McCauley's Estate, In re

• Citation: 101 Ariz. 8,415 P.2d 431
• Decision Date: 11 May 1966
• Docket Number: No. 7303,7303
• Parties: In the Matter of the ESTATE of Bond Sneed McCAULEY, Deceased. Cleyburn Faris McCAULEY, Appellant, v. Arthur TALK, Jr., and Lillian Denson, Appellees.
• Court: Arizona Supreme Court

Page 431

415 P.2d 431

101 Ariz. 8

In the Matter of the ESTATE of Bond Sneed McCAULEY, Deceased.

Cleyburn Faris McCAULEY, Appellant, v. Arthur TALK, Jr., and Lillian Denson, Appellees.

No. 7303.

Supreme Court of Arizona, In Banc.

May 11, 1966.

Donald B. Shortridge, Phoenix, James A. Quisenberry, Erie, Pa., for appellant.

Snell & Wilmer, Phoenix, for appellees.

LOCKWOOD, Justice:

In this will contest, proponent, Cleyburn Faris McCauley, appeals from the order of the trial court refusing to admit to probate a document purporting to be the last will and testament of Bond Sneed McCauley, deceased. Upon notice of proponent's offer in probate of the purported will, contestants, Arthur Talk, Jr. and Lillian Denson, by their respective fathers as guardians ad litem, filed with the Court their petition opposing probate of the will. Thereafter, the matter proceeded as a 'Contest of Will Before Probate' pursuant to A.R.S. §§ 14--351 to 14--356.

The matter was tried before the Court, sitting without a jury. Proponent did not attend the trial in person. Thereafter, the Court which made extensive findings of fact and conclusions of law, found that the purported will was procured by the fraudulent representations and undue influence of the proponent, and entered judgment in favor of contestants.

Decedent died in Phoenix on October 21, 1959. She had married proponent on October 28, 1957. Decedent had been married twice before her marriage to proponent, each of the former marriages ending in divorce. Contestant Arthur Talk, Jr. was born as the issue of the marriage of decedent and Arthur Talk, Sr. Contestant Lillian Denson was born as the issue of the marriage of decedent and Vernon Denson. The purported will names proponent as independent executor without bond and, after leaving him specific items such as household furnishings and personal effects, bequeaths and devises the rest and residue of testatrix' estate as follows: an undivided one-half to contestants, share and share alike, and the other remaining undivided one-half to proponent. The will in question was executed on November 18, 1958, while decedent was hospitalized.

Proponent's third and fourth assignments of error question the sufficiency of the evidence to sustain the Court's finding that proponent unduly influenced decedent to execute the purported will. In particular, proponent urges that the evidence is insufficient to show that he was active in procuring the execution of the will or that decedent's will was overpowered so that proponent could make her wishes and desires conform to his own.

The basic concept emerging from the mass of decisions on the subject of undue influence is that a person unduly influences a testator or testatrix in executing a will when that person through his power over the mind of the testator or testatrix makes the latter's desires conform to his own, thereby overmastering the volition of testator or testatrix. In re Reddaway's Estate, 214 Or. 410, 329 P.2d 886 (1958); In re Blake's Will, 21 N.J. 50, 120 A.2d 745 (1956); In re Jennings' Estate, 335 Mich. 241, 55 N.W.2d 812 (1952). See generally, 1 Page, Wills §§ 15.1 to 15.3 (Bowe-Parker edition, 1960); 6 Powell, Real Property 948 (1958). Since undue influence is commonly exercised in secret, it may be established by circumstantial evidence. In re Westfall's Estate, 74 Ariz. 181, 185, 245 P.2d 951, 954 (1952). Whether undue influence has been exerted to bring about the making of a particular will is a question of fact. See In re Urich's Estate, 194 Or. 429, 242 P.2d 204 (1952). The burden of proving that a will has been procured by undue influence is on the contestant. In re Westfall's Estate, 74 Ariz. 181, 245 P.2d 951 (1952).

In determining whether a contestant has established that a will has been procured through undue influence, certain factors have been treated as significant indicia of the presence or absence of such influence. See In re Reddaway's Estate, supra; 6 Powell, Real Property, supra. These factors include the following: Whether the alleged influencer has made fraudulent representations to the testatrix; ¹ whether the execution of the will was the product of hasty action; ² whether the execution of the will was concealed from others; ³ whether the person benefited by the will was active in securing its drafting and execution; ⁴ whether the will as drawn was consistent or inconsistent with prior declarations and plannings of the testatrix; ⁵ whether the will was reasonable rather than unnatural in view of the testatrix' circumstances, attitudes, and family; ⁶ whether the testatrix was a person susceptible to undue influence; ⁷ and whether the testatrix and the beneficiary have been in a confidential relationship. ⁸ Some confidential relationships in conjunction with other basic facts, such as proponent's activity in procuring the execution of the will and his being named as its principal beneficiary, give rise to a presumption of undue influence. In re Pitt's Estate, 88 Ariz. 312, 356 P.2d 408 (1960); In re O'Connor's Estate, 74 Ariz. 248, 246 P.2d 1063 (1952). ⁹ The parties have suggested in their briefs that the presumption of undue influence is involved in this case. But the marital relationship existing between testatrix and proponent is not one of the confidential relationships giving rise to the presumption of undue influence. Craig v. Lamoureaux, (1920) A.C. 349 (P.C., Can.1919); In re Livingston's Will, 5 N.J. 65, 73 A.2d 916 (1950). Accordingly, here the burden of proving undue influence remained with the contestants.

However, proponent's marriage to testatrix does not completely insulate him from a possible finding that he unduly influenced his spouse in executing her will. See Estate of Teel, 25 Cal.2d 520, 154 P.2d 384 (1944); Taylor v. Taylor, 248 S.W.2d 820 (Tex.Ct.Civ.App.1952).

Where the contestant has presented evidence from which a reasonable person could conclude that the person charged with exerting undue influence had a disposition to exercise such influence, that he had an opportunity to exercise undue influence, that some influence was exerted, and that the will seems to result from such influence, a question of fact is presented. In re Roehl's Will, 261 Wis. 466, 53 N.W.2d 180 (1952).

Although none of the enumerated factors standing alone or even in combination with some others, may be sufficient to sustain a finding of undue influence, ¹⁰ the force of the combination of all these factors may be sufficient to raise a question of fact as to the existence of undue influence. In re Burton's Estate, 45 So.2d 873, 875--876 (Fla.1950); In re Reddaway's Estate, 214 Or. 410, 329 P.2d 886 (1958). It therefore becomes important to analyze the evidence relied upon by contestants and questioned by proponents to determine whether, in accordance with the foregoing principles, it is sufficient to sustain the trial court's finding that the purported will was procured by the undue influence of proponent.

Fraudulent Representations

In the late summer of 1956 proponent lived in Enid, Oklahoma, with his third wife, Mrs. Leona McCauley, and his two children. He was then self-employed in the advertising business. When this business failed shortly thereafter, leaving proponent in debt by $1,000, he became 'panicky' and moved to Houston, Texas, 'to get started again.'

While proponent was in Houston, he met decedent in November of 1956. Shortly after their meeting proponent prevailed upon her to loan him $750. Thereafter, they did not see each other until March, 1957, at which time proponent falsely represented to decedent that he was separated from his wife and had been so separated for some time before he went to Houston. In fact, he made frequent trips to Enid during this period of time and during these visits his marital relationship with his wife was normal.

By 1956 decedent had decided to institute action to obtain a divorce from her second husband, Vernon Denson. As a result of the divorce proceeding and the property settlement incident thereto, an irrevocable trust was established, naming decedent as an income beneficiary to the extent of $2,000 per month tax free during her life, and upon her death, to her children in equal shares upon each reaching the age of thirty.

Within two weeks of her divorce decedent began to see proponent frequently. By early April, 1957, decedent had cosigned a $1,000 note with proponent for his benefit.

On or about May 1, 1957, proponent, through decedent, attempted to sell a real estate note to the trust; the principal balance due on the note was $7,100 and proponent offered to sell the note for $7,000. The real estate note was then subject to a $2,500 discount, but proponent informed neither decedent nor the trustees of this discount. Proponent was to receive $1,000 from the owner of the note for selling it to decedent's trust. Upon decedent's presenting the note to Mr. Simmer, one of the trustees, and Simmer's expressing a desire to inquire about the note further, proponent demanded that the note be returned to him immediately. Decedent then wrote to Mr. Simmer stating that there was no strong feeling between herself and proponent and requesting Mr. Simmer not 'to discuss it with any of the other trustees. It would only get back to my family and get them upset and for no cause since I did not get involved in it.'

Sometime in May, 1957, decedent moved from her mother's home into an apartment. Proponent then began visiting decedent at her apartment, spending most of the day and evening there.

In mid-July, 1957, decedent wrote to Mr. Simmer, requesting that the trustees authorize her purchase of a new car. At first, the trustees acceded to this request. However, when the trustees learned that decedent was not trading in her 1955 Oldsmobile on the purchase price of a 1958 model car but was planning to sell her Oldsmobile to proponent for $100, the price proponent had told decedent she would get for her car...