No. 90-210
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
IN THE MATTER OF THE ESTATE
OF EDWARD E. LUGER, Deceased.
DAVID J. LLOYD,
Petitioner and Appellant,
INTERMOUNTAIN DEACONESS HOME
FOR CHILDREN, and MONTANA
CHILDREN'S HOME AND HOSPITAL,
Defendants and Respondents.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Rosebud,
The Honorable Kenneth R. Wilson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Craig W. Holt, Esq., Billings, Montana
For Respondent:
John R. Sullivan, Esq., Helena, Montana
Garry P. Bunke, Esq., Miles City, Montana
Jodie L. Johnson, Esq., Luxan & Murfitt, Helena,
Montana
Submitted on Briefs: July 19, 1990
Decided: September 5, 1990
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
David J. Lloyd, nephew to the deceased Edward E. Luger,
appeals the summary judgment of the Sixteenth Judicial District
Court, Rosebud County, which found Edward E. Luger's will valid.
In his will, Luger devised all of his estate to Montana Children's
Home and Hospital and Intermountain Deaconess Home for Children,
both located in Helena, Montana. The District Court held that no
genuine issue of fact existed with regard to Luger's testamentary
capacity and that Luger's will was valid as a matter of law. We
affirm.
Lloyd raises the following issue:
Did the Sixteenth Judicial District Court properly grant the
Motion for Summary Judgment filed by the respondents Montana
Children's Home and Hospital and Intermountain Deaconess Home for
Children?
One-hundred-year-old Edward E. Luger died testate on February
15, 1988. He never married or had children. His surviving heirs
were five nieces and two nephews, all of whom lived out-of-state
and had little personal contact with Luger throughout the years.
In his 1980 will, Luger devised his entire estate equally between
Montana Children's Home and Hospital (Shodair) and Intermountain
Deaconess Home for Children (Deaconess), both located in Helena,
Montana. Luger's charitable intent of his 1980 will was consistent
with his intent in a previous will dated 1948 and an unsigned copy
of a 1976 will with the exception of adding Deaconess as a
2
beneficiary in the 1980 will. Additionally, Luger specifically
stated in his 1980 will that his nieces and nephews were to receive
nothing from his estate because of their previous inheritances from
Lugerts deceased parentst estates.
David J. Lloyd, nephew to Luger, filed a petition contesting
probate of the 1980 will on February 13, 1989, pursuant to 5 72-
3-308, MCA. Although Lloyd had not seen Luger since 1947, Lloyd
claimed that Luger had been subject to undue influence by Robert
Martinek, Lugerts accountant and the personal representative of
Lugerts estate. Martinek was not a named beneficiary of the 1980
will. Additionally, Lloyd claimed that Luger was not of sound mind
when he executed his 1980 will. Respondents Shodair and Deaconess
moved for summary judgment, which was granted by the District Court
on March 21, 1990. From this judgment, Lloyd appeals.
Rule 56(c) of the Montana Rules of Civil Procedure provides
in part:
The judgment sought shall be rendered forth-
with if the pleadings, depositions, answers to
interrogatories, and admissions on file,
together with the affidavits, if any, show
that there is no qenuine issue as to any
material fact and that the moving party is
entitled to a judgment as a matter of law.
(Emphasis added.)
Lloyd argues that summary judgment was granted improperly by
the District Court because disputed facts exist concerning Luger's
testamentary capacity, and these facts should be presented to a
jury for determination. First, Lloyd asserts that there are
disputed facts with regard to Robert Martinekfs undue influence
over Luger, and cites the five criteria for establishing undue
influence as set forth in Christensen v. Britton (Mont. 1989), 784
P.2d 908, 911, 46 St.Rep. 2223, 2227 (citations omitted):
(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 influence;
(3) The mental condition of the testator as
it affects his ability to withstand the influ-
ence ;
(4) The unnaturalness of the disposition as
it relates to showing an unbalanced mind or a
mind easily susceptible to undue influence,
and
( 5 ) The demands and importunities as they may
affect the particular donor taking into con-
sideration the time, the place, and all the
surrounding circumstances.
All of the above factors must be satisfied to prove that undue
influence occurred. Christensen, 784 P.2d at 911.
Lloyd argues that the District Court, in its order for summary
judgment, implied that doubt existed as to whether Lloyd could
satisfy four of the five criteria with regard to Martinekls undue
influence over Luger. Accordingly, Lloyd argues that this
implication means that disputed facts exist with regard to
Martinekfs undue influence upon Luger. The District Court, how-
ever, found that Lloyd could prove none of the criteria. Moreover,
the District Court specifically discussed the flnaturalnessll
versus
the llunnaturalnesslf the disposition--the fourth criteria of
of
Christensen. The District Court reasoned that because Luger's
charitable intent in his 1980 will was consistent with his intent
in his 1948 will and the unsigned copy of the 1976 will, Luger's
disposition to Shodair and Deaconess appeared quite natural. Even
though the District Court did not elaborate on all five Christensen
criteria, it is clear that Lloyd could not satisfy the fourth
criteria, and thus, in any event, could not prove undue influence.
Accordingly, Lloyd's first argument fails.
Second, Lloyd argues that summary judgment was improper
because disputed facts exist with regard to Lugervscompetency and
argues that Luger was not of sound mind in 1980 when he executed
his will. Lloyd bases this argument upon the depositions of Lois
Fellows, Luger s niece, and Faye Luger, Luger's nephew. Rule 56 (e)
of the Montana Rules of Civil Procedure provides:
When a motion for summary judgment is made and
supported as provided in this rule, an adverse
party may not rest upon the mere allegations
or denials of his pleading, but his response,
by affidavits or as otherwise provided in this
rule, must set forth specific facts showing
that there is a genuine issue for trial. If
he does not so respond, summary judgment, if
appropriate, shall be entered against him.
Both Lois Fellows and Faye Luger had little personal knowledge or
contact with Luger over the years, and their depositions were based
on their opinions and speculations, rather than on any substantive
evidence. !'Mere conclusory or speculative statements are insuffi-
cient to raise a genuine issue of material fact.Iv Mayer Brothers
v. Daniel Richard Jewelers, Inc. (1986), 223 Mont. 397, 399, 726
P.2d 815, 816 (citations omitted) . In contrast, the individuals
who had personal knowledge of Lugerts mental state, Martinek,
Luger's physician, and nursing home personnel, all testified that
Luger was mentally competent to execute a will in 1980. These
depositions of Martinek, Luger's physician, and the nursing home
personnel, coupled with the presumption that Luger was of sound
mind are sufficient to establish that no genuine issue of material
fact with regard to Lugerts competency existed. In Re Choinierets
Estate v. Bukvich (1945), 117 Mont. 65, 71-72, 156 P.2d 635, 638.
It is also important to note again that Lloyd himself had not even
seen Luger since 1947. Based on the above, we hold that Luger was
of sound mind and competent to execute his 1980 will.
Affirmed.
Chief Justice
We concur: