Filed 6/26/20 Skiver v. Skiver CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

NATHANIAL SKIVER,

Plaintiff and Appellant,

v.

MATTHEW SKIVER,

Defendant and Respondent.

G056810

(Super. Ct. No. 30-2015-00819040)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Mary Fingal Schulte, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Masson & Fatini, Richard E. Masson and Susan M. Masson for Plaintiff and Appellant.

Law Offices of Eric Becker and Samantha J. Morris for Defendant and Respondent.

* * *

Plaintiff Nathanial Skiver appeals from the court’s judgment denying his petition to invalidate three amendments to his grandfather’s trust. While the original trust made Nathan a contingent beneficiary, the amendments ultimately removed him as a contingent beneficiary and provided all of the trust assets would go to the grandfather’s son, defendant Matthew Skiver. Nathan contends the court erred by failing to apply a common law presumption that the amendments were the product of Matthew’s undue influence. He also claims the court erred by failing to find the amendments were the product of Matthew’s undue influence pursuant to statutory factors under Welfare & Institutions Code section 15610.70.

Collectively, the evidence was sufficient to support the court’s finding that the amendments were a rational decision made without Matthew’s undue influence. We accordingly affirm the judgment.

FACTS

The Trust

Omar Skiver and his wife, Doris Skiver, had two children, Matthew and Andrew Skiver. In 1995, Omar and Doris executed the Skiver Family Trust (the Trust) as cotrustors and initial cotrustees. At the same time, they executed a trust transfer deed placing their home into the Trust (the Trust Home), and Omar executed his will. Attorney Donald Slaughter drafted and notarized all of the documents.

The Trust identified Matthew and Andrew as the primary beneficiaries upon the surviving spouse’s death. In the event Matthew or Andrew predeceased the surviving spouse, the grandchildren were identified as the contingent beneficiaries. At the time the Trust was executed and at all times thereafter, Andrew had two children, Nathan and Jeremiah Skiver. Matthew never had children.

Upon Doris’s death in 2003, Omar became the surviving spouse and sole trustee of the Trust. Under the Trust, Andrew and Matthew were named as successor cotrustees. In September 2009, Matthew and his then-girlfriend (now wife), Juliette Skiver, moved into the Trust Home to care for Omar full time.

The Trust Amendments

On October 26, 2012, Omar executed the First Amendment to the Trust. Pursuant to the amendment, Matthew and “any other individual he desire[d]” were allowed to live in the Trust Home for five years after Omar’s death. After five years, the Trust Home would be sold with the proceeds distributed as directed by the original Trust. The First Amendment indicated this change was to compensate Matthew for being Omar’s caretaker. At the same time, Omar executed an advance health care directive nominating Matthew and Andrew as agents, which was consistent with his prior advance health care directive.

On January 9, 2013, Andrew died, and Omar executed the Second Amendment to the Trust on January 22, 2013. The document acknowledged Andrew’s death, made Matthew the sole beneficiary, and made Nathan and Jeremiah contingent beneficiaries only if Matthew predeceased Omar. The Second Amendment also appointed Matthew as sole trustee and made Nathan and Jeremiah alternate successor cotrustees in the event of Matthew’s death or incapacity.

On October 28, 2013, Omar executed the Third Amendment to the Trust. The Third Amendment changed the contingent beneficiaries from Nathan and Jeremiah to Juliette who lived in the Trust Home and cared for Omar along with Matthew. The amendment also changed the alternate successor cotrustees from Nathan and Jeremiah to Juliette in the event of Matthew’s incapacity. Attorney Timothy Balog drafted all three amendments.

At the same time he executed the Third Amendment, Omar updated his advance health care directive and nominated Matthew as his agent with Juliette as an alternate agent. He also executed a springing durable power of attorney and named Matthew as his agent with Juliette as an alternate.

In August 2015, Omar died at the age of 98 from cardiac arrest. In November 2015, Nathan filed a petition to invalidate all of the trust amendments. Among other things, he argued the amendments were invalid on the grounds of lack of capacity, undue influence, and mistake.

Evidence and Testimony at Trial

In 2008, Nathan moved into the Trust Home to help care for Omar while Nathan finalized his divorce. In September 2009, Matthew and Juliette moved into the Trust Home after Nathan moved out. Andrew facilitated Matthew’s move in because he wanted Omar to be cared for and to help Matthew financially and physically. Due to Matthew’s physical disabilities and other medical issues, Andrew continued to be a part of Omar’s care.

After Andrew’s death in January 2013, Matthew and Juliette made Omar’s meals, provided his medication, managed household chores, managed Omar’s appointments, and drove Omar to appointments as necessary. There also was some evidence that Matthew had logged into Omar’s bank accounts.

Matthew testified that Omar was self-sufficient from 2003 to 2009. As Omar’s health deteriorated, Matthew moved in to help him. Matthew acknowledged he had some financial struggles himself and was in need of a residence. According to Matthew, Omar did not have problems understanding their daily conversations and was not forgetful. He also testified he contacted Balog about Omar’s estate plan but claimed it was “none of [his] business” to discuss the changes in the First Amendment with Andrew when he was alive. He and Balog were both members of the same country club.

Nathan testified there was no way Omar would eliminate his grandchildren as beneficiaries and that Matthew and Juliette never informed him of Balog’s involvement with the amendments. He testified Omar’s cognitive ability declined starting around 2012 and that Matthew and Juliette exerted undue influence over Omar. Likewise, Jeremiah testified Omar was confused between 2008 and 2015 and that it was “pretty obvious” Omar was suffering from memory loss and was “slowing down.”

Andrew’s widow, Anne Skiver, testified Omar was “great” and that she and Andrew would visit Omar “quite a few times during the week.” Between 2008 and 2013, she testified she and Andrew lived two blocks away from Omar. According to Anne, Andrew was very close with Omar, and Omar would ask Andrew to help Matthew whom he “was very concerned about.” She testified Omar also had a good relationship with Matthew and tried to guide him. She also testified she did not see Matthew often and was concerned about his use of drugs and alcohol.

Manly Hyee Woodbury testified he had known Omar since around 1976 and considered him to be a good friend. Between 2012 and 2015, Woodbury drove Omar to work trips from Irvine to Riverside. This occurred “probably monthly.” During those drives, Woodbury testified he and Omar would discuss Omar’s personal life, politics, and sports. In July 2014, he and Omar discussed a work project. Although Omar became physically frail, Woodbury never believed Omar did not understand things.

Nathan’s expert witness, Dr. Isaac Gorbaty, testified Omar was a “dependent” individual as of 2012 and was “dependent on family for support of activities of daily living, and for being able to maintain in the community.” He based his opinion on medical records, which he claimed noted the doctors needed to talk to family members because Omar was “not competent to give his own consent.” He pointed to a 2015 medical record that revealed Omar had evidence of encephalomalacia and multiple strokes, which he claimed were consistent with a multi-infarction demented state. He could not identify when these issues began but testified they were not new changes. He further testified the entries on the medical records regarding Omar’s mental capacity and cognitive state were unreliable, boilerplate language because doctors do not assess cognition unless specifically requested to do so. He cautioned that “absence of proof [of incompetency in the medical records] is not proof of absence.”

Matthew’s expert witness, Dr. David Sheffner, opined Omar had the mental capacity to execute the Third Amendment in 2013. He testified there was “no data” indicating a lack of competency in October 2013 and “fairly overwhelming” data that “he was fine.” According to Dr. Sheffner, Omar did not suffer from significant cognitive deficit, and several sources supported Omar’s mental competency. He relied on Omar’s 2012 and 2013 medical records that noted Omar was able to appropriately answer questions and requested his belongings at his bedside. He also noted other documents, which were signed by physicians and Omar, stated that medical conditions, risks, and alternatives were discussed with Omar. Dr. Sheffner testified this indicates intact cognition otherwise the physician would not have signed the document. He further testified there was no data in the records to support a finding of undue influence.

Donald Slaughter was Omar’s estate planning attorney and had known Omar since 1985. From 2003 to 2012, Slaughter had no concerns about Omar’s capacity but testified Omar seemed slower, less certain, and declining “toward the end.” According to Slaughter who drafted the Trust, Omar intended an equal split between Matthew and Andrew, and if they predeceased Omar, then the assets would pass to his grandsons. Slaughter claimed “there’s no possible way Omar . . . was going to cut his grandsons out.” Slaughter also testified he was shocked and angry Omar had not contacted him about amending the Trust. He claimed there was “no way that Omar . . . would just leave me and go somewhere else.”

Balog, the attorney who drafted all of the Trust amendments, testified Matthew contacted him regarding Omar’s estate plan. But he considered Omar to be his client. He recalled Omar wanted to make sure Matthew had a place to live after Omar died and that Omar did not trust his daughter-in-law, Anne. Balog testified Omar repeatedly stated he did not like Anne, made unfavorable comments about her, and wanted to protect the Trust assets from her. With respect to the First Amendment, Omar said he wanted to prevent Anne from inducing Andrew to evict Matthew from the Trust Home. With respect to the Second Amendment, Balog testified Omar was concerned “if something went to [Andrew’s] kids, that [Anne] would actually take everything or influence them or something.” With respect to the Third Amendment, Balog testified Omar amended the Trust to make Matthew the sole primary beneficiary to prevent Anne from getting any of the money from Nathan or Jeremiah.

During the time he drafted the trust amendments, Balog testified he had no concerns about any duress or undue influence being exercised over Omar. In Balog’s opinion, Omar understood what he was doing and why. He testified Omar asked questions, and they discussed options. Although Matthew was present during their meetings, Balog testified that he reviewed the proposed changes with Omar. He also testified Matthew was present during their meetings and recalled an incident when Mathew offered to leave the room but Omar said it was not necessary. At another meeting, Omar indicated he wanted Matthew in the room to hear everything discussed.

The parties also introduced the deposition testimony of various witnesses at trial. During his deposition, Pastor Jim Gwaltney “referred to Omar as ‘sharp’, attesting to Omar’s ability to recall past war memories and the operation of planes he piloted, and during the same visit, discuss current politics and events. [Citations.] Gwaltney rated Omar’s overall health for his age as ‘amazing’ noting that Omar remained sharp during their discussions.” Gwaltney testified he met Omar in 2005 and described him as having a “‘very sharp mind.’” He testified Omar remained “‘very very sharp’” and “‘pretty solid from start to finish.’” “He also testified that [Nathan] ‘had an issue with Matt[hew]’ [citation], and that to Omar ‘family [was] everything.’”

“Omar’s treating physician, Dr. William Armstrong, testified via deposition that ‘during the time that I was seeing him more frequently, I never had the subjective feeling that he was mentally declining.’ [Citation.] Omar was ‘alert, oriented, [without] acute distress, well nourished, well developed.’ [Citation.] Dr. Armstrong also testified that had he had cause for concern as to Omar’s mental or cognitive abilities, it would have been noted in the reports. There were never any such notes. When asked about a lack of exam results to back his opinion regarding Omar’s mental capabilities, Dr. Armstrong testified that he never ordered a mini-mental or similar type exam be performed on Omar because he wasn’t worried about Omar’s mental or cognitive health, and thus had no reason to.”

“Omar’s neighbor Glenn Barber testified to engaging in conversations with Omar regarding his family and sports, and even Omar’s ability to operate a computer for work purposes during his final years, although, like many, he did recall Omar’s hearing being an issue.” “Mr. Barber testified that he didn’t notice any significant changes in Omar’s mental state.”

The Judgment

The court denied Nathan’s petition and entered judgment in favor of Matthew. In its statement of decision, the court held “[t]he evidence was insufficient, or at most, evenly weighted to support a finding of undue influence.” (Italics omitted.) First, the court held there was a confidential relationship between Matthew and Omar. But the court found the evidence did not establish “Matthew gained something he ordinarily would not have received (e.g., because not a ‘natural object of testator’s bounty’).” Second, the court found there was evidence Matthew “assisted in facilitating Omar updating his trust,” but “it [did] not rise to the level of ‘active participation’ in the preparation or execution of the Amendments . . . .” Finally, the court found there was no “inequitable result where, after his wife and son . . . died, Omar left his home to his only living son, who, along with his significant other, moved in to assist . . . Omar as his body failed him in his final years.” According to the court, “[t]hat his sons were taken care of first appears to have been Omar’s intent, even in the original trust.” While the Third Amendment omitted Nathan and Jeremiah even as contingent beneficiaries, the court found it was “somewhat of a moot point since the contingency (Matthew predeceasing Omar), never arose.” The court also noted Nathan and Jeremiah “stood in a much different place in 2012 and 2013 as successful adults in their 40’s, than they were in 1995 when the original trust was executed.”

DISCUSSION

Nathan contends he had established a presumption that Matthew unduly influenced Omar to amend the Trust. He accordingly claims the court erred by refusing to apply the common law presumption of undue influence to invalidate the amendments. He also claims the court erred by failing to find the amendments were the product of Matthew’s undue influence pursuant to the section 15610.70 factors. We disagree.

Applicable Law and Standard of Review

“As a general proposition, California law allows a testator to dispose of property as he or she sees fit without regard to whether the dispositions specified are appropriate or fair.” (Estate of Sarabia (1990) 221 Cal.App.3d 599, 604, superseded by statute on other grounds as stated in Rice v. Clark (2002) 28 Cal.4th 89 (Rice).) However, “[t]his presumption can be overcome if it is shown that the testator was affected by undue influence, a concept with a very definite meaning.” (Estate of Sarabia, at p. 604.) “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, at p. 96.)

“Although a person challenging the testamentary instrument ordinarily bears the burden of proving undue influence [citation], [the California Supreme Court] and the Courts of Appeal 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.” (Rice, supra, 28 Cal.4th at pp. 96-97; see Bernard v. Foley (2006) 39 Cal.4th 794, 800.) When this presumption arises, the burden shifts to the proponent of the testamentary instrument to show it was not the product of undue influence. (Estate of Baker (1982) 131 Cal.App.3d 471, 483.)

In reviewing a challenge to the sufficiency of the evidence, “[w]e presume the evidence supports every finding of fact unless appellant demonstrates otherwise, and we must draw all reasonable inferences from the record to support the judgment.” (El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1357.) Thus, “we are bound by the familiar principle that ‘the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,’ to support the findings below.” (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1100.)

No Presumption of Undue Influence

Because the parties do not dispute there was a confidential relationship between Matthew and Omar, we only address the second and third prongs required for a presumption of undue influence to arise. With respect to the second prong, i.e., the beneficiary’s active participation in procuring a favorable testamentary instrument, Nathan relies on Matthew’s involvement with Balog. He contends Matthew selected Balog, whom he personally knew, to assist with the amendments, was Balog’s primary communication contact, drove Omar to every meeting with Balog, and was the only family member who was aware of the amendments. But “‘[t]he mere fact of the beneficiary procuring an attorney to prepare the will is not sufficient “activity” to bring the presumption into play’” nor is his “‘selection of attorney and accompanying testator to his office,’” or his ‘“mere presence in the attorney’s outer office . . . or presence at the execution of the will . . . or presence during the giving of instructions for the will and at its execution . . . .’” (Estate of Mann (1986) 184 Cal.App.3d 593, 608.)

The cases Nathan cites bear little resemblance to the instant case. In Estate of Gagliasso (1957) 150 Cal.App.2d 65 (Gagliasso), the court reversed a nonsuit that had been entered in favor of the proponent of a will where there were egregious facts suggesting undue influence. (Gagliasso, at p. 71.) A daughter was taking care of her mother at the mother’s request after finding her in a “filthy and disordered” home “alone, partly blind, and undernourished.” (Id. at p. 66.) Her brother, the proponent of the will, physically assaulted her after learning she had filed a guardianship petition with their mother’s consent. (Id. at p. 67.) The next day, another brother induced the mother to leave the sister’s care, and both brothers refused to allow any of their sisters to have private conversations with their mother or to be alone with her. (Id. at p. 69.) The mother thereafter lived with her son who had physically assaulted his sister, and he took her to the attorney’s office where her will was prepared. (Id. at p. 67.) The attorney who prepared the will was the same one who had opposed the guardianship petition. (Ibid.) Although the attorney excluded the son from the meetings, the court emphasized the son took his mother to the office and remained with her until the attorney asked him to withdraw. (Id. at p. 69.) The court also noted the mother was “an enfeebled old woman, partially blind, and almost completely dependent on the ministrations [of her son].” (Ibid.)

Likewise, in Estate of Leonard (1949) 92 Cal.App.2d 420 (Leonard), the court reversed a nonsuit in favor of the alleged undue influencer. The testator had lived with his nephew and executed a will that made his wife and nephew the sole beneficiaries of his estate. (Id., at 428.) His demeanor changed after an operation, which left him with hallucinations and the inability to converse intelligently or coherently. (Id. at p. 422.) After he moved in with his sister, “he was described as an obedient child who would do anything anyone ‘wanted him to do if they handled him right.’” (Id. at p. 428.) During that time, his sister did not let him leave the house or talk to his nephew or wife. (Ibid.) She also obtained a lawyer for the testator and accompanied him to the lawyer’s office. (Ibid.) The testator then executed a will that changed the beneficiaries from his wife and nephew to his sister and brother-in-law. (Id. at pp. 428-429.) In finding in favor of the testator’s nephew, the court emphasized, the “testator . . . was like an obedient child, susceptible to suggestion, restricted to the premises of the beneficiaries of the attacked will which he never left unaccompanied by them, and . . . was prevented by them from conversing with [his nephew] and his wife.” (Id. at p. 429.) Based on this evidence, the court held there was evidence “although contradicted” that the proponents of the will actively participated in the preparation of the amended will. (Ibid.)

Unlike the decedents in Gagliasso and Leonard, Omar did not suffer from similar mental deterioration or susceptibility. By contrast, there was evidence he was sharp and engaged in a thoughtful process in executing the amendments.

Relying on Balog’s legal invoices, Nathan next claims the “invoices indicate all telephone calls were with Matthew, alone.” While some entries indicate Balog had phone calls with Matthew, one entry indicates he had a phone call with Omar, and other entries indicate he had several meetings with Omar. Regardless, Balog testified he discussed options and reviewed proposed changes with Omar who asked questions and expressed his reasons for wanting the amendments. There also was evidence Omar wanted Matthew to participate in some manner to hear what was being discussed. Nathan otherwise points to no evidence that Matthew participated in discussions about the contents of the amendments.

Nathan also contends Balog did not have any independent written correspondence with Omar and that Balog was told Omar did not use e-mail even though Omar had engaged in e-mail correspondence with others. While this appears to be somewhat odd, it does not undermine our confidence in the trial court’s decision. The evidence still establishes that Omar independently communicated with Balog about his desire to amend the Trust and the reason for each amendment.

Finally, Nathan argues Omar’s intent in executing the amendments (to protect the Trust assets from Anne) “reflect Matthew’s misunderstanding of the Trust, i.e., Matthew believed that if [Andrew] predeceased Omar, then Anne would inherit in [Andrew’s] place.” Even assuming Matthew believed this was true, it does not establish he actively procured the amendments or that Omar did not intend to protect the Trust assets from Anne. Indeed, Balog testified Omar did not trust Anne, repeatedly made unfavorable comments about her, and wanted to ensure she did not receive any of the Trust assets.

Collectively, the evidence was sufficient to support a finding that Matthew did not actively participate in procuring the preparation or execution of the amendments.

We do not reweigh the evidence or determine whether the evidence Nathan presented would have been sufficient if the court had found in his favor. Our only inquiry is whether the evidence supporting the judgment meets the substantial evidence test, which it does.

With respect to the third prong, i.e., whether Matthew unduly benefitted from the amendments, “[t]he determination of this issue is based on a qualitative assessment of the evidence, not a quantitative one.” (Conservatorship of Davidson (2003) 113 Cal.App.4th 1035, 1060, disapproved on other grounds as stated in Bernard v. Foley (2006) 39 Cal.4th 794.) The issue is not whether the beneficiary profited from the decedent’s disposition of her estate; it is whether the profit was “undue.” (Conservatorship of Davidson, at p. 1060.) A person “unduly benefit[s]” when he receives a bequest that is “‘unwarranted, excessive, inappropriate, unjustifiable or improper.’” (Estate of Auen (1994) 30 Cal.App.4th 300, 311, superseded by statute on other grounds as stated in Rice, supra, 28 Cal.4th 89.) “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.” (Estate of Sarabia, supra, 221 Cal.App.3d at p. 607.)

Here, substantial evidence supports the court’s finding that Matthew did not unduly benefit from the amendments. Although Nathan was Omar’s grandson and a contingent beneficiary under the original Trust, Omar’s relationship with Matthew was more significant. Matthew was Omar’s son and his live-in caregiver for almost three years. After Andrew died, Matthew and his girlfriend, Juliette, were Omar’s full-time caregivers. Matthew also was a beneficiary under the terms of the original Trust, and the evidence established that Omar’s primary concern was to make sure his sons were taken care of after he died. “Whether between relatives, or between friends and relatives, numerous cases have held that a will is not unnatural where it provides for one who has had a particularly close relationship with, or cared for the testator, or is in comparatively greater need of financial assistance.” (Estate of Mann, supra, 184 Cal.App.3d at p. 607.) In this case, Omar’s decision to favor Matthew over Nathan was not “unnatural.”

Nathan notes Omar previously expressed a desire to divide the Trust assets between Matthew and Andrew and included his grandsons as contingent beneficiaries. He claims the “100% distribution of the Trust Assets to Matthew was contrary to Omar’s intent to treat his family members equally, with an equal distribution.” Regardless of Omar’s prior intent, it cannot be said that Matthew unduly profited from the amendments in light of the respective relationships Matthew and Nathan had with Omar throughout the years. (Estate of Mann, supra, 184 Cal.App.3d at p. 607.) As the court also correctly noted, Nathan and Jeremiah “stood in a much different place in 2012 and 2013 as successful adults in their 40’s, than they were in 1995 when the original trust was executed.”

Nathan also contends the court “intermingled ‘undue benefit’ and ‘unnatural’” and improperly suggested “family members of a trustor are exempt from the presumption of undue influence . . . .” But the court’s statement of decision does not support Nathan’s interpretation. The court stated it “cannot find from the evidence that Matthew gained something he ordinarily would not have received (e.g., because not a ‘natural object of testator’s bounty’).” There is nothing inaccurate about this recitation of the law and no suggestion that family members are exempt from the presumption of undue influence.

Section 15610.70—Undue Influence Factors

Nathan finally contends the court erred by failing to consider statutory factors under section 15610.70 regarding undue influence. We disagree.

Section 15610.70 defines undue influence as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” To determine if a result was produced by undue influence, the statute directs courts to consider: “(1) The vulnerability of the victim”; “(2) The influencer’s apparent authority”; “(3) The actions or tactics used by the influencer”; and “(4) The equity of the result.” (Ibid.)

While Nathan claims the court “did not discuss [the factors] to any appreciable degree and ignored at least one of the indicia altogether,” he did not object to the tentative statement of decision on these grounds. “‘If the party challenging the statement of decision fails to bring omissions or ambiguities in it to the trial court’s attention, then, under Code of Civil Procedure section 634, the appellate court will infer the trial court made implied factual findings favorable to the prevailing party on all issues necessary to support the judgment, including the omitted or ambiguously resolved issues.’” (Schwan v. Permann (2018) 28 Cal.App.5th 678, 699.) We then review those implied findings for substantial evidence. (Ibid.)

Here, substantial evidence supports the implied finding that the amendments were not procured through undue influence considering the section 15610.70 factors. In assessing the first factor, the vulnerability of the victim, the trial court considers the victim’s “incapacity, illness, disability, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.” (Id., subd. (a)(1).) Any suggestion of vulnerability due to Omar’s age and physical limitations was outweighed by evidence that Omar was mentally aware and understood the nature of the amendments. His friend, his pastor, and his neighbor testified about Omar’s sharp mind throughout the relevant time period. Dr. Sheffner also opined there was no evidence to support a finding that Omar was a vulnerable individual, and Balog testified Omar understood what he was doing with the amendments and asked questions.

As to the second factor, the influencer’s apparent authority, evidence may include “status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.” (§ 15610.70, subd. (a)(2).) Here, this factor weighs in favor of Nathan given that Matthew was Omar’s son and caregiver.

With respect to tactics used by the influencer, evidence may include “[c]ontrolling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep”; “[u]se of affection, intimidation, or coercion”; and “[i]nitiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.” (§ 15610.70, subd. (a)(3)(A)-(C).) Nathan notes Matthew initially contacted Balog who drafted the amendments while other family members were not involved in the process and were given limited access to Omar. As discussed above, Balog testified he viewed Omar as his client, reviewed proposed changes with Omar, and had no concerns about any undue influence being exerted over him. On balance, this factor weighs in favor of Matthew.

As to the final factor, “[e]vidence of the equity of the result may include . . . the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.” (§ 15610.70, subd. (a)(4).) Nathan contends Matthew lived rent free with Omar and received a new car from him so he already was “amply compensated” during his time as a caregiver. He also notes Omar originally intended the Trust assets to go to his sons and then to his grandsons, and the Second Amendment was executed shortly after Andrew’s death suggesting Matthew took advantage of Omar. But Nathan ignores the changes in Omar’s life that support the divergence from the original Trust. As the court correctly held, Matthew and Juliette moved in to take care of Omar in his final years, and “[t]hat his sons were taken care of first appears to have been Omar’s intent, even in the original trust.” Andrew passed away, and Omar’s relationship with Anne deteriorated. Nathan also stood in a different position as an adult in his 40s when the Amendments were executed compared to the original Trust when he was in his 20s. In sum, there is sufficient evidence to support a finding that the amendments were equitable. Even assuming they were inequitable, “[e]vidence of an inequitable result, without more, is not sufficient to prove undue influence.” (Id., subd. (b).)

DISPOSITION

The judgment is affirmed. Matthew shall recover his costs incurred on appeal.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.