Ronald G. Davis, Personal Representative of the Estate of Roger F. Davis and Trustee of the Toivo W. Carlson and Marcile V. Davis Carlson Trust Agreement, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0555

Ronald G. Davis, Personal Representative of the Estate of Roger F. Davis and
Trustee of the Toivo W. Carlson and Marcile V. Davis Carlson Trust Agreement,
Appellant,

vs.

Ameriprise Financial Inc, et al.,
Respondents,

Twin Cities Public Television, Inc.,
Respondent,

Great River Regional Library,
Respondent,

First Presbyterian Church of Hibbing,
Respondent,

Sharing and Caring Hands, Inc.,
Respondent,

Minnesota Department of Natural Resources,
Respondent,

Smile Train, Inc.,
Respondent,

Greenwood Cemetery Association Corp.,
Respondent,

School District of Superior Scholarship Fund, Inc.,
Respondent.

Filed January 30, 2023
Affirmed
Smith, Tracy M., Judge
2

Hennepin County District Court
File No. 27-CV-20-6335

Mark R. Bradford, Alan I. Silver, Jessica L. Kometz, Bassford Remele, P.A., Minneapolis,
Minnesota (for appellant)

Bradley A. Kletscher, Tyler W. Eubank, Barna, Guzy & Steffen, Ltd. Minneapolis,
Minnesota (for respondents Ameriprise Financial, Inc., and Mark Gabriel)

Zachary J. Crain, Nilan Johnson Lewis PA, Minneapolis, Minnesota (for respondent Twin
Cities Public Television, Inc.)

Susan M. Dege, Jovanovich, Dege & Athmann, PA, St. Cloud, Minnesota (for respondent
Great River Regional Library)

Hannah C. Forti, Prebich Law Offices P.C., Hibbing, Minnesota (for respondent First
Presbyterian Church of Hibbing)

David R. Marshall, Ryan C. Young, Fredrikson & Byron, P.A., Minneapolis, Minnesota
(for respondent Sharing and Caring Hands, Inc.)

Keith Ellison, Attorney General, Peter Farrell, Assistant Attorney General, St. Paul,
Minnesota (for respondent Minnesota Department of Natural Resources)

Leora Maccabee, Jevon Bindman, Mason LLP, Minneapolis, Minnesota (for respondent
Smile Train, Inc.)

Stephen J. Olson, Ledin, Olson & Cockerham, S.C., Superior, Wisconsin (for respondent
Greenwood Cemetery Association Corp.)

Kyle H. Torvinen, Torvinen, Jones, Routh & Saunders, S.C., Superior, Wisconsin (for
respondent School District of Superior Scholarship Foundation, Inc.)

Considered and decided by Smith, Tracy M. , Presiding Judge; Worke, Judge; and
Wheelock, Judge.
3
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
Some eight months before her death at age 95, Marcile Davis Carlson1 changed the
beneficiaries of annuities that she held with respondent Ameriprise Financial, Inc., naming
the eight respondent charities as beneficiaries. 2 Marcile’s long-time financial planner,
respondent Mark Gabriel of Ameriprise, assisted her in executing the beneficiary update.
After Marcile’s death, her nephew, appellant Ronald G. Davis, brought suit against
respondents, seeking to invalidate Marcile’s beneficiary update on the ground that she
lacked capacity and was unduly influenced by Gabriel when she made the update. 3
The district court granted respondents’ motion for summary judgment, determining
that appellant had failed to raise a genuine issue of material fact regarding Marcile’s
capacity or the claimed undue influence on her and that respondents were entitled to
judgment as a matter of law. We affirm.

1 Because the opinion references multiple family members with the last name Carlson, we
refer to Marcile by her first name.

2 The designated charities are Twin Cities Public Television, Great River Regional Library,
First Presbyterian Church of Hibbing, Sharing and Caring Hands, Minnesota Department
of Natural Resources, Smile Train, Greenwood Cemetery Association, and the School
District of Superior Scholarship Foundation. The Minnesota Department of Natural
Resources deposited the funds it received from Ameriprise with the district court and takes
no position on this appeal. The remaining charities filed an appellate brief that primarily
adopts the arguments in Ameriprise and Mark Gabriel’s brief.

3 Appellant sued in his capacities as personal representative of the estate of Roger F. Davis
(his father and Marcile’s brother) and as trustee of the Toivo W. Carlson and Marcile V.
Davis Carlson Trust.
4
FACTS
Marcile was married to Toivo Carlson. Toivo had two children from a previous
marriage, and Marcile and Toivo had no joint children. Marcile and Toivo began working
with Gabriel as their financial advisor in 1996.
2005 Trust
In 2005, Marcile and Toivo established the Toivo W. Carlson and Marcile V. Davis
Carlson Trust (2005 Trust). The trust agreement provided that, upon the death of either
spouse, the 2005 Trust assets would be divided into two sub-trusts: Trust A and Trust B.
Trust A would receive assets up to the amount of the marital deduction, and Trust B would
receive any overflow assets. The 2005 Trust agreement provided that, upon the death of
the surviving spouse, Trust A and Trust B would be distributed in the following
proportions: four percent to Kenneth Carlson (Toivo’s son) and thirty two percent each to
Henry Carlson (Toivo’s son), Roger Davis (Marcile’s brother), and Wayne Davis
(Marcile’s brother).
In 2006, Toivo died.
2013 Amendment to the 2005 Trust
Beginning in 2006 after Toivo’s death, Marcile began expressing concerns to
Gabriel about the trust beneficiaries being To ivo’s sons and Marcile’s brothers. Marcile
also expressed concerns about too much of her money going towards taxes.
In 2013, Marcile met with Gabriel and Stephen Munstenteiger, her estate-planning
attorney, to review her estate plan. Marcile indicated that she wanted her money to go to
charity, which had preferable tax consequences. Munstenteiger recommended that she give
5
a portion of her estate to charity, which would have preferable tax consequences. Marcile
agreed, and on June 20, 2013, sh e amended the 2005 Trust to include distributions to
twelve charities (including some of the respondent charities) totaling $190,000. The
remainder of Marcile’s assets were to be distributed to the four family members as
originally allocated.
According to Gabriel, he and Marcile continued to discuss her assets and where she
would like them to go upon her death. Marcile expressed concern about money going to
her family members and how they would use that money. Marcile also expressed concerns
multiple times about appellant’s spending habits and the pressure she felt from him.
Appellant knew that Marcile was careful about money and did not approve of his spending
habits.
Marcile’s Annuities and the 2018 Amendment of Beneficiaries
Apart from the trust assets, Marcile also held annuities in her own name with
Ameriprise. Under the original beneficiary designations for the annuities as designated in
the 2005 Trust, the annuities would have flowed into the trusts or otherwise flowed to the
four family-member beneficiaries of the trusts. At the time of Marcile’s death, the annuities
were worth more than $1.5 million.
In June 2017, Marcile met with Gabriel and raised the idea of changing the
beneficiaries of at least one of her annuities t o charity. But, although Marcile expressed
concerns about taxes and not leaving too much of her estate to family, she did not change
annuity beneficiaries at that time. In February 2018, Gabriel sent Marcile a financial
6
analysis of her current situation. It included a comment that said, “At this time you really
don’t have a desire to give your money to charity yet you know you can afford to do this.”
On June 5, 2018, Gabriel met Marcile at her home. He noted that Marcile was
having a hard time deciding where her money should go. Gabriel gave Marcile
“homework” of making a list of preferred charities.
On June 13, 2018, Gabriel returned to Marcile’s home. Marcile’s neighbor and
friend, Mary Wilson, was with Marcile that day, but Wilson did not join the meeting.
Marcile had put together a list of charities. According to Gabriel, Marcile chose Smile
Train because she knew someone with a cleft palate, Twin Cities Public Television because
she liked its programming, Greenwood Cemetery because her husband was buried there,
and some others because she was involved with them. Marcile signed a beneficiary update,
designating respondent charities as beneficiaries to receive equal shares of the annuities
that she held at Ameriprise. When a ppellant learned that Marcile had executed the
beneficiary update, he questioned Marcile’s estate lawyer, Mary Ebb, about the change.
Ebb spoke with Gabriel, and Marcile did not make any further changes.
Other Actions by Marcile Before and After the Beneficiary Update
Marcile met with Ebb several times in the months before and after Marcile executed
the June 13, 2018, update; Ebb represented Marcile prior to the June 13, 2018 update until
January 2019, shortly before Marcile’s death. On May 16, 2018, Marcile met with Ebb and
signed documents accepting appointment as the personal representative of the estate of her
recently deceased friend, Lois Ludwig. Ebb believed Marcile to have capacity to do so.
After executing the beneficiary update in June 2018, Marcile suffered a fall, but she
7
recovered from it. In July 2018, she was appointed personal representative of the Ludwig
estate. In August 2018, she went with appellant and Mary Wilson to Marcile’s bank, where
Marcile made appellant a joint owner of her bank account, meaning that the account (which
held around $105,000 at the time) would pass to appellant if she died. In November 2018,
Marcile signed a power of attorney for her Ameriprise accounts, listing appellant as her
attorney in fact.4 Appellant had no concerns about Marcile’s capacity at that time.
2019 Attempted Beneficiary Update
On January 21, 2019, Marcile celebrated her 95th birthday. Two days later, she
suffered a stroke and in the following weeks went into hospice care. On February 13,
appellant called Gabriel and, according to Gabriel’s notes, complained that Marcile’s
money should go to family and not to the charities that Marcile had chosen. On
February 21, appellant requested a change- of-beneficiary form from Gabriel. When
Gabriel asked him why, according to Gabriel’s notes, appellant said that he and his uncle
had decided that they were not going to let Marcile’s money go to charities. Gabriel sent
appellant the form as requested.
On February 22, appellant was informed by a home-health -care nurse that Marcile
had taken a turn for the worse. Thereafter, appellant and his wife sent Mary Wilson, first,
just a signature page and then a beneficiary form with no beneficiaries listed. Mary Wilson
brought the document to Marcile’s home, where Marcile was bedridden, and held Marcile’s
wrist while Marcile signed the signature page. The form was filled out to provide for

4 The power of attorney did not give appellant the authority to change the annuity
beneficiaries.
8
specific and substantially reduced dollar amounts to the charities and add her family
members as the beneficiaries of the remainder. Gabriel later attempted to contact Marcile
to confirm whether she wanted to change her beneficiary designations but was unable to
speak with her.
Marcile died on February 28, 2019. Ameriprise did not accept the February 2019
beneficiary update.
Marcile’s Health
Marcile suffered from several health problems in the years before her death in
February 2019. Appellant claims that, due to health problems, Marcile lacked capacity to
make the beneficiary update on June 13, 2018. He relies on medical records and home-
health-care records. He also relies on a report and deposition testimony of his expert,
Dr. Orr, who did not examine Marcile but who—after her death—reviewed her medical
records, together with information from this lawsuit, and came to the conclusion that she
lacked capacity. We address in further detail below the health -related evidence when
determining whether appellant raised a genuine dispute of fact concerning Marcile’s
capacity.
Procedural Posture
Appellant originally filed a complaint seeking to have the district court declare the
February 2019 beneficiary update valid. Following various motions and with the approval
of the district court, Appellant amended his complaint. He dropped his claim that the
February 2019 beneficiary update was valid and instead alleged that the June 2018 update
was invalid because Marcile lacked capacity and was subject to undue influence by Gabriel
9
when she executed it. The amended complaint asserted four counts against Ameriprise,
Gabriel, and the eight charities: (1) declaratory judgment that the June 2018 beneficiary
update is not valid (against all respondents), (2) undue influence and lack of testamentary
capacity (against Ameriprise), (3) conversion (against all respondents), and (4) unjust
enrichment (against the eight charities). After discovery and on respondents’ motion, the
district court granted summary judgment for respondents and dismissed all four counts in
the amended complaint.
This appeal follows.
DECISION
Summary judgment is appropriate only when “there is no genuine issue as to any
material fact and the movant is entitled to judgment as a matter of law.” Minn. R. Civ. P.
56.01. “A material fact is one of such a nature as will affect the result or outcome of the
case depending on its resolution.” Zappa v. Fahey, 245 N.W.2d 258, 259-60 (Minn. 1976).
Appellate courts “review the grant of summary judgment de novo to determine ‘whether
there are [any] genuine issues of material fact and whether the district court erred in its
application of the law.’” Montemayor v. Sebright Prods., Inc., 898 N.W.2d 623, 628 (Minn.
2017) (quoting Stringer v. Minn. Vikings Football Club, LLC, 705 N.W.2d 746, 754 (Minn.
2005)). In conducting this review, appellate courts “view the evidence in the light most
favorable to the nonmoving party . . . and resolve all doubts and factual inferences against
the moving parties.” Rochester City Lines, Co. v. City of Rochester, 868 N.W.2d 655, 661
(Minn. 2015). The district court “may not weigh the evidence or make factual
determinations.” Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 432 (Minn. 2002).
10
Appellant argues that there are genuine disputes of fact regarding Marcile’s capacity
to execute the 2018 beneficiary update and regarding Gabriel’s alleged undue influence
over Marcile. If there are no genuine issues of material fact with respect to either issue,
summary judgment is appropriate on all of appellant’s claims, and we need not reach other
arguments raised by the parties. We begin with the issue of Marcile’s capacity.
I. Appellant failed to create a genuine dispute of fact regarding capacity.

The parties agree that the legal standard that applies to capacity to execute a
beneficiary update is the standard applicable to capacity to contract. Capacity to contract
presents a question of fact. Nelson v. Holland, 776 N.W.2d 446, 450 (Minn. App. 2009).
A person is competent to enter a contract when, at the time of the contract’s execution, the
party was able to understand the “nature and effect” of what they were doing. Macklett v.
Temple, 1 N.W.2d 415, 417 (Minn. 1941); see Sullivan v. Joint Indep. Consol. Sch. Dist.
No. 102, 88 N.W.2d 1, 4-5 (Minn. 1958). “In the absence of fraud or undue influence, mere
weakness of intellect, resulting from old age or sickness, is n ot a ground for setting aside
an executed instrument.” Macklett, 1 N.W.2d at 417. The party challenging the capacity of
a party to enter into a contract bears the burden of proof. Trimbo v. Trimbo, 50 N.W. 350,
351 (Minn. 1891).
Appellant argues that he produced substantial evidence from which a reasonable
fact-finder could conclude that Marcile lacked capacity to change her beneficiary
designations on June 13, 2018. He contends that Marcile’s medical records demonstrate
that her cognitive health had declined in the 18 months preceding the June 2018 update and
that the records create a genuine dispute as to whether she understood the effect of changing
11
the beneficiary designations. Appellant cites to specific notes from Marcile’s caretakers in
which they wrote that Marcile experienced various levels of confusion, memory
impairment, and disorientation. He further argues that a report from his expert witness
creates a genuine dispute of fact concerning Marcile’s capacity.
The relevant issue is whether Marcile lacked capacity on June 13, 2018, to change
the beneficiaries of her annuities. Appellant cites to medical records from several
hospitalizations, transitional care, and home health care that Marcile received for falls or
illnesses that Marcile experienced in 2017, reflecting instances of confusion and memory
problems. After each of these incidents in 2017, however, Marcile returned to her home,
and all of them occurred well before June 1 3, 2018, when she signed the beneficiary
update.
Appellant also relies on medical records from January and February 2018, when
Marcile was twice hospitalized, for pneumonia and for heart problems. Again, Marcile
suffered some confusion, memory impairment, and lack of orientation during her
hospitalizations. But two of her treating physicians in February testified to her competence
to make medical decisions. Dr. Mark Trainor was impressed by Marcile’s memory and
believed that any confusion she was experiencing was due to her underlying health issues.
Dr. Trainor was comfortable with Marcile’s ability to make complex decisions about her
treatment plan and did not see a need to appoint a decision maker. Dr. Elizabeth Peterson,
the attending physician when Marcile entered the hospital, described her as a “spitfire,”
who “definitely verbalized very articulately what she wanted and what she didn’t.” She
noted that Marcile was having trouble with her memory and for that reason had a family
12
care conference conce rning Marcile, but she believed that Marcile had full capacity to
make decisions. Dr. Peterson testified:
So I believed that she had capacity, and I did throughout her
hospital stay. And the reason is because even though she didn’t
remember the nuances of our conversation, every time we had
the conversation, again, her decisions and her wishes and her
desires were always the same. She was very clear with what
she wanted. She was very clear with what her goals were. And
given the exact same choices, she was able to tell me what the
consequences would be for choosing what she chose, as well
as that that was what she desired.

Upon her discharge, Marcile was required to sign a notice of rights, and no concerns were
raised about her competency to do so.
Appellant also emphasizes several home-health-care notes made after Marcile
returned to her home following these hospitalizations. He cites one note stating that Marcile
had exhibited “[i]mpaired judgment or decision-making” and another noting “[p]oor short
term memory/occasional confusion.” But the nurses who cared for Marcile in 2018 until
her death in 2019 testified that they believed that Marcile understood what she was doing.
Marcile’s case manager Denise Donais testified that Marcile could weigh the pros and cons
of decisions and “knew exactly what she wanted and she understood what she was doing.”
Donais also explained that the “impaired judgment” note, which she authored, referred to
Marcile’s decision not to use her walker. Nurse Hannah Wilson testified that Marcile was
donating to charity weekly and that Marcile discussed which charities she wanted to give
money to upon her death. Based on this knowledge, Nurse Wilson testified that she thought
Marcile was able to understand the “nature, situation, and extent of what she was doing”
in June 2018 and that Marcile was able to execute legal and financial documents. Nurse
13
Megan Weinandt was with Marcile more than any other caregiver, spending 40 hours per
week with her from March 2018 until Marcile’s death in February of 2019. Nurse Weinandt
testified that Marcile “was able to understand the nature, situation, and effect of what she
was doing during June 2018.” Nurse Alesha Burggraff, who cared for Marcile in the two
months leading up to her death, testified that she “did not see any signs of dementia in
Marcile up until the last weeks of Marcile’s life.” Additionally, Nurse Burggraff reported
that Marcile told her that she knew and was confident about where her money was going
when she died. Nurse Tammy Needham also testified that Marcile understood the “nature,
situation, and extent of what she was doing” in June 2018.
Other persons in Marcile’s life also testified regarding Marcile’s abilities. Marcile’s
attorney Ebb had no concerns about Marcile’s capacity. Additionally, Mary Wilson, who
was with Marcile the day that Marcile signed the June 2018 beneficiary update, testified
that Marcile could communicate clearly in June 2018.
In addition, in the months leading up to the June 2018 beneficiary update, Marcile
signed several other legal documents. On May 16, 2018, Marcile met with Ebb and signed
a document to accept appointment as the personal representative of her friend Lois
Ludwig’s estate, and in July 2018 Marcile was appointed the personal representative. Ebb
had no concerns about Marcile’s capacity to act as Ludwig’s personal representative. On
August 16, 2018, Marcile went with appellant to her bank and updated the ownership of
her bank account to list appellant as a joint account owner. And on November 7, 2018,
Marcile appointed appellant as her power of attorney for her Ameriprise accounts.
Appellant had no concerns about Marcile’s capacity at that time.
14
In this context, the medical records noting confusion or memory problems are
insufficient to create a genuine dispute of material fact regarding Marcile’s capacity to
execute the 2018 beneficiary update. Marcile was an elderly woman who experienced
health setbacks and had occasional confusion and memory problems. But that fact does not
raise a genuine dispute about her capacity to understand the nature and effect of the
June 13, 2018, beneficiary update. Indeed, mere weakness of intellect due to illness or age
does not establish a lack of capacity. See Macklett, 1 N.W.2d at 417.
We are not persuaded by appellant’s argument that, given Marcile’s estate plan, the
change in beneficiaries raised particularly complex issues challenging Marcile’s capacity.
The effect of changing the beneficiaries of annuities to charities is not difficult to
understand. Moreover, Gabriel testified that, based on several conversations with Marcile,
she understood the impact of the 2018 beneficiary update. She understood that Trust A and
Trust B were still going to her family.
5
Nor are we persuaded that appellant’s report from his expert Dr. Orr creates a
genuine dispute of fact. Dr. Orr was engaged by appellant for this litigation. He reviewed
Marcile’s medical records and litigation records but did not ever meet or examine Marcile.
Although Marcile had never been diagnosed with dementia by any treating physician,
Dr. Orr opined that the records that he reviewed showed that she suffered from “moderate
vascular dementia.” He concluded that Marcile “did not possess the necessary cognitive
capacity to knowingly sign the beneficiary designations on or about” June 13, 2018. But,

5 Even without the annuities, the family members received over $1 million from the trusts.
15
even viewing this report in the light most favorable to appellant, we conclude that it does
not create a genuine dispute of material fact. In his deposition testimony, Dr. Orr agreed
that people with moderate dementia can have good days and bad days, meaning they may
have days where they have capacity to contract and days where they do not. Dr. Orr also
agreed that Marcile may have had days of clarity. Importantly, he gave no explanation for
why Marcile would not have had capacity specifically on June 13, 2018. Given the
deposition testimony from caretakers and persons in Marcile’s life regarding Marcile’s
condition before and after June 13, 2018, and Dr. Orr’s recognition that a person with
moderate dementia can have days where they have the capacity to contract, his report and
deposition testimony do not create a genuine issue of fact regarding Marcile’s capacity on
that date.
In sum, even viewing the record in the light most favorable to appellant, we
conclude that appellant failed to raise a genuine issue dispute of fact regarding Marcile’s
capacity to execute the June 13, 2018 beneficiary update. Thus, the district court did not
err by granting summary judgment in favor of respondents on claims that turned on
Marcile’s capacity.6

6 Given our ruling, we need not address the district court’s alternative basis for granting
summary judgment on these claims—specifically, that, even if Marcile lacked capacity on
June 13, 2018, the beneficiary update could not be voided because, to void a contract, the
contracting party must have had notice of the lack of capacity and appellant failed to
provide any evidence to establish that Ameriprise or Gabriel had notice of Marcile’s lack
of capacity.
16
II. Appellant failed to raise a genuine issue of material fact regarding undue
influence.

To establish undue influence in the probate context—the context that both parties
invoke in this case —the will contestant must show that another person influenced the
testator at the time the testator executed the will “to the degree that the will reflects the
other person’s intent instead of the testator’s intent.” In re Est. of Torgersen, 711 N.W.2d
545, 550 (Minn. App. 2006), rev. denied (Minn. June 20, 2006); Teschendorf v.
Strangeway (In re Wilson’s Est.), 27 N.W.2d 429, 432 (Minn. 1947) (“Undue influence, as
the term itself implies, is influence of such a degree exerted upon the testator by another
that it destroys or overcomes the testator’s free agency and substitutes the will of the person
exercising the influence for that of the testator.”). The crucial inquiry is whether the will
of the person is completely dominated.
Undue influence to invalidate a will must, at the very time the
will is made, operate with such dominant and persuasive force
that the will of the person exercising it is substituted for the
will of the testator whereby the resulting written testament
expresses the intent and purpose of that person and not that of
the testator.

York v. Reay (In re Reay’s Est.),
81 N.W.2d 277, 280 (Minn. 1957) ; see also Torgersen ,
711 N.W.2d at 551 (explaining that the evidence must show that the influence exerted
rendered the testator “a mere puppet” (quotation omitted)).
We have identified six nonexclusive factors that courts may consider when
evaluating a claim of undue influence:
(1) an opportunity to exercise influence; (2) the existence of a
confidential relationship between the testator and the person
claimed to have influenced the testator; (3) active participation
17
by the alleged influencer in preparing the will; (4) an
unexpected disinheritance or an unreasonable disposition;
(5) the singularity of will provisions; and (6) inducement of the
testator to make the will.

Torgersen, 711 N.W.2d at 551. The fact that certain factors are present does not establish
that the testator has been unduly influenced. See, e.g., In re Est. of Anderson, 379 N.W.2d
197, 201 (Minn. App. 1985) (“[O]pportunity alone cannot sustain a finding of undue
influence.”), rev. denied (Minn. Feb. 19, 1986); In re Est. of Ristau, 399 N.W.2d 101, 104
(Minn. App. 1987 ) (affirming summary judgment on undue-influence claim although
evidence of opportunity to exercise influence was present ). Undue influence must be
proved by clear and convincing evidence. Id. at 103. Neither conjecture nor suspicion is
sufficient to prove undue influence. Torgersen, 711 N.W.2d at 550-51.
1. Opportunity
Appellant argues that a disputed issue of fact exists regarding Gabriel’s opportunity
to influence Marcile because he was her long-time financial advisor, recommended that
she consider giving some of her assets to charities, and met with her alone regarding her
finances. Though Gabriel did have continual contact with Marcile leading up to and after
the 2018 amendment, that contact does not amount to opportunity to exert undue influence
in the context of this case. In In re Est. of Ulrich, in affirming summary judgment on an
undue-influence claim, we concluded that the opportunity factor did not support undue
influence when the testator was not isolated, dependent on the alleged influencer for care,
or incompetent. No. A13-0368, 2013 WL 4404717, at *5 (Minn. App. Aug. 19, 2013), rev.
18
denied (Minn. Oct. 23, 2013).7 Here, Marcile was not vulnerable to undue influence . She
was represented by an attorney, Ebb, who had no concerns about her capacity; Ebb was
aware of the change in beneficiaries; and, at appellant’s request, Ebb even called Gabriel
about the change but raised no concerns about it. Marcile was also surrounded by
caretakers, friends, and family members, including appellant. Although Gabriel met with
Marcile and worked with her as her financial advisor, appellant has failed to submit
evidence creating a genuine factual dispute about whether he had the opportunity to unduly
influence Marcile. In any event, even if the evidence created a factual dispute about the
opportunity for undue influence, the existence of some factors does not conclusively
establish undue influence, Anderson, 379 N.W.2d at 201; Ristau, 399 N.W.2d at 104, or
necessarily defeat summary judgment, Ulrich, 2013 WL 4404717, at *5-6.
2. Confidential Relationship
Because the relationship between a financial advisor and a client is a confidential
relationship, appellant has submitted sufficient evidence to support this factor. Again,
however, the existence of some factors does not conclusively establish undue influence,
Anderson, 379 N.W.2d at 201; Ristau, 399 N.W.2d at 104, or necessarily defeat summary
judgment, Ulrich, 2013 WL 4404717, at *5-6.

7 We find the reasoning in this case persuasive. See Minn. R. Civ. App. P. 136.01,
subd. 1(c) (“Nonprecedential opinions and order opinions are not binding . . . , but
nonprecedential opinions may be cited as persuasive authority.”).
19
3. Active Participation
On this factor, too, appellant has submitted supporting evidence, since Gabriel met
with Marcile, suggested she do “homework” on determining the charities she wished to
designate, and assisted her in executing the June 13, 2018 beneficiary update. And, as
stated above, the presence of any one factor is not dispositive.
4. Unexpected Disinheritance
Appellant argues that he has submitted evidence sufficient to show that the June 13,
2018 beneficiary update represented a “sharp departure” from Marcile’s estate plan
because it substantially increased the amount of assets going to charity instead of to family
members. But the undisputed evidence shows that Marcile had long expressed interest in
leaving money to charities for reasons including that she was concerned about taxes and
leaving too much of her money to her family. In 2013, she made changes to her estate plan
to include charities. And she continued to discuss concerns about the disposition of her
wealth after 2013. It is true, as appellant notes, that the 2018 beneficiary update increased
the share of Marcile’s wealth that would go to charities instead of to family members. But
“Inequality of distribution is not proof sufficient to support a finding of undue influence.”
Mazanec v. Mazanec ( In re Mazanec’s Est.), 283 N.W. 745, 748 (Minn. 1939); see also
Ristau, 399 N.W.2d at 104 (affirming summary judgment rejecting undue-influence claim
despite inequality of distributions among family members). The undisputed evidence of
Marcile’s history of wishing to give to charity and her concerns about leaving her estate to
family members, including because of tax consequences, demonstrates that the June 2018
beneficiary update was, at a minimum, not unexpected.
20
5. Singularity of the Provision
Appellant does not argue that this factor favors his undue-influence claim. Nor could
he. The 2018 beneficiary update did not create a singular beneficiary provision but instead
distributed Marcile’s annuities broadly among eight charities, while the four original
beneficiaries continued to get substantial distributions from the trusts.
6. Inducement
Finally, appellant failed to create a genuine issue of material fact that Gabriel
induced Marcile to change the beneficiaries of her annuities. Appellant identifies no
evidence of misconduct or corrupt intent on Gabriel’s part. Gabriel served as financial
advisor to Marcile and her husband, and then to Marcile alone, for over twenty years. The
only undue influence that Gabriel allegedly exercised over that time was facilitating
Marcile’s beneficiary update in June 2018. But a ppellant has submitted insufficient
evidence to raise a genuine dispute about whether Gabriel dominated or induced Marcile
to take action to implement his will, rather than hers. Gabriel did not stand to benefit
personally from the beneficiary update: he was not a beneficiary , and appellant has
identified no other personal interest that would have motivated him to overcome Marcile’s
will so that she would decrease the allocations to her family members and increase the
allocations to the charities. The undisputed evidence establishes that the June 2018
beneficiary update reflected Marcile’s will to protect her money from taxes and donate to
charity, while leaving money from her trusts to her family.
In sum, even when the evidence is viewed in the light most favorable to appellant,
appellant’s submissions did not create a genuinely disputed issue of material fact regarding
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whether Gabriel unduly influenced Marcile. Appellant’s evidence of undue influence
amounts to pure speculation, which is insufficient to support a claim of undue influence.
See Torgersen, 711 N.W.2d at 550-51. Gabriel had no motive to influence Marcile, let
alone replace her will with his own, when he did not stand to benefit from the change in
beneficiaries in any way. Though Gabriel may have had access to and a confidential
relationship with Marcile as her financial advisor, there is no evidence that he exerted more
influence over her than that of a normal financial advisor. In short, the undisputed evidence
supports only the conclusion that the 2018 beneficiary update reflected Marcile’s will to
spread out her wealth by leaving money to family and to charities that she supported.
Because appellant has failed to create a genuine dispute of material fact regarding
capacity or undue influence, the district court did not err in granting summary judgment in
favor of respondents on all of appellant’s claims.
Affirmed.