Bonnie L. Bercu, 18046 Rosita Street, Encino, CA 91316 (pro se appellant)

Robert R. Weinstine, Darron C. Knutson, Winthrop & Weinstine, P.A., 3000 Dain Bosworth Plaza, 60 South Sixth Street, Minneapolis, MN 55402; and

Lowell V. Stortz, Leonard, Street and Deinard, 150 South Fifth Street, Suite 2300, Minneapolis, MN 55402 (for respondent)

Considered and decided by Short, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.

Appellant Bonnie Bercu challenges the summary judgment granted in this will contest, claiming the district court erred in determining appellant failed to raise a genuine issue of material fact concerning whether respondent Judith Bercu procured a change in decedent Stanley Bercu's will through undue influence. We affirm.

"[T]he contestant has the burden of establishing by clear and convincing evidence that a will was procured by undue influence." In re Estate of Peterson, 283 Minn. 446, 448, 168 N.W.2d 502, 504 (1969). A presumption of undue influence is not enough to meet the burden of proof. In re Estate of Novotny, 385 N.W.2d 841, 843 (Minn. App. 1986).

The evidence must go beyond suspicion and conjecture and show, not only that the influence was in fact exerted, but that it was so dominant and controlling of the testator's mind that, in making the will, he ceased to act of his own free volition and became a mere puppet of the wielder of that influence.

In re Estate of Reay, 249 Minn. 123, 126-27, 81 N.W.2d 277, 280 (1957) (footnote omitted). The factors for determining whether there was undue influence include:

the opportunity to exercise it, active participation in the preparation of the will by the party exercising it, a confidential relationship between the person making the will and the party exercising the influence, disinheritance of those whom the decedent probably would have remembered in his will, singularity of the provisions of the will, and the exercise of influence or persuasion to induce him to make the will in question.

In re Estate of Wilson, 223 Minn. 409, 413, 27 N.W.2d 429, 432 (1947).

"It is not sufficient to show that a party benefited by a will had the motive and opportunity to exert such influence; there must be evidence that he did exert it." In re Mazanec's Estate, 204 Minn. 406, 411, 283 N.W. 745, 748 (1939). "It [undue influence] must operate at the very time the will is made and dominate and control its making." In re Marsden's Estate, 217 Minn. 1, 9, 13 N.W.2d 765, 770 (1944). Beyond showing that there was a relationship of confidence between the testator and beneficiary, the appellant must show that influence was exerted to procure a will acceptable to the beneficiary. Mazanec's Estate, 204 Minn. at 412, 283 N.W. at 748. "An entire change from former testamentary intentions is a strong circumstance to support a charge of undue influence." In re Olson's Estate, 227 Minn. 289, 298, 35 N.W.2d 439, 446 (1948).

Appellant contends she presented evidence to establish that respondent took advantage of the decedent's concerns for his health care and impending lack of health insurance coverage and coerced or unduly influenced him into entering into an antenuptial agreement and executing a new will. We disagree.

The district court found that: (1) decedent's former testamentary intentions were not entirely changed in that his children and grandchildren were still remembered in the will; (2) it is not surprising that a testator would favor those nearest to him, in this case his wife; and (3) the distributions in the decedent's will were similar to those that would have been made under the laws of intestacy. Evidence in the record supports these findings.

We further note that although decedent's need for health insurance influenced him to change his will, respondent's ability to provide what decedent needed does not necessarily constitute undue influence. The antenuptial agreement to provide health insurance was bargained-for consideration in connection with a contract to make a will and courts have held that "[p]arties can contract to make wills." Concordia College Corp. of Moorhead, Minn. v. Salvation Army, Verona, N.J., 470 N.W.2d 542, 546 (Minn. App. 1991), review denied (Minn. Aug. 2, 1991). Thus, the mere existence of a contract does not, by itself, constitute undue influence.

We conclude the district court properly determined that appellant has failed to present evidence of undue influence sufficient to defeat summary judgment. Because we affirm the district court's judgment, appellant is not entitled to attorney fees under Minn. Stat. § 524.3-720 (1996).

Affirmed.