Ebey v. Ebey

Filed 9/29/08 Ebey v. Ebey CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

I. INTRODUCTION

Leonor and George W. Ebey, who were the parents of appellant Barbara Martina Ebey (Tina) and respondent George Ebey,[1] established a trust in 1974. Following George W. Ebeys death in 1995, two separate trusts were created. George W. Ebeys trust became irrevocable, while the other trust could be amended or revoked by Leonor. In June 2004, Leonor executed the Eleventh Amendment, which eliminated her daughter, Tina, as a beneficiary of her trust and made her son, George, the sole beneficiary. Leonor died in March 2005.

Tina subsequently filed a petition seeking, among other things, to set aside the Eleventh Amendment on the ground of undue influence by her brother, George. Following a bench trial, the court found that Tina failed to prove undue influence and denied her petition.

We understand the principal arguments by Tina, a self-represented litigant on appeal, to be that the trial court should have (1) applied a presumption of undue influence against George and shifted the burden of proof to George to show that he did not exert undue influence over Leonor; (2) allowed Tina to amend her petition to allege that Leonor signed the Eleventh Amendment as a result of mistake; and (3) allowed Tina to amend her petition to allege that George committed financial elder abuse against Leonor. For reasons that we will explain, we will affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The George & Leonor Ebey, 1974 Trust

Leonor and George W. Ebey were the parents of George and Tina. George is nine years older than Tina.

Leonor and George W. Ebey established the George & Leonor Ebey, 1974 Trust, which was amended several times. In 1982, the Seventh Amendment was executed, and it superseded and replaced all prior terms of the trust. The Seventh Amendment provided that the trust would be divided into two separate trusts on the death of the first spouse. The deceased spouses trust, Trust Two, would become irrevocable, while the surviving spouses trust, Trust One, could be amended or revoked by the surviving spouse. Upon the death of the surviving spouse, the trust estate was to be divided and distributed to George and Tina as specified. The Tenth Amendment, executed in August 1995, provided that if the trustee, George W. Ebey, died, then his wife, Leonor, and his longtime friend, Ronald Tuttle, would act as successor cotrustees. If either of these cotrustees died, then the other would act as sole trustee.

George W. Ebey died in September 1995. Leonor and Tuttle thus became cotrustees, and Leonor had the power to amend Trust One. In 2004, Trust One held the Palo Alto residence where Leonor lived and was valued at approximately $1 million, while Trust Two (the decedents trust) held approximately $950,000.

B. Leonors Living Arrangements

By 1997, following the death of her father, Tina had moved into the family home in Palo Alto to live with Leonor. Beginning in or about 2000, caregivers were hired for Leonor.

Between 1995 and 2002, George lived in Oregon and in Bolinas, California. While in California, he spent some of his time with Leonor in Palo Alto. In 2003, he continued to assist Leonor by, for example, taking her to several medical appointments.

In March 2004, Leonor, who was in her nineties, was hospitalized for one month. In April 2004, she was transferred to a nursing facility. By May 2004, she had moved back home. Within the previous year, Leonor had suffered a substantial blood loss from a gastrointestinal source. She also experienced a urinary tract infection, suffered a hip fracture, and had diabetes. Her hearing was diminishing and her vision was impaired due to macular degeneration. She also experienced some memory problems.

By May 2004, George was a continuous resident at Leonors house. His daughter, Lily Ebey-Field, also helped care for Leonor. Tina temporarily rented a room elsewhere, but continued to go to the house everyday and kept some belongings at the house. Tina moved back in for a few days during the middle of June 2004. At the end of June 2004, Tina received a 60-day notice to move out. Leonor died in March 2005.

C. The Eleventh Amendment

Leonors Meetings with an Attorney

In or about April 2004, Leonors cotrustee, Ronald Tuttle, asked Robert Roskoph, an attorney that Tuttle knew, to review the trust documents and to meet with Leonor because it had been a long time since somebody looked at the documents. . . . George did not have any involvement in the decision that Leonor should consult with an attorney about the trust, and he did not have any involvement in the selection of the attorney.

Tuttle scheduled Leonor to meet with Roskoph on May 13, 2004. By that point, Leonor used a wheelchair and her vision had deteriorated to the point where she could no longer read. George drove Leonor to Roskophs office and then accompanied her to a conference room to meet with Roskoph and Tuttle. When substantive discussions began after a few minutes, George left the room and read magazines in the lobby.

Prior to the meeting, Roskoph had reviewed the Seventh through Tenth Amendments to the trust. During the meeting, Leonor generally explained to Roskoph the assets of the trust, and she knew that the house was worth approximately a million dollars and that the other trust assets were approximately equal to that amount. Tuttle expanded on Leonors general discussion of what the two trusts had . . . by getting into more of the detail of the asset investments. Tuttle explained that there was $1 million in Trust Two and Tina was going to get one-half. Leonor stated that Tina was getting enough monies to live on and she wanted to write Tina out of [T]rust [One]. Roskoph discussed with Leonor the fact that her husbands portion of the estate was an irrevocable trust and couldnt be amended but that her portion of the trust could be amended.

Roskoph asked Tuttle to leave the room before starting a discussion with Leonor about changes she might want to make to the trust. They talked about two changesa change to the beneficiaries and a change to the trustees. Leonor indicated that she was thinking about deleting Tina as a beneficiary under her trust. In response, Roskoph let her know that there were alternatives to an outright disinheritance. He discussed the alternative of restrict[ing] the assets from Tina for some additional period in order to prevent them from being taken or distributed to the religious group to which Tina belongs. . . .

The entire meeting after George left the room took approximately 40 minutes. Roskoph anticipated that they would have a second meeting, so that Leonor could think about the alternatives and so that Roskoph could perhaps come up with some additional alternatives.

George drove Leonor to Roskophs office for further meetings on May 24, June 1, and June 7, 2004. George was not present in the room when Leonor and Roskoph engaged in substantive discussions, and Tuttle did not attend any of these meetings.

Over the course of their discussions, Leonor indicated to Roskoph that if her daughter was a beneficiary of her trust, then the money could go to Soka Gakkai, a religious organization in which Tina was involved. Leonor did not want this to happen. She wanted all of her trust, Trust One, to go to George. Leonor thought Trust Two was plenty for Tina and she didnt want to give any additional assets to her. She also wished that George and Tina could be friends.

Roskoph discussed the fact that leaving unequal shares to George and Tina would not cement good relations but Leonor indicated that [t]hey didnt have good relations at that point, and it wasnt her primary concern. Roskoph talked to Leonor about alternatives to disinheriting Tina, and specifically, an alternative in which Tina agrees to income trust then half the estate to the trust; otherwise only one-quarter of the estate (one-half of [George W. Ebeys] trust) to Tina. Leonor indicated [s]he would consider it but she wasnt inclined initially to take on that plan. After further discussions regarding Tinas disinheritance versus some sort of retained trust for her benefit during her lifetime, Leonor eventually expressed a desire to proceed with the disinheritance and directed Roskoph to draft an Eleventh Amendment to distribute the entirety of her trust, Trust One, to George following her death.

During these meetings with Roskoph, Leonor also spoke more generally about Tina and George. Leonor expressed that she was upset over the way Tina treated her, the manner in which Tina had moved herself into the house, the manner in which she had accumulated items over time, and that she just didnt seem to care for Leonor to that extent. She didnt seem to have the time for her, and . . . it was a fearful relationship on behalf of Leonor and not a loving mother/daughter relationship. Leonor indicated she was fearful because Tina would raise her voice and just acted in [an] angry manner around her. She told Roskoph that her relationship with Tina was strained, that it was difficult, that she wanted Tinas belongings out of the house, [and] wanted Tina out of the house. She indicated that George had moved some things into the house because he was coming from Oregon, but Tina had moved his belongings, and it was continually upsetting to Leonor. Leonor indicated that George had hired a caregiver and [t]hat she felt that George was taking care of her and was helping her out by having someone in the house to care for her.

Leonors Discussions with George

Following some of the meetings with Roskoph, Leonor talked to George about changes to the trust. For example, during the drive home after the first meeting, Leonor informed George that she had been told that she could change Trust One. At home, they had another short discussion about the fact that she was considering that she could change the trust. George told her that she should do what she wanted to do. Leonor did not indicate to George what changes she was thinking about. A day or so later, Leonor again mentioned to George that she had been told that she could change the trust.

During the drive home from the second meeting, George found that the issue of the Soka Gakkai and [Leonors] ongoing displeasure with Tina, which was a mounting anger, was definitely a big feature of her point of view. Leonor was concerned that her money or a portion of interest in her house would go to the Soka Gakkai if she left it to Tina. . . . She told George that she was thinking of leaving Tinas part to him.

After the second meeting, George found that Leonor became more and more interested in making a change. . . . She eventually began [t]alking about removing Tina from her half value in the [T]rust [One]. George told her that it was a pretty major change, and that she should really think about it, and that there were . . . two choices. The choices were to disinherit Tina or put [T]rust [One] and [Two] into one event that would in turn produce income for Tina. George thought the latter was maybe a better remedy. He told Leonor that she should do what she felt good about and he would support her. According to George, he supported the second alternative which would provide income for Tina, but Leonor seemed to want to do something simple. She also considered the fact that Tina would receive one-half of the money in Trust Two from George W. Ebey and said  500 is enough in reference to what Tina would receive from that trust.

On May 25, 2004, one day after Leonors second meeting with Roskoph, George sent Roskoph an email. In the email, George thanked him for permitting Leonor to execute her best idea of her legacy; indicated that his mother did wake up to the fact . . . that this portion of the estate is rightfully her[]s and the change in its distribution is ok and would relieve her heart; asked for Roskophs opinion on her state of mind; noted that [s]he is forgetful but it does seem that her knowledge of her place and her intent is valid; and stated that she wants to sign this document this week if possible. The email also made reference to Tina showing up at the house and refus[ing] to loosen her grip on the room that should be at the disposal of the supplemental caregiver. George wrote that [t]his is in direct contradiction to Leonors wishes, and stated that Tina threatened him with the police if he touched her stuff. George suggested that legal removal or restraint may be required and sought consultation on procedure from Roskoph. Lastly, George wrote in the email that he had committed to [his] mother, at the historical behest of [his] father, to look after Tina; that if a change in distribution occurs and Tina comes down off her high horse, there is some real value available to her; and that he has a great and generous family, if she were interested, so it is not as if she would be completely frozen out of anything in the larger picture. Roskoph did not talk to George or Leonor about this email.

Execution of the Eleventh Amendment

Pursuant to Leonors direction, Roskoph drafted the Eleventh Amendment, and they met again on June 8, 2004. Cognizant of Leonors limited eyesight, Roskoph read the document to her, and they discussed what the plan was prior to the Eleventh 

Amendment and what it would be thereafter. After indicating that she had no questions, Leonor executed the Eleventh Amendment.

The Eleventh Amendment states in pertinent part: Upon the death of Surviving Trustor, the Trustee shall allocate and distribute, free of trust, the entire residue of Trust One to Trustors son, GEORGE OLIVERA EBEY. [] Surviving Trustor is aware that this Amendment and exercise of the power of appointment granted to Surviving Trustor intentionally eliminates the Surviving Trustors daughter, BARBARA MARTINA EBEY (Tina) as a beneficiary of Trust One. Surviving Trustor confirms and acknowledges that Tina is a fifty percent (50%) beneficiary of Trust Two, the decedent Trustors Trust. The decision to exclude Tina from a share of Trust One is a result of (1) Surviving Trustors deteriorating relationship with Tina over the last several years and (2) Tinas involvement with a religious organization. Surviving Trustor does not wish any of her estate, or any portion over which she currently has control, to pass to Tina or the religious organization with which Tina is involved. For these reasons, Surviving Trustor hereby purposely disinherits Tina from Trust One, the Surviving Trustors Trust.

In total, Roskoph spent three to four hours talking to Leonor about her estate plan. The majority of that time, probably three-and-a-half hours, he spent alone with Leonor. Roskoph characterized Leonors ability to carry on a conversation with him as [e]asy. While Leonor incorrectly answered some of Roskoph questions, such as the date her husband died or Tinas age, or indicated that she knew the day was Monday but she did not know the year, Roskoph was not alarmed. He explained that its a question of whether they appreciate what they own and who their beneficiaries are as opposed to who . . . natural beneficiaries of their bounty are, or some statement thats completely out of the blue, out of character, nonresponsive, something like that. That would more alarm me than not necessarily knowing the year or making a mistake relative to a childs age. Based on Leonors statements to him, Roskoph had no doubt that Leonor understood who the beneficiaries of Trust Two were and understood the effect of her execution of the Eleventh Amendment.

D. Leonors Relationships with Tina and George

Observations by Family Members and Relatives

Tina did not perceive her relationship with Leonor to be deteriorating, as characterized in the Eleventh Amendment. Tina testified that she and Leonor made the decision together for Tina to stay at the family home. During part of the time that she lived with Leonor, Tina worked temporary jobs. Tina testified that she tried to spend as much time with Leonor as she could when she was not working and when she was able.

Tina believed that she and Leonor had a lot of fun together. Tina testified that she and Leonor would chat amicably and that she read books to Leonor. Tina denied yelling at Leonor and explained that she had to speak louder at times because Leonor could not hear very well. Tina had little parties for Leonor for birthdays or Christmas, and she tried to have several presents for Leonor. While acknowledging that Leonor complained about her in the course of a day, maybe 5 or 10 minutes, Tina testified that she took very good care of Leonor.

Regarding food, Leonors neighbor, Bill Lusebrink, brought over most of the perishables, and Leonor would pay him. Leonor also liked milk, which Tina would buy, although sometimes Leonor paid for it. According to Tina, Leonor liked to pay her for groceries. Tina made breakfast for Leonor. If Tina was not working and there was no hired caregiver, she also made lunch, which consisted of putting food from Meals on Wheels into the microwave for Leonor. According to Tina, dinner varied, in that sometimes Leonor ate one of the extra Meals on Wheels or Tina fixed a meal. Tina always did the laundry.

Tinas activities in relation to Soka Gakkai included writing collaborative papers about the technical side of peace, attending meetings, and some international travel. She also had her own practice in chanting and in doing other things related to the belief system, which she did daily in the morning and evening. Tina acknowledged that her mother made negative comments about the organization. When asked whether Leonor ever discussed concerns that [she] would give substantial amounts of money to Soka Gakkai, Tina responded: Not that I remember. Occasionally she expressed concern but not particularly.

Tina perceived Leonors worst decline physically and mentally as beginning in 2003. Among other things, she described Leonor has having really big frustrations and periodically enormous upsets.

George became chief caregiver for Leonor in or about 2003. George acknowledged that Tina was civil to [Leonor] and often very nice to her when other people were in the environment. He did have criticisms of her care for Leonor, however, including her failure to properly follow Leonors medication regimen and her failure to acquire a cellular telephone so that she could be accessible to Leonor. Since approximately 2000, several caregivers had been hired for Leonor, and all were hired by George.

George was present when Tina was introduced to the Soka Gakkai, and he and his father attended a few meetings of this group with Tina. George testified that he heard Leonor call it a cult all the time. George expressed to Tuttle in an email in December 2002 that Tina will give an inordinate amount to the Soka Gakkai to lend prestige to her life in that cult......neither mother, nor I or my father had/have any desire to help further the purposes of that organization. . . .

Lily Ebey-Field is Georges daughter and Leonors granddaughter. After Ebey-Field graduated from college in June 2004, she lived with Leonor until Leonor passed away. Ebey-Field helped Leonor get dressed, do exercises, made her lunch, took her out for hot chocolate, and went for walks through the neighborhood or took her to Stanford Shopping Center. She or George also cooked dinner for Leonor. Ebey-Field found that Leonor liked to visit with people and enjoyed peoples company. Ebey-Field had the impression that Leonor was fearful or intimidated of Tina because Leonor would whisper when she thought Tina was around, would ask Ebey-Field whether she had seen Tina, and just sat there when Tina was present.

Doreen Cook is Tina and Georges cousin. Cook visited her aunt, Leonor, and also talked to her on the telephone. On some visits, Cook spent two to four days with Leonor. Cook continued to talk with Leonor by telephone into the last year of her life. Leonor seemed alert and coherent to Cook in these conversations.

During the time that Tina was living with Leonor, Cook observed the house getting dirtier. Tina fixed breakfast for Leonor while Cook usually prepared lunch and dinners. Cooks impression was that Tina mostly bought things that she liked to eat and Tina was at the time a vegetarian and just bought vegetarian food.

Leonor frequently complained [to Cook] that she had no one to talk to and she mentioned the lack of companionship from Tina. Cook believed that Leonor and Tina talked, but they didnt socialize. . . . Cook described Leonor as not being happy that Tina was living in her home during the last three or four years and that Leonor and Tina were not close. Cook had observed Tina speaking loudly or yelling at Leonor on more than several occasions, which was very frightening to Leonor.

Cook found Leonor very unhappy that Tina spent so much time with [Soka Gakkai] and was actually afraid that her money and her house would go to them. On more than one occasion Leonor told Cook that [s]he didnt want the house or any of her money to go to the Soka Gakkai. Leonor also said that she did not want Tina to have the house. Cook would tell Leonor it was her money. She could do whatever she wanted to do with it. Cook thought Leonor was afraid to change [the trust] while Tina was living in the house because she was afraid of Tina.

Observations by Friends and Acquaintances of the Ebey Family

Several longtime friends of Leonor and George W. Ebey had the opportunity to observe the relationships between Leonor and her children. Cotrustee Tuttle had known George W. Ebey since 1968 and the two were friends. After George W. Ebeys death in 1995, Tuttle tried to visit Leonor at least once a month, and sometimes saw her as often as once a week.

Tuttle observed that George and Tina each received financial assistance from their parents over the years. For example, George W. Ebey loaned $50,000 to his son, George. He also set up a trust for his daughter, Tina, in 1987, which provided Tina with a monthly stipend and money for education and other designated needs. The trust started with $100,000 and Tuttle was the trustee. After George W. Ebeys death, Leonor continued to give money to George, Georges children, and Tina. Tuttle made disbursements to them from the trust at Leonors direction, and he did not perceive an effort by Leonor to equalize the amounts given to them.

Following her husbands death, Leonor told Tuttle many times that she wanted Tina to move out of the house. Although Leonors dissatisfaction would simmer down after her conversations with Tuttle, the issue kept coming up. Tuttle explained that when Leonor would talk about getting Tina out of the house over a number of years . . . it related to her dissatisfaction with the ongoing relationship with her daughter. During late 2003 and early 2004, Leonor indicated to Tuttle that she had difficulty communicating with Tina and that [s]he didnt think Tina was available as much as she wanted her.

In a recorded telephone conversation between Leonor and Tuttle in late April 2004, Leonor indicated that she wanted to give George the power of attorney for her medical affairs. She also questioned whether she needed to meet with an attorney when the issue was raised by Tuttle.

Between Leonors first meeting with attorney Roskoph in May 2004 and the execution of the Eleventh Amendment in June 2004, Tuttle told Leonor that it was not a good idea to totally eliminate Tina as a beneficiary of [T]rust [One], that it would create hardships and animosities going forward. Leonor indicated that she would take his view under advisement. Leonor expressed concern to Tuttle that money would go from Tina to Soka Gakkai, and it was her wish that none of her money went to Soka Gakkai.

Jack Hamilton was another longtime friend of George W. Ebey, and the two had known each other since 1970. After George W. Ebey died, Hamilton periodically visited Leonor. In or about April or May 2004, Hamilton held a mediation with Tina and George, after Tina contacted Hamilton concerning Leonors care. Hamilton believed the goal of the mediation was to improve communications between Tina and George.

After the mediation, Hamilton met with Leonor, at Georges request, on May 26, 2004. Hamilton asked Leonor how things [were] going in [her] life and so forth, and he listened and took notes. Hamilton observed Leonor to be alert and did not find her responses to be rote or formulaic. Hamilton later typed up his notes, which reflect the following statements by Leonor: George has been here too long, when he has things to do up in Oregon. But I[]ve needed him. He[]s helpful to me. He[]s a very good nurse, which has been a surprise. George has been very kind and has helped me with everything. You wouldn[]t expect that of a man. I hadn[]t had that experience with him before, because he hasn[]t been around that much. [] I just don[]t think that Tina likes me. She[]s not very loving or friendly to me. She is no company. She can[]t stand me. I don[]t like her very much. In other words, we don[]t get along. I would be very glad if she would live elsewhere. She does her own thing. She has done laundry and has given me breakfast, but other than that I[]ve been pretty much alone. [] Tina moved in on me, little by little, without an invitation. I was alone at the time. I thought she would be good company. She started out as good company. Then she got more involved with her religion. It took her away more and more of the time. She would serve me breakfast and then take off. She wouldn[]t be here beyond that time for quite a while. [] . . . [] I would like to have Tina move her things out of the master bedroom and take them elsewhere, because she is no company. That would open up the master bedroom for a caregiver to stay there. . . . [] If Tina needs help financially with paying the rent of a bedroom in someone else[]s house, she ought to get that help. I would be able to help her with the rent.

The observations of Leonors longtime friends were in accordance with Leonors statements. Carole Lusebrink and her husband lived one block from the Ebeys, and Lusebrink had known Leonor for 40 years. After George W. Ebey died, Lusebrink spoke with Leonor on the telephone at least once a week and sometimes as frequently as once a day. She also occasionally visited Leonor. Lusebrink observed that Tina was not usually home during the day and that it became a practice of Leonor to call her after Tina had left the house.

Lusebrink explained that Leonor would have oatmeal that Tina prepared for breakfast, and she would have lunch from Meals on Wheels. Leonor thought Meals on Wheels was [p]retty boring, pretty dry according to Lusebrink. Lusebrink bought fresh fruit every week and her husband delivered it to Leonor. Leonor was appreciative whenever Lusebrink or her husband visited, and thankful for the fruit.

Lusebrink perceived Leonor to be alert and oriented to time and place. She also found Leonor to be social and a good conversationalist. However, Leonor expressed loneliness to Lusebrink and wished Tina would spend more time with her. On the other hand, it annoyed Leonor a little bit when Tina was in her room doing chanting and bell ringing because Leonor felt it was her house and she was not getting . . . the comfort that she wanted.

Lusebrink heard Tina speak harshly to Leonor on more than one occasion. During one incident, Tina got full in her mothers face and yelled at her with Lusebrink present, indicating Leonor should not have anyone in the house without Tina there. When she was walking in front of the house, Lusebrink sometimes heard fighting and yelling from the window that was open to Leonors room. Lusebrink perceived the relationship between Leonor and Tina to worsen as time went on. She also had the impression that Leonor was either afraid or intimidated of Tina, and Lusebrink herself was frightened for Leonor. Lusebrink eventually called Adult Protective Services. Although a caregiver was hired, Lusebrink perceived the relationship to continue to worsen.

At some point, Leonor told Lusebrink that she was not leaving Tina things in her portion of the will and that she had removed Tina from the will. Lusebrink had the impression that Leonor did not want money to go to Soka Gakkai after she died. Leonor had also told Lusebrink that [s]he was not treated kindly. She was not treated lovingly. She was not treated as though she had a companion in the house. She was lonely.

Lusebrink found that Leonors mood improved a lot after George and Lily [Ebey-Field] came. Lusebrink saw them take Leonor out in the wheelchair on several occasions, whereas she only saw Tina take Leonor out once. She also saw George and Ebey-Field encouraging Leonor to exercise. Lusebrink thought Leonor and Ebey-Field had a nice relationship and that Leonor seemed to relax when George was present.

JoAnn Revis lived next door to the Ebeys for 46 years and was another longtime friend of Leonor. At some point, Revis began visiting Leonor only when Tinas car was gone because she felt it was more pleasant to see Leonor by herself. . . . Revis found that Leonor liked to be with people and had a good sense of humor. During the period of May and June 2004, Leonor had some hearing loss but Revis was able to have a conversation with her without yelling at her. Revis found Leonor to be alert, oriented to time and place, and aware of her surroundings.

Leonor complained to Revis about Tinas absence. She felt that Tina would go off and not necessarily tell [Leonor] where she was going or what time she would be back. Revis never saw Tina take Leonor for walks. Leonor also expressed concern about the Soka Gakkai. Revis observed changes after George and Ebey-Field moved into the house. For example, they took Leonor out in the car and George frequently took Leonor to the corner coffee shop to have a cup of hot chocolate and just get her out into the air. . . .

Susan Lerer is a registered nurse and has known the Ebey family since 1990. She usually visited the family home with George, with whom she had a romantic relationship. Although Leonor had a hearty appetite, she expressed dissatisfaction to Lerer about the vegetarian meals prepared by Tina. She also told Lerer that there were some days when she gave Tina money for food but there was no milk in the refrigerator. Leonor also informed Lerer that she never knew really how to get in touch with Tina or where she was truly going, and she indicated that there was no interaction between the two of them. She was lonely being alone all day.

On a couple of visits, Lerer noticed that Leonor had not been given the appropriate medication doses, because some medications had run out or she had not received some of them. Tina had indicated she was going to get the medication.

Lerer described Georges efforts to make life easier for Leonor. For example, he put tape on Leonors radio so it would only come on to her favorite channels [and] she couldnt switch them off and not be able to listen to it. He bought her a heated mattress pad because she was chilly at night and special pillows for her head. He also taped two chairs together and weighted them down so she could help pull herself up off the bed to a standing position. . . . In addition, he set up an exercise bike so that she could sit on her chair behind the bike, hold on to the seat and put her feet on the pedals and pedal for about 15 minutes every day. Revis also saw George massage Leonors shoulders and feet, as well as write directions on a dry erase board in Leonors room regarding how to massage her feet on a daily basis for swelling and numbness . . . to help her with her circulation.

Tracy Takahashi, a friend of Tinas from Soka Gakkai, met Tinas parents on a few occasions. Tina always introduced Takahashi as her good friend from the Buddhist organization. Takahashi testified that she was treated very well by Tinas parents. When Takahashi saw Leonor on a few occasions between 2001 and 2004, she observed the relationship between Leonor and Tina to be cordial.

E. Expert Opinions by Psychiatrists

Two psychiatrists were retained by the parties to provide expert opinions regarding Leonor. Dr. Stephen Read was retained by Tina, and Dr. James Missett was retained by George. The psychiatrists reviewed some of Leonors medical records, Georges video recordings of Leonor after he became primary caregiver in 2003, and an audiotape that included a conversation between Tuttle and Leonor in late April 2004.

In reviewing the video recordings, Dr. Read observed Leonor to be responsive when other people come in, and . . . show interest in some participation and conversation, but her participation in general is either prompted and formulaic, . . . or it is passive and she is listening but not involved and doesnt really contribute in a material sense to it. It was his impression that Leonor was vulnerable to suggestion as demonstrated by the fact that her spontaneous motivation and initiative [were] very, very small. Dr. Read believed that many of Leonors actions were dependent upon George, although he did not have any evidence as to whether George exerted influence on Leonor regarding testamentary decisions. He testified that Leonors mental ability to understand and appreciate the consequences of her decision when she executed the Eleventh Amendment was compromised.

Dr. Read found that Leonor had short-term memory problems, although there was evidence of some preservation of short-term memory. He also opined that Leonor suffered from dementia as early as January 2003. He did not have sufficient evidence to express an opinion on whether Leonor was delusional. He noted that Leonor had been treated at various times with an anti-depressant medicine and that records from April 2004 indicated Leonors tearfulness, although he did not have any organized mental health observations to really help characterize that of her.

Dr. Read acknowledged that Leonor tended to express herself with very definite opinions and described her as having a dogged quality. He also admitted that Leonor described Tina as being cold and a mean woman in a segment of the video recording without any suggestion by George. He admitted that he had no reason to believe that Leonor did not understand that the effect of the Eleventh Amendment would be to eliminate Tina as a beneficiary of Trust One.

In contrast, Dr. Missett described Leonor, based on the audio recording of her conversation with Tuttle in late April 2004, as quite alert, quite interactive, responds very quickly, makes sense when she responds, [and] appears to have a sense of humor, which ordinarily implies a higher level of cognitive functioning, by evidence [of] an awareness of her surroundings. She also demonstrated an awareness that possibilities may not become actualities, evidenced a capacity to be aware of things that may happen in the future, and an awareness that the actions that she takes may impact her children . . . differentially, such that one of the children may be upset or angry as a result of what it is shes deciding. He testified that Leonor showed age-related cognitive decline but that she appeared at the most only mildly impaired and . . . intermittently with respect to her cognitive functioning. He characterized Leonors dementia as an age-related problem that was quite mild, and he found her to have intermittent short-term memory loss.

Dr. Missett opined that Leonor had the mental capacity to determine that she wanted to disinherit Tina, and that she quite clearly had the ability to resist undue influence. It was his opinion that Leonor could independently formulate the desires stated in the Eleventh Amendment.

F. The Petition

Leonor died in March 2005, while in her nineties. On August 31, 2005, Tina filed a petition concerning the George & Leonor Ebey, 1974 Trust. In the first cause of action, Tina sought to set aside the Eleventh Amendment on the grounds that Leonor was not of sound and disposing mind at the time she executed it, it was the product of undue influence by George, it was signed as a result and product of mistake by Leonor, and George procured it through duress, menace and intimidation. Tina contended that the remaining provisions of the trust were valid and that she and George were entitled to equal shares of Trust One as beneficiaries. In the second cause of action, Tina sought to compel a preliminary distribution of Trust Two. In the third cause of action, she alleged a breach of trust by trustee Tuttle.

On May 1, 2006, at Tinas request, the second and third causes of action were dismissed, as well as the entire action as to trustee Tuttle.

G. The Motions to Amend

Prior to trial, Tina made a motion to amend her petition with respect to financial elder abuse and mistake, but the motion was denied. During trial, Tina moved to amend the petition to conform to proof that Leonor executed the Eleventh Amendment as a result of mistake. George opposed the motion. The trial court determined that allowing the amendment would prejudice George and denied the motion.

H. The Trial Courts Ruling Regarding the Petition

The trial began on March 5, 2007, and lasted several days. In a statement of decision filed May 14, 2007, the trial court found that Tina had failed to prove undue influence by George and denied her petition. The judgment filed May 14, 2007, states that the Eleventh Amendment to the George & Leonor Ebey, 1974 trust is valid. Tina filed a timely notice of appeal.

III. DISCUSSION

On appeal, we understand Tinas principal arguments to be that the trial court erred by not applying a presumption of undue influence and shifting the burden of proof to George, and by not allowing her to amend her petition. We will first address Tinas contention that she should have been allowed to amend her petition.

A. Motions to Amend the Petition

Tina asserts that the trial court should have allowed her to amend her petition to allege that (1) Leonor signed the Eleventh Amendment as a result of mistake; and (2) George committed financial elder abuse against Leonor.[2]

To the extent Tina is challenging a ruling that was made by the court before trial, Tina fails to demonstrate error. A judgment or order of the lower court is presumed correct and an appellant must affirmatively show error. (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125.) It is the burden of appellant to provide an accurate record on appeal to demonstrate error. Failure to do so precludes an adequate review and results in affirmance of the trial courts determination. [Citation.] (Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn.1.)

In the present case, Tina failed to provide a copy of the pretrial motion for leave to amend or the reporters transcript of the hearing on the motion. By failing to provide an accurate record regarding the pretrial motion from which an adequate review may be conducted, Tina fails to demonstrate error in the denial of the motion.

The record does reflect that near the end of trial, Tinas counsel made a motion to amend the petition to conform to the proof of a series of mistakes by Leonor in executing the Eleventh Amendment. In moving to amend to conform to proof, Tinas counsel raised only the issue of mistake and did not raise the issue of financial elder abuse.

Tinas counsel explained that although Tinas original petition had included a cause of action for mistake, as of the day the trial started the only cause of action pending was undue influence because [Tinas prior counsel] had dismissed the other causes of action. Tinas counsel thus sought to resurrect[] the cause of action for mistake. He argued that the evidence presented at trial showed that Leonor was unaware that the Eleventh Amendment totally changed the testamentary plan that she and her husband had made . . . . Counsel contended that there was testimony that she was deferential towards her husband and that he was the person who initiated this estate plan and she agreed to it and that was in place for many, many years, that she gave no consideration to . . . how this would result with respect to Tina in terms of what kind of condition which she would be left in physically, what her resources would be. [] The mistake also was that this is a very dramatic change, and her state of recognition and her ability to process this with executive function is greatly diminished based on Dr. Reads testimony. Tinas counsel also asserted that there would be no prejudice to George in allowing the amendment because it was based on evidence presented at trial.

In opposition, Georges counsel contended that the record did not establish Leonor was mistaken as to the nature and effect of the document that she was executing. He also argued that George would be prejudiced by the amendment because the issue of mistake was not before the court and consequently he had not presented evidence on the issue. Counsel for trustee Tuttle[3] similarly maintained that the evidence did not support a claim for mistake.

The trial court indicated that it wanted to review documents and legal authority cited by Tinas counsel. To accommodate Dr. Missett, who was the last witness and was waiting to testify, the trial court allowed testimony to continue without immediately ruling on the motion. At the conclusion of Dr. Missetts testimony, the trial court heard further argument from counsel regarding the motion to amend the petition to conform to proof of mistake.

Tinas counsel contended that the evidence at trial showed that Leonor executed the Eleventh Amendment under a mistake of fact, induced by the statements and misstatements of George . . . , and that Leonor Ebey mistakenly believed that A, if she left half of her estate to her daughter Tina Ebey, said assets would be given away by her daughter to a Buddhist sect know as Soka Gakkai; B, that Tina Ebey did not love or care for her; C, that Tina Ebey was compelled by the Soka Gakkai group to donate her assets to them; [and] D, Tina Ebey did not need her share of the trust.[4] Tinas counsel asserted that [a]ll of the evidence . . . that was produced with respect to the cause of action for undue influence [was] also . . . sufficient to sustain a cause of action for mistake.

The trial court indicated that it was focused on the discreet issue of whether there was prejudice if the motion to amend was granted.

Georges counsel responded that he would have brought in witnesses to refute the contentions, [and] the evidence regarding mistake if [he] thought that was going to be an issue in the case. He also indicated that he would have pursued it in discovery and he would have done more about the Soka Gakkais contributions and donations that they received. Georges counsel contended that mistake was not an issue at trial and it was very prejudicial to allow the legal theory to be changed at the end after the evidence is through . . . .

Counsel for trustee Tuttle added: I think there [is] some additional evidence we could have garnered. If the issue is whether Tina would have actually given money to the Soka Gakkai, we could have subpoenaed records from the Soka Gakkai with respect to prior contributions by Mrs. Ebey. We could have subpoenaed Ms. Ebeys financial records, and so were trying to do this off the top of our head here, but Im sure there [is] other information we could have garnered during discovery. [] With respect to the fact that they now claim that . . . Leonor was mistaken that Tina did not like her, that puts Tinas state of mind at issue whether Tina liked her mom, and we may have done more discovery on that. Absolutely no discovery was done on that issue. We may have . . . sought a psychological evaluation of Tina. We might have had experts evaluate Tinas relationship with her mom from Tinas perspective. These are issues that have not been looked into during discovery and have not been presented at trial. This creates great prejudice to us . . . .

In reply, Tinas counsel argued that there was no legal authority for requiring Tina to undergo a psychological evaluation in this type of case, which did not involve a personal injury claim.

The trial court denied the motion due to the prejudice that would result if a cause of action for mistake was added to Tinas petition. The court expressed concern[] about the additional evidence that would be necessary concerning the Soka Gakkai and contributions with regard to them. The court explained that the scope of testimony had been limited to the undue influence theory. With respect to the particular mistakes raised by Tinas motion, there could be additional evidence with regard to that that hasnt been presented . . . . The court concluded that the case would proceed only on the undue influence claim.

Before analyzing whether the motion to amend to conform to proof should have been granted in this case, we first set forth the standard of review and applicable legal principles. [T]he allowance of amendments to conform to the proof rests largely in the discretion of the trial court and its determination will not be disturbed on appeal unless it clearly appears that such discretion has been abused. [Citations.] Such amendments have been allowed with great liberality and no abuse of discretion is shown unless by permitting the amendment new and substantially different issues are introduced in the case or the rights of the adverse party prejudiced [citation]. (Italics added.) [Citations.] (Trafton v. Youngblood (1968) 69 Cal.2d 17, 31; see also City of Stanton v. Cox (1989) 207 Cal.App.3d 1557, 1563.) For example, amendments of pleadings to conform to the proofs should not be allowed when they raise new issues not included in the original pleadings and upon which the adverse party had no opportunity to defend. [Citations.] [Citations.] (Trafton v. Youngblood, supra, 69 Cal.2d at p. 31.)

In this case, the only issue raised at the outset of trial was whether the Eleventh Amendment was the product of undue influence by George over Leonor. As the trial proceeded on the theory of undue influence only, George could not have been expected to present evidence to defend a claim that Leonor executed the Eleventh Amendment as a result of mistake. In view of the fact that George did not have the opportunity to investigate the issue of mistake or present any witnesses on the issue, allowing Tina to amend the petition near the end of the trial to add a claim regarding mistake would have been prejudicial to George. We therefore find that the trial court did not abuse its discretion in denying Tinas motion to amend to conform to proof regarding the issue of mistake.

B. Undue Influence

Tina alleged in her petition that the Eleventh Amendment to the trust was the product of Georges undue influence over Leonor. On appeal, we understand Tina to argue that the trial court should have applied a presumption of undue influence and shifted the burden of proof to George to show that he did not exert undue influence over Leonor.

The issues to be considered with respect to claims of undue influence in the execution of trusts are the same as those applicable to wills. (Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 181-182.) 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. [Citations.] Testamentary competence is presumed. [Citations.] [] This presumption can be overcome if it is shown that the testator was affected by undue influence . . . . (Estate of Sarabia (1990) 221 Cal.App.3d 599, 604.) Undue influence is pressure brought to bear directly on the testamentary act, sufficient to overcome the testators free will, amounting in effect to coercion destroying the testators free agency. [Citations.] (Rice v. Clark (2002) 28 Cal.4th 89, 96.) It is frequently said that a strong showing is necessary, or that the proof must be by clear and convincing evidence. [Citations.] (14 Witkin, Summary of Cal. Law (10th ed. 2005) Wills and Probate, 130, p. 193.)

A presumption of undue influence arises upon a showing by the challenger of the document 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 instruments preparation or execution; and (3) the person would benefit unduly by the testamentary instrument. (Rice v. Clark, supra, 28 Cal.4th at p. 97.) Once the presumption of undue influence applies, the burden of proof shifts to the proponent of the document to establish there was no undue influence. (Id. at pp. 96-97.)

Whether the presumption of undue influence applies, and if so whether it has been rebutted, are factual issues to be resolved by the trial court and are thus subject on review to the substantial evidence standard. (Estate of Sarabia, supra, 221 Cal.App.3d at p. 605; David v. Hermann (2005) 129 Cal.App.4th 672, 684-685.) Whether undue influence was exerted, absent the presumption, is also a factual question subject to the substantial evidence standard of review. (Estate of Lingenfelter (1952) 38 Cal.2d 571, 585 [question of undue influence is a factual question for the jurys determination].) We view factual matters most favorably to the prevailing party and in support of the judgment. We defer issues of credibility to the trier of fact. Additionally, we resolve all conflicts in the evidence in favor of the respondents. [Citation.] Our power begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact. [Citation.] (Estate of Auen (1994) 30 Cal.App.4th 300, 311.)

In this case, the trial court determined that a presumption of undue influence did not apply because there must be activity by the beneficiary in the actual preparation of the testamentary instrument. The trial court found that George took his mother to the appointments with the estate planning attorney who drafted the testamentary instrument, Robert Roskoph. However, George was not present when Leonor discussed her estate plan with the attorney, nor was George present when Leonor executed the [Eleventh]

Amendment.

The sufficiency of evidence showing activity or undue influence must necessarily depend upon the particular facts of each case. (Estate of Abert (1949) 91 Cal.App.2d 50, 61.) The mere existence of opportunity and motive to procure is insufficient to give rise to the presumption. [Citation.] Physical presence of the beneficiary at the execution of the will is insufficient. [Citations.] Nor does the procurement of a person to witness a will or of an attorney to draw one constitute active participation. [Citations.] There must be activity on the part of a beneficiary in the matter of the actual preparation of the will. [Citation.] (Estate of Straisinger (1967) 247 Cal.App.2d 574, 586.)

In Estate of Mann (1986) 184 Cal.App.3d 593, the decedents will left most of her estate to one nephew and comparatively little to another nephew. Following trial, the jury found, among other things, that the will had been obtained through undue influence. The beneficiary appealed, contending that the evidence was insufficient to support the judgment. With respect to the beneficiarys participation in the procurement of the will, the evidence established that the beneficiary urged the decedent to make a will  if she was so inclined,  took her to an attorney whom he knew, and was present when the will was executed. (Id. at p. 608.) There was no evidence that the beneficiary urged [the decedent] to make any particular disposition. (Ibid.) The reviewing court held that there was insufficient evidence to support the finding of undue influence and reversed the judgment.

Here, Tina failed to show that George actively participated in procuring the Eleventh Amendment, and thus she failed to establish one of the elements necessary for application of the presumption of undue influence. Tuttle, the cotrustee, initiated attorney Roskophs review of the trusts provisions, and George was not in the same room with Roskoph and Leonor during any substantive discussions about the trust. Outside of these meetings and before executing the Eleventh Amendment, Leonor did talk George about the trust. However, there was no evidence that George urged Leonor to eliminate Tina as a beneficiary. Rather, he offered to support whatever decision Leonor made about her trust. We conclude that substantial evidence supports the trial courts finding that George did not actively participate in the procurement of the Eleventh Amendment and therefore Tina was not entitled to a presumption of undue influence.

We thus turn to the issue of whether Tina proved undue influence, even in the absence of the presumption. To prove undue influence, it is necessary to show that the influence was such as, in effect, to destroy the testators free agency and substitute for his own another persons will. [Citation.] Evidence must be produced that pressure was brought to bear directly upon the testamentary act. [Citation.] Mere general influence, however strong and controlling, not brought to bear upon the testamentary act, is not enough; it must be influence used directly to procure the will and must amount to coercion destroying free agency on the part of the testator. [Citation.] . . . [M]ere opportunity to influence the mind of the testator, even coupled with an interest or a motive to do so, is not sufficient. [Citation.] []  The unbroken rule in this state is that courts must refuse to set aside the solemnly executed will of a deceased person upon the ground of undue influence unless there be proof of a pressure which overpowered the mind and bore down the volition of the testator at the very time the will was made. [Citations.] (Estate of Welch (1954) 43 Cal.2d 173, 175-176, quoting Estate of Arnold (1940) 16 Cal.2d 573, 577.) Before a testamentary document will be overthrown because of the exercise of undue influence, the proven circumstances must be inconsistent with voluntary action on the part of the testator. [Citation.] (Estate of Lombardi (1954) 128 Cal.App.2d 606, 613.)

In this case, the trial court examined several factors in reaching its conclusion that Tina failed to establish undue influence by George. (Estate of Yale (1931) 214 Cal. 115, 122 [setting forth five indicia of undue influence].)

First, while finding that the provisions of the Eleventh Amendment probably were unnatural in view of the fact that there were two siblings, the trial court found that the Eleventh Amendment stated the reasons for Tinas disinheritance from Trust One and recognized Tina would receive one-half of Trust Two.

Second, the trial court found that the Eleventh Amendment was not at variance with the intentions of [Leonor] expressed both before and after its execution. Regarding Leonors statements before executing the Eleventh Amendment, the trial court referred to Jack Hamiltons notes of May 26, 2006, in which Leonor expressed positive comments regarding Georges care and negative comments regarding Tina leaving her alone and getting involved with her religion. As explained by the trial court, Leonors comments to Hamilton mirror the reasons for the disinheritance set forth in the [Eleventh] Amendment . . . ; i.e., [her] deteriorated relationship with Tina over the last several years and Tinas involvement with a religious organization. For these reasons, Leonor states in the [Eleventh] Amendment, she does not wish any of her estate, or any portion which she currently has control, to pass to Tina or the religious organization with which Tina is involved. Regarding Leonors stated intentions after executing the Eleventh Amendment, the trial court pointed to testimony from Carol Lusebrink, who was Leonors good friend of 40 years and to whom Leonor had stated that she had removed Tina as a beneficiary.

Third, the trial court examined whether the relations existing between the chief beneficiaries and the decedent afforded to the former an opportunity to control the testamentary act. The trial court recognized that George was living at Leonors home when the Eleventh Amendment was executed. However, Tina was still living there at the time, although she was given a notice of termination to leave after the Eleventh Amendment was executed. In this context, the trial court found that George was in a better relationship with [Leonor] because he spent more time with her. He enhanced her quality of life. Referring generally to testimony from Carol Lusebrink and JoAnne Revis, another 40-year friend and neighbor, the trial court found that George liberated Leonor from her solitary existence in the house. . . . He was much more attentive to her needs and provided emotional support. He secured caregivers. His daughter Lily provided much companionship and assistance to Leonor. They took her for outings. George took Leonor to medical appointments. He set the radio to her favorite channel. Leonor wanted to give the medical power of attorney to George. The trial court contrasted this with testimony from