NO. 96-112
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1996
IN THE MATTER OF THE ESTATE OF
i\iliv 2 fi !%fi
KATHERYNMAY BROOKS, Deceased.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and for the County of Ravalli,
The Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Howard C. Greenwood, Attorney at Law,
Hamilton, Montana
For Respondent:
Richard A. Weber, Jr.; Koch, Johnson,
Weber & Goheen, Hamilton, Montana
Submitted on Briefs: August 22, 1996
Decided: November 26, 1996
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Bruce C. Brooks appeals from the Findings of Fact, Conclusions
of Law and Order of the Twenty-First Judicial District Court,
Ravalli County, denying admission of a document dated March 21,
1995, to probate, declaring that Katheryn May Brooks died
intestate, and ordering that her estate be distributed accordingly.
We affirm.
The restated dispositive issue on appeal is whether the
District Court erred in denying admission of the March 21, 1995,
document to probate.
Katheryn May Brooks (Kay) died on March 24, 1995, in Ravalli
County, Montana, at the age of seventy-nine. She was survived by
two children, Bruce C. Brooks (Bruce) and Jean K. Mercer (Jean).
At the time of Kay's death, Bruce resided in the family home in
Hamilton, Montana. Jean lived in Spokane, Washington.
The relevant circumstances surrounding Kay's final years are
generally undisputed. Prior to the death of his father, Virgil
Brooks (Virgil), in 1992, Bruce lived in a small house behind the
family home owned by Kay and Virgil. Thereafter, he moved into the
family home.
Kay lived with Jean in Spokane from the time of Virgil's death
in the spring of 1992 until late in December of 1993, when she
returned to the family home in Hamilton. Bruce cared for her there
until he was called away on business in early June of 1994. At
that time, Kay returned to Jean's care in Spokane.
2
The following month, Kay moved to the Discovery Care Center
(Discovery), a nursing home in Hamilton, as a result of
deteriorating health. Jean drove over from Spokane to visit Kay at
Discovery approximately monthly thereafter. Bruce visited daily
when he was not away on business. Kay, Bruce and Jean began to
discuss the disposition of the family home, resulting in ill
feelings between Bruce and Jean which upset Kay.
Kay had executed a "home-drawn" will prior to Virgil's death.
On or about March 10, 1995, Bruce assisted Kay in updating that
will. He brought it to Discovery and, according to his testimony,
reviewed each provision with Kay, making changes as she directed.
Bruce tape-recorded a conversation between himself and Kay during
which they discussed the revisions to Kay's will. On March 21,
1995, Bruce typed up the new document. Kay signed the document
that same day, in the presence of Bruce and his long-time friend
Carolynne Merrell (Merrell). Merrell signed the document as a
witness. The document listed specific bequests to Bruce, Jean and
their children, and left the family home and the remainder of the
furnishings and contents--Kay's most substantial asset--to Bruce.
Bruce and Merrell then took the document to Leroy White
(White), a notary public and Brooks family friend. White had known
Kay for more than fifty years and recognized her signature. At
Bruce's request, White signed the document as the second witness
and affixed his notarial seal. Kay died three days later.
On May 5, 1995, Bruce filed a petition for formal probate of
the March 21, 1995, document as Kay's last will and testament,
3
determination of testacy and heirs, and appointment as personal
representative. In response, Jean requested that the document be
denied admission to probate, that Kay's estate be distributed via
intestate succession, and that she be appointed co-personal
representative with Bruce.
The District Court held a hearing on Bruce's petition and,
thereafter, entered its findings of fact, conclusions of law and
order. Briefly stated, the court denied admission to probate of
the March 21, 1995, document and declared that Kay died intestate.
Bruce appeals.
Additional facts are provided below as necessary to our
resolution of the issue before us.
STANDARDS OF REVIEW
We will not disturb a district court's findings of fact unless
they are clearly erroneous. Rule 52(a), M.R.Civ.P.; Flikkema v.
Kimm (1992), 255 Mont. 34, 37, 839 P.2d 1293, 1295. A court's
findings are clearly erroneous if they are not supported by
substantial credible evidence, the court has misapprehended the
effect of the evidence, or our review of the record convinces us
that a mistake has been committed. Daines v. Knight (1995), 269
Mont. 320, 325, 888 P.2d 904, 906 (citation omitted). We review a
district court's conclusions of law to determine whether the
interpretation of the law is correct. Flikkema, 839 P.2d at 1295
(citation omitted)
DISCUSSION
Did the District Court err in denying admission of the
March 21, 1995, document to probate?
4
A. Section 72-2-522, MCA
In contested cases, the proponent of a will must establish
that it has been duly executed. Section 72-3-310, MCA. Section
72-2-522(l), MCA, contains the requirements for a duly executed
will:
Except as provided in 72-2-523 . . . a will must be:
(a) in writing;
(b) signed by the testator or in the testator's name
by some other individual in the testator's conscious
presence and by the testator's direction; and
(c) signed by at least two individuals, each of whom
signed within a reasonable time after having witnessed
either the signing of the will as described in subsection
(l)(b) or the testator's acknowledgement of that
signature or acknowledgement of the will.
(Emphasis added.) Bruce argued that the March 21, 1995, document
had been duly executed under § 72-2-522(l), MCA, and that it should
be admitted to probate as Kay's will. The District Court concluded
that the document had been signed by only one person who met the
criteria set forth in § 72-2-522(l) cc), MCA, and, therefore, that
the document was not duly executed.
The March 21, 1995, document is in writing and signed by Kay.
Thus, the § 72-2-522(l) (a) and (b), MCA, criteria are met.
The document also contains two signatures on signature lines
labeled "witness." The first signature is Merrell's. She signed
the document as a witness in Kay's presence immediately after
observing Kay sign the document and acknowledge that it was a will.
The other "witness" signature is White's. However, White was not
present when Kay signed the document. Nor did Kay acknowledge to
White either her signature or that the document was her will.
Therefore, White's signature is not the signature of a second
5
witness, as required by § 72-2-522(l) cc), MCA, and Bruce did not
meet his burden under § 72-3-310, MCA, of establishing that the
document had been duly executed.
Bruce cites to Matter of Estate of Weidner (19811, 192 Mont.
421, 628 P.2d 285, as authority for admitting the document to
probate as Kay's will "on the testimony of one witness." He does
not present any analysis or application of that case to the
circumstances presently before us.
Estate of Weidner involved two wills. One was a joint will
executed by Leona and E.J. Weidner in 1954, which left all of their
property--except for five dollars--to their daughter, Lorraine
Brown. The other was an unexecuted copy of a will purportedly
executed by Leona in 1965, after E.J.'s death, which "contain[ed]
a standard revocation clause." Estate of Weidner, 628 P.2d at 286.
Upon Leona's death, Lorraine sought to probate the 1954 will. Gale
Weidner, E.J. and Leona's son, petitioned for a formal
determination of intestacy and offered an unexecuted copy of the
1965 will. The 1965 will apparently revoked the 1954 will but did
not dispose of Leona's property. Estate of Weidner, 628 P.2d at
286.
The dispositive issue on appeal was whether the 1965 will was
duly executed. See Estate of Weidner, 628 P.2d at 286-87. We
noted that the proponent of a will bears the burden of proving due
execution. Estate of Weidner, 628 P.2d at 287 (citing § 72-3-310,
MCA). We also noted that, in a contested case, at least one of the
attesting witnesses generally must testify. Estate of Weidner, 628
6
P.Zd at 287 (citing § 72-3-309, MCA). In Estate of Weidner, the
attorney who drafted the 1965 will testified that he witnessed
Leona's signing of the will and was "quite certain" that he was an
attesting witness. He further testified that, while he was not
certain who the other witness was, he believed it was his
secretary. The secretary did not testify at trial, but the
attorney stated that she did not recall signing the will. On the
record before us, we concluded that there was insufficient evidence
to support a determination that the 1965 will was duly executed.
Estate of Weidner, 628 P.2d at 287.
Estate of Weidner does not support Bruce's position here that
the March 21, 1995, document can be admitted to probate where it
indisputably was not duly executed as required by § 72-2-522, MCA.
The number of attesting witnesses who must testify in a contested
will proceeding pursuant to § 72-3-309, MCA, is an entirely
different question from whether the purported will met the
requirements for a duly executed will under 5 72-2-522, MCA.
Neither § 72-3-309, MCA, nor Estate of Weidner varies, or could
vary, the separate and distinct statutory requirements for a duly
executed will which must be established by the proponent of the
will.
The record before us in this case demonstrates that the March
21, 1995, document was signed by only one person who witnessed Kay
signing the will or acknowledging either her signature or the will.
We hold, therefore, that the District Court correctly concluded
that the March 21, 1995, document was not duly executed under § 72-
2-522, MCA.
B. Section 72-2-523, MCA
As discussed above, the proponent of a will has the burden of
establishing due execution. See § 72-3-310, MCA. Where a duly
executed will is admitted to probate, a presumption exists that the
testator was competent and of sound mind. See In re Bodin's Estate
(1965), 144 Mont. 555, 559, 398 P.2d 616, 618-19 (citations
omitted). Accordingly, 5 72-3-310, MCA, requires the contestant of
such a will to establish lack of testamentary intent or capacity or
one of the other statutorily-specified circumstances.
Even absent due execution, however, a document still can be
admitted to probate as a valid will under certain circumstances.
Section 72-2-523, MCA, provides in pertinent part:
Although a document or writing added upon a document was
not executed in compliance with 72-2-522, the document or
writing is treated as if it had been executed in
compliance with that section if the proponent of the
document or writing establishes by clear and convincing
evidence that the decedent intended the document or
writing to constitute:
(1) the decedent's will.
(Emphasis added.) Under the express language of this statute, the
proponent of a document bears the burden of proving the decedent's
intent that the writing constitutes his or her will
"Intent" is defined as "the state of mind or mental attitude
with which an act is done." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY,
1176 (1971). "INTEND implies that the mind is directed to some
definite accomplishment or end. . _'I WEBSTER'S
THIRD NEW INTERNATIONAL
DICTIONARY, 1175 (1971). It is axiomatic that for Kay to have
8
intended the document to be her will, she must have been competent
to execute a will at the time she signed the document on March 21,
1995. Indeed, § 72-2-521, MCA, requires that a person be of sound
mind to make a will
"Sound mind," as that term is used in § 72-2-521, MCA, means
"that [the] testator must have been able to understand and carry in
mind, in a general way, [the] nature and situation of [her]
property, [her1 relations to those having claim to [her1
remembrance, and [the] nature of [her] act." BLACK'S LAW DICTIONARY,
1567 (1968). Similarly, it is well-established in Montana that a
testator is mentally competent if she
is possessed of the mental capacity to understand the
nature of the act, 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. [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 [she] is
about to dispose, and [the] nature of the act which [she]
is about to perform, and the names and identity of the
persons who are to be the objects of [her] bounty, and
[her] relation towards them."
Bodin's Estate, 398 P.2d at 619 (citations omitted). See also
Matter of Estate of Lien (1995), 270 Mont. 295, 299, 892 P.2d 530,
532; Matter of Estate of Jochems (1992), 252 Mont. 24, 29, 826 P.2d
534, 537.
Thus, unlike the situation in which a duly executed will is
admitted to probate, no presumption that the decedent was competent
to execute a will exists where § 72-2-523, MCA, applies. In light
of Bruce's burden of proof pursuant to § 72-2-523, MCA, therefore,
§ 72-3-310, MCA--insofar as it imposes a burden upon the contestant
9
of a will to prove lack of testamentary intent or capacity--has no
application here.
Bruce attempted to have the March 21, 1995, document admitted
to probate pursuant to § 12-2-523, MCA. The District Court
listened to testimony and accepted evidence and, thereafter,
determined that Bruce had not proved by clear and convincing
evidence that Kay was competent when she signed the document on
March 21, 1995, and intended the document to be her will.
An underlying finding upon which the court based its ultimate
determination that Bruce did not satisfy his burden of proof under
§ 72-2-523, MCA, was that Kay "did not know what property she had
and which would be disposed of by her will." The record contains
substantial evidence in support of this finding. Bruce testified
that Kay had already given away numerous items of personal property
disposed of by the March 21, 1995, document. Indeed, Jean and
Kay's grandchildren had received most of the property the March 21,
1995, document purported to bequeath to them. Moreover, the tape-
recorded conversation between Bruce and Kay in which they discussed
the proposed changes to Kay's will reveals that Kay was unaware
that she owned stock until reminded by Bruce.
BRUCE: You own stock in Ford Motor Company and stock in
Australia New Zealand Bank.
KAY: I do? (laughs)
BRUCE: Yes, which has your's, mine, and Jean's names on
them as tenants in common. Okay. How do you want to
handle those stocks? That's also the Montana Power Stock
that Dad bought prior.
KAY: I am no good at that kind of thing. I have no idea.
10
The foregoing evidence indicates that Kay did not have the
"clearness of mind and memory to know, in general, without
prompting, the nature and extent of [her] property." & Bodin's
Estate, 398 P.2d at 619. Without such clearness of mind, and
absent the mental capacity to recollect the nature and situation of
her property, Kay was not competent to execute a will. See Estate
of Lien, 892 P.2d at 532. Thus, this evidence would be sufficient,
on a stand-alone basis, to support the District Court's
determination that Bruce did not meet his burden of proving, by
clear and convincing evidence, that Kay was competent when she
signed the will.
The record also is replete with evidence that Kay's mental
capacity had deteriorated in the months preceding her death. Kay
began seeing Dr. Lisa Milch (Milch) in January of 1994 for
abdominal and back pain. Milch noted in office notes dated
February 3, 1994, that Kay had trouble relating her medical history
and was probably suffering from dementia. Milch's notes also
indicate that she spoke with Bruce the following day regarding
Kay's memory problems. Bruce told Milch that Kay's memory had been
declining and she had become more forgetful in the preceding three
to four months.
Milch's office notes of March 16, 1994, state that Kay had
complained of progressive forgetfulness and that other people
around her had noticed her forgetfulness. Approximately six weeks
later, Milch noted that Bruce "feels that [Kay] has had further
11
mental status changes. She seems a little bit more tired and a
little bit more forgetful even than a month ago."
In December of 1994, Milch noted that Kay's confusion had
increased. Milch again noted Kay's confusion in her office notes
dated March 10, 1995. Tests taken on March 22, 1995, showed a high
level of acid and an extremely elevated level of carbon dioxide in
Kay's blood. According to Milch, the elevated carbon dioxide level
indicated that Kay's lungs were unable to dispose of the poisons in
her system. Moreover, in Milch's opinion, a high level of acid in
the bloodstream has a profound effect on a person's organs,
including the brain. Additionally, Milch stated that Kay took a
variety of medications that could affect her mental capabilities
and memory. Overall, Milch's opinion was that Kay had a history of
increasing forgetfulness and suffered from disorientation,
especially as to higher thinking levels and cognitive processes.
Dr. Paul Bach (Bach), a clinical psychologist, reviewed
Milch's office notes and deposition testimony, Kay's medical
records and Discovery's records regarding Kay; he also listened to
the tape-recorded conversation of Bruce and Kay discussing Kay's
will. Bach testified that the following facts caused him concern
about Kay's mental competence: Milch diagnosed Kay with dementia
in 1994; Kay had difficulty breathing which affected the amount of
oxygen in her lungs and could affect Kay's cognitive ability; Kay
was on medications including Prednisone, Flexeril, Darvocet,
Percocet and Atarax which could have affected her cognitive
12
functioning; and Milch's notes regularly commented on Kay's poor
cognitive status.
Bach further testified that a blood test done on February 19,
1995, revealed that the carbon dioxide level in Kay's blood was
very elevated and that approximately one month later, on March 22,
that level was even higher. He noted that Kay signed the purported
will less than twenty-four hours prior to the second blood test
and, based on the test results, Kay's carbon dioxide level was most
likely elevated on March 21 as well. He testified that this
certainly could have affected her cognitive functioning.
Bach also was concerned about Kay's mental competence based on
his review of the tape-recorded conversation between Bruce and Kay.
Most remarkable was the number of times [Kay] responded
to questions put to her by saying something on the order
[of] "I'm not good at that kind of thing.
decisions to make. , I wish. . , I want someone
else to do it. , I don't know. . . , I don't
remember. . , I can't remember." Particularly her
mention was made of stocks and bonds, and she responded,
"I do have some?" , as if uncertain that she did. But
basically, her verbal responses indicated a woman who was
uncertain at the time of the tape recording, and just
would continuously give inaccurate responses to a
question at different points throughout the tape.
Although Bach did not testify that Kay was not competent when she
signed the document on March 21, 1995, he stated that her medical
records and the tape-recorded conversation raised serious concerns
about whether she was competent at that time. Based on this
record, substantial evidence supports the District Court's
determination that Bruce did not establish by clear and convincing
evidence that Kay was mentally competent--that is, that she had the
13
requisite testamentary capacity and intent--to execute the March
21, 1995, document.
Bruce did offer evidence to rebut the evidence which raised
doubts about Kay's mental competence on March 21, 1995. Bruce and
Merrell testified that Kay was strong and not easily persuaded to
do something which she did not want to do. Discovery employees
testified to the same effect. The testimony of Bruce, Merrell and
the Discovery employees depicted a strong woman who desired input
on her daily life and was cognizant of her surroundings. Our
standard of review, however, is not whether the record contains
evidence which supports findings different from those made by the
District Court. See Caekaert v. State Compensation Mutual Ins.
Fund (1994), 268 Mont. 105, 110, 885 P.2d 495, 499 (citation
omitted). Moreover, it is within the province of the trier of fact
to weigh conflicting evidence and we will not substitute our
judgment for that of the factfinder on such matters. Topco, Inc.
v. State Dept. of Highways (1996), 275 Mont. 352, 362, 912 P.2d
805, 811 (citation omitted).
Finally, we address briefly Bruce's lengthy argument that the
District Court improperly imposed the burden of disproving undue
influence on him. He contends that the District Court's imposition
of such a burden is contrary to §§ 72-3-310 and 72-2-523, MCA.
Here, Bruce failed to prove either that the March 21, 1995,
document was duly executed under 5 72-2-522, MCA, or that Kay was
competent and intended the document to constitute her will under §
72-2-523, MCA. We conclude, on those bases, that the document
14
properly was denied admission to probate. Under such
circumstances, as discussed above, Jean bore no burden of proof
under 5 72-3-310, MCA, as the contestant of the will. Jean could
not have known during the hearing, however, that Bruce would not
meet his alternative burdens of proof as the proponent of the
document as Kay's will. Consequently, she put on evidence
attempting to establish undue influence pursuant to § 72-3-310,
MCA, and the District Court determined that Bruce had exerted undue
influence over Kay. The District Court then concluded that Bruce
bore the burden of disproving undue influence.
Under these facts, it was unnecessary for the District Court
to address undue influence at all. Bruce having failed to prove
that the document was duly executed or, by clear and convincing
evidence, that Kay possessed the requisite mental capacity to
execute a will on March 21, 1995, and intended the document to be
her will, the District Court need have gone no further.
The District Court erred in interpreting § 72-2-523, MCA, as
imposing a duty to disprove undue influence on the proponent of a
document purportedly intended as a will. The court's incorrect
interpretation of § 72-2-523, MCA, had no effect on the outcome of
this case, however. Therefore, we conclude that the error was
harmless because it did not affect Bruce's substantial rights. &
Rule 14, M.R.App.P.; Abbey v. City of Billings Police Comm'n
(1994), 268 Mont. 354, 364, 886 P.2d 922, 928.
We hold that the District Court did not err in denying
admission of the March 21, 1995, document to probate.
15
Affirmed.
We concur:
16
November 26, 1996
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid,
to the following named:
Howard C. Greenwood
Attorney at Law
P.O. Box 1567
Hamilton, MT 59840
Richard A. Weber, Jr.
Koch, Johnson, Weber & Goheen
P.O. Box 433
Hamilton, MT 59840
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY:
Deputy