No. 85-132
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1986
I N THE MATTER O F THE G U A R D I A N S H I P
AND CONSERVATORSHIP O F THE PERSON
AND E S T A T E O F
MYRTLE MAE TENNANT,
A.n I n c a p a c i t a t e d P e r s o n .
A P P E A L FROM: D i s t r i c t C o u r t of t h e T w e n t i e t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of Sanders,
T h e H o n o r a b l e D o u g l a s H a r k i n , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
Mulroney, D e l a n e y & Scott; P. M a r s Scott, M i s s o u l a ,
Montana
Fox R e s p o n d e n t :
B a x t e r , Fletcher & H a n s o n ; R o b e r t B a x t e r & R o b e r t
Fletcher, Thompson Falls, M o n t a n a
S u b m i t t e d on B r i e f s : Aug. 22, 1985
Decided: February 5 , 1 9 8 6
Filed: E H 51986
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Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from a judgment of the District Court
of the Fourth Judicial District, Sanders County, the
Honorable Douglas Ha.rkin presiding, finding the will and deed
of Mae Tennant to be void and awarding the conservator of her
estate a money jud.gment against Thomas Evans and Raymond
Williams. From this judgment Evans and Williams appeal. We
affirm.
Myrtle Mae Tennant (Mae) was born on March 21, 1902,
and was 79 and 80 years of age, respectively, during the
summers of 1981 and 1982 when the facts pertinent to this
appeal occurred. During these pertinent years, Mae lived
alone in Thompson Falls, Montana, and was a. widow without any
children, her husband, Earl, having predeceased her in 1961.
In February 1972, Mae executed a will prepared by her
longtime attorney, Eugene Mahoney. This v~ill left specific
devises to Boys Town, the Community Church in Thompson Falls
and. the Montana. Heart Foundation. The residue of Mae's
estate under this will was to be placed in an athletic
scholarship fund for male athletes at Thompson Falls High
School.
Commencing sometime in 1975, Mae's physical and mental
health began to deteriorate. The record indicates that Mae
began to neglect her personal hygiene, permitted the interior
of her home t o become an extraordinary mess, and began to
.
drink heavily. In addition, the record shows that Mae's
mental- state had deteriorated to the point where she was not
capable of handling her own financial affairs. Testimony
shows Mae apparently believed she would always have whatever
money she needed simply by writing another check. For this
reason, her close friends would balance her checkbook,
deposit any funds she would receive, and would also pay her
bills when she would neglect to pay them. Furthermore, Mae
had developed a reputation among her friends and
acquaintances as being a "soft touch." She would apparently
give anything of hers to someone if she liked them, and could
easily be talked into buying items and services she actually
did not need. Mae's close friends, it appears, recognized
her weakened condition and refused to take advantage of the
situation.
It was in the above condition that Tom Evans (Evans)
and Ray Williams (Williams) found Mae in June of 1981. Evans
was the owner of yard and tree service from Missoula,
Montana, and he contacted Mae to see if she was in need of
his services. Mae immediately hired Evans, and his employee
FJilliams, to care for her yard and trees despite the fact
that Evans' brother, Bill, had done $2,500 worth of work in
Mae's yard the previous summer, and Evans' brother, Jim, had
charged Mae $1,150 for yard work he performed that May.
Evans and Williams maintained and landscaped Mae's yard
during the fall and summer of 1981 for which they were
handsomely paid. Also during this time-period, Evans and
Williams developed a close friendship with Mae. They made
numerous trips to Thompson Falls to perform yard work for Mae
and just to be with her. It is clear by the end of 1981, Mae
regarded her relationship with Evans and Williams to be
something much more than that of employer and employee.
In 1982, Evans and Mae again agreed that Evans would do
Mae's yardwork, plus various other odd jobs for her. The
record indicates that during 1981-1982, the two years Evans
and Williams worked for Flae, they received at least $18,130
from her as payment for their services and also as so-called
gifts. Furthermore, during 1982, Mae's friendship with Evans
and Williams deepened. Evans brought members of his family
to meet Mae in Thompson Falls and Mae became very attached to
them. Evans, Williams and members of Evans' family made at
least fifty trips during 1981 and 1982 to Thompsons Falls
from Missoula to perform yard work for Mae and just to
socialize with her. In Evans' own words, she (Mae) kept
"hiring me just to have me . . . with her."
Sometime in the spring of 1982, Mae told Evans she
wanted him and his family to have her house. Evans gave Mae
the name of his attorney in Missoula, Tony Keast, and Mae
contacted Mr. Keast to have him take care of the matter. Mr.
Xeast subsequently prepared a quitclaim deed giving Mae a
life-estate in her real property and on her death passing the
same to Evans. Mr. Keast also prepared a new will for Mae
which left her real property to Evans and her personal
property to Williams. The will and the deed were signed by
Mae on August 4, 1982, and Mae's old will was physically
destroyed on the same date. The deed was notarized by Mr.
Keast and was subsequently recorded by Evans. Also, Mae's
new will was witnessed by Mr. Keast and Evans.
During this period from 1981-1982, Mae's health and
mental state continued to worsen. On October 12, 1982, at
the insistence of a close friend, Mae visited Dr. Lulack in
Thompson Falls. Dr. Lulack determined that Mae was diabetic,
she was suffering from chest pains, dizziness and severe
headaches, she had lost control of her bowl movements, and
that she was physically unclean. Dr. Lulack was also
surprised to discover that Mae's toenails were seven
centimeters in length and that her toenails and feet were in
such a condition that she often wore galoshes. Further
examination of Mae by other doctors revealed that she also
had cancer of the colon. Mae subsequently underwent surgery
for her cancer and it was found that her cancer had spread to
her liver.
After her surgery, Mae was moved back to her home in
Thompson Falls to recover from her illnesses, but it soon
became apparent to Dr. Lulack that Mae's condition would
require professional care. Dr. Lulack then contacted the
Department of Social and Rehabilitation Services who
subsequently petitioned the Sanders County District Court to
have Mae declared an incompetent so that a guardian and
conservator could be appointed for her. At a hearing held on
December 28, 1982, Robert Baxter was appointed temporary
conservator of Mae's estate and the Social and Rehabilitation
Services was appointed the temporary guardian of Mae. On
January 25, 1983, the District Court made the foregoing
appointments permanent.
Thereafter, on February 1, 1983, the conservator filed
an action in the Sanders County District Court to recover
funds from Evans and Williams which they had received from
Mae, and also to have set aside the deed and will executed by
Mae on August 4, 1982.
Mae subsequently passed away on January 2, 1984, from
complications of her illnesses, and shortly thereafter,
Williams offered her will for probate in the Sanders County
District Court. Williams further petitioned the District
Court to terminate Mae's conservatorship. The District Court
subsequently consolidated the probate and civil actions and
ordered that the conservator retain all the assets of Mae's
estate until a personal representative was appointed.
On October 29 and 30, 1984, a trial was held in the
Sanders County District Court, before Judge Harkin sitting
without a jury, on the appointment of Williams as the
personal representative of Mae's estate, as well as on the
complaint filed by the conservator. During trial, Judge
Harkin personally viewed the property of Mae's in question.
Judgment was subsequently entered by the District Court
on January 16, 1985, in favor of the conservator, finding the
subject will and deed executed by Mae to be void and awarding
the conservator a money judgment against Evans in the amount
of $12,176.05 and against Williams in the amount of $800.
The appellants, Evans and Williams, present the
following issues for review by this Court:
(1) Was the appointment of the conservator and
guardian of Mae Tennant done in accordance with the statutory
guidelines and if not, are the conservatorship and
guardianship void ab initio?
(2) Was the conservator the real party in interest in
pursuing the case once Mae Tennant died, and what are the
conservator's duties upon the death of the protected person?
(3) Did the conservator meet his burden in proving
that Mae Tennant did not have capacity to execute a deed and
will on August 4, 1982, and to enter into contracts with the
appellants?
(4) Did the conservator meet his burden in proving
that the appellants exercised undue influence over Mae
Tennant to procure her execution of the deed and will on
August 4, 1982?
(5) Did the trial court err in making its findings of
fact?
The respondent, the conservator, raises this additional
issue for review by this Court:
(1) Whether the question of the capacity or standing
of the conservator to bring this action while Mae Tennant
lived was properly raised in this appeal?
The first issue presented by appellants and the single
issue raised by the conservator can be summarily discussed.
With regard to their first issue, the appellants claim the
District Court did not follow Montana statutory guidelines in
appointing the conservator and guardian for Mae and therefore
both of these appointments are void ab initio (from the
beginning) . Specifically, the appellants argue the District
Court failed to give Mae any notice of the conservatorship
and guardianship proceedings, and thus the appointments made
during these proceedings are void and the conservator lacked
the capacity to file his present cause of action.
The conservator replies to appellants' contention by
arguing that the issue of notice to Mae concerning the
conservatorship and guardianship proceedings was not
previously raised or presented to the trial court, and
therefore this issue cannot now be properly raised on appeal.
We agree. The rule governing the treatment of new issues
raised for the first time on appeal is clear in Montana.
We have repeatedly held that we will not
consider questions of claimed err not
previously raised or presented to the
trial court. (Citations omitted.)
Northern Plains v. Board of Natural Resources (1979), 181
Mont. 500, 521, 594 P.2d 297, 309. At no time during the
trial did appellants raise the issue of lack of notice to Mae
concerning the conservatorship and guardianship proceedings.
Consequently, appellants1 claim of err under issue no. 1 must
be disregarded.
Under their second issue, the appellants argue that
upon the death of Mae, her conservatorship should have been
terminated by the District Court and therefore the
conservator had no standing to pursue his present cause of
action on behalf of Mae's estate. Furthermore, the
appellants argue the conservator is not an "interested
person" of Mae1s estate, as defined by Montana's statutory
law, and therefore he lacked the right to contest Mae's will.
We disagree with both of these contentions.
First, § 72-5-429(3), MCA, provides that upon the death
of a protected person the conservator must ". . . retain the
estate for delivery to a duly appointed personal
representative." This statute simply says that it is the
duty of the conservator to continue to protect the ward's
estate until a personal representative is duly appointed by
the court. In the instant case, no personal representative
has been duly appointed because the District Court refused to
appoint Ray Williams, or any other person, to this position.
Therefore, until the appointment of a personal representative
by the District Court, the conservator must act to protect
!?aels estate which in this case includes filing a lawsuit
against the appellants.
Second, there is no question that the conservator is an
"interested person" of Mae's estate with the right to contest
her will. As the appellants correctly point out in their
brief, the right to contest a will is purely statutory. In
Montana, any party who is an "interested person" of a
decedent's estate has the right to oppose or contest the
probate of a will. See, Hatter of Estate of Fender (1975),
1 6 8 P?ont. 200, 541 P.2d 784. The phrase interested person is
defined by 5 72-1-103(21), MCA, in pertinent part as follows:
Interested person includes ...
any
others having a property right in or a
claim against the estate of a decedent,
ward or protected person which may be
affected by the proceeding. It also
includes persons having priority for
appointment as personal representative
and other fiduciaries representing
interested persons. The meaning as it
relates to particular persons may vary
from time to time and must be determined
according to the particular purpose of
and matter involved in any proceeding.
Clearly, under the above statute, the conservator has an
interest in Mae's estate. Me not only has a property right
in her estate, as discussed above, but the last two sentences
of the statute also allow the conservator to be an
"interested person" of her estate. Therefore, the
conservator has the right to contest Mae's will.
With regard. to issue three, the appellants claim the
conservator did not meet his burden in proving that Mae
lacked the necessary capacity to execute the subject deed and
will on August 4, 1982, and to enter into contracts with the
appel-lants. Once again, we disagree with appellants'
contention.
This Court has previously set out the test for
testamentary capacity in In Re Bodin's Estate (19651, 144
Mont. 555, 560, 398 P.2d 616, 619, as follows:
[A] testator is competent if he is
possessed of the mental capacity to
understand the nature of the act, to
understand. and recollect the nature and
situation of his property and his
relations to persons having claims on his
bounty whose interests are affected by
his will. (Citation omitted.) The
testator must have sufficient strength
and clearness of mind and memory to know,
in general, without prompting, the nature
and extent of the property of which he is
about to dispose, and the nature of the
act which he is about to perform, and the
names and identity of the persons who are
to be the objects of his bounty, and his
relation towards them. (Citations
omitted. )
In applying these factors to the instant case, there i.s
little doubt that Mae lacked the necessary testamentary
capacity to execute the subject will on August 4, 1982.
First, it must be noted that Mae had drafted an earlier
will in 1972. This first will was prepared by a person who
had known Mae personally for many years and had served as her
attorney. It benefitted persons and charities known by Mae's
close friends to he the objects of her affection. This
evidence indicates that at the time Mae executed the subject
will on August 4, 1982, she was not fully aware of the
natural or logical objects of her bountv.
Furthermore, the record strongly suggests Mae did not
know the nature and extent of her property at the time she
executed. the subject will. Numerous witnesses testified that
around the time Mae executed the subject will, she believed
she had an inexhaustible supply of money. Even Evans
testified in his deposition as follows:
Q. Do you think she relied on the house
for security for payment for her expenses
in her old age?
A. She didn't seem to be concerned about
her financial--she a.cted like she had
lots of money.
9. Did she ever express concern to you
about her financial security?
A. No she didn't. She said she had lots
ID'S [sic] or something, that her and
Irwin paid. in for 30, 40 years. She was
financially affected for the rest of her
life.
Q. It's your opinion, then, that she
Felt that she was well fixed at that
time, exclusive of ownership of the
house; is that correct?
A. Yeah, I think she thought she was
well fixed?
Q. Did she ever discuss specifically
with you how much money she had in other
investments?
A. No, she didn't.
However, the true facts are that at the time the
conservatorship was established, Nae's cash and cash
equivalents totalled only about $4,500.
Also, the record strongly shows that at the time she
executed the subject will, Mae did not know the true nature
of the act she wa.s performing. Mae's deposition taken
shortly before her death reads as follows:
Q. Did you discuss the contents of your
will before you signed the will?
A. I don't remember that either. I
don't think I did.
Q. Who were the witnesses to your will?
A. I don't think I had any. I don't
remember, unless it was Nieva Wood.
Q. Well, do you remember who was present
in the house at the time you signed the
will, Mae?
A. No, not offhand I don't.
(2. Mae, did you have a will before you
made out this will?
A. No I didn't.
Q. Had Gene Mahoney not made out a will
for you?
A. No.
The only evidence to support the conclusion that Mae knew the
true nature of the act she was performing came from the
testimony at trial of Evans, Williams and Tony Keast. This
Court submits that the weight given to the testimony of Evans
and Wil-liams must be balanced against their personal interest
in the outcome of this case. In fact, the District Court
made the following special finding of fact: "the testimony of
Tom Evans is replete with inconsistencies; he is not a
credible witness." Furthermore, the weight given to the
testimony of Tony Keast must also be questioned because of
his apparent lack of knowledge of the formalities necessary
to draft a valid will in Montana. Section 72-2-305(3), MCA,
clearly provides that any beneficial devise in a will to a
subscribing witness is void. Mr. Keast permitted Evans, a
principal beneficiary under Mae's will, to be a subscribing
witness to her will in obvious violation of this statute.
Finally, it is important to note that substantial
evidence exists that Mae's mental incapacity extended over a
long period of time and most certainly included the date on
which the subject will and deed were executed. As described
in the facts section of this opinion, testimony indicates
Mae's mental incapacity began to surface as early as 1975.
Therefore, in light of the above discussion, this Court has
little hesitation in concluding that Mae lacked the necessary
testamentary capacity to execute the subject will, and the
subject will is hereby declared void.
Next, the same facts which lead us to the conclusion
that Mae lacked the necessary capacity to execute the subject
will., also 1-ead us to the conclusion that Mae lacked the
necessary capacity to execute the subject deed. The standard
of competence necessary to execute a valid deed is set out by
this Court in Silloway v. Jorgenson (1965), 146 Mont. 307,
406 P.2d 167. In Silloway, we held that a grantor's mental
ability to execute a valid deed required sufficient capacity
to understand in a reasonable manner the nature and effect of
the act undertaken.
Mae's lack of understanding regarding the execution of
the subject deed is established by her own testimony. When
she was questioned about her understanding of the document
and was shown the deed physically, these questions and
answers were exchanged:
Q. Mae, I will show you a photocopy of
what purports to be a quitclaim deed.
Does that look like something you have
seen before?
A. Yes.
Q. Can you identify that?
A. Yes.
Q. What is it?
A. Well, it's--I don't know if I know
the proper name for it, but it's a deed.
Q. And who is the deed from? Look up
here, Mae.
A. Thomas J. Evans, Sanders County.
Q. Well, Mae, you seem to be a bit
confused by that document. Are you
familiar with deeds at all?
A. No, I'm not familiar with no deeds.
Q. Do you understand what deeds are all
about?
A. Well, I'm getting to learn a little
bit about it.
Q. You mean you are getting to now; is
that right?
A. Yes,. ..
Mae further summarized her understanding of the subject
deed and its consequences when she confessed the following in
her deposition:
Somebody has done all kinds of things
that I have no knowledge concerning my
business and concerning me and my
property and everything. I don't know a
thing about what all they are doing. I
don't understand the whole thing.
It is clear from the above testimony, in addition to
the other evidence presented by the record, that Mae was
thoroughly con.fused by the deed and. did not understand its
nature or effect. Therefore, this Court agrees with the
District Court's finding that Mae did not have the requisite
mental capacity to execute the subject deed and it is hereby
declared void.
Furthermore, for the same reasons why Mae lacked the
capacity to execute the subject deed and will, we hold Mae
lacked the necessary capacity to enter into binding contracts
with the appellants for yard care services. Consequently, we
hold such contracts entered into between the parties to be
rescinded and declared void.
The fourth issue presented by the appellants asks this
Court to determine if the conservator also met his burden in
proving that the appellants exercised undue influence over
Mae to procure her execution of the subject deed and will.
We hold the conservator met his burden.
The case of In Re Maricich's Estate (1965), 145 Mont.
146, 400 P.2d 873, is the lead case in Montana for
determining the existence of undue influence on a testator.
The elements found in Maricich are essentially the same as
the statutory elements for undue influence found in
S 28-2-407, MCA. The test in P,laricich provides as follows:
(1) Confidential relationship of the
person attempting to influence the
testator; (2) The physical condition of
the testator as it affects his ability to
withstand the influence; (3) The mental
condition of the testator as it affects
his ability to withstand influence;
(4) The unnaturalness of the disposition
as it relates to showing an unbalanced
mind or a mind easily susceptible to
undue influence; (5) The demands and
importunities as they may affect
particular testator taking into
consideration the time, the place, and
all the surrounding circumstances.
Maricj-ch, 400 P.2d at 881. It should also be pointed out
that this Court in Patterson v. Halterman (19731, 161 Mont.
278, 505 P.2d 905, held tha.t the tests for undue influence
which are pertinent to wills are also pertinent to deeds.
In analyzing the instant case under the elements listed
in Maricich, it is clear to this Court that the appellants
exercised undue influence over Mae to procure her execution
of the subject deed and will. The initial four elements of
the Maricich test have already been established in this
opinion. A confidential relationship existed between Mae and
the appellants; Mae was a person especially susceptible to
the exercise of undue influence because of her mental and
physical condition; and Mae made an unnatural disposition of
her property by the subject deed and will by reason of her
pre-established estate plan of long standing which left her
estate to various charities and a scholarship fund. Finally,
with regard to the fifth element of the test, the record
clearly shows that demands and importunities were made upon
Mae by the appellants. This point is well illustrated by the
fact that the appellants solicited Mae's work, when it was
obvious that she simply did not need such work done. Bill
Evans, Tom's brother, apparently did $2,500 worth of work for
Mae in 1980 and Jim Evans, Tom's brother, charged Mae $1,150
for work that he did for her in May of 1981, just a month
before Tom Evans started working for Mae. It appears Evans
and Williams saw a lady who, because of her condition, could
not say "no" and they took advantage of the situation.
Therefore, in light of the above discussion, this Court
holds that the appellant exercised und.ue influence over Mae
to procure her execution of the subject deed and will, and we
once again hold these two documents to be void.
The fifth, and final, issue raised by the appellants is
whether the findings of fact and conclusions of law of the
District Court are supported by the evidence. In response to
this issue, we note this Court will not set aside the trial
court's findings of fact unless shown to be clearly
erroneous. Rule 52 (a) M.R.Civ. P., states in pertinent part:
Findings of fact shall not be set aside
unless clearly erroneous, and due regard
shall be given to the opportunity of the
trial court to judge the credibility of
the witnesses.
Furthermore, findings of fact are not clearly erroneous
if supported by substantial credible evidence:
This Court's function ...is not to
substitute its judgment in place of the
trier of facts but rather it is "confined
to determine whether there is substantial
credible evidence to support" the
findings of fact and conclusions of law.
(Citations omitted.) Although conflicts
may exist in the e~rj-dence presented, it
is the duty and function of the trial
judge to resolve such conflicts. His
findings will not be disturbed on appeal
where they are based on substantial
though conflicting eviden.ce. (Citations
omitted. )
Olsen v. Westfork Properties, Inc. (1976), 171 Mont. 154,
In light of the above standard, we conclude there is
substantial credible evidence on the record, as explained in
this opinion, support the findings of fact and conclusions
of law of the District Court.
It should also be noted that based on the record, Mae's
original will drafted in 1972 may not be reinstated by this
Court under the doctrine of: dependent relative revocation.
Montana specifically recognizes this doctrine which provides
that if a testator revokes or destroys his old will and
substitutes another which fails for any reason, a rebuttable
presumption arises that he would prefer to have his property
distributed pursuant to the earlier will than sccording to
the intestate succession statutes. Matter of Estate of
Patten (1978), 179 Mont. 299, 587 P.2d 1307. However, an
essential element of this doctrine is that the new will and
the old will of the testator must reflect essentially the
same dispositive plan. In the instant case, Mae's new will.
and old will clearly do not reflect the same dispositive
plan. Therefore, this doctrine does not apply to the instant
case and Mae's property must be distributed according to
Montana's intestate succession statutes.
The judgment of the District Court is affirmed.
We concur: V