[¶ 1] Neil Bartelson appeals from an order denying his petition to remove Guardian and Protective Services (“GAPS”) as personal representative of Ralph Bartelson’s estate and to appoint him as successor personal representative. Because the district court failed to apply the presumption of undue influence and incorrectly presumed there can be no undue influence if the principal is lucid, we reverse and remand.
I
[¶ 2] This is the third time this case has been before us. The facts of this case have been explained in detail in
Estate of Bartelson,
[¶ 3] Ralph Bartelson had four children: Neil Bartelson, Diane Fischer, Jean Valer, and Jane Haught. Because of Ralph Bartelson’s declining health, the children agreed Ralph Bartelson would reside with Valer and she and Haught would receive compensation for the care they provided. While living under the care of Valer, Ralph Bartelson gave her a power of attorney and established a joint checking account, naming both Valer and Haught co-owners with rights of survivor-ship and allowing them to issue checks from the account. Alleging Valer and Haught had misappropriated funds, Neil Bartelson and Fischer petitioned for the appointment of Neil Bartelson as Ralph Bartelson’s guardian and conservator. In July 2008, the parties stipulated that Valer would act as guardian with limitations and GAPS would be appointed conservator and be responsible for investigating the alleged misappropriation of funds. This stipulation provided:
[T]he conservator ... will be empowered to investigate and pursue any inappropriate expenditures from the ward’s funds if the conservator deems it appropriate so to do.... [Transfers Ralph made to Jean Valer, Jane Haught and Diane Fischer in December of 2007 of $12,000 and in January of 2008 of $60,000 will not be contested but all other, transfers are subject to review by the conservator.
[¶ 5] In July 2009, GAPS moved for court approval of compensation to Valer and- Haught for the expenses they incurred while serving as personal representatives of Ralph Bartelson’s estate. Neil Bartelson and Fischer objected to the expenditure requests and reasserted their allegation that Valer and Haught had misappropriated estate funds prior to GAPS’ appointment as personal representative. In March 2010, the parties stipulated to payment of the expenditures requested by GAPS, but conditioned the payments upon the parties reaching a settlement or abiding by a court judgment on the issue of misappropriation of funds. As part of the stipulation, the parties agreed to fully cooperate with GAPS in preparation of an inventory and accounting of assets, income, withdrawals, and deposits and to allow GAPS to employ a forensic accountant to analyze the misappropriation claims. The stipulation stated:
4. Before any payment is made from the assets of the Estate to any heir, the parties will either
a. reach a settlement agreement pertaining to the claims identified in Paragraph 5 below or
b. abide by a final Judgment of the Trial Court determining the merits of the claims identified in Paragraph 5 below if settlement cannot be reached. The amounts awarded to the Estate in either the settlement agreement or Judgment of the Trial Court, as the case may be, shall then be used as an offset against any amounts to be distributed to any heir.
5. Claims include the following (from January 1, 2005 to the present):
a. Funds paid or withdrawn from Ralph Bartelson’s accounts or assets which exceeded agreed-upon or reasonable care-giving or expense reimbursement;
b. Accounting of property owned by Ralph Bartelson, such as the van, lift, mule and/or four-wheeler, hospital bed, gold fob, billfold, watch, tractors, trailers, farm machinery and equipment, property sold at auction and the proceeds received, etc.
c. Rent, royalties and income owed to Ralph on land sold and/or conveyed in which he reserved life estates; and
d. Loans made by Ralph to family members.
[¶ 6] In accordance with the parties’ stipulation, GAPS employed the services of Terry Daffinrud, a forensic CPA, to review transfers of Ralph Bartelson’s assets to his family members occurring between 2002 and GAPS’ appointment as personal representative. Daffinrud determined that between 2003 and Ralph Bartelson’s death in 2008, Valer received funds in excess of $154,000.00 and Haught received funds in excess of $133,000.00. Although Daffinrud was able to provide a summary of the funds expended from Ralph Bartelson’s estate, he was unable to determine the rea
[¶ 7] The parties remained unable to reach a settlement in regard to the misappropriation allegations, and as a result a bench trial was held. Neil Bartelson and Fischer argued that because Valer and Haught owed a fiduciary duty to Ralph Bartelson, the district court was required to apply the presumption of undue influence set forth in N.D.C.C. § 59-18-01.1 in determining whether they had misappropriated funds from Ralph Bartelson’s checking account. Under this presumption, Neil Bartelson and Fischer claimed Valer and Haught were required to account for all withdrawals and transactions they made while acting as fiduciaries of Ralph Bartelson. Following trial, the district court entered an order disclaiming jurisdiction over the misappropriation that allegedly occurred prior to Ralph Bartel-son’s death. Neil Bartelson and Fischer appealed, and in
Bartelson I,
[¶ 8] On remand, Neil Bartelson and Fischer argued they had standing to bring a misappropriation claim against Valer and Haught and the district court was required to apply the presumption of undue influence under N.D.C.C. § 59-18-01.1 to any withdrawals made by Valer and Haught as fiduciaries of Ralph Bartelson. Neil Bar-telson and Fischer argued that because Valer and Haught failed to rebut the presumption of undue influence by providing an accurate accounting of the withdrawals they made from Ralph Bartelson’s checking account, any unaccounted-for withdrawals were presumed to have been made under undue influence. The district court, however, held Neil Bartelson and Fischer did not have independent standing to assert misappropriation claims against Valer and Haught when they did not allege that GAPS breached its fiduciary duty by failing to pursue such claims against Valer and Haught. After unsuccessfully petitioning for reconsideration, Neil Bartelson then petitioned to remove GAPS as personal representative and to be appointed as successor personal representative, arguing GAPS breached its fiduciary duty by failing to pursue the collection • of assets belonging to the estate and by failing to
[¶ 9] Neil Bartelson and Fischer moved, under Rule 60(b), N.D.R.Civ.P., to vacate the order denying their petition to remove GAPS as personal representative. They argued they were interested persons who had standing to seek removal of the personal representative, the court had not previously determined whether GAPS had breached its fiduciary duties or other responsibilities, and the court abused its discretion when it determined their petition was frivolous. After a hearing on the motion, the district court held the issues had been fully addressed by the court in previous orders and determined Neil Bartelson, who was lawfully excluded from the estate, and Fischer did not have an interest in the estate. Neil Bartelson and Fischer appealed, and this Court reversed, holding the district court erred as a matter of law in concluding they were not interested persons and abused its discretion by denying their petition without holding a hearing.
See Bartelson II,
[¶ 10] At the hearing on remand, Neil Bartelson and Fischer once again argued the district court was required to rule on the alleged misappropriation claims and must do so by applying the presumption of undue influence set forth in N.D.C.C. § 59-18-01.1 to determine whether Valer and Haught had misappropriated funds from Ralph Bartelson’s checking account. In their post-hearing brief, Neil Bartelson and Fischer argued that because Valer and Haught failed to rebut the presumption of undue influence by providing an accurate accounting of the withdrawals they made from Ralph Bartelson’s checking account, any unaccounted-for withdrawals were presumed to have been made under undue influence. Without applying the presumption of undue influence, the district court entered an order denying Neil Bartelson’s petition to remove GAPS as personal representative. Although the district court found no basis for the misappropriation claims, the court identified numerous unaccounted-for withdrawals made by Valer and Haught and ordered GAPS to subtract those amounts from future disbursements to them. Neil Bartelson appeals from the district court’s order.
[¶ 11] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 30.1-02-02. The appeals are timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 28-27-01.
II
[¶ 12] On appeal, Neil Bartelson argues the district court abused its discretion in denying his petition to remove the personal representative of Ralph Bartel-son’s estate. He contends the district court abused its discretion by determining no basis for misappropriation existed before the institution of protective proceedings and failing to address GAPS’ breach of the parties’ settlement agreement, stipulation, and trial court’s orders, and erred in finding his misappropriation claims were based upon action occurring after the guardianship and conservatorship had been filed. Underlying this appeal, however, is the question of whether the district court correctly applied the law when it determined there was no basis for Neil Bartelson’s claims of misappropriation against Valer and Haught. Because Neil
[¶ 13] After this Court held in
Bartelson II,
[¶ 14] After the hearing, the district court entered its order dismissing Neil Bartelson’s petition to remove GAPS as personal representative, stating:
With the understanding that Ralph Bartelson remained lucid up to July 2008, this Court sees no basis for a claim of misappropriation prior to that date. Additionally, this Court can find no claim for unauthorized disbursements during the abbreviated conservatorship by [GAPS] from July 2008 [to] October 2008. The thrust of Neil’s argument is embedded in payments occurring during these time periods. For the payments occurring after October 2008, this Court will take action and direct [GAPS] to act according to this Court’s order. This Court will not, however, remove [GAPS] as personal representative. We certainly will not disregard the wishes of the deceased, and appoint a man who was excluded from the deceased’s will to a position where he can control those funds which he was intentionally deprived.
Neil argues that [GAPS] failed to gather the documents necessary for a complete accounting of the estate. As set forth below, the accountant hired by [GAPS ] to perform the financial review of the Estate made several requests for thenecessary documents but was unable to obtain them. This is due to no fault of [GAPS] and [GAPS] will not be reprimanded. Finally, Neil has not shown a bias for Jean and Jane. [GAPS] will not be removed as personal representative.
(Emphasis added.) The district court cited, and we can find no authority for, the presumption that lucidity precludes undue influence. The court did find Valer and Haught had been double-reimbursed for items they claimed were purchased for Ralph Bartelson, and ordered GAPS to subtract these amounts from any future disbursements to them.
[¶ 15] Although we have repeatedly recognized the deference granted to a district court’s discretion on whether to remove a personal representative of an estate, this deference is strictly conditioned on the district court’s proper application and interpretation of the applicable law in reaching its ultimate decision.
Estate of Shubert,
[¶ 16] Under North Dakota law, a presumption of undue influence must be applied to any transaction between a trustee and the trustee’s beneficiary in which the trustee gains an advantage.
Estate of Robinson,
A transaction between a trustee and the trust’s beneficiary during the existence of the trust or while the influence acquired by the trustee remains by which the trustee obtains any advantage from the trust’s beneficiary is presumed to be entered by the trust’s beneficiary without sufficient consideration and under undue influence. This presumption is a rebuttable presumption.
This presumption applies not only to transactions involving trustees, agents, and attorneys-in-fact, but also to all transactions involving confidential relationships.
Estate of Vizenor,
A confidential relationship exists whenever trust and confidence is reposed by one person in the integrity and fidelity of another, and that such relationship is a fact to be established in the same manner and by the same kind of evidence as any other fact is proven.
Id.
at 674 (quoting
Estate of Zins,
[¶ 17] In the present case, the record reflects that in reaching its decision regarding the petition to remove the personal representative of Ralph Bartelson’s estate, the district court abused its discretion by failing to properly apply the presumption of undue influence to the withdrawals made from Ralph Bartelson’s checking .account and by incorrectly presuming there can be no undue influence-if the principal is lucid. To properly apply the presumption of undue influence, the district court must determine whether Valer and Haught assumed confidential relationships with Ralph Bartelson and would be subject to the effects of the presumption.
[¶ 18] Although the district court failed to find Valer and Haught assumed confidential relationships with Ralph Bartelson, a finding usually reserved for the district court, the record clearly establishes that because Valer had been Ralph Bartelson’s agent under a durable power of attorney since 2007, she assumed “a confidential relationship and fiduciary responsibilities to [him].”
Allard v. Johnson,
[¶ 19] While the district court must make a finding on whether Haught assumed a confidential relationship with Ralph Bartelson, the record establishes that Valer assumed such a relationship as a matter of law. Because she assumed a confidential relationship and subsequently made numerous withdrawals from Ralph Bartelson’s checking account, the district court is required by N.D.C.C. § 59-18-01.1 to apply the presumption of undue influence to these transactions since Neil Bartelson provided evidence of . Valer’s unaccounted-for withdrawals.
Allard,
Ill
[¶ 20] We note that because the judge presiding over the original proceedings has retired, the district court must “make a Rule 63, N.D.R.Civ.P., certification prior to conducting further proceedings or, alternatively, order a new trial.”
Smestad v. Harris,
If a judge conducting a hearing or trial is unable to proceed, any other judge may proceed upon certifying familiarity with the record and determining that the case may be completed without prejudice to the parties. In a hearing or a nonjury trial, the successor judge must, at a party’s request, recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness.
IV
[¶ 21] We reverse and remand for further proceedings consistent with this opinion.
Notes
. Because Diane Fischer died while the appeal was pending, her Estate was substituted as a party.