kaprelian family and not to his brother Hairabad's line.   It observed that Harstad arranged for and participated in the preparation of the new estate planning documents and that she unduly benefitted from them by being named the sole residuary beneficiary.   The court concluded that Harstad isolated Barsamian, “cultivating distrust and untruths that she knew would allow her to over [ ]power her uncle's independent judgment and have it supplanted by her own,” and “contribut[ing] to Mr. Barsamian's paranoid and delusional mental state so that he was convinced he had been abandoned by those who loved him and whom he loved.”   Substantial evidence supports all these conclusions.

Considering this evidence, the probate court could reasonably have concluded that Barsamian's ultimate estate plan was at variance with his previously-expressed desires to provide for the Kaprelian family and to disinherit Hairabad's family;  that Harstad, who had assumed a confidential relationship with Barsamian, secured benefits that were inconsistent with her long estrangement from Barsamian and her very recent return to favor;  that Harstad had commandeered a position of control over Barsamian to exercise such undue influence;  and that Barsamian was particularly vulnerable to Harstad's influence because he was paranoid, delusional, and in a weakened physical and mental state.   These are all factors indicative of undue influence.  (Estate of Abert (1949) 91 Cal.App.2d 50, 60 [“Among the facts which the authorities include as indicative of undue influence are:  1. Unnatural provisions of the will contrary to the expressed desire of the testator;  2. Disposition of the property contrary to the expressed intention of the testator;  3. A confidential relationship of the beneficiary of the will who thereby secures undue benefits, which relationship affords him the opportunity to exercise undue influence;  4. The age, infirmity, or circumstances which render him subject to coercion, influence or subversion of his free will or consent ․”].)  Under this analysis, Harstad's participation in the procurement of the will and trust documents, while highly probative, is not essential.  (David v. Hermann (2005) 129 Cal.App.4th 672, 684 [evidence of procurement is highly probative of undue influence but is only essential if the court relies on the presumption of undue influence to shift the burden of proof].)

Harstad contends that because the probate court accepted as fact that Barsamian was pleased to see Harstad and asked for her help, the new estate plan in her favor “could not constitute undue influence.”   We see no basis in logic for this conclusion, and Harstad provides no citations to authority to support her claim.   In sum, we conclude that the court's conclusion that Barsamian's 2007 testamentary arrangements were the product of undue influence was supported by substantial evidence.   Here again, Harstad's arguments to the contrary consist largely of requests that we reweigh the evidence and draw conclusions more favorable to her, but this we cannot do.  “ ‘So long as there is “substantial evidence,” the appellate court must affirm ․ even if the reviewing justices personally would have ruled differently had they presided over the proceedings below, and even if other substantial evidence would have supported a different result.’ ”  (Rupf v. Yan (2000) 85 Cal.App.4th 411, 429, fn. 5.)

III. Alleged Material Errors in the Statement of Decision

Harstad asserts that numerous statements in the statement of decision were not supported by the evidence and that certain “facts” should have been reflected in the statement of decision.   Some of her points are immaterial, while others are an attempt to attack the judgment by asserting that her conclusions should have been the conclusions of the court.   To the extent that Harstad intends to challenge the sufficiency of the statement of decision, we conclude that it is sufficient because it fairly discloses the court's determination as to the ultimate facts and material issues in the case.  (Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372, 1380.)

Many of Harstad's complaints concern minor points or quibbles about interpretation.   For instance, Harstad complains that there was no evidence to support the sentence in the statement of decision that Barsamian said he was being “pursued” by Russians.   Harstad appears to be correct that Barsamian did not use the word “pursued,” but the record is replete with evidence that Barsamian believed that the facility he was in during September 2007 was filled with Russians, and this upset him.   We fail to see any importance in the use of a slightly inaccurate verb.   She asserts that there was no evidence that she was “offended by the closeness between Maria [Rodriguez] and Vartan [Barsamian].”   Harstad's own testimony, however, permitted such a conclusion:  She recounted in detail that Rodriguez “yelled, [']V[.]B[.],V[.]B[.], I love you, V[.]B. Where are you, V[.]B[.]?[']” and that the next thing Harstad saw, she saw was that Rodriguez was “down on her knees by the couch and she's rubbing my uncle's head and kissing the top of his head and kissing his forehead.”   Harstad said, “I was shocked” to see Rodriguez kissing Barsamian's head, and her distaste nearly jumps from the transcript page.   The probate court, which occupied the best position from which to judge a witness's attitude, reasonably could have reached this conclusion from the testimony given.

Next, Harstad contends that there was no evidence to support the statement that “Ms. Harstad became angry that Mr. Barsamian was not excluding Ms. Rodriguez and placing Ms. Harstad in charge.”   Read in context, this sentence follows a sentence describing Funaro's refusal to draft new estate planning documents for Barsamian because Funaro believed Barsamian to lack testamentary capacity, and the paragraph concerns conversation between Harstad and Funaro.   Because there was evidence that Harstad demanded that Funaro draft conservatorship documents to establish her as Barsamian's conservator and that she threatened that she would find someone else to do the job if he refused, we suspect that this is likely a typographical error and that the court meant to say that Harstad became angry that Funaro, rather than Barsamian, declined to exclude Rodriguez and place her in charge.   Even if our suspicion is not correct, we cannot identify any way in which this detail constitutes a material fact, nor has Harstad attempted to demonstrate its materiality.

Harstad claims that there is no evidence that Paul was a “link pin” of the extended family.   The sentence in question notes that Harstad did not bother to touch base with Paul to determine what had been happening in Barsamian's life and during Paul's recent visit;  she simply “forged ahead in a campaign to remove contact by Mr. Barsamian and his closest friends.”   The record shows that Paul kept in touch with many members of the extended family, and that he was the one to notify Harstad's father of Barsamian's illness.   The court's characterization of Paul's role was reasonable based on the evidence.   She similarly complains that there was no evidence that Paul was involved “each time” Barsamian was hospitalized;  but her attack on this minute detail in no way undermines the court's conclusions about the longstanding caring relationship between Paul, his family, and Barsamian.   And finally she asserts that there was no evidence that Paul arranged for Barsamian's release from the nursing home.   The record shows that he began the arrangements and that they were completed by Funaro and Erb;  while perhaps the court could have clarified that he initiated the process, again Harstad makes no showing of how this is material.

Harstad's other contentions of insufficient evidence are further invitations for us to reweigh the evidence.   For instance, she claims that there was no evidence that she arranged for or participated in the preparation of the estate planning documents.   It is beyond question that she arranged for the preparation of the estate planning documents:  she caused her son and husband to locate Dyess, spoke with him, and located documents for him concerning Barsamian's assets.   The probate court concluded that her conduct during the course of interactions with Dyess constituted participation, and as we have discussed above, that conclusion is supported by substantial evidence.   She claims there was no evidence that she influenced the testamentary act, but again, that was the probate court's conclusion, and the substantial evidence upon which it was based was set forth and discussed above.

Finally, Harstad argues that the statement of decision should include four additional findings:  (1) that Barsamian knew the extent of his assets at the time of the disposition;  (2) that he had a clear concept of the nature of his relationship with the people who were the natural beneficiaries of his bounty at the time of disposition;  (3) that Harstad was a caring and nurturing person who had substantial experience caring for others;  and that (4) Barsamian asked Harstad to take care of him immediately upon her appearance, before any form of undue influence could possibly have taken place.

The probate court made findings of fact that contradict Harstad's proposed findings (1) and (2).   Harstad refers the court to other portions of the brief to find evidence to support her view, but she does not even attempt to demonstrate that there was no evidence to support the court's contrary findings.   This is insufficient to undermine the court's findings or statement of decision in any way.   As far as Harstad being a caring and nurturing person with experience caring for others, she has not established any manner in which this characterization is relevant to whether she exercised undue influence or whether Barsamian had testamentary capacity.   Finally, while Harstad did describe Barsamian immediately asking her to help him, this initial welcome does not preclude undue influence with respect to his estate planning documents, and it is therefore immaterial.   Harstad has not identified any manner in which the statement of decision was insufficient.

We note that in the legal argument in her opening brief, Harstad labels the above issues the “substantive” purported defects of the statement of decision.   Although she mentions in a footnote that unnamed “[p]rocedural defects” were addressed at an undisclosed location in the factual summary of this 76-page brief, she presents no legal argument that these unspecified procedural defects provided a basis for reversal of the judgment.   In the reply brief, however, Harstad argues that based on the “procedural errors and concerns” listed on seven pages of her statement of facts from the opening brief, when taken together these purported errors “demonstrate proceedings which did not afford both parties the same sense of judicial attention.”   Harstad then lists a series of complaints, with no citations to the record beyond three references to the appellate briefs, no citations to authority, and no reasoned argument as to why these purported errors offer a basis for reversal.   To the extent she seeks to urge these procedural issues as a basis for reversal, not only is this issue improperly presented for the first time in the reply brief (Reichardt v. Hoffman, supra, 52 Cal.App.4th at pp. 764-766), but it is also a bare assertion of error, with no argument and legal authority on the point purportedly raised, and is thus insufficient to present any issue for our review.  (Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649-650.)

IV. Admission of the Holographic Will to Probate

Harstad claims that the probate court should not have admitted the holographic will to probate because the court proceeding concerned only the validity of Barsamian's 2007 estate planning documents.   Harstad asserts that the parties had orally stipulated to delay the adjudication of the issues in the will probate matter until after the validity of the 2007 documents was determined.   Harstad has not identified any such agreement in the record, and it is not among the stipulations that the parties entered into on the record.   The only ostensible evidence to support the contention that there was such an agreement is the declaration of Harstad's attorney, John Stillman, that was submitted in support of Harstad's motion for a new trial.   In that declaration, he stated that the matters were not consolidated, that there was no agreement to try them together, and that “there was an oral agreement between counsel and the Court in chambers and prior to the beginning of the trial to try the Trust challenge first because the necessity of hearing the challenge to the Holographic Will would be dependent on the outcome of the challenge of the Trust.   It is unclear if this agreement was put on the record or only took place in an off the record discussion.”

Stillman's declaration, however, does not constitute admissible evidence of a stipulation that could bind the court.   Although Harstad fails to disclose in her briefing that she raised this issue before the probate court, Stillman made specific representations to the probate court concerning the proper scope of the court's decision in this matter.   Immediately before presenting closing argument, Stillman reminded the court that Harstad had filed objections to Barsamian's 1998 will, and that if the court was planning to admit that will to probate Harstad wished to have a hearing concerning the authenticity of the will.   Stillman said, “We understood that this matter was bifurcated and that we were at this point only hearing evidence with regard to the trust itself and not to the second part.   And as I understand it, that was an agreement that was reached between our office and Ms. Torossian's office by another lawyer in my office.”

The court responded that it did not have any recollection of that agreement having ever been conveyed to the court, and Stillman said that the agreement was made very early in the proceedings and that he “th[ought] it was just between the parties as I understand it.”   Counsel for the Kaprelians stated that she understood that the will could be ruled upon by the probate court, and that they had presented evidence of the authenticity of the will.   The court said it would take Harstad's position into consideration, and Stillman said that he wished to have a hearing to present evidence concerning the authenticity of the will.   The court described its recollection that evidence had been presented concerning the authenticity of the will by both Paul and Rodriguez, and that both had testified to its authenticity.   Stillman responded that neither witness was a handwriting expert and suggested that there was some evidence of another, not yet found will, so that the court should not rule on the will during this proceeding.

The court concluded, “Well, I thought that the issues were what had been presented to the court, which had to do with both sets of documents.   But I'll look through the file to see if there is anything in the file that refers to a bifurcation or some other agreement because I'm unaware of one.”   Stillman-who never asked for a continuance and the chance to present evidence in this proceeding in the event that the court concluded that the will's authenticity was within the scope of the hearing-proceeded to give his closing argument.

We know from Stillman's representations to the probate court that he was not involved in the arrangements that Harstad claims were made:  he told the court that he was not involved with this purported agreement, which he described as having been “reached between our office and Ms. Torossian's office by another lawyer in my office.”   The fact that Stillman was not present informed his characterization of the agreement as something he “th[ought] it was just between the parties as I understand it.”   He soon reiterated that he “believe [d] it [the asserted agreement] was strictly between the offices” so that the court's search for the stipulation in the court files would be fruitless.

Later, however, Stillman submitted the declaration mentioned above on which he now relies.   In that declaration he stated that an agreement had been reached in chambers between the parties and the court.   We know, however, that he was not present for that purported meeting, and he had already disavowed personal knowledge of the agreement before the court when he acknowledged that he did not participate in any meeting at which this agreement was purportedly reached.   In the declaration he did not claim to have personal knowledge of the facts the declaration contained, only that he was “fully familiar” with them.   Moreover, in his declaration Stillman contradicted his earlier representations to the court because he claimed that the court had been involved with the stipulation when previously he had assured the court that the stipulation was between the parties and did not involve the court.

In sum, Harstad asks us to overturn the ruling that the will should be admitted to probate on the basis of a declaration that was not based on personal knowledge and which, without explanation, contradicted representations previously made by the declarant in court during the discussion of the question of the proper scope of the court's ruling.   As no admissible evidence supports Harstad's claim of a stipulation that could possibly bind the court, she has not demonstrated any basis for overturning the court's ruling in this regard.

DISPOSITION

The judgment is affirmed.   Respondents shall recover their costs on appeal.

We concur:

FOOTNOTES

FN1. One witness testified that in 2007 when Barsamian began to get “really sick” he said that he did not trust Rodriguez and felt she was stealing from his company.   While hospitalized immediately before going to the convalescent hospital in September 2007 he asked for help and said he did not want Rodriguez in his home anymore..  FN1. One witness testified that in 2007 when Barsamian began to get “really sick” he said that he did not trust Rodriguez and felt she was stealing from his company.   While hospitalized immediately before going to the convalescent hospital in September 2007 he asked for help and said he did not want Rodriguez in his home anymore.

FN2. For clarity, Paul Kaprelian will be referred to as “Paul.”.  FN2. For clarity, Paul Kaprelian will be referred to as “Paul.”

FN3. For clarity, Hairabad Barsamian will be referred to as “Hairabad.”.  FN3. For clarity, Hairabad Barsamian will be referred to as “Hairabad.”

FN4. Harstad's argument concerning capacity concerns only September 26, 2007:  her legal argument specifically contends that the finding of no capacity on September 26, 2007, is not supported by the record, and she repeatedly asserts that Barsamian had testamentary capacity on this date without reference to any other dates.   Without any citation to the record, she asserts in a single sentence at the close of one paragraph, “The evidence is uncontroverted that Vartan's condition improved at the time of subsequent amendments,” but she presents no argument in her opening brief directed toward any date other than September 26, 2007.   In her reply brief, however, Harstad suddenly expands the reach of her argument, contending that none of the court's findings of incapacity are supported by the record.   She criticizes the respondents for not discussing Barsamian's capacity at the times of the amendments but respondents can hardly be faulted for not responding to an argument she had not made.   Harstad may not raise new issues by means of her reply brief.  (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764-766.).  FN4. Harstad's argument concerning capacity concerns only September 26, 2007:  her legal argument specifically contends that the finding of no capacity on September 26, 2007, is not supported by the record, and she repeatedly asserts that Barsamian had testamentary capacity on this date without reference to any other dates.   Without any citation to the record, she asserts in a single sentence at the close of one paragraph, “The evidence is uncontroverted that Vartan's condition improved at the time of subsequent amendments,” but she presents no argument in her opening brief directed toward any date other than September 26, 2007.   In her reply brief, however, Harstad suddenly expands the reach of her argument, contending that none of the court's findings of incapacity are supported by the record.   She criticizes the respondents for not discussing Barsamian's capacity at the times of the amendments but respondents can hardly be faulted for not responding to an argument she had not made.   Harstad may not raise new issues by means of her reply brief.  (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764-766.)

FN5. In her reply brief, Harstad asserts that as she “noted in the AOB,” Blumenkrantz's testimony was “so incredible, so unbelievable as to be ignored entirely.”   We have searched the entirety of Harstad's opening brief dedicated to legal argument, paying particular attention for this purpose to her argument concerning the sufficiency of the evidence to support the court's finding that Barsamian lacked testamentary capacity.   Contrary to Harstad's assertion, we find no reference to Blumenkrantz at all in Harstad's legal argument, let alone a proper argument, supported by authority and citations to the record, that as a matter of law his testimony should be disregarded.   All we have been able to locate is a brief criticism of Blumenkrantz's testimony buried within Harstad's statement of facts that is clearly insufficient to constitute a legal argument that the testimony should be disregarded as a matter of law.   (In re S.C. (2006) 138 Cal.App.4th 396, 408.)   She may not raise the issue for the first time in her reply brief.  (Reichardt v. Hoffman,supra, 52 Cal.App.4th at pp. 764-766.).  FN5. In her reply brief, Harstad asserts that as she “noted in the AOB,” Blumenkrantz's testimony was “so incredible, so unbelievable as to be ignored entirely.”   We have searched the entirety of Harstad's opening brief dedicated to legal argument, paying particular attention for this purpose to her argument concerning the sufficiency of the evidence to support the court's finding that Barsamian lacked testamentary capacity.   Contrary to Harstad's assertion, we find no reference to Blumenkrantz at all in Harstad's legal argument, let alone a proper argument, supported by authority and citations to the record, that as a matter of law his testimony should be disregarded.   All we have been able to locate is a brief criticism of Blumenkrantz's testimony buried within Harstad's statement of facts that is clearly insufficient to constitute a legal argument that the testimony should be disregarded as a matter of law.   (In re S.C. (2006) 138 Cal.App.4th 396, 408.)   She may not raise the issue for the first time in her reply brief.  (Reichardt v. Hoffman,supra, 52 Cal.App.4th at pp. 764-766.)

PERLUSS, P. J. WOODS, J.