NO. 94-264
IN THE SUPREME COURT OF THE STATE OF MONTANA
1gi'j
In the Matter of the Estate of
ALF A. LIEN,
Deceased.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the Co-;nty of Roosevelt,
The Honorable Iv;. James Sorte, Judge presiding.
COUNSEL OF KECOKD:
For Appellant:
Robert L. Johnson, Lewistown, Montana; J. Douglas
Alexander, Sidney, Montana
For Respondent:
Gene R. Jarussi, Jarussi. r, Bishop, Billings,
Montana; Philiip N. Carter, Sidney, Montana
Submitted on Briefs: Deccntber 28, 1994
Deci.zled: March 21, 1995
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from a summary judgment order in the
District Court of the Fifteenth Judicial District, Roosevelt
County, in favor of Mabel Gobbs, the Personal Representative of the
Estate of Alf A. Lien. Appellant Dr. Clifton Berglee (Berglee)
contested a 1989 will being probated by Mrs. Gobbs. Berglee
claimed an earlier will should prevail and the 1989 will was
invalid based on lack of testamentary capacity, undue influence,
fraud and restraint. We affirm.
The sole question for review is whether the District Court
erred in granting summary judgment to Mabel Gobbs.
Alf A. Lien (Lien) was a lifelong bachelor who farmed land
near Brockton for many years. He died in 1991 at the age of 84,
leaving an estate of approximately $750,000, which is the subject
of this appeal.
Lien executed two wills prepared by different attorneys--one
in 1987 and one in 1989. The 1987 will named appellant Berglee as
personal representative of the estate and left all his real estate
to Berglee. It also left the remainder of Lien's personal property
in four equal shares to Berglee, Mrs. Gobbs, and two of Berglee's
brothers. Lien had numerous brothers and sisters still living in
Norway, where he had emigrated from in the 192Os, and he expressly
stated in the will that he was specifically making no bequest or
devise to them or any other persons not mentioned in the will.
The 1987 will was brought to Lien's attention by Mrs. Gobbs
when Lien and Mr. and Mrs. Gobbs went to a bank so that Lien could
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get his naturalization papers in order to obtain a passport for a
trip to Norway. After Mrs. Gobbs questioned him about that will,
Lien remarked many times that it was not what he wanted. After
returning from the trip to Norway, Lien executed the second will
dated April 11, 1989, leaving all his real and personal property in
four equal shares to four first cousins--Mabel Gobbs, Clara Neer,
Ingeborg Wallette and Luther Larson. The only restriction in this
will was that certain named persons be given the right of first
refusal prior to selling any of the real property for a specified
period of time following Lien's death. The 1989 will nominated
Mrs. Gobbs as personal representative and again expressly devised
no property to Lien's brothers or sisters in Norway, with the
exception of directing the personal representative to reimburse
them for round-trip tickets from Oslo, Norway, to Regina, Canada if
they desired to attend Lien's funeral. The second will also
expressly revoked the 1987 will.
Berglee attacked the validity of the 1989 will on four
separate grounds: (1) Lien was incompetent at the time he executed
the will, (2) Lien was a victim of undue influence on the part of
Mabel and Howard Gobbs, (3) the will was a product of fraudulent
representations, and (4) Lien executed the will under restraint.
The District Court granted Mrs. Gobbs' motion for summary judgment,
finding no factual issues to submit to a jury.
Did the District Court err in granting summary judgment to
Mabel Gobbs on any of the four theories presented by Berglee?
Standard of Review
Our standard of review of an order by a district court
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granting summary judgment is the same as that used by the district
court under Rule 56(c), M.R.Civ.P. Morton v. M-W-M, Inc. (1994),
263 Mont. 245, 249, 868 P.2d 576, 578. Summary judgment is proper
when there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Rule 56(c),
M.R.Civ.P.
The moving party has the initial burden of demonstrating the
absence of genuine issues of material fact. Once the movant has
met that burden, the burden shifts to the party opposing summary
judgment to establish that a genuine issue of material fact exists.
Owen v. Ostrum (1993), 259 Mont. 249, 255-56, 855 P.2.d 1015, 1019.
The non-moving party may not rest upon the allegations or denials
in the pleadings nor on speculative, fanciful or conclusory
statements. Simmons v. Jenkins (1988), 230 Mont. 429, 432, 750
P.2d 1067, 1069. All inferences that reasonably may be drawn from
the offered proof will be made in favor of the party opposing the
Owen
motion for summary judgment. -, 855 P.2d at 1019.
Material issues of fact are identified by looking to the
substantive law governing the proceeding. -, 855 P.2d at 1019.
Owen
In this case, we review the record in light of the substantive law
governing contests to wills. Section 72-3-310, MCA, provides that
contestants of a will have the burden to establish the existence of
one of the statutory grounds listed. Of the four theories argued
by Berglee, 5 72-3-310, MCA, provides that a will may be contested
on the basis of three of them--lack of testamentary capacity, fraud
and undue influence. There is no provision under Montana statutory
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or case law to contest a will because of "restraint."
A. LACK OF TESTAMENTARY CAPACITY
The test for determining testamentary capacity was set forth
in In the Matter of the Estate of Bodin (1965), 144 Mont. 555, 560,
398 P.2d 616, 619, as follows:
[Al 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. . .
. 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.)
Testamentary capacity is determined as of the date the will was
executed--April 11, 1989 in this case--using the above test from
Bodin's Estate, which is now well-established in Montana. See,
e.q., In the Matter of the Estate of Jochems (1992), 252 Mont. 24,
29, 826 P.2d 534, 537.
Berglee argues that Lien lacked testamentary capacity at the
time he executed the second will in April 1989 because (1) the 1991
death certificate indicates he had Alzheimer's disease, (2) Lien
suffered from diabetes which affected his mind, (3) the 1989 will
is unnatural as being contrary to what would have been expected of
him, (4) he suffered from insane delusions and other physical
ailments, (5) his speech was virtually unintelligible, and (6) he
was not a usual client of the attorney who prepared the will.
As contestant to the 1989 will, Berglee bears the burden of
establishing that Lien lacked testamentary capacity. Section 72-3-
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310, MCA. To support her claim that Lien was competent when he
executed the 1989 will, Mrs. Gobbs submitted numerous affidavits
with attachments and the deposition testimony of numerous witnesses
which provided evidence that Lien was competent to execute a will
in April 1989. Mrs. Gobbs met her burden as the party moving for
summary judgment. The burden shifted to Berglee as the non-moving
party to present affirmative evidence of a material and substantial
nature to raise a genuine issue of fact to defeat her motion. As
discussed below, Berglee did not meet this burden.
Vie Koch (Koch), the attorney who prepared the 1989 will,
testified extensively by deposition and affidavit. On the day Lien
first met with Koch, Lien drove 35 miles from his home north of
Brockton to Culbertson, then rode with Howard and Mabel Gobbs to
Sidney, and upon their return to Culbertson, drove himself home
again. The first time Lien came to Koch's office, they discussed
the terms of the will; the second time a week later, Lien executed
the will. Lien gave Koch an accurate description of real and
personal property which he owned and expressed his wish to make
specific provisions for the lessees of his land to have rights of
first refusal in the event the real property they leased was sold
within a specific time after his death. Lien provided correct
names for both lessees, one of whom was Berglee. He was able to
roughly plat out his land on a piece of paper to explain to Koch
what he desired and how it was then being leased. He provided the
full names of eight brothers and sisters in Norway who he wished to
exclude from the will other than making a provision for their
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travel expenses should they desire to attend his funeral. Lien
also provided the names of four first cousins as devisees in equal
part under the will. Lien expressed his desire to be buried in a
specific cemetery. Koch testified that he concluded from his
personal discussions with Lien that Lien knew what property he
owned, what he wanted to do with his property and who he wanted to
receive his property upon his death. Koch verified that Lien had
read the document before signing and declared it to be his last
will and testament.
Berglee contends that the 1991 death certificate indicates
that Lien had Alzheimer's disease and demonstrates lack of
testamentary capacity. There is no indication in the record,
however, that Lien suffered from this disease in 1989 when he
executed his last will. Lien died on July 17, 1991--more than two
years after executing the 1989 will. Neither Dr. Mann nor Lien's
prior treating physician made any indication in Lien's medical
records that this was a concern at that time.
In 1989, he lived alone and cared for his own needs. Although
he suffered from mild Parkinson's disease and was unable to legibly
write his checks, he handled his own financial and personal
affairs, with the exception of having Mrs. Gobbs prepare checks for
his signature. Lien's reasons for seeking medical treatment in
1988 and 1989 were mild physical ailments having no bearing on
mental functioning.
Dr. Mann testified by deposition that, in his opinion, Lien
showed no signs of having any mental problems when he examined him
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on May 12, 1989. Dr. Mann did not examine Lien again until March
15, 1990, at which time he admitted him to the Culbertson hospital
for treatment of leg ulcers. Lien was hospitalized for four days
and Dr. Mann spoke with him during the course of his hospital stay,
noting no problems with mental functioning. Dr. Mann also saw Lien
on March 23rd, March 29th, May 4th, June 28th and August 20th of
1990. He testified that Lien showed no symptoms of mental
deterioration on any of these occasions. It was not until January
11, 1991, that Dr. Mann first noted mental deterioration, stating
that he was "failing rapidly." Dr. Mann testified that from his
own observations and from reviewing records of other physicians
prior to the first time he examined Lien on May 12, 1989, he could
state with reasonable medical certainty that he thought Lien was
mentally competent at the time he executed his last will in 1989.
The only medical evidence provided by Berglee in support of
his claim that Lien was incompetent in 1989 relates to his claim
that Lien suffered from diabetes in 1989 and that the diabetes
affected his mind. In support of this contention, Berglee
testified about his personal experience with the disease and his
knowledge of the disease from working with animals that have
suffered from diabetes. Berglee is a veterinarian and did not
establish that he is qualified to provide expert testimony that
Lien's diabetes may have been out of control to the point where it
affected his mental functioning. Specifically, Berglee testified
in his deposition that "Alf was exhibiting abnormal behavior
consistent with a bad case of diabetes." He then admitted that he
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was not qualified to make this sort of statement. The record shows
that Berglee and others were concerned about Lien taking his
medication and that they made sure he remembered to take it daily.
Although the death certificate indicates that diabetes was a
contributing cause of his death, no inference can be made from that
statement that it also affected his mental functioning. Nothing in
the record supports an inference that Lien did not take his
medication for diabetes or that it in any way affected his mental
functioning.
Berglee next argues that the 1989 will is an unnatural
disposition of property for Lien. He claims it is contrary to what
would have been expected of him. Berglee presented deposition
testimony from a few of his relatives to indicate that Lien
regarded him and his family as the natural recipients of his
bounty. Berglee was a neighbor of Lien, he checked in on him
periodically while Lien still lived on his farm, and he and his
family included Lien in family activities. Berglee was not a blood
relative of Lien although he was distantly related by marriage.
Instead of leaving a portion of his property to Berglee as the 1987
will had done, Lien changed this in the 1989 will to leave Berglee
with only a right of first refusal for land leased by Berglee.
Lien left his real and personal property to four of his first
cousins. A will leaving the bulk of his property to first cousins
rather than to a distant relative by marriage is not an unnatural
disposition of property as claimed by Berglee even if it is not
what others would have expected.
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Berglee also contends that Lien suffered from insane delusions
and other physical ailments which affected his mental functioning.
The only evidence in support of this argument is Berglee's
testimony that Lien had some "really wacky ideas"; testimony by
Berglee's wife that Lien had some "strange beliefs"; and testimony
by Berglee's mother that Lien had said something on his birthday in
May of 1989 that did not make sense about some automobile or yard
lights in the distance. This evidence does not support an
inference in favor of Berglee that Lien suffered from insane
delusions and there is nothing in the record to support his
argument that Lien's physical ailments affected his mental
functioning.
Berglee also argues that Lienls speech was virtually
unintelligible and that he was not a usual client of the attorney
who prepared the will. Lien spoke with a heavy Norwegian accent.
Dr. Mann had some difficulty understanding him and relied on Mrs.
Gobbs' interpretations to some extent. There is no indication from
anyone else that they had difficulty understanding Lien's speech.
Certainly, there is nothing to support an inference that Koch would
not have understood how Lien wanted him to prepare his 1989 will.
Koch testified in his deposition that he remembered that Lien had
a Norwegian accent. He stated that he was used to talking to his
father-in-law who also had a Norwegian accent so he had no
difficulty understanding Lien.
Applying the test from Bodin's Estate to the facts and
inferences to be made from them in favor of Berglee, we conclude
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there are no inferences that reasonably may be drawn to support
Berglee's contention that there are genuine issues of material fact
on the issue of testamentary capacity. Although the testimony of
Dr. Mann and Mrs. Gobbs indicates that Lien's mental capacity
deteriorated in the months before his death on July 17, 1991, the
earliest indication of impaired mental ability is January 1991. We
conclude that Lien had the mental capacity when he executed the
1989 will to understand the nature of his actions, that he knew the
nature and extent of his property and understood what he was doing
in naming four first cousins as devisees.
B. UNDUE INFLUENCE
Next, Berglee contends that Mabel and Howard Gobbs exerted
undue influence over Lien and that this resulted in Lien's naming
of members of Mrs. Gobbs' family as devisees rather than Berglee
and members of his family. He argues that there are many
inferences which can be drawn from Mrs. Gobbs' actions to support
this claim: Mrs. Gobbs wrote out checks for Lien, she alienated
him from his friends, she "confronted" Lien with the will when she
discovered it in his safe deposit box in October of 1988, she had
in her possession Lien's certificates of deposit and other
financial documents and she received his mail at her address.
Berglee contends that the 1989 will was a "radical departure from
the 1987 document in favor of Mrs. Gobbs' interests" and,
therefore, that Mrs. Gobbs has the burden of showing that the 1989
will was not the product of undue influence. Again, the contestant
of a will has the burden of establishing undue influence, according
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to § 72-3-310, MCA. Berglee has not met this burden.
The test for undue influence in the making of a will is 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.
In the Matter of the Estate of Maricich (1965), 145 Mont. 146, 161,
400 P.2d 873, 881. Each of the above elements must be satisfied in
order to prove a claim of undue influence. Flikkema v. Kimm
(1992), 255 Mont. 34, 40, 839 P.2d 1293, 1297.
As with testamentary capacity, undue influence is never
presumed and must be proven like any other fact. Dybvik v. Dybvik
(1982), 201 Mont. 389, 397, 654 P.Zd 989, 993, citinq Blackmer v.
Blackmer (1974), 165 Mont. 69, 74, 525 P.2d 559, 562. In Blackmer,
525 P.2d at 563-64, we held that the opportunity to exercise undue
influence on the testator is not sufficient to prove undue
influence and invalidate a will. The opportunity to exercise undue
influence is to be considered and correlated with the alleged acts
of influence to determine if the acts amount to undue influence.
Dybvik, 654 P.2d at 993. We conclude that the facts relied on by
Berglee, at most, show the opportunity to exercise undue influence.
Applying the test for undue influence, clearly the first
criterion is met as there was a confidential relationship between
Mrs. Gobbs and Lien. Mrs. Gobbs assisted Lien in many ways. She
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helped him with payment of his bills by making out the checks for
his signature. She made appointments for Lien and assisted him
when he went to see his doctors by interpreting for him if needed.
Lien stayed in the home of Mr. and Mrs. Gobbs for months at a time,
particularly in winter, and Mrs. Gobbs provided him with a wooden
box to store his personal documents in. She asked him if the 1987
will was what he wanted and when he told her it was not what he
wanted, she made the appointment with Koch in Sidney so that he
could execute a new will. Some time during 1990, Lien began
receiving his bank statements at the address of Mr. and Mrs. Gobbs
in Culbertson.
The second and third criteria, physical and mental condition
of the testator as both may affect the testator's ability to
withstand influence, have not been demonstrated by Berglee as
outlined above in our discussion of Issue I. The record shows that
Lien's physical and mental condition deteriorated rapidly in the
last few months of his life; it does not demonstrate that his
mental and physical condition was deteriorating in that manner in
1989 when he executed the second will. At the time he executed the
1989 will, Lien lived alone on his farm north of Brockton. He kept
house, cooked, bought groceries, cleaned and washed his clothing.
He drove his own car and had a valid driver's license.
There is no evidence in the record that Lien was physically or
mentally susceptible to influence and Berglee points to no acts of
influence apart from the circumstances surrounding the execution of
the 1989 will. While Mrs. Gobbs admits to making the appointment
13
with Koch for Lien, nothing improper is evident from the record
concerning the making of the 1989 will. Mrs. Gobbs chose Koch upon
the recommendation of a third party accountant; Koch was not her
attorney and she did not know him prior to making the appointment.
Mr. and Mrs. Gobbs took Lien to Sidney so that Lien could meet with
Koch. Neither of them were present when Lien spoke with Koch and
Koch testified they had no involvement other than calling for the
appointment.
The circumstances surrounding the making of the 1989 will do
not indicate that Lien was susceptible in any manner to undue
influence. Mabel and Howard Gobbs rendered assistance to Lien by
driving him to Sidney. They later provided assistance to him by
having him stay in their home and by taking him shopping and doing
other sorts of things to help him as he aged. They accompanied him
on a trip to Norway. Toward the end of his life when Lien's
physical and mental condition was rapidly failing, Mrs. Gobbs cared
for Lien in her home until Dr. Mann advised that he be placed in
the Culbertson nursing home in March of 1991. None of these
actions are unusual between relatives and Mabel Gobbs was one of
Lien's closest blood relatives in this country.
Apparently Berglee views the removal of the three Berglee
brothers as devisees as an unnatural disposition. We have stated
that the unnaturalness of a disposition, the fourth criterion, is
to be considered as it relates to either an unbalanced mind or a
mind easily susceptible to undue influence. Even the fact that a
parent might leave the majority of his or her assets to only one
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child, while excluding others, is not in and of itself unnatural.
Flikkema, 839 P.2d at 1298. The 1989 will is not a radical
departure in favor of Mrs. Gobbs' interests. Mrs. Gobbs was named
as a devisee in both wills. It is, however, a radical departure as
to Berglee's interests; in the 1987 will, Berglee was to receive
the real property and one-fourth of the personal property and two
of his brothers were each to receive one-fourth of the personal
property. However, the four devisees under the 1989 will were all
first cousins of Lien and this is not an unnatural disposition.
We are unconvinced by Berglee's argument that the actions of
Mr. and Mrs. Gobbs point to undue influence over Lien. We conclude
that Berglee has failed to establish material facts in issue on his
claim of undue influence.
C. FRAUD
Berglee's final argument is that Mabel and Howard Gobbs made
fraudulent representations to Lien so that he would turn against
Berglee. Berglee contends that Mr. and Mrs. Gobbs were responsible
for Lien's accusations in 1989 that Berglee had stolen money and
grain from him and that this influenced Lien to remove him as a
devisee in his will. He claims that Mrs. Gobbs knew that Berglee
was not stealing money from Lien because she had his financial
records in her possession and she acknowledged this in her
affidavit.
Mrs. Gobbs' affidavit states that she did not have any of his
financial records in her possession in 1989 and also that the five
banks Lien did business with did not change the mailing address on
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Lien's statements from Brockton to Culbertson until some time in
1990. Mrs. Gobbs also presented deposition testimony from other
witnesses to support this.
Mrs. Gobbs denies she made any such statements to Lien about
Berglee. She further contends that, even if the statements were
made, Berglee has failed to set forth any evidence that Mrs. Gobbs
knew the statements were false or that they were made with the
intent to deceive Lien. We agree.
Berglee's allegations are speculative and conclusory. To
support the allegations, Berglee's counsel submitted an unsworn
statement which did not meet the requirements of Montana law.
Moreover, the evidence must be in proper form and of a substantial
nature, not fanciful, frivolous, gauzy or merely suspicious.
Morales v. Tuomi (19851, 214 Mont. 419, 424, 693 P.2.d 532, 535. An
attorney's affidavit which only recites what he intends to prove at
trial must be disregarded. Morales, 693 P.2d at 535. Berglee's
allegations on the issue of fraud are in the nature of suspicious
statements supported only by the allegations in his complaint
repeated in his deposition. Again, Berglee has failed to establish
affirmative evidence to defeat Mrs. Gobbs' motion for summary
judgment.
We hold the District Court properly granted summary judgment
to Mabel Gobbs.
Affirmed
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We Concur:
\