Gorp v. Smith (184 Cal. App. 3d 593, 1986)

Opinion

KLINE, P. J.

Appellant Roy Laird Smith appeals from a judgment revoking probate of the will of Hazel Mann after a jury found that decedent was of unsound mind at the time she executed the will and that execution of the will was obtained through appellant’s undue influence. Appellant contends the verdict is unsupported by the evidence and that the trial court committed prejudicial error in failing to give a requested jury instruction pertaining to undue influence. We agree with all appellant’s claims and, accordingly, shall reverse the judgment.

Facts

Hazel Mann, a resident of Mill Valley, California, died on March 22, 1981, at the age of 94 years. At the time of her death, her closest relatives were two nephews, appellant Smith and respondent Van Gorp, who lived in Mill Valley and Missouri, respectively.

Appellant and decedent had a close relationship throughout his life. During his childhood and adolescence appellant lived either with his mother in San Francisco or in foster homes in the San Francisco Bay Area and saw decedent frequently. Beginning with a tour of duty in the Coast Guard in 1960, appellant spent a number of years in Hawaii, corresponding with his aunt by letter and phone. After returning to Mill Valley in 1967, appellant served in the Merchant Marine for several years, staying either with his aunt or with friends when he was not at sea. Thereafter, appellant resided in Marin County and saw decedent on a daily or weekly basis. Appellant testified that his aunt was as close as or closer than his mother; a letter from appellant’s mother to decedent referred to appellant as “our son.” Respondent stipulated that decedent helped raise appellant and that they were very close.

Decedent also had a close and warm relationship with respondent, although she saw him less regularly. Decedent and respondent’s mother, Pearl, corresponded almost weekly. In 1926, when respondent was five years old, he spent six months with his mother living in an apartment building in San Francisco owned by decedent and her husband. Other visits occurred in 1940, 1968, 1969, 1972, 1974, and 1978, and respondent telephoned decedent periodically during the 1970s.

In November 1975, appellant became conservator of decedent’s person and estate. Appellant testified that he sought the conservatorship on the advice of a social worker and decedent’s physician, Dr. Lee; Dr. Lee corroborated this testimony. Respondent also testified that he believed the conservatorship was a good idea. The factors which led to the conservatorship involved decedent’s inability to care for herself both financially and personally. George Bennetts, son of decedent’s neighbor, testified that he helped decedent pay her bills for two to three years in the early 1970s, having noticed unpaid bills when he visited her house. Others testified that prior to the conservatorship decedent was not eating or caring for herself properly; that she was unclean and smelled of urine; that her home was unkempt and her bed filthy; that she did not seem to know how to order the right food from a store; and that she described a toy doll as “me” and seemed “kind of dreamy.”

As for financial matters, appellant testified that decedent had loaned $5,000 to friends without taking a note and that valuable pieces of jewelry would periodically disappear. Appellant was concerned that she might fall prey to people trying to take her money. Around the same time, decedent gave $10,000 to appellant, a fact apparently not disclosed in his deposition or in the conservatorship proceedings. Dr. Lee felt decedent was easily confused, forgetful and too casual or frivolous with money. On one occasion she offered him $20 because she thought it was nice of him to come over, and he thought she would have done the same for a delivery boy. Decedent’s accountant also expressed concern with her leaving large amounts of cash around the house.

Dr. Lee’s notes indicated that in 1979 decedent suffered from senility secondary to arteriosclerosis. He described senile dementia as a gradual progressive disorder with three stages, loss of recent memory, confusion, and dementia or unreality, and placed decedent in the second stage in 1975-1976. According to Dr. Lee, the process occurring during these years was the cause of what he described as decedent’s confusion and variable mental state at that time, such as occasionally forgetting dates, the time of year, and what she was doing or eating.

In a declaration filed in the conservatorship proceeding, Lee stated his medical opinion that because of decedent’s “present state of mental weakness” she was “unable to rationally and intelligently handle her own affairs.” He testified that at this time decedent would sometimes appear extremely senile, sometimes better and more oriented. In deposition testimony read at trial, Lee referred to decedent as misrepresenting reality, for example, by saying she had no problem going to the bathroom while she was “covered with her own feces.”

Respondent testified that decedent did not recognize him on the phone in mid-1975, and had forgotten that his mother, her sister Pearl, had died two years previously.

On the other hand, several other witnesses testified that decedent was mentally competent and able to carry on a coherent conversation during the 1975-1977 time period. John Finn, an accountant with the Internal Revenue Service who helped prepare her annual tax returns, first met decedent in 1960. Finn testified that in 1974 and 1975 decedent had a “pretty good grasp of her financial situation,” although he was upset that she left a lot of cash laying around. He also stated that he found decedent’s mental condition “considerably improved” after appellant became her conservator.

A good deal of emphasis at trial was placed on appellant’s purchase with conservatorship funds of a $4,000 hot tub which was used primarily by appellant and his friends. Appellant was the only witness who claimed to have seen decedent use the tub at all. Vonnie Adcock, who became decedent’s live-in housekeeper a few months prior to the signing of the will, testified that decedent did not like to use the hot tub. Decedent spent her time sitting at the dining room table looking at the yard, rearranging pictures or watching TV. She had been a poet earlier in life, but no longer read. She did not initiate other activities, and did not like to leave the house. She wanted constant company. She was pleased to have visitors, and tended to be a little flirtatious. Dr. Lee described her as having a characteristic mannerism of pretending not to know people as a means of expressing displeasure with them.

Decedent’s will was executed on July 17, 1976. The will was drawn by Attorney Robert Williams, a friend of appellant’s. Appellant first sought Williams’s help after the establishment of the conservatorship because of the “intermingling” of a young man named Archer, whose attentions confused decedent. According to appellant, Archer was a nuisance who unjustifiably complained to the authorities that decedent was not being properly cared for. Evidence was also adduced that Archer had taken decedent to an attorney for an undisclosed purpose, which might have been the making of a will. With Williams’s assistance, appellant obtained a temporary restraining order keeping Archer away from decedent.

Williams’s first discussions of a will with decedent occurred a month or two after resolution of the problem with Archer. Appellant brought decedent to Williams’s office on what appeared to Williams to be a usual social visit following decedent’s appointment at the beauty salon next door. Appellant told Williams decedent had mentioned her need for a will, and Williams agreed to help. The contents of the will were first discussed in a meeting at decedent’s home sometime within the next month. Appellant was on the premises but not present for this discussion, during which decedent indicated her desire to give the bulk of her property to appellant.

The subscribing witnesses to the will were Williams, Dr. Lee, and Vonnie Adcock. All testified decedent was alert and knew she was signing a will. Only Dr. Lee specifically remembered decedent discussing the terms of the will. Williams testified that he probably asked decedent to acknowledge that she knew the nature of her estate. Adcock did not remember the will being discussed, but only general conversation and decedent “being pleased that there were men people coming to visit her.” Evidence was conflicting as to whether appellant was present at the execution of the will, or was elsewhere on the premises. Williams and appellant stated that appellant was not in the room, but appellant was impeached with his deposition testimony that he was present and Lee and Adcock testified that he was present.

Discussion

I.

Testamentary Capacity

“[T]he determinants of testamentary capacity are whether the individual ‘has sufficient mental capacity to be able to understand the nature of the act he is doing, and to understand and recollect the nature and situation of his property and to remember, and understand his relations to, the persons who have claims upon his bounty and whose interests are affected by the provisions of the instrument.’” (Estate of Fritschi (1963) 60 Cal.2d 367, 372 [33 Cal.Rptr. 264, 384 P.2d 656], quoting Estate of Smith (1926) 200 Cal. 152, 158 [252 P. 325]; see Prob. Code, § 6100.5.) Testamentary capacity must be determined at the time of execution of the will. (Fritschi, supra, at p. 372.) Incompetency on a given day may, however, be established by proof of incompetency at prior and subsequent times. (Estate of Fosselman (1957) 48 Cal.2d 179, 185 [308 P.2d 336].) Where testamentary incompetence is caused by senile dementia at one point in time, there is a strong inference, if not a legal presumption, that the incompetence continues at other times, because the mental disorder is a continuous one which becomes progressively worse. (Estate of Fosselman, supra, 48 Cal.2d 179, 186.)

The burden is on the contestant to overcome the presumption that a testator is sane and competent. (Fritschi, supra, 60 Cal.2d at p. 372.) On appeal, however, “‘[t]he rules of evidence, the weight to be accorded to the evidence, and the province of a reviewing court, are the same in a will contest as in any other civil case. . . . The rule as to our province is: “In reviewing the evidence ... all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. It is an elementary . . . principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. ’ ’ (Italics added.) . . .”’ (Estate of Teel (1944) 25 Cal.2d 520, 526 [154 P.2d 384].) “[A]ll of the evidence must be examined, but it is not weighed. All of the evidence most favorable to the respondent must be accepted as true, and that unfavorable discarded as not having sufficient verity to be accepted by the trier of fact. If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed.” (7