Estate of Thrweatt

Filed 10/24/07 Estate of Thrweatt CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Geneva McGee (contestant) filed an action contesting a will executed by her father, Harold D. Thrweatt (decedent) on June 17, 2003, under which he left her only $2,000. She appeals from the grant of summary judgment to Mr. Thrweatts executor, Eugene L. Rose, respondent to the will contest.[1]

We affirm.

Background

Decedent died on July 14, 2003, at the age of 67. At the time of his death, he was residing with Eugene Rose. Decedent had two daughters, contestant McGee and Wanda Thrweatt. He had, however, separated from their mother when they were very young, moving from Ohio, where they lived, to San Francisco. Decedent later enjoyed a long, close relationship Maria Rose, and from all accounts considered her children and grandchildren, including Eugene Rose, to be his family. Decedent had a modest estate, consisting primarily of a house in San Francisco. In October 2002, he executed a will in which he left the house to Yvette R. Harvison and Anthony D. Rose, describing them, respectively, as his niece and grandson. He left his 1970 Buick to Dieter Rose, whom he described as his stepson. He left $2,000 to each of his daughters on condition she made a claim under the will within five months of his death or one month before the close of probate. He named Eugene and Dieter Rose as residual beneficiaries. Decedent nominated respondent as executor and Albert Sanders as successor executor of the will.

On June 17, 2003, shortly before his death, decedent executed a new will, which is the subject of these proceedings. The 2003 will repeated the provisions of the 2002 will, except that decedent nominated Dieter Rose to be successor executor in place of Albert Sanders.

On June 24, 2004, respondent petitioned to probate the 2003 will. Contestant opposed the petition, claiming (1) the 2003 will had not been executed in the manner and form required by law,[2] (2) decedent had lacked testamentary capacity at the time he executed it, and (3) the will resulted from undue influence exerted by Eugene Rose. The court granted summary judgment to respondent, ruling against contestant on all claims. After the court granted summary judgment, but before judgment was entered, the California Supreme Court issued its opinion in Bernard v. Foley (2006) 39 Cal.4th 794 (Bernard), defining the class of persons that should be considered to be care custodians for purposes of Probate Code sections 21350 and 21351, which presumptively disqualify care custodians from being beneficiaries of testamentary transfers from dependent adults to whom they provide health care services. After the court entered summary judgment, contestant filed a motion for reconsideration on the grounds Bernard had changed the law. The superior court denied the motion as untimely.[3]

Ms. McGee appeals from the order granting summary judgment. She has filed no appeal from the denial of her motion to reconsider, but nonetheless contends the trial courts ruling was inconsistent with the holding in Bernard, supra, 39 Cal.4th 794. As the Supreme Court in Bernard interpreted existing statutory law, we will consider this argument even though it was made to the superior court only after it had entered the order granting summary judgment.

Discussion

I.

Summary Judgment

A defendant is entitled to summary judgment if all the papers submitted show that there is no triable issue as to any material fact and that the [defendant] is entitled to judgment as a matter of law because the action has no merit. (Code Civ. Proc.,  437c, subds. (a), (c).) The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties pleadings in order to . . . resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) The summary judgment statute provides a particularly suitable means to test the sufficiency of the plaintiffs prima facie case and/or the defendants [defense]. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.) We review a grant of summary judgment de novo and decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamadi (2003) 30 Cal.4th 1342, 1348.)

California law no longer requires a defendant seeking summary judgment to negate, conclusively, an element of a cause of action. (Aguilar, supra, 25 Cal.4th at p. 853; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1473.) It remains true a court must deny a defendants motion for summary judgment if any evidence or inference therefrom shows or implies the existence of a required element of a cause of action. (Aguilar, supra, at pp. 856-857.) But if the plaintiffs evidence, including all inferences therefrom, show and imply the existence of a required element as only as likely as its nonexistence, or even less likely, the defendant is entitled to summary judgment because a reasonable trier of fact could not find for the plaintiff. (Id. at p. 857.) It also has been recognized that  . . . [f]ew questions are less well suited to the determination of a jury than testamentary capacity and undue influence. This follows, first, from the inherent limitations of laymen in dealing with the problem of mental capacity and second, from the vulnerability of jurors to the emotional overlays which often pervade the trial of a will contest. . . . [Citations.] (Estate of Fritschi (1963) 60 Cal.2d 367, 373, fn. 1 (Fritschi.) Courts reviewing rulings in will contests, therefore, have not been reluctant to overturn the conclusions of the jury or even of the trial court where the evidence simply is not sufficient to support those conclusions. (E.g., Fritschi, supra, 60 Cal.2d 367; Estate of Lingenfelter (1952) 38 Cal.2d 571 (Lingenfelter); Estate of Mann (1986) 184 Cal.App.3d 593; Estate of Selb (1948) 84 Cal.App.2d 46.)

II.

Capacity

An individual is not mentally competent to make a will if at the time of making the will either of the following is true:

(1) The individual does not have sufficient mental capacity to be able to (A) understand the nature of the testamentary act, (B) understand and recollect the nature and situation of the individuals property, or (C) remember and understand the individuals relations to living descendants, spouse, and parents, and those whose interests are affected by the will.

(2) The individual suffers from a mental disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individuals devising property in a way which, except for the existence of the delusions or hallucinations, the individual would not have done. (Prob. Code, 6100.5, subd. (a).)

As explained by the Supreme Court in Fritschi, supra, 60 Cal.2d at p. 372, [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. [Citation.] The relevant time in determining such capacity is the time of execution of the will. [Citation.] The contestant has the burden of showing a decedent lacked testamentary capacity. (Prob. Code, 810, subd. (a); 8252, subd. (a).)

In contending contestant would be unable to meet her burden, respondent submitted the deposition testimony of Stephen Mackhouse, the attorney who drafted the 2002 and 2003 wills, the deposition testimony of Alan Horn, who was present and witnessed both wills, and the deposition testimony of Albert Sanders, who was present when decedent signed both wills and witnessed the 2003 will.[4] Mr. Mackhouse explained he had been representing decedent in litigation in 2002, and at some point learned that the defendant in that action might be a beneficiary of decedents will. He contacted decedent, who confirmed he did not wish that person to be a beneficiary. Decedent sent Mr. Mackhouse what apparently were some drafts of a will. After completing his own draft, which he believed better reflected decedents wishes, Mr. Mackhouse met with decedent at Mr. Mackhouses office. Decedent arrived with Mr. Sanders and Mr. Horn. Mr. Mackhouse had the other men leave the room while he spoke with decedent, alone, explaining, going over and revising all provisions until he was satisfied he had a draft reflecting decedents wishes. Decedent signed the will at Mr. Mackhouses office the same day, and it was duly witnessed by Mr. Horn and another, unrelated person, who happened to be in the office at that time.

Mr. Mackhouse believed decedent had testamentary capacity when he signed the will. Decedent, as always, was dressed neatly. He was coherent and oriented. There was no evidence of dementia or mental problems. He was able to identify the people with whom he was interacting and responded appropriately to questions. He appeared to be able to understand the nature of his assets, to be able to formulate an estate plan and to understand the consequences of signing the will. Mr. Sanders stated there was no question about decedents condition. Mr. Horn stated decedent was alert, oriented and could understand what was going on.

There is no evidence that anything changed for decedent between October 2002 and June 2003 that might cause him to wish to alter the disposition of his estate. To the contrary, as will be discussed further below, the evidence is that decedents relationship with contestant became more distant during that period of time. That decedent changed the successor executor suggests he understood the nature and necessity of a will. That he made no other changes, when nothing had occurred that might cause him to wish to alter the disposition of his property, suggests he was aware of, and understood, his relations to his living descendants such as contestant, and to those he considered to be his family, despite a lack of blood connection. Mr. Mackhouse, who was present when decedent signed the 2003 will, testified decedent comprehended what the will was and what he was doing when he signed it. Mr. Mackhouse was told decedent was on heavy medication, and therefore was careful not to have decedent sign the will until after they had conversed for some time so he could test decedents recall and comprehension, and ascertained decedent had the requisite capacity. Mr. Sanders, who again was present and who witnessed the will, stated decedent, although physically slow, was aware of what was happening, knew what he was doing and could understand the consequences of his actions. Mr. Horn, who also was present and witnessed the will, confirmed that while decedents health was failing, he appeared to be mentally alert and to understand what was happening.

The evidence, therefore, was little short of overwhelming that decedent did indeed have testamentary capacity when he signed the 2003 will. Contestant submitted no direct evidence to the contrary. Her argument, rather, was that a lack of testamentary capacity could be inferred from what she characterizes as an unnatural disposition of decedents property, meaning decedent failed to leave an amount of any significance to his natural daughters. In support of that argument, she submitted her own declaration indicating she moved to the Bay Area in 1980, where she lived for five months with decedent and Marie Rose. She moved out, living in Hunters Point and later in Stockton, but remained in contact with decedent until 1999, when she moved back to Ohio. Contestant asserted decedent made no effort to remain in contact with her after she moved. She contacted him perhaps twice after that date, but then lost track of him, learning someone else was living in his home. Contestants son, Michael McGee, declared he had visited decedent a number of times between August 1997 and August 1999, when Mr. McGee, an army sergeant, was stationed in Sausalito. He claimed decedent often told him his home someday would belong to contestant and her sister, and that he wished he could see them more often.

Assuming without deciding that contestants evidence raises even an inference that decedent naturally might wish his daughters to inherit his home, the direct and inferential evidence contradicting such an inference is such as to render it impossible for the finder of fact to find in favor of contestant. Mr. Mackhouse testified decedent was not certain at first if he wanted to leave anything to his daughters, but, after discussing the matter further, decided he wished to leave each of them $2,000 if she made a claim within a certain time. Decedent did not know where his daughters lived, or how they might be located, explaining he considered the Rose family to be his family and Dieter and Eugene Rose to be his stepsons. Mr. Horn confirmed decedent had a close relationship with Dieter and Eugene Rose, regarding them as family. He also stated decedent had told him he had not spoken with or seen his daughters for several years. Decedent told Mr. Horn his daughters were drug addicts, he did not know whether they were alive, he did not think they wanted to have anything to do with him and he did not really care to have anything to do with them. Under the circumstances, decedents natural inclinations would be to leave the bulk of his estate to those with whom he had enjoyed a family-type relationship, and not to his estranged daughters.

Contestant also submitted the declaration of R. K. McKinzey, a forensic psychologist, who had reviewed decedents medical records and had performed a neuropsychological autopsy on him. Dr. McKinzey summarized the records he had reviewed, reporting decedent had been diagnosed with lung cancer in May 2002, therapy was discontinued in October 2002 because of a chemo-induced anemia, and the tumors later metastasized to his brain. Dr. McKinzey stated his opinion decedent had signed the June 2003 will when he was entirely dependent and intellectually impaired because of the brain tumors and the morphine he had been using to control pain. Dr. McKinzeys summary of the records, even if admissible, provides no evidence decedent lacked testamentary capacity. His interpretation of the records and his opinion that decedents intellectual capacity was impaired are of no value as there is no evidence Dr. McKinzey was qualified to interpret the records or state an opinion as to the effect of decedents brain tumors or use of morphine on decedents intellectual abilities. The sole basis for Dr. McKinzeys purported expertise is contained in his declaration that I am a licensed psychologist. I have years of experience in forensic psychology, and have acted as an expert consultant to several courts. His curriculum vitae, which was attached to his declaration, in no way established his expertise in brain tumors or the use of morphine. These assertions fall far short of establishing Dr. McKinzeys expertise on any relevant issue.

In addition, that decedents intellectual capacities may have been impaired cannot, alone, establish a lack of testamentary capacity. It is well established that old age or forgetfulness, eccentricities or mental feebleness or confusion at various times of a party making a will are not enough in themselves to warrant a holding that the testator lacked testamentary capacity. [Citations.] (Estate of Mann, supra,184 Cal.App.3d at p. 603.)

After the court granted summary judgment, contestant filed a second letter from Dr. McKinzey reciting he had been able to review a CT scan done on decedent on June 13, 2003. According to Dr. McKinzey, the scan showed multiple brain metastases. Dr. McKinzey reported, The part of [decedents] brain (the cortex) responsible for judgment, decision making, and perspective was dotted with disruptive tumors, making clear intellectual thought impossible. As the letter was not submitted to the court until after its decision, it provides no basis for an attack on the decision. In any event, again, contestant did not establish that Dr. McKinzey was qualified to read or interpret CT scans or to draw opinions from them as to the patients testamentary capacity.

We conclude, therefore, that contestants evidence was insufficient to carry her burden of proof, even if we were to consider the evidence submitted to the court after it granted summary judgment.

III.

Undue Influence

Undue influence must destroy the testators free agency and substitute for his own another persons will. [Citation.] Evidence must be produced that pressure was brought to bear directly upon the testamentary act . . . . [The influence] must amount to coercion destroying free agency on the part of the testator. [Citations.] [T]he circumstances must be inconsistent with voluntary action on the part of the testator [citation]; and [the] mere opportunity to influence the mind of the testator, even coupled with an interest or a motive to do so, is not sufficient [citation]. (Fritschi, supra, 60 Cal.2d at pp. 373-374.) The indicia of undue influence have been stated as follows: (1) The provisions of the will were unnatural. . . .; (2) the dispositions of the will were at variance with the intentions of the decedent, expressed both before and after its execution; (3) the relations existing between the chief beneficiaries and the decedent afforded to the former an opportunity to control the testamentary act; (4) the decedents mental and physical condition was such as to permit a subversion of his freedom of will; and (5) the chief beneficiaries under the will were active in procuring the instrument to be executed. [Citation.] (Lingenfelter, supra, 38 Cal.2d at p. 585.)

There is no evidence whatsoever that the 2003 will disposed of decedents property in a manner contrary to his wishes or intentions. To the contrary, the will made the same disposition of property as did the 2002 will, which was executed before defendant was significantly impaired or lived with Eugene Rose. In addition, as discussed earlier, under the circumstances here, the disposition was completely natural. Evidence of decedents illiteracy or his reliance on persons other than Eugene Rose to help him with his financial affairs does not suggest Eugene Rose sought to or did in some way overcome decedents will. In sum, the evidence could not establish the 2003 will was the product of undue influence.

IV.

Probate Code Sections 21350, 21351

Probate Code section 21350 sets forth certain limitations on donative transfers by testamentary intent, effectively creating a presumption certain transfers are invalid. Among these are transfers by a dependent adult to [a] care custodian of a dependent adult who is the transferor (Prob. Code,  21350, subd. (a)(6)), or to a person related by blood to such a care custodian (Prob. Code,  21350, subd. (a)(7)). Probate Code section 21351 sets forth the manner in which a party can rebut the presumption of Probate Code section 21350, providing, as relevant here, Probate Code section 23150 does not apply if [t]he court determines, upon clear and convincing evidence, but not based solely upon the testimony of [the person who drafted the instrument], that the transfer was not the product of fraud, menace, duress, or undue influence. (Prob. Code,  21351, subd. (d).) For purposes of the statutory presumption, the term care custodian is defined by Welfare and Institutions Code section 15610.17. (Prob. Code, 21350, subd. (c).) That term includes, in addition to specified categories of person or agency, [a]ny other protective, public, sectarian, mental health, or private assistance or advocacy agency or person providing health services or social services to elders or dependent adults. (Welf. & Inst. Code, 15610.17, subd. (y).) (And see Bernard, supra, 39 Cal.4th at p. 797.)

In Bernard, the Supreme Court determined Welfare and Institutions Code section 15610.17, subdivision (y), properly construed, could include close personal friends who provide health services to a dependent adult. (Bernard, supra, 39 Cal.4th at pp. 808-809, 810-811, 813.) The Court of Appeal had found a decedents friends, who were made residual beneficiaries under a revocable living trust executed while she was living with them, were care custodians under this definition. The Supreme Court agreed, citing evidence the friends had rendered various services to the decedent during the two months she resided with them prior to her death. They had handled the decedents shopping and financial needs and prepared her meals for her. They made her bed, assisted her with bathing, helped to change diapers, washed her face and hands, administered oral medications, applied salves and ointments to her as needed and monitored her breathing. (Id. at p. 805.) The Supreme Court held, In sum, the record reflects that [the friends] provided substantial, ongoing health services to decedent while, at the end of her life, she was residing in their home and that it was during this period that decedent amended her Trust to include the donative transfers at issue. (Id. at p. 805.) In so holding, the court agreed with the Court of Appeal that these services were  a far cry from the level of care provided by the longtime friends in Davidson [Conservatorship of Davidson (2003) 113 Cal.App.4th 1035, 1050 (Davidson)], where the assistance offered consisted of cooking, gardening, driving the decedent to the doctor, running errands, grocery shopping, purchasing clothing or medications and assisting her with banking. (Bernard, supra, at p. 806.)

Contestant, asserting decedent was a dependent adult under the relevant statutes, contends Eugene Rose was a care custodian for purposes of the statutory presumption that the transfers to his relatives were invalid. Assuming for purposes of argument decedent was indeed a dependent adult, we nonetheless reject this claim as contestant produced no evidence Eugene Rose provided health care services to decedent. The full extent of the relevant evidence, cited by contestant in her opening and reply briefs, is that while living in Eugene Roses home, decedent was ill and undergoing chemotherapy, that he was in a hospice bed, spent most of his time in bed, wore a patch that released morphine into his system, was restricted to his movements and was in pain. Eugene Rose took care of decedent, responding to decedents wishes to have something to eat or drink, or to go on a walk or to use the telephone. He took decedent to his doctor on at least one occasion. This evidence is similar to that in Davidson, supra, 113 Cal.App.4th 1035, which the court in Bernard, supra, 39 Cal.4th 794indicated would not establish that a caretaker met the statutory definition of care custodian.

In addition, in Bernard, the Supreme Court was careful to emphasize that the case before it was not a case where preexisting friends who were testamentary beneficiaries of a testator subsequently became care custodians; [decedents friends] became beneficiaries of the Trust only pursuant to changes decedent made in her will while she was living with them and they were providing her with care services. (Bernard, supra, 39 Cal.4th at p. 815.) In light of this language, we question whether the Supreme Court would view the present situation as one falling within the statutory presumption even if there were evidence Eugene Rose had provided decedent with health care services. We need not, however, reach that question as we find the evidence contestant submitted could not establish Eugene Rose qualified as a care custodian. We also need not decide if the evidence submitted by respondent required a finding that the statutory presumption was, and would be, rebutted, but have no doubt that it did.

Conclusion

The judgment is affirmed.

_________________________

STEIN, J.

We concur:

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MARCHIANO, P. J.

_________________________

SWAGER, J.

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[1] Hereafter, the executor will be referred to as respondent.

[2] Contestant does not repeat this claim here.

[3] The appellate record filed by contestant does not include any ruling on the motion to reconsider. We augment the record to include the superior courts order.

[4] Mr. Horn and Mr. Sanders are not beneficiaries under the will, nor is there any evidence they are in any way related to a beneficiary under the will or have any kind of relationship with a beneficiary. They appear to have been decedents business associates and friends.