Scottrade, Inc. v. Davenport (873 F. Supp. 2d 1306, 2012)

United States District Court for the District of Montana 2012-06-05

Citations

Full opinion text

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT

RICHARD F. CEBULL, District Judge.

I. Introduction

Scottrade, Inc., an online brokerage firm, filed this interpleader action in early 2011 to resolve ownership of the account of a deceased account holder, James LeFeber (“Jim” or “LeFeber”). Although LeFeber executed a Transfer on Death Beneficiary Plan (“TOD Plan”) a month before his death directing how his Scottrade account should be distributed, one of his beneficiaries, Defendant Kristine Davenport, a former girlfriend, claims entitlement to the entire account. The four other beneficiaries do not contest the TOD Plan. When Davenport refused to release Scottrade from liability if it distributed the proceeds pursuant to Jim’s TOD Plan, Scottrade filed this action and placed the proceeds of the account in the Court registry pending resolution of Davenport’s claims. Named as defendants were all five beneficiaries named in the TOD Plan.

Once the proceeds of the Scottrade account were placed in the Court registry, Scottrade was dismissed from the case. Doc. ]$. Since Scottrade acted prudently in filing this suit and placing the money in the Court registry, the Court ordered that Scottrade recoup its attorney fees from the proceeds held by the Court. Id. In doing so, the Court expressly reserved ruling as to whom the approximately $6,000 in attorney fees would be charged. Id.

Defendant Shane LeFeber (“Shane”) is the son of Jim’s longtime girlfriend Maggie Johnson, who was with Jim from the 1980’s until she left him in 2005 or 2006. LeFeber and Johnson moved to Florence, Montana together in 1994. Johnson and LeFeber were involved in litigation over the house in Florence until 2007. Jim and Shane were close and remained so after the relationship ended, with Shane siding with Jim over his mother. Jim considered Shane his step-son and left him his residuary estate, his oil and gas leases, and 56% of the Scottrade account. Shane spent considerable time away from his family in Bend, Oregon to care for Jim in Montana over the last months of his life.

Defendant Patricia Faller was LeFeber’s neighbor in Florence since he moved to the Bitterroot Valley in 1994. Over the years, and especially after Maggie left, Jim had holiday meals with Faller and her husband Arnold. As soon as Jim learned he was ill, he immediately designated Faller as his attorney-in-fact. She was designated in his will as the personal representative of his estate and was given his home and his beloved dog and cat. Under the TOD Plan, she is entitled to 4% of the Scottrade account. Faller has retained counsel for this lawsuit.

Christopher Gibbons met Jim LeFeber in 1979, when Jim moved across the road from Gibbons and his parents in Idaho. Jim was a father figure to Gibbons, helping him and his brothers through some difficult family times in their teenage years. Gibbons avers that Jim’s compassion and love made an enormous difference in his life. Jim asked that Gibbons be there when he died and Gibbons complied, taking time away from his family and work in Idaho to take care of Jim during his last two months. Jim left 16% of his Scottrade account to Gibbons. Gibbons is proceeding pro se.

Defendant Kimberly Chabot, also proceeding pro se, developed a close friendship with LeFeber after they met on the Internet in 2006. They spent two weeks together in Hawaii and had frequent telephone and email contact until Jim died in 2010. Jim left Chabot 8% of his Scottrade account.

Kristine Davenport met Jim LeFeber in July of 2007. Their relationship quickly became romantic, but Jim decided to put space in the relationship in the Fall of 2007 when Davenport took a sudden interest in his money. There is no evidence of a romantic relationship between LeFeber and Davenport after 2007, but Davenport nonetheless maintains that LeFeber’s TOD Plan and will are invalid and that she is entitled to his estate. Primarily, Davenport argues that she and Jim entered into an oral contract in 2007 through which he agreed to leave her everything so long as she stayed with him “emotionally” until his death. Davenport further contends that soon after this contract, LeFeber made a new will and TOD Plan putting this oral contract into effect.

Davenport has used her knowledge of the law to allege virtually every cause of action that is conceivable under her self-serving theories of Jim’s estate planning, death, and cremation. Specifically, she alleges Defendants engaged in a civil conspiracy to interfere with the alleged 2007 oral contract and will through fraud, duress, undue influence, and breach of fiduciary duty, as well as other causes of actions, some of which are not recognized by Montana law. Davenport’s most scandalous claims are that the Defendants murdered LeFeber and spoliated the evidence of his murder by illegally cremating him in order to prevent him from changing the estate plan he made because of Defendants’ undue influence. As discussed in this lengthy Order, all these claims are patently frivolous.

Defendants Faller, LeFeber, Chabot, and Gibbons have all asserted claims against Davenport, seeking a declaratory judgment that the account be distributed as provided by in the TOD Plan and that their attorneys fees and costs be paid by Davenport’s portion of the Scottrade account. They further argue that Davenport’s share of the account be held by the Court until it can be determined whether Davenport is responsible for attorneys fees incurred by Scottrade and the other Defendants. Faller further proposes that she be awarded pre-judgment interest to be paid from Davenport’s share of the account and that Davenport’s share be held by the Court in a constructive trust for the benefit of the other Defendants until appeals in this matter have been fully exhausted to ensure that their shares of the account not be depleted by attorneys fees.

Currently pending before the Court are nine motions for summary judgment. Shane (doc. 162) and Faller (doc. 166) have filed motions for summary judgment arguing that Jim’s TOD Plan should be enforced as written and that all of Davenport’s claims to the contrary are baseless. Gibbons and Chabot, proceeding without counsel, have joined in these motions. Doc. 190.

The remaining six motions for summary judgment are filed by Davenport. The first is against Faller. Doc. 170. Although the motion states it relates to all the claims between them, it really only addresses the undue influence claim, with some passing references to how Faller allegedly gave Jim an overdose of painkillers to prohibit him from changing his estate plans. Doc. 171. Of the two motions for summary judgment Davenport filed against Shane LeFeber, the first is very similar to the one against Faller, docs. 172 & 178, while the second relates to Shane’s alleged spoliation of evidence. Docs. 176 & 177. Davenport followed this same course of action against Gibbons, the first motion primarily addressing the alleged undue influence, docs. 17k & 175, whereas the second motion argues Gibbons’s share of Jim LeFeber’s Scottrade account should be forfeited under the equitable doctrine of unclean hands. Docs. 178 & 179. Finally, Davenport’s sixth motion for summary judgment seeks judgment as a matter of law that she is not liable for attorneys fees incurred by Scottrade or the other Defendants in this lawsuit. Doc. 182 Davenport did not seek judgment as a matter of law on her claims against Kimberly Chabot.

II. Factual Background

The following facts are compiled from Shane LeFeber’s Statement of Undisputed Facts (“SSUF”) (doc. 16k), Patricia Faller’s Statement of Undisputed Facts (“FSUF”) (doc. 168), Shane’s Statement of Genuine Issues (“SSGI”) (doc. 208), Fabler’s Statement of Genuine Issues (“FSGI”) (doc. 205), Davenport’s Statement of Genuine Issues (“DSGI”) (doc. 198), and Davenport’s Statement of Undisputed Facts (“DSUF”) (doc. 181). Consistent with her history in this case and others the Court has learned about, Davenport did not comply with this Court’s Local Rules of Procedure with her statements of undisputed facts in support of her two motions for summary judgment (docs. 181 & 185) or her statement of genuine issues in opposition to the Defendants’ motions (doc. 198). Rather than setting forth in serial form each fact she relies on to support or oppose a motion, coupled with citations to a specific pleading, deposition, discovery response, or affidavit, L.R. 56.1 Davenport, filed long, single-spaced narratives that she attempts to support by the filing of affidavits in which she swears that the facts within the statements are true and correct and based on personal knowledge. See docs. 180-81, 18k-85, & 198-99. The majority of these narratives are speculative and are not supported by admissible evidence. After spending a significant amount of time with this case, it has become clear that Davenport’s method is to take a statement in an email, hospice report, or other document, isolate it, view it through the lens of her conspiracy theory, and then cite it as evidence. Other than the emails and hospice reports, Davenport’s only evidence is a voided will and an unexecuted TOD Plan from 2007. But since Davenport is proceeding pro se, even though she is an attorney and the Court has no obligation to “scour the record in search of a genuine triable fact,” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996), the Court will not disregard her “facts” and “issues” entirely, but will consider them on an individual basis, with the understanding that affidavits used to support or oppose summary judgment must be based on personal knowledge and set out facts that would be admissible under the Federal Rules of Evidence. Rule 56(c)(4) Fed.R.Civ.P. The relevant background events are as follows.

In November of 2006, Jim LeFeber started an individual brokerage account with Scottrade. SSUF, ¶ 1. Although he executed five different TOD Plans over the life of his Scottrade account-four in the three months before his death-Jim LeFeber executed the operative TOD Plan on August 10, 2010. SSUF, ¶¶ 2, 36, 55, 57, & 73. In this TOD Plan, LeFeber made the following designations: Shane LeFeber, 56%; Christopher Gibbons, 16%; Kristine Davenport, 16%; Kimberly Chabot, 8%; and Patricia Faller, 4%. SSUF, ¶ 74.

Davenport first met Jim LeFeber in 2006 at the law offices of Tipp & Buley in Missoula. FSUF, ¶ 16. LeFeber was introduced to her by his friend and attorney, Raymond Tipp. FSUF, ¶¶ 17-18. Although she now denies this, it appears she knew he was a multimillionaire from the inception of their relationship. FSUF, ¶ 19. Their relationship became romantic in July of 2007. SSUF, ¶ 4. Jim LeFeber first mentioned Davenport to Shane in an email on August 20, 2007. SSUF, ¶ 3.

In September of 2007, Davenport alleges she and LeFeber entered into an oral contract whereby he would make her his personal representative and give her his entire estate if she would be his lifelong, exclusive girlfriend and stay in Missoula. FSUF, ¶ 25; SSUF, ¶ 5; Davenport Depo. at 70-73 (Jan. 11, 2012). In responses to interrogatories, Davenport described the terms of this alleged oral contract as follows:

He wanted a girlfriend who would stay with him (emotionally, not physically) until his death. He told Kris his estate was worth ca. $3.5 million dollars and he offered Kris that if she would stay with him until his death he would give her his entire ca. $3.5 million dollar estate upon his death, would appoint Kris to be his sole personal representative and that the decedent would immediately execute estate planning documents to implement said agreement and would not execute any contravening estate documents, etc. Kris accepted the terms of the contract.

SSUF, ¶ 7. Although she has tried to distance herself from the testimony, Davenport testified that the alleged oral contract was a contract to make a will. FSUF, ¶ 39.

This alleged oral contract to make a will was not witnessed by any other person, Davenport did not make any notes of it, and LeFeber never sent Davenport any emails, letters, or any other written memorialization of the contract. SSUF, ¶¶ 9, 11, 16-18. Although Davenport testified that Jim referred to the alleged oral contract in emails to Shane, FSUF, ¶ 32, no such emails have been produced. In fact, in an email to Shane on October 3, 2007, Jim wrote “May break it off with Kris. She’s all of a sudden into my money wants me to put her in my accounts as the Transfer on Death person and also do my gas wells ... DAH! I’m not into the mairrage [sic] thing neither ... FSUF, ¶ 34. This October 3, 2007 email to Shane is also noteworthy because Davenport claims she and LeFeber became engaged in September, 2007. DSGI, p. 3.

Davenport also testified that the oral contract was memorialized in LeFeber’s October 7, 2007 holographic will, and that it is the only writing memorializing the contract. SSUF, ¶ 15. According to Davenport, the oral contract and the will were all part of the same transaction. FSUF, ¶ 39. The October 7, 2007 holographic will names Davenport as the personal representative and leaves her LeFeber’s entire estate, with Shane as the contingent beneficiary and personal representative. SSUF, Exhibit 8, ¶¶ 19, 20. Davenport admitted at her deposition that this holographic will contains formalistic legal language and that she may have helped LeFeber write it, FSUF, ¶ 48, but more recently avers that LeFeber drafted the holographic will on his own. DSGI, p. 3. The October 7, 2007 holographic will was not witnessed or notarized, says nothing about the oral contract, and contains none of its alleged terms except that Davenport would be the personal representative and inherit LeFeber’s estate. SSUF, Exhibit 8, ¶¶ 21-26.

The next day, on October 8, 2007, LeFeber wrote “VOID,” followed by his signature and date, on each page of a copy of the holographic will. FSUF, ¶ 41, Ex. 11. Davenport nonetheless testified at her deposition that as of October 2007, she and Jim LeFeber had a binding contract and that he could not change his mind about the disposition of his assets. FSUF, ¶ 40. On November 9, 2007, Jim sent Shane an email stating he wanted to “put space” in his relationship with Davenport, but “maintain the friendship.” SSUF, ¶44. There is no evidence in the record of a serious or continuous romantic relationship between the two after this date. And Davenport has admitted she was never at Jim’s house in 2010. SSUF, ¶ 130.

On September 23, 2008, LeFeber executed a will before two witnesses and a notary. FSUF, ¶ 45. This will “revoke[d] any and all Wills, Codicils and Testamentary Dispositions heretofore made by” LeFeber. FSUF, ¶46. In addition, the September 23, 2008 will directed that LeFeber be cremated, declared that he was “single and unmarried,” designated Shane as his personal representative and residual beneficiary, and devised $250,000 to Defendant Gibbons and $50,000 each to Defendants Faller, Chabot, Davenport, as well as five others. FSUF, ¶¶ 47-51.

On June 22, 2010, Jim emailed Shane stating that an ultra sound had revealed a 2.0 x 3.7 cm mass on the left lobe of his liver and that he would undergo a CAT scan the next day because there was concern it could be cancer. FSUF, ¶ 52. Jim emailed Shane again on June 25, 2005 explaining that 6 liver lesions were found and that doctors were concerned about “multifocal hepatoma, regeneratingTlysplastic nodules and hypervaseular metastic disease” and that he had an “ultrasound needle biopsy scheduled for July 1.” FSUF, Ex. 16. On the same day, Jim told Shane he was “going to sign a full power of atty to Patty Faller tomorrow, as she is right here and can make medical and other decisions. If something happens, she can also take care of the house, and [pets] Hudson and Fritzie.” FSUF, Ex. 16. Also on June 25, 2010, LeFeber executed a revised TOD Plan for his Scottrade account, designating the following beneficiaries: Shane 45%, Faller 25%, Gibbons 15%, Davenport 15%. FSUF, ¶ 56.

Around July 6, 2010, LeFeber met with Michael J. Snyder, M.D., FACP, a board certified oncologist with Montana Cancer Specialists, “concerning adenocarcinoma in his liver.” FSUF, ¶¶ 58-59. Dr. Snyder told LeFeber that “because of the nature of the spread, an treatment would be palliative” and that “survival is likely to be measured in months, not years, and that his overall survival untreated is probably less than a year.” FSUF, ¶ 61.

The next day, LeFeber executed an “Advanced Directive” that he be given treatment to maintain his dignity, keep him comfortable, and relieve his pain even if it shortened his life. FSUF, ¶¶ 62-63. The same document appointed Faller as his “Health Care Representative (Power of Attorney for Health Care),” and Shane as his “Alternate Representative,” with the power to “make all health care decisions” and access his medical records. FSUF, ¶ 64.

Also on July 7, 2010, LeFeber met with Missoula attorney Thad Huse about a new will. Although Huse was on the list of names Faller provided pursuant to his request for help finding an estate planning attorney, LeFeber was actually referred to Huse by Missoula attorney Paul Ryan, who Faller had also mentioned. FSUF, ¶¶ 65-66; FSGI, ¶¶ 127-28. Huse had never before met or performed work for LeFeber or any other party to this litigation. FSUF, ¶ 67. Faller drove LeFeber to the meeting, but was asked to leave for the will discussion. FSUF, 1168. In his notes regarding the July 7, 2010 meeting with LeFeber, Huse noted that LeFeber told him that Davenport was a litigator and that Huse should watch out for her. FSUF, ¶ 73.

On July 9, 2010, LeFeber executed the will that Huse had prepared for him before two witnesses and a notary. FSUF, ¶ 77. Among other things, LeFeber’s July 9, 2010 will:

(1) revoked, annulled, cancelled, and annulled all previous wills, codicils and writings testamentary;

(2) left LeFeber’s pets and residence to Faller;

(3) appointed Faller as personal representative of the estate and Shane as successor personal representative;

(4) left LeFeber’s oil, gas, and mineral rights and residuary estate to Shane;

(5) disinherited his daughter Jacqueline Ann LeFeber and any other individuals not named in the will; and (6) directed that all decisions regarding his bodily remains, including whether he was cremated or not and where his remains were placed, be made by Faller, his personal representative.

SSUF, ¶ Ex. 14; doc. U-l.

Huse avers that he prepared LeFeber’s will solely at LeFeber’s direction, that neither Faller nor any other person even attempted to provide any input or suggestions to Huse as to LeFeber’s will or his estate planning, and that the only person LeFeber identified as trying to influence his estate planning was Kristine Davenport. FSUF, ¶ 90-92, 96.

Also on July 9, 2010, LeFeber executed a Durable Power of Attorney, naming Faller as his attorney-in-fact. FSUF, ¶ 98.

On July 13, 2010, Dr. Snyder diagnosed LeFeber with the incurable esophogeal cancer. FSUF, ¶ 99. Dr. Snyder explained that the goal of therapy would be to improve LeFeber’s quality of life, not the length of life, since extending life is unproven under these circumstances. FSUF, ¶ 100. After Dr. Snyder answered LeFeber’s questions, LeFeber opted to pursue hospice care with Partners In Home Care. SSUF, ¶ 50. Dr. Snyder concurred with the hospice care and signed a Statement of Medical Necessity for prescription medications, including morphine, for LeFeber’s comfort, and issued Standing Orders regarding those medications. FSUF, ¶ 103. Dr. Snyder’s “Certification of Terminal Illness Statement” indicated that LeFeber had less than six months to live if the disease followed its normal course. SSUF, ¶ 51.

Upon learning of Jim’s terminal diagnosis, Shane left his home in Bend, OR on July 13, 2010 and drove to visit Jim at his home, arriving on July 14, 2010. SSUF, ¶ 53, Ex. 18. He stayed with Jim until July 23, 2010. Id.

Also on July 13, 2010, LeFeber executed the third TOD Plan for his Seottrade account, making the following beneficiary designations: Shane, 55%; Faller, 15%; Gibbons, 15%; and Davenport, 15%. SSUF, ¶¶ 55-56. According to Huse’s records, LeFeber called Huse on the day he made these changes to his TOD Plan and related that Davenport was calling constantly and demanding his entire estate, but LeFeber believed he was giving Davenport a satisfactory amount through the TOD Plan. FSUF, ¶ 105.

At 12:59 a.m. on July 15, 2010, Davenport sent LeFeber an email, stating “Jim, Here’s what you thought of me a year go. What happened.?” Following this was the text of an email LeFeber sent to Davenport on June 26, 2009 in which LeFeber wrote “Kris .... for your info. Thanks so very much for all your help. You are an angel. Love, Jim.” FSUF, ¶ 106. LeFeber forwarded this email to Huse at around 8 a.m.:

Thad Received this email from Kris Davenport. She did help me as a friend at the time I was resolving my last relationship and this was an e-mail I had sent thanking her, signed “Love, Jim.” Now she is resurrecting this? Being a non-practicing attorney, she may be thinking of breach of a verbal contract or? Don’t know but her mind is “Working”! Thought you should know as we don’t want anything tied up.”

Jim.

FSUF, ¶ 106; see also Dec. of Thad Huse, ¶ 12, Ex. 1 (Feb. 8, 2012). In Huse’s notes memorializing conversations with LeFeber on this date, he notes that LeFeber wanted to disinherit Davenport, but was worried that would make her more angry and that LeFeber wanted to leave Davenport enough that she would not cause problems with his estate and his other heirs. FSUF, ¶ 107.

Continuing in the same fashion, Huse’s notes regarding a July 21, 2010 meeting with LeFeber, LeFeber noted that he did not trust Davenport, that she had been yelling at him in phone calls because she wanted everything, and that Faller was scared of Davenport. FSUF, ¶ 108.

The next day, on July 22, 2010, Jim LeFeber executed his fourth TOD Plan, designating his beneficiaries as follows: Shane, 55%; Gibbons, 15%; Davenport, 15%; Faller, 7.5%; and Chabot, 7.5%. SSUF, ¶¶ 57-58.

By July 25, 2010, Shane had returned home to Oregon. Jim wrote him in an email:

Chris [sic] Davenport called and is ragging on me about the distribution of my will [Seottrade], as she said I told her she’d get all my assets some 3 1/2 years ago or so, when I thought our relationship was closer than it is, but a person has a right to change their mind .... which I have. I believe that was in 8/2007. As I recall I’d even mentioned marriage at the time. Now she’s a friend and that’s all. Christ, what another deal geeezzz. Have a great evening.

SSUF, Ex. 22, ellipses and [Seottrade] in original.

On the 26th of July, 2010, LeFeber arranged for his funeral plans, entering into a “Guaranteed Preneed Funeral Agreement” with Whitesitt Funeral Home. SSUF, ¶ 61. Under this “Funeral Agreement,” LeFeber agreed to pay Whitesitt Funeral Home $1810 and Whitesitt agreed to cremate LeFeber’s remains. FSUF, ¶ 112, Ex. 26. A Whitesitt Funeral Home document entitled “Pre-Funeral Arrangement-Information” lists Shane and Chris Gibbons as LeFeber’s “next of kin.” FSUF, ¶ 114, Ex. 27. Shane, who LeFeber described as a “step son,” was to sign the authorization, and Gibbons was to pick up the ashes. Id. LeFeber paid Whitesitt the $1810 by check dated August 28, 2010. SSUF, ¶ 80.

Also on July 26, Dr. Snyder signed the Partners In Home Care “Certification of Terminal Illness,” certifying that Jim LeFeber was “terminally ill, with a life expectancy of six months or less if the disease follows its normal course.” FSUF, ¶ 115; doc. 159-5.

Shane returned to Montana on August 2, 2010, staying until August 9. SSUF, ¶ 72.

Jim LeFeber executed his fifth and final TOD Plan on August 10, 2010, making the following beneficiary designations: Shane, 56%; Gibbons, 16%; Davenport, 16%; Chabot, 8%; and Faller, 4%. SSUF, ¶¶ 73-74.

Jim emailed Shane on August 12, relating a 2 1/2 hour conversation with Davenport in which she explained why she should have his entire estate. SSUF, ¶ 77.

Davenport testified at her deposition that the last time she physically saw Jim LeFeber was some time in August 2010, when he drove to her house in Missoula. FSUF, ¶ 135, citing Davenport Depo., 120:1-8 (Jan. 11, 2012), doc. 168-3, p. 30. According to Davenport, they had sex and LeFeber told her he wanted to give the Scottrade account and his estate to her and his daughter, Jacqueline Erb. Id. at 120:9-121:16. But Chris Gibbons avers that he did not even know Jim had a daughter until the summer of 2010 when Jim told him about her as they were driving to the funeral home. Doc. 68, p. k., Aff. Chris Gibbons (May 23, 2011). Gibbons further avers that Jim was very clear that Jim had not seen her in 30 years and wanted no contact with her. Id.

LeFeber signed a “Montana Provider Orders for Life Sustaining Treatment” (“POLST”) on August 25, 2010, making clear that he did not want to be resuscitated, wanted a natural death, and did not want any heroic or life-saving measures taken. SSUF, ¶ 78, Ex. 27. LeFeber also chose the lowest level of medical interventions, indicating that he wanted to be kept comfortable, but did not want to be transferred to a hospital for life-sustaining treatment-transfer to a hospital was wanted only if LeFeber’s “comfort needs could not be met in current location.” Id. This is consistent with the hospice nurse’s notes from an August 4, 2010 visit indicating that Jim was very clear with the nurse and Shane that he did not want 911 called for any medical condition. FSUF, ¶ 120. Dr. Snyder signed the POLST on August 26, 2010. SSUF, ¶ 79, Ex. 27.

Shane returned to Montana to visit Jim on August 30, 2010. SSUF, ¶ 81. He left on September 12, 2010 and did not return until after Jim’s death. SSUF, ¶ 82.

The hospice nurse notes from a September 14, 2010 visit indicate Jim’s appearance had noticeably changed since an earlier visit that day. He was now pale, with a “cancer look of grayness.” His mood had also changed to calm and lethargy, whereas earlier in the day he was “slightly irritable” and “completely resistant to comfort med suggestions.” The nurse commented that Jim was “declining rapidly r/t disease progression.” The records further reveal that Jim had started asking for morphine at 4:00 p.m., had taken oral morphine and tramadol, and that a syringe pump was set up to administer morphine at Jim’s request so that he could get enough pain relief to sleep without being reliant on his caregivers. FSUF, ¶ 138.

Hospice records reveal that on September 15, 2010, Jim removed the morphine syringe after only an hour because he felt it would increase his bleeding and keep him from mowing the lawn. FSUF, ¶ 139. The record also makes clear that Faller was honoring Jim’s wishes about abstaining from pain medications. Id. At some time on the 15th, however, Jim agreed to have the morphine syringe reinstated. FSUF, ¶ 140.

Jim LeFeber died at his home on September 15, 2010 at 11:38 a.m., SSUF, ¶ 83, ex. 29, as the on call hospice nurse was conducting a follow up home visit to “check status after medication changes to address continued terminal restlessness symptoms.” SSUF. Ex. 32., p. 2. The Hospice Discharge Summary Report indicates Jim “Expired @ home-symptoms controlled, died peacefully” and that his pain was controlled with a morphine pump. FSUF, ¶ 142. The Hospice Interdisciplinary Team Report dated September 16, 2010 notes that Jim had “significant disease related physical and mental decline over [the] last 2 weeks.” SSUF, ¶ 85.

Dr. Snyder certified LeFeber’s certificate of death on September 16, 2010, indicating that he died naturally of esophageal cancer. FSUF, ¶ 145-47. Snyder avers that the date and manner of LeFeber’s death was consistent with his diagnosis and prognosis. FSUF, ¶ 148.

Dean Whitesitt, a licensed mortician, authorized the removal, transport, and final disposition of LeFeber’s remains on September 16, 2010. FSUF, ¶ 154. The next day, LeFeber was cremated at the DalyLeach Crematory after Shane signed the Cremation Authorization, FSUF, ¶ 155, Ex. 39, just as LeFeber had provided for in his July 26, 2010 Funeral Agreement. SSUF, ¶ 105. Shane had driven to Montana from Oregon on September 16. SSUF, ¶ 103.

On September 22, 2010, an Application for Information Probate of Will and Appointment of Personal Representative for the Estate of James Albert LeFeber was filed in Montana’s Twenty-First Judicial District Court, Ravalli County, as Cause No. DP-10-75. FSUF, ¶ 160. Although Davenport is aware that LeFeber’s July 9, 2010 will is being probated in Cause No. DP-10-75, she has not appeared in that proceeding to contest the will. FSUF, ¶ 167. Davenport testified at her deposition that this lawsuit is her will contest and, in addition to seeking LeFeber’s Scot-trade account, she will ask this Court to vacate or modify any orders entered by the Ravalli County court in the probate action. Id.

On October 28, 2010, Davenport filed a complaint, Case No. DV-lCMl, in Montana’s Fourth Judicial District Court, Missoula County against James LeFeber, by and through Jacqueline Erb, who she alleges is his successor in interest. SSUF, ¶¶ 114-115. This lawsuit alleges LeFeber breached a contract with Davenport providing that he would appoint her as the personal representative of his estate and leave her all his assets. SSUF, ¶ 116. The Missoula County lawsuit, combined with Davenport’s refusal to allow the disposition of the funds as provided for in the TOD Plan, caused Seottrade to file this lawsuit. Doc. 1, ¶¶ 14-18.

III. Analysis

A movant is entitled to summary judgment by showing that there is no genuine dispute as to any material fact and it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). An issue is “genuine” only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party and a dispute is “material” only if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The party moving for summary judgment has the initial burden of showing the absence of a genuine issue of material fact. Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505. Once the moving party has done so, the burden shifts to the opposing party to set forth specific facts showing there is a genuine issue for trial. In re Barboza, 545 F.3d 702, 707 (9th Cir.2008). The nonmoving party “may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists.” Id.

On summary judgment, the evidence must be viewed in the light most favorable to the non-moving party. Id. The court should not weigh the evidence and determine the truth of the matter, but determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249,106 S.Ct. 2505. Essentially, the question on summary judgment is “whether the evidence presented a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” McSherry v. City of Long Beach, 584 F.3d 1129, 1135 (9th Cir.2009).

Since the issues raised by all the motions are intertwined, the Court will addresses issues and arguments rather than individual motions. Davenport’s frivolous arguments, circular reasoning, ipse dixit justifications, and lack of procedural knowledge have greatly complicated this case, resulting in a crowded record. Although it is impractical and unnecessary to address every superficial argument, the Court has done its best to comprehensively reject Davenport’s claims so that the Court of Appeals can quickly dispose of Davenport’s expected appeal and Jim LeFeber’s estate can be distributed as he intended.

A. The TOD Plan Is Enforceable

Montana law expressly recognizes TOD Plans such as the one executed in this case as valid, nontestamentary transfers. Matter of Estate of Lahren, 268 Mont. 284, 886 P.2d 412, 415-16 (1994), citing Mont. Code Ann. § 72-6-111. Upon Jim LeFeber’s death on September 15, 2010, SSUF, ¶ 83, ownership of the account automatically passed to the designated beneficiaries. Mont. Code Ann. §§ 72-6-307, 309(a).

In fact, Davenport testified at her deposition that the TOD Plan would transfer ownership of LeFeber’s Seottrade account to the designated beneficiaries upon his death, regardless of any will. FSUF, ¶ 124. Moreover, LeFeber’s will dated July 9, 2010 expressly stated that intangible personal property requiring beneficiary designations, including “Transfer on Death accounts-shall pass to the Beneficiarfies]” he designated. FSUF, ¶ 83. The attorney who drafted LeFeber’s will expressly advised him of this fact. FSUF, ¶ 84.

Nonetheless, Davenport makes numerous frivolous attempts to undo Jim LeFeber’s careful deliberate efforts to leave her 16% of this Scottrade account and nothing more.

B. There Is No Oral Contract Invalidating The TOD Plan

Although she has changed her position in the summary judgment papers, Davenport admitted at her deposition that the alleged 2007 contract was a contract to make a will. FSUF, ¶ 39. Such contracts are disfavored because “at the time of enforcement one of the parties is dead and obviously cannot confirm or deny the existence of the contract.” Orlando v. Prewett, 218 Mont. 5, 705 P.2d 593, 598 (1985). Accordingly, the other Defendants argue the contract’s validity is governed by Montana Code Annotated § 72-2-534, which governs the establishment of contracts “to make a will or devise or not to revoke a will or devise or to die intestate.” Orlando, 705 P.2d at 596; Estate of Braaten, 322 Mont. 364, 96 P.3d 1125, 1126 (2004).

Davenport offers several arguments why § 72-2-534 is inapplicable. Davenport first attempts to distance herself from her deposition testimony that the 2007 oral contract was a contract to make a will, claiming the oral contract was a contract to “give her his entire estate and that the means by which he would give her his estate was up to him” and that he could have done so by a will, at-death benefit, inter vivos gift, TOD benefit, etc. Doc. 197, p. 22. She also argues that § 72-2-534(1) does not concern contracts to give a person non-probate assets. Davenport, however, is wrong.

First, Davenport’s claim that the alleged oral contract allowed LeFeber to give her his entire estate by any means contradicts her interrogatory response quoted above explaining that their contract required LeFeber to “give her his entire ca. $3.5 million dollar estate upon his death ...” SSUF, ¶ 7. Further, the comments to § 72-2-534 plainly state that its purpose is to “tighten the methods by which contracts concerning succession may be proved” and the public policy behind the statute is to discourage false post-mortem claims based upon oral promises. Orlando, 705 P.2d at 598. If the distinction proposed by Davenport were applicable, the statute could be easily evaded by unscrupulous claimants claiming a decedent contracted to leave his estate by any non-probate transfer. Finally, the Orlando Court applied § 72-2-534 in a case where the precise details of the contract were unknown, but it was clear that the intent of the oral agreement was for one party to leave property to the another at death. 705 P.2d at 596. Accordingly, § 72-2-534 controls the validity of the oral contract that Davenport alleges entitles her to James LeFeber’s estate and Scottrade account. Section 72-2-534(1) provides:

(1) A contract to make a will or devise or not to revoke a will or devise or to die intestate, if executed after July 1, 1975, may be established only by:

(a) provisions of a will stating material provisions of the contract;

(b) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or

(c) a writing signed by the decedent evidencing the contract.

Although Davenport has admitted that the October 7, 2007 holographic will is the only writing evidencing her alleged oral contract with LeFeber, SSUF, ¶¶ 15-18, she argues in the summary judgment papers that an unexecuted TOD Plan from October 2007 and some of Jim’s emails to Shane evidence the alleged contract. The Court first considers whether the holographic will satisfies any of the three subsections of § 72-2-534(1) before considering these others writings.

First, since the 2007 holographic will says nothing about the alleged contract, there is no “express reference” as required by § 72-2-534(l)(b).

Second, one of the essential elements of a contract is consideration. Mont. Code Ann. § 28-2-102. The 2007 holographic will says nothing about Davenport being LeFeber’s exclusive “romantic woman” as consideration for being named LeFeber’s personal representative and an inheriting his estate. Nor is the Scottrade account mentioned. Without any mention to the Scottrade account or Davenport’s consideration, the Court cannot conclude that the 2007 holographic will states the material provisions of the contract as required by § 72-2-534(l)(a).

Third, there is no “writing signed by the decedent evidencing the contract” as required by § 72-2-534(l)(c). As noted, the 2007 holographic will is not inconsistent with Davenport’s claim to the entire estate, but it does not “evidence” the contract. It makes no mention of any contract.

Similarly Davenport also claims that a TOD Plan signed by LeFeber on October 5, 2007 that lists Davenport as the sole beneficiary “evidences” the contract, doc. 171-11, but like the October 2007 holographic will, that TOD Plan does not mention any contract. Moreover, the October 5, 2007 TOD plan was never valid because it was never signed and accepted by Scot-trade, nor was it notarized like LeFeber’s other TOD Plans.

Finally, Davenport claims LeFeber referred to the contract in emails with Shane. Although Davenport does not cite the particular email, she must be referring to the July 25, 2010 email quoted above in which LeFeber complained to Shane that Davenport was “ragging” on him about the distribution of his Scottrade account, explaining:

she said I told her she’d get all my assets some 3 1/2 years ago or so, when I thought our relationship was closer than it is, but a person has a right to change their mind .... which I have. I believe that was in 8/2007. As I recall I’d even mentioned marriage at the time. Now she’s a friend and that’s all. Christ, what another deal geeezzz.

SSUF, ¶ 22. Again, this email does not “evidence” a contract through which Davenport would be James LeFeber’s exclusive “romantic woman” in exchange for all his assets upon his death. Further, this email is not “signed by the decedent” as required by § 72-2-534(1)(c). Although a typewritten name can constitute a signature where the necessary intent to authenticate is shown, Hillstrom v. Gosnay, 188 Mont. 388, 614 P.2d 466, 469 (1980), the July 25, 2010 email is not “signed” and is certainly not signed with any intent to authenticate the signature.

Davenport may also be referring to an August 12, 2010 email from Jim to Shane, where Jim relates that his day “has included a 2 hour conversation listening to Kris Davenport tell me why she deserved my entire estate. Geeezzz. Oh Well! Whatever happened or was said 4 yrs. or so ago can .certainly be changed ...” SSUF, ¶ 77. Again, this email is not signed by James LeFeber and does not evidence any contract.

Davenport also argues her performance under the contract excuses strict application of § 72-2-534 as partial performance does in other situations involving the statute of frauds. But even if it was established that Davenport fully performed her duties under 'the alleged contract, the Montana Supreme Court has expressly rejected a performance exception to § 72-2-534. Orlando, 705 P.2d at 598. The Court made clear there are no exceptions to the statute. Orlando, 705 P.2d at 596.

Accordingly, Shane, Faller, Gibbons, and Chabot are entitled to judgment as a matter of law that there is no oral contract entitling Davenport to James LeFeber’s probate estate or anything more than the 16% of the Seottrade account as designated in the TOD Plan. Further, there being no valid contract, they are also entitled to judgment as a matter of law in their favor on any claim by Davenport for tortious interference with contract.

C. Davenport’s Tortious Interference with Expectancy Claim Also Fails

The Montana Supreme Court has yet to recognize a cause of action for tortious interference with expectancy or inheritance. Hauck v. Seright, 290 Mont. 309, 964 P.2d 749, 753 (1998). Since the Supreme Court has found no reason to adopt the cause of action because an undue influence claim provides the same remedy, this Court has also refused to recognize the cause of action. Hadacheck v. Feeley, CV-06-17-BLG-RFC, Order Re: Feeley’s Motion for Summary Judgment, doc. 161, pp. 16-18 (Dec. 7, 2007). Accordingly, judgment as a matter of law must be entered against any claim Davenport has for tortious interference with inheritance or expectancy.

D. Undue Influence

Davenport devotes most of her briefing to her claim that the other Defendants placed undue influence on LeFeber so that he would breach the alleged contract to leave Davenport his entire estate and include them in his will and TOD Plan. A review of the record makes clear that the evidence is so one-sided that this claim cannot proceed. Especially as to Chabot, who was never even in the same state as Jim LeFeber during the relevant time period. Indeed, Davenport’s claims against Chabot are the most frivolous and vindictive of her many frivolous and vindictive claims.

Under Montana law, undue influence consists of:

(1) the use by one in whom a confidence is reposed by another person or who holds a real or apparent authority over the other person of the confidence or authority for the purpose of obtaining an unfair advantage over the other person;

(2) taking an unfair advantage of another person’s weakness of mind; or

(3) taking a grossly oppressive and unfair advantage of another person’s necessities or distress.

Mont. Code Ann. §§ 28-2-407. The Montana Supreme Court has made clear that the mere opportunity to exercise undue influence is insufflcient-to survive summary judgment, Davenport must present admissible evidence of specific acts of undue influence. In re Estate of Harmon, 360 Mont. 150, 253 P.3d 821, 827 (2011). Davenport can point to no specific acts of undue influence on the part of any Defendant and judgment as a matter of law can be entered against her on that point alone. But since the Court expects Davenport to try to make good on her threat to “make this case go on for years and years” with her circular logic and ipse dixit justifications, see doc. 80, p. 10, the Court will make a careful record, considering all of Davenport’s speculative “evidence” of a conspiracy to unduly influence James LeFeber.

Through the Declaration of Thad Huse, the attorney who drafted LeFeber’s July 9, 2010 will and advised his estate planning during the last months of his life, the Defendants have shown that the only person who was trying to influence James LeFeber’s estate planning was Kristine Davenport. Doc. 160, ¶ 11. Huse further avers that he prepared the will solely at LeFeber’s direction, worked from a draft will written by LeFeber himself, and that “[n]o one other than James LeFeber provided, or attempted to provide, any direction, input, or suggestions to me with respect to the provisions in James LeFeber’s July 9, 2010 will or with respect to his other estate planning matters.” Id. at ¶¶ 10, 23. In support of his averments, Huse provides emails sent to him by LeFeber and notes of conversations he had with LeFeber in July and August of 2010 that document LeFeber’s concern that Davenport would cause problems with his estate and his other heirs. Id. at ¶¶ 12-21. The record presented by Defendants makes clear that LeFeber knew Davenport would challenge his estate plan and he sought Huse’s assistance to ensure that his wealth would be distributed according to his plan.

Consistent with her modus operandi, Davenport claims Huse was just another part of the conspiracy. According to Davenport, Faller and Shane exerted duress on LeFeber to get him to go to Huse for the will and that “Jim would have never voluntarily switched attorneys from his longtime attorneys Tipp and Buley,” “[h]e went to Huse solely under duress and pressure from the Defendants, etc.” DSUF, p. 4; DSGI, p. 5. But Davenport’s narrative, speculative “affidavits” are insufficient to raise a genuine issue of material fact as to whether LeFeber freely selected Huse to handle his estate planning. LeFeber ended up using Huse, who did not previously know Faller or any other party to this litigation, because he was referred to him by another Missoula attorney, Paul Ryan. Doc. 160, ¶¶ 3-4. Initially, LeFeber asked Faller for help finding an estate planning attorneys. FSGI, ¶ 127, ex. 14. Both Paul Ryan and Thad Huse were on this list, but LeFeber ended up using Huse because he was referred to Huse by Paul Ryan. FSUF, ¶ 66.

Davenport claims summary judgment should be granted in her favor on her undue influence claim, or at least that genuine issues of material fact preclude summary judgment for Defendants, because Defendants were in a confidential relationship with LeFeber and there are “suspicious circumstances” surrounding the preparation of his final will and TOD Plan. Specifically, Davenport cites comment (f) of § 8.3 of the Restatement Third, Property (Wills and Other Donative Transfers), for the proposition that a confidential relationship, coupled with “suspicious circumstances” surrounding the preparation and execution of the will and TOD Plan, establish a presumption of undue influence. For the purposes of these summary judgment motions, it is assumed that Defendants were in a confidential relationship with James LeFeber.

Notwithstanding the Restatement, it is well-established that undue influence is “never presumed” under Montana law. In re Estate of Wittman, 305 Mont. 290, 27 P.3d 35, 38 (2001); Christensen v. Britton, 240 Mont. 393, 784 P.2d 908, 911 (1989); and Stanton v. Wells Fargo Bank Montana, N.A., 335 Mont. 384, 152 P.3d 115, 120 (2007) (expressly refusing presumption of undue influence, even where attorney prepared estate documents of which he was the sole beneficiary). Neither the existence of a confidential relationship nor the opportunity to exercise undue influence are sufficient to survive summary judgment, Montana courts must “consider and correlate the opportunity to exercise undue influence with the alleged acts of influence to determine if the acts amount to undue influence.” Stanton, 152 P.3d at 120.

The Montana Supreme Court has consistently relied on five factors in determining whether there has been undue influence, In re Estate of Harmon, 360 Mont. 150, 253 P.3d 821, 826 (2011), but Davenport argues the eight factors listed in the Comment (h) of Restatement § 8.3. Although there is no evidence of undue influence under any set of factors, the Court will give Davenport the benefit of the doubt and refute her claims by tracking her “analysis.” As noted, under the Restatement analysis, a presumption of undue influence arises where there is a confidential relationship and there are suspicious circumstances surrounding preparation, execution, or formulation of the donative transfer. Restatement (Third) of Property: Wills and Other Donative Transfers § 8.3 cmt. h (2011).

In determining whether there are “suspicious circumstances,” the Restatement advises that courts consider all relevant factors, including eight specified factors:

(1) the extent to which the donor was in a weakened condition, physically, mentally, or both, and therefore susceptible to undue influence;

(2) the extent to which the alleged wrongdoer participated in the preparation or procurement of the will or will substitute;

(3) whether the donor received independent advice from an attorney or from other competent and disinterested advisors in preparing the will or will substitute;

(4) whether the will or will substitute was prepared in secrecy or in haste; (5) whether the donor’s attitude toward others had changed by reason of his or her relationship with the alleged wrongdoer;

(6) whether there is a decided discrepancy between a new and previous wills or will substitutes of the donor;

(7) whether there was a continuity of purpose running through former wills or will substitutes indicating a settled intent in the disposition of his or her property; and

(8) whether the disposition of the property is such that a reasonable person would regard it as unnatural, unjust, or unfair, for. example, whether the disposition abruptly and without apparent reason disinherited a faithful and deserving family member.

Id.

1. The extent to which the donor was in a weakened condition, physically, mentally, or both, and therefore susceptible to undue influence

Under the first restatement factor, it cannot be disputed that the July 2010 will and August 2010 TOD Plans were executed as LeFeber’s health was declining rapidly. Davenport cites hospice reports from July 21 and 22, 2010, stating that Jim’s “Alertness/Level of Consciousness” was “confusion” and that Faller had noted a “significant increase in confusion over the last week.” Doc. 173-1.

It is also clear, however, that much of this confusion concerned his illness and the medication he was taken, as LeFeber did not want to be overly medicated as he was dying. It was specifically noted that Jim was “suspicious and confused about the 2 minor med changes recommended” and did “not understand why [hospice nurse] keeps bringing in ‘all these meds.’ ” Id. As this was less than two weeks after his terminal diagnosis, the Hospice nurse noted that Shane and Faller advised that “James is still adjusting to his terminal diagnosis, is resistant to any change and is having more confusion.” Id. Although Jim’s confusion was documented, the hospice nurse believed that Jim could still drive as long as he was not alone and stayed off the highway. Id.

Finally, there are other hospice records Davenport did not cite that say the opposite. Assuming they are indicative of LeFeber’s susceptibility to undue influence, a September 8, 2010 report provides “[t]here is no way to manage patient’s meds by either [the hospice nurse or other caregivers] as James is still mentally intact enough and emotionally strong about not losing control of this task.” Doc. 173-11. Other records provide that LeFeber was “active & independent,” “able to interact in meaningful way,” “not easily distracted,” and “[a]ble to evaluate a situation and determine appropriate action.” FSGI, ¶¶ 63-64.

In most cases, the victim of undue influence suffers from dementia or other weakness of mind. E.g., In re Estate of Light-field, 351 Mont. 426, 213 P.3d 468 (2009). There is no such evidence in this case. Rather, the evidence reflects that Jim knew exactly what he was doing when he assisted his lawyer in carefully planning his estate.

2. The extent to which the alleged wrongdoer participated in the preparation or procurement of the will or will substitute

Davenport argues that Faller coerced Jim into using Thad Huse for his final estate planning, but all Faller did was provide Jim with a list of estate planning attorneys as he had requested. FSGI, ¶ 127, ex. 14. Both Paul Ryan and Thad Huse were on this list, but LeFeber ended up using Huse because he was referred to Huse by Paul Ryan. FSUF, ¶ 66. Huse had never before met nor performed work for anyone involved in this lawsuit. FSUF, ¶ 67. Davenport also notes that Faller drove LeFeber to his appointments with Huse, including the appointment where LeFeber signed durable and healthcare powers of attorney, but Faller avers that she only went places with Jim when he asked her to, FSUF, ¶ 174, and Huse’s notes reveal that Faller was asked to leave for the will discussion. Doc. 160-2, p. 1. Faller has also averred that she was Jim’s friend for many years, never asked him to leave her any property or anything else upon his death, and never asked or persuaded him to be his attorney-in-fact or personal representative. FSUF, ¶¶ 171-173. This is consistent with Huse’s averment that Faller did not provide, or attempt to provide, any input on LeFeber’s will or other estate planning matters. Doc. 160, ¶ 9.

As to Shane, Davenport claims he contacted Faller — who Davenport alleges was most actively procuring the will — before it was executed. Although Davenport supplies an email from Shane to Faller on February 9, 2010, the day LeFeber’s will was signed, the email exchange primarily involves Jim’s lack of appetite, and certainly does not evidence any conspiracy to procure estate planning beneficial to them. Doc. 173-5. Davenport also claims Shane arrived at LeFeber’s house on July 14, 2010 and stayed with him for 10 days while he “closely associated with Faller.” Although it is established that Shane did arrive on July 14 and stayed with Jim for 10 days, doc. 16k-18, p. 6, and also that Shane spent a lot of time with Jim at his house off and on until he died, there is no evidence that Shane and Faller conspired to get their hands on Jim’s money. Davenport also claims that when Shane arrived on the 14th, Shane and Faller accompanied LeFeber to his bank, where LeFeber added their names to his accounts, but this allegation is also unsupported. And even if it were true, it is not suspicious considering that Jim had just designated Faller his personal representative and attorney-in-fact and Shane was his “step son” and primary beneficiary. Davenport also notes that Shane took Jim to Huse’s office on July 14, 2010, but again, there is nothing exceptional about this. Jim was dying of cancer and Shane was there to take care of him.

Finally, Davenport notes that on August 1, 2010, Shane offered to help Jim with some of his “legal jumbo.” Jim had complained that he had questions about his living revocable trust and that he had thought it would be easier than a will. Shane asked if there was anything he could do to help and Jim said no, that he would do the best he could, that “all of this legal jumbo is just .... jumbo” and that he may just forget the revocable living trust. The final email in the chain contains Shane’s response that he was looking forward to seeing Jim the next day and that with two sets of eyes they might be able to figure out the “Jumbo” Jim was referring to. Doc. 173-7, p. 1. When you consider that Shane had been the primary beneficiary of LeFeber’s estate since 2006, it is obvious that he had no motive to unduly influence Jim and it is not suspicious that Shane wanted to help Jim.

With respect to Gibbons, Davenport claims that he drove to LeFeber’s home on the day Jim was diagnosed with cancer and stayed with him almost constantly until he died so Gibbons could ensure himself a share of LeFeber’s wealth. But Like Faller and Shane, Davenport can point to no specific acts of undue influence by Gibbons. Gibbons had known LeFeber for over thirty years. On July 9, 2010, LeFeber “called and asked me to come as soon as possible because he told me he had terminal cancer. He said he had only months to live.” Chris Gibbons’s Affidavit, doc. 68, pp. 3-4. He stayed through the weekend, went back home to work during the week and returned the next weekend to “spend some time and help Jim with things he was requesting [Chris] do.” Id. at p. 4. Chris spent more and more time with Jim as the cancer progressed because Jim wanted him there as much as possible. Jim specifically asked that Chris be there with him when he died, so Chris spent the next few months caring for him, making household repairs, and fixing up Jim’s old Ford truck so Shane could take it back to Oregon. Id. According to Gibbons, Jim LeFeber had told him that he wanted to leave him and his family a gift, but that he never asked and Jim never told him what the gift would be. Jim told Gibbons he had a will, but they never discussed specifics. Id. at p. 8.

At best, Davenport can prove that Defendants had access to Jim LeFeber and opportunities to unduly influence him. But the mere opportunity to exercise undue influence is insufficient, there must be admissible evidence of specific acts of undue influence to survive summary judgment. Estate of Harmon, 253 P.3d at 827. Davenport has only speculation.

3. Whether the donor received independent advice from an attorney or from other competent and disinterested advisors in preparing the will or will substitute

Davenport makes a big deal of the fact that LeFeber went to a different attorney for his final estate planning than his friend Raymond Tipp, of Tipp & Buley in Missoula. She claims Jim never would have willingly switched from his “longtime attorneys” and that because he went to Huse, he did not get “independent advice from his own attorneys.” Again, Davenport’s word is the only evidence of this.

Raymond Tipp of the Tipp & Buley firm in Missoula represented LeFeber in a property dispute with a former girlfriend, Shane’s mother Maggie Johnson. FSGI, ¶ 120. Tipp also drafted LeFeber’s November 11, 2005 will. FSUF, Ex. 2; doc. 168-10, Depo. Raymond Tipp, 18:4-11 (Jan. 13,2012). After the conclusion of the property dispute, Jim remained friends with Raymond Tipp and visited him at his office on the weekends until Jim became sick. FSGI, ¶ 125.

Faller said that after Jim was diagnosed with terminal cancer, he asked Faller for help finding an estate planning attorney. FSGI, ¶ 127. Faller wrote down the names of some attorneys, including Thad Huse, on two memo pad pages and gave them to Jim. FSGI, ¶ 127, ex. 14. From the handwritten notes Jim made on those two pages, it appears Jim called some of those attorneys and may have considered some attorneys that Faller did not suggest. Id. Although his name was on Faller’s list, Huse avers that Jim came to him on referral from Paul Ryan and that he had never met nor performed work for any other party to this lawsuit. FSGI, ¶¶ 128-29. In an email to Shane dated July 7, 2010, Jim told Shane that he was “[s]eeing any atty. today to get a Living Will, Medical Power of Atty. and a Revocable Living Trust drawn up.” FSGI, ¶ 130. When Shane asked whether Jim was going to Tipp and whether Tipp did those things, Jim responded: “Not Tipp. Another Atty. May not make you my personal representative as your in Bend, Org. and things may need to be done quickly here in Missoula.” FSGI, ¶ 130.

The fact that Jim chose a new attorney for his final estate plan is not indicative of undue influence.

4. Whether the will or will substitute was prepared in secrecy or in haste

Jim first met with Thad Huse on July 7, 2010. FSUF, ¶ 65. By July 9, 2010, he had signed the will that Huse prepared for him. FSUF, ¶ 77. According to Davenport, this shows that the will was hastily prepared and evidence of undue influence. But considering that Jim had learned by June 25 that he had 6 lesions on his liver, FSUF, ¶ 54, had begun to consider the distribution of his wealth and plan for his care in late June, FSUF, ¶¶ 55-56, it really only shows that Jim LeFeber was trying to get his affairs in order. The first meeting with Huse to prepare a new will came one day after Dr. Snyder told him that if his disease was untreated he had less than a year to live and that any treatment would be palliative. FSUF, ¶ 61.

5. Whether the donor’s attitude toward others had changed by reason of his relationship with the alleged wrongdoer,

Since any objective consideration of the facts in this case reveals that Davenport is the only wrongdoer, this factor has little application here. In any event, Jim knew the other Defendants, especially Shane and Gibbons, far longer than he knew Davenport. And there is no evidence the other Defendants knew much about Davenport or her