NO. 91-268
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN THE MATTER OF THE ESTATE OF ROSE M. JOCHEMS,
Deceased.
DANIEL F. JOCHEMS,
Petitioner and Appellant,
-vs-
MARY ANN BUCSIS.
Respondent and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Chadwick H. Smith and Lewis K. Smith, Smith Law
Firm, Helena, Montana.
For Respondent:
Thomas K. Harlen and Richard L. Parish, Harlen,
Thompson & Parish, Helena, Montana.
Submitted on Briefs: December 31, 1991
Decided: February 4, 1992
Filed:
Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Daniel F. Jochems appeals from a decision of the District
Court for the First Judicial District, Lewis and Clark County,
denying his petition for an adjudication that his mother, Rose M.
Jochems, died intestate. We affirm.
The dispositive issues are:
1. Did the District Court err in concluding that Daniel
Jochems failed to prove undue influence by his sister Mary Ann
Bucsis over their mother Rose Jochems?
2. Did the District Court err in concluding that Rose Jochems
possessed the requisite mental capacity to execute her will in
December 1988 and to transfer certain certificates of deposit in
February and July of 1989?
Daniel Jochems (Dan) and Mary Ann Bucsis (Mary Ann) are the
adult children of Rose Jochems (Rose), who died on December 25,
1989, at the age of 86 years. Dan has challenged the validity of
Rose's will dated December 8, 1988, and of her transfer of several
certificates of deposit (CD's) to Mary Ann, on the grounds of lack
of capacity and undue influence. In this action, he seeks to have
the will declared invalid, to have Rose declared intestate, to
prevent Mary Ann from disposing of or transferring any property she
received from Rose during the last year of Rose's life, and to be
appointed as personal representative of Rose's estate.
2
Rose resided in a senior citizens' apartment complex in
Helena, Montana, for the last two years of her life, following the
death of her husband. She suffered from emphysema and congestive
heart failure. Mary Ann visited her biweekly and handled her
financial affairs. Dan and his wife visited Rose at least weekly,
escorting her to doctors' appointments and running errands for her.
During her last years, Rose made numerous transfers of money
to Dan and his wife. These included $10,000 to allow Dan to pay
off an obligation for back child support; $20,000 to pay off his
home mortgage: $2,000 for clothing and travel expenses to Conrad,
Montana, to allow Dan to visit his parents and attend his father's
funeral: and $5,800 for a new garage and tools. The total amount
Dan received from Rose between June and November 1987 was $37,800.
In late 1987, Rose signed a will devising $37,800 to Mary Ann
"because I [Rose] have previously advanced an equal sum" to Dan.
The residue of Rose's estate was devised in equal shares to Mary
Ann and Dan. In June 1988, Rose gave Dan $1,300. In July 1988,
she executed a new will in which she devised $39,100 to Mary Ann
''because I have previously advanced an equal sum to my son, [Dan],
prior to the execution of this will."
During the next three months, Rose bought Dan a new pickup
truck and paid for some dental work he needed. This brought the
total funds advanced to Dan since June 1987 to $51,889.
3
In October 1988 Mary Ann removed Rose's CD's from Rose's
safety deposit box. According to Mary Ann, Rose had previously
asked her to help protect her money because Dan frequently asked
for money and she did not have the ability to refuse. However,
when Rose learned that Mary Ann had taken the CD's, she was upset
and asked Dan to find her an attorney. At Rose's request, that
attorney prepared a revocation of Mary Ann's power of attorney, a
power of attorney in favor of Dan and his wife, a letter demanding
that Mary Ann return the CD's, and a new will.
On December 5, 1988, Rose went to the attorney's office and
signed a cancellation of the power of attorney in favor of Dan and
his wife. She asked for the will the attorney had drafted for her,
and took it with her.
Three days later, on December 8, 1988, Rose signed a will
prepared by Mary Ann and witnessed by acquaintances of Rose at her
apartment complex. This will left Rose's entire estate to Mary Ann
with the exception of one dollar to Dan. Attached to the will was
an undated, signed "codicile" stating that the pickup truck given
to Dan was to be considered an advance on his inheritance.
When this new will was executed, Rose's estate consisted of
five CD's totalling $70,000. The CD's had been transferred to
joint tenancy with Mary Ann during the summer or fall of 1988. In
January 1989, four of the CD's were reissued for a six-month term
4
in Rose's name alone. In July 1989, all five CD's were reissued in
the names of both Rose and Mary Ann.
In October 1989, Mary Ann cashed one of the CD's, which both
she and Rose had endorsed, in the amount of $10,000, as Rose's
"funeral fund." On October 13, 1989, Rose granted a new power of
attorney to Mary Ann. Based on this power of attorney, the four
remaining CD's were reissued in Mary Ann's name for a one-year
term.
The District Court concluded that the December 8, 1988 will is
valid and that the transfers of the CD's to joint tenancy with Mary
Ann were consistent with Rose's intended disposition of her estate
and were not unnatural. It ruled that, as a result, the validity
of Mary Ann's power of attorney and her subsequent transfer of the
CD's to herself alone is immaterial. The court named Mary Ann as
personal representative of Rose's estate and awarded her costs and
attorney fees.
I
Did the District Court err in concluding that Daniel Jochems
failed to prove undue influence by his sister Mary Ann Bucsis over
their mother Rose Jochems?
Section 28-2-407, MCA, provides that
Undue influence consists in:
(1) the use by one in whom a confidence is reposed by
another . . . for the purpose of obtaining an unfair
advantage over him;
5
(2) taking an unfair advantage of another's weakness of
mind: or
(3) taking a grossly oppressive and unfair advantage of
another's necessities or distress.
The elements necessary to prove undue influence are: 1) confiden-
tial relationship of the person attempting to influence the
testator: 2) physical condition of the testator as it affects her
ability to withstand influence: 3) mental condition of the testator
as it affects her ability to withstand influence: 4) 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 the particular donor, taking into
consideration the time, the place, and all the surrounding
circumstances. Matter of Estate of Luger (1990), 244 Mont. 301,
303-04, 797 P.2d 229, 231, citing Christensen v. Britton (1989),
240 Mont. 393, 784 P.2d 908.
Dan asserts that it is significant that the December 8, 1988
will was typed by Mary Ann and that the attached "codicile"
concerning the pickup truck is inconsistent with the provision in
the will leaving him only one dollar. He testified at trial, and
now argues, that the gifts to him of $10,000 and $20,000 were
belated compensation for the sale in the late 1960's of his
parents' ranch, which he had been leasing and operating. He
maintains that his virtual omission from Rose's will is unnatural.
Prior wills may be considered in evaluating the naturalness of
6
a disposition. Luqer, 2 4 4 Mont. at 304, 797 P.2d at 231. Rose's
1987 and 1988 wills establish a pattern of treating monies given to
Dan as advancements on his inheritance. The wills support the view
that Rose provided for Dan through inter vivos transfers.
Mary Ann testified that Rose felt that Dan could not handle
his personal finances so that she needed to take care of his needs
while she was alive and that she considered the transfers of money
to Dan during her lifetime to be his inheritance. The total amount
of the inter vivos transfers to Dan is approximately equal to the
amount devised to Mary Ann. The statement about the pickup truck
in the undated, signed "codicile" attached to the December 8, 1988
will fits the pattern established in prior wills. Mary Ann's role
in typing the will does not lessen the significance of the
established pattern demonstrated in those prior wills.
We hold that because Dan has failed to establish that the
disposition in Rose's December 8, 1988 will is unnatural, the
District Court did not err in concluding that he failed to prove
undue influence.
I1
Did the District Court err in concluding that Rose Jochems
possessed the requisite mental capacity to execute her will in
December 1988 and to transfer certain certificates of deposit in
February and July of 1989?
7
A testator is competent to perform an act if she is possessed
of the mental capacity to understand the nature of the act and to
understand and recollect the nature and situation of her property
and her relations to persons having claims on her bounty whose
interests are affected by her will. Guardianship of Estate of
Tennant (1986), 220 Mont. 78, 84, 714 P.2d 122, 126.
Dan relies upon testimony of Dr. Kremer that Rose used tank
oxygen daily and experienced periods of lightheadedness and that he
had to make written notes for her concerning medications and when
or how she should take them. Dr. Kremer also testified that, in
his opinion, her ability to make a logical judgment was Very poor"
by December of 1988. Dr. Stephen Cade, Rose's treating physician
for the last few weeks of her life, stated that, in his opinion,
Rose was not competent to make sound judgments at any time from
when he began treating her on October 12, 1989, to the date of her
death, due to her condition and medications. Dan's wife testified
that several times Rose became confused in stores and tried to try
on clothes without retiring to the dressing rooms.
However, an employee at the bank where Rose had her CD's
testified that Rose always seemed to have her mental faculties
about her when she visited the bank, including the time she changed
the CD's to joint ownership with M a r y Ann. The bank employee
testified that she explained the consequences of changes to Rose
and confirmed that Rose understood the nature of the changes. Lola
8
Eschenbacher, who witnessed the December 8, 1988 will, testified
that Rose was a very strong willed person who very much made her
own decisions as late as November of 1989. Nick Jacques, the
attorney Dan located for Rose, testified that on the day she came
to retrieve the will he had drafted for her, which was three days
before she signed the new will typed by Mary Ann, Rose's demeanor
was brisk and businesslike. Dan himself testified that Rose was
very strong-willed and making rational decisions as late as October
1988, when she bought him the pickup truck.
The District Court concluded that ll[a]lthough she was ailing
physically, and her mental faculties were not perfect, the evidence
failed to establish that she was incapable of making rational
decisions with respect to the disposition of her estate." After
reviewing the record, we hold that the District Court did not err
in reaching this conclusion.
Our holdings on the above two issues render immaterial, for
purposes of this action, the remaining issues concerning whether
CD's and money from certain bank accounts are assets of Rose's
estate. Affirmed.
9
We concur:
10
February 4, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Chadwick H. Smith
Lewis K. Smith
SMITH LAW FIRM
P.O. Box 604
Helena. MT 59624
Thomas K. Harlen
HARLAN, THOMPSON & PARISH P.C.
800 Sixth Avenue
Helena. MT 59601
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA