In re Conservatorship of Estate of Davidson

• Decision Date: 26 November 2003
• Docket Number: No. A098625,A098625
• Citation: 6 Cal.Rptr.3d 702,113 Cal.App.4th 1035
• Parties: CONSERVATORSHIP OF THE ESTATE OF DOLORES DAVIDSON. Cal Morken, Petitioner and Appellant, v. Stephen Gungl, Objector and Respondent.
• Court: California Court of Appeals Court of Appeals

6 Cal.Rptr.3d 702

113 Cal.App.4th 1035

CONSERVATORSHIP OF THE ESTATE OF DOLORES DAVIDSON.

Cal Morken, Petitioner and Appellant, v. Stephen Gungl, Objector and Respondent.

No. A098625

Court of Appeal, First District, Division Three

November 26, 2003

Review Denied March 24, 2004.

Law Office of John Halley and John A.W. Halley, Redwood City, for Petitioner and Appellant.

Law Offices of Norman E. Reitz and Norman E. Reitz, Hayward, Howard L. Hibbard and Jon A. Nakanishi for Objector and Respondent.

McGUINESS, P.J.

This appeal is from a judgment affirming the validity of the revocable living trust of conservatee and decedent Dolores Davidson, and denying the petition of appellant Cal Morken to invalidate that trust and rescind the gift thereunder to respondent Stephen Gungl. Appellant Morken contends the trial court erred in upholding Davidson's gift to Gungl as valid under the provisions of sections 21350 and 21351, based upon the determination that respondent Gungl was not a "care custodian of a dependent adult" barred from receiving a donative transfer under Probate Code section 21350, subdivision (a)(6).¹ Respondent Gungl argues that the trial court's determination that he was not a "care custodian" under the statute was supported by substantial evidence; the judgment is supported by clear and convincing evidence that the transfer to Gungl was not the product of fraud, menace, duress or undue influence; and there was no presumption of undue influence under the circumstances of this case.

We conclude the trial court correctly determined that for purposes of section 21350, respondent Gungl was not a "care custodian" providing "health services or social services" to Davidson. The record amply supports the trial court's finding that the care and companionship Gungl rendered to Davidson in her declining years was the natural outgrowth of a genuinely close personal relationship which preexisted by many years the caregiving role which Gungl assumed as Davidson grew older. We similarly find substantial evidence to support the trial court's determination, made on the basis of clear and convincing evidence, that Davidson's gift of her estate to Gungl was not a product of undue influence. Based on the law, interpreted in light of the particular facts and circumstances of this case, we therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying dispute is between beneficiaries of a revocable living trust instrument and will executed in 1996, by means of which Davidson left the bulk of her estate to Gungl and simultaneously revoked an earlier will executed in 1990, of which Davidson's cousin Elaine Morken, the wife of appellant Morken, was the principal beneficiary. Elaine Morken, the daughter of Davidson's mother's sister, died on January 15, 2000. Davidson herself, who died on June 17, 2000 at the age of 95, was an only child and had no children. Her own husband had passed away in the late 1970's.

Gungl met Davidson and her husband at a party in 1962, after which he gave them occasional lessons on the electric organ at the Davidson's home. Over the years, Gungl became close friends with the Davidsons. Gungl and the Davidsons were residents of San Mateo County, and frequent visitors in each other's respective homes. Gungl attended the Davidsons' birthday and anniversary celebrations, and entertained them in his own home for Thanksgiving, Christmas, and other occasions. Gungl also attended the memorial service for Davidson's husband after the latter's death. To the best of Gungl's knowledge, neither appellant Morken nor his wife, Davidson's cousin, was present on any of these occasions. After the death of Davidson's husband, Gungl made a point of visiting Davidson more often, taking her on drives and to dinner, and helping her out with household chores. After Davidson stopped driving altogether around 1990, Gungl became Davidson's primary provider of transportation.

Howard Holtz was Gungl's long-time partner. At the time of trial in 2001, Holtz and Gungl had lived together since 1966. Over the years, Holtz also befriended Davidson, and the three became very close. Davidson treated Gungl and Holtz like her family, and referred to them as "her boys." The close, loving, and almost filial relationship between Gungl and Davidson was obvious to friends and neighbors of Davidson.

On November 12, 1990, Davidson executed a will leaving the bulk of her estate to appellant Morken and his wife, with a number of specific bequests to other individuals. This will included a gift to Gungl of $1,000, together with her Hammond organ, a speaker, "the large desk and chair in the office of my late husband," and "any other musical instruments in the downstairs rumpus room of my home he may want." In addition, Davidson specified Gungl as the executor of her will. Elaine Morken and her husband, appellant, were nominated as co-executors "[i]n the event [Gungl was] unwilling or unable to serve as such executor."

In February 1992, Davidson became very sick and was hospitalized for some time. Nurses' notations made at the time indicated that Davidson presented some symptoms of confusion, forgetfulness and disorientation. After her hospitalization, her physical and mental condition deteriorated. Maria Barreneche, Davidson's paid house cleaner and helper, testified that Davidson was "not right" mentally, unable to remember things, frequently repeated herself, and required help to cook and bathe herself. Davidson's old friend and neighbor Muriel Vint, who had known Davidson since high school and traveled with her several times, testified that she began noticing Davidson's mental decline around 1995, when Davidson could not at first remember Vint's name and some of the pictures of her previous travels. However, Davidson was able to talk with Vint about their trips together. Vint opined that the assistance provided to Davidson by her "boys," Gungl and Holtz, enabled her to live independently at home. Vint testified that Gungl and Holtz took "beautiful care" of Davidson's home.

Sviatsoslav Yasinitsky, a former police inspector, had retired from a position as Director of Public Safety at the University of San Francisco. He was a neighbor of Davidson since approximately 1959, and knew her well. In his opinion, Davidson was not suffering from dementia in 1996, but merely getting old. Yasinitsky confirmed that Davidson manifested great affection for respondent Gungl over the years, habitually referred to him as "my boy," and treated both Gungl and Holtz as if they were her sons.

As Davidson became increasingly enfeebled by age and infirmity, Gungl and Holtz assumed more and more of the responsibility of caring for her. They cooked for her, shopped for her, and drove her when she needed to go out of her house to the doctor or for other appointments. In March 1993, Davidson executed a document giving Gungl a power of attorney. Thereafter, Gungl had Davidson's mail sent to his house, paid her bills, and took care of her banking.

Between September and November 1995, Gungl met with Judy Reilly, an employee of the Alliance for Mature Americans (AMA), to set up a living trust for himself. Gungl also had the AMA draw up a living trust for his own mother. Thereafter, Gungl contacted Reilly to have her meet with Davidson to discuss creating a living trust for Davidson. Reilly came to Davidson's home and met with her on November 2, 1995, for two to three hours. Also present at this meeting were Gungl and his friend Lynn Deauville. According to the testimony of Deauville and Reilly, Reilly discussed how the trust worked, explaining how it was easier than a will to revoke or change, gave her more immediate control of her assets, and avoided probate. Davidson asked Reilly pertinent questions, and it appeared to Reilly that Davidson was able to comprehend and follow the discussion. Davidson told Reilly that she wanted Gungl to have everything. When Gungl asked Davidson, "[w]hat about the Morkens," she replied that she "had no idea" what to leave them but she "did not want to leave them very much." When he suggested leaving them $5,000, Davidson said: "That's too much." Reilly and Gungl testified that Gungl and Deauville were not in the room when Reilly and Davidson discussed the specific details of who the trust beneficiaries would be.

On January 19, 1996, Douglas Day, a notary and trust planner for AMA, came to Davidson's residence with the completed trust and pour-over will documents as prepared by AMA. Day explained the trust to Davidson, and went over the specific provisions relating to trustees, successor trustees, and beneficiaries. He then witnessed and notarized her signatures on the documents. Davidson signed or initialed each page, indicating that she understood who the trustees and beneficiaries of the trust were. Day testified on the basis of his experience as a trust planner who had handled approximately a thousand living trusts that Davidson appeared to be of sound mind, and there did not appear to be any undue influence on her to execute the documents. Day testified that he had previously refused to notarize trust documents when he had reason to question the capacity of the individual in question. Deauville, who was also present on this occasion, testified that Davidson told Day she did not sign anything without reading it first, so Day handed her the pages of the trust one at a time to give her time to read and sign each page. Davidson wore her reading glasses for the purpose.²

The trust instrument provided that Davidson was settlor, initial trustee and primary beneficiary of the trust. As settlor and initial trustee, Davidson named Gungl as both first successor trustee to herself, and as sole successor beneficiary. The trust instrument specified that upon Davidson's death, Gungl was to distribute several specific bequests, including one of $5,000 to "Elaine Morken and her husband." Thereafter, Gungl would succeed to...