Gentry's Estate, Matter of

• Citation: 573 P.2d 322,32 Or.App. 45
• Parties: In the Matter of the ESTATE OF Darrell Elmer GENTRY, Deceased. Lisa Kim GENTRY, Appellant, v. Noma BRIGGS, and Pioneer Trust Company, Executor and Personal Representative of the Estate of Darrell Elmer Gentry, Deceased, Respondents.
• Decision Date: 16 January 1978
• Court: Court of Appeals of Oregon

Page 322

573 P.2d 322

32 Or.App. 45

In the Matter of the ESTATE OF Darrell Elmer GENTRY, Deceased.

Lisa Kim GENTRY, Appellant, v. Noma BRIGGS, and Pioneer Trust Company, Executor and Personal Representative of the Estate of Darrell

Elmer Gentry, Deceased, Respondents.

Court of Appeals of Oregon.

Argued and Submitted Nov. 21, 1977.

Decided Jan. 16, 1978.

Paul K. von Bergen, Beaverton, argued the cause for appellant. With him on the brief was Paul K. von Bergen II, Beaverton.

Arthur A. Beddoe, Klamath Falls, argued the cause for respondent Briggs. With him on the brief was Beddoe & Hamilton, Klamath Falls.

Robert H. Anderson and Murphy, Anderson, Cegavske, Roseburg, attorneys for respondent Pioneer Trust Co., joined in the brief for respondent Briggs.

Before SCHWAB, C. J., and THORNTON and JOHNSON, JJ.

THORNTON, Judge.

Petitioner Lisa Gentry appeals from a decree admitting to probate the will of her deceased father, Darrell Gentry, after having unsuccessfully challenged the will in circuit court. There are two principal issues on appeal: (1) was the testator mentally competent to make a will and (2) was the will a product of undue influence.

The essential facts are as follows:

Testator was an ex-serviceman with a history of frequent hospitalization for mental illness commencing in 1958. At the time of the execution of the will on October 2, 1969, as well as at the time of his death some six years later, the testator was a mental patient at the Veterans Administration Hospital in Roseburg.

The sole beneficiary under the will was his mother, respondent Noma Briggs.

Petitioner, now aged 22, was the testator's sole issue. Testator and petitioner's mother were divorced in 1957. After her mother's death, when petitioner was 15 years old, petitioner was raised by her maternal grandparents. However, certain federal veterans' benefits and social security payments for her support were provided during her minority. She rarely saw her father as she was growing up, although testator wrote and telephoned her from time to time.

In the will the testator acknowledges that he is the father of petitioner but declares "nevertheless I give, devise and bequest unto my mother, NOMA BRIGGS, * * * all of my property."

The will was prepared by a Roseburg attorney, and witnessed by the attorney and his secretary.

Respondent Pioneer Trust Company of Salem was the executor named in the will.

We summarize the evidence on the two key issues as follows: Testator served in the United States Army from 1952 to 1954, and again from 1956 to 1958, when he was discharged after six months' confinement in the psychiatric ward at Walter Reed Hospital. He was admitted to the Roseburg Veterans Administration Hospital in 1959.

In 1965 testator, while still a patient at this facility, was adjudicated incompetent to manage his own affairs by the circuit court of Douglas County, Oregon, and placed under guardianship, with Pioneer Trust Company named as guardian.

Dr. Esperson, the ward physician under whose care the testator was placed while testator was at the Veterans Administration Hospital from 1967 to 1973, testified that testator suffered from a psychosis diagnosed as schizophrenia; that his mental illness was largely controllable by psychiatric medication; that he was generally lucid so long as he took his prescribed medication, but when allowed to leave the hospital for any extended period would stop taking his medicines and would shortly become psychotic and sometimes obstreperous; that he would then have to be returned to the hospital. The record shows that this pattern of behavior was repeated again and again almost from the beginning of testator's hospitalization at Roseburg until his death. Not infrequently testator would go AWOL from the hospital. Dr. Esperson expressed the opinion, however, that testator was mentally competent to execute a will if not in one of his deranged intervals, and that he was capable of executing the instant will.

In a letter received by Pioneer Trust Company September 29, 1969, three days before the challenged will was executed, testator wrote to Mr. E. E. Smith, a trust officer who was handling his financial affairs at Pioneer Trust Company, stating in part that "I want my mother to inherit my 4 or 5 thousand." This was reiterated by testator on other occasions, including in a letter to his mother postmarked October 6, 1969. In a letter dated September 30, 1969, apparently in response to the letter received from the testator, Trust Officer Smith wrote testator informing him that if he was serious about having his estate go to his mother he should go to some attorney in Roseburg and have him prepare a valid will, taking care to inform the attorney that he was "living currently at the Veterans Administration Hospital at Roseburg."

The attorney who drafted the will, and who was an attesting witness, testified by deposition pursuant to stipulation. He stated that testator came to him on October 2, apparently bearing the above described letter from Smith; that he, the attorney, spent approximately 25 to 30 minutes discussing the details with the testator, including the nature and extent of his property, the persons who were the natural objects of his bounty and the effect of his will prior to drafting the will; that he, the attorney, was fully aware that testator was under guardianship; that notwithstanding testator appeared to be mentally competent when the will was executed. The attorney's secretary, however, had no specific recollection of the testator or the circumstances. The attorney's rough notes of his consultation were received in evidence and correspond with his testimony and the provisions of the will.

Mental competency to make a will is determined at the precise moment the will is executed. Clauder v. Morser, 204 Or. 378, 282 P.2d 352 (1955); Whitteberry v. Whitteberry, 9 Or.App. 154, 496 P.2d 240 (1972). As we observed in Spencer v. Hamit, 24 Or.App. 897, 547 P.2d 658 (1976):

"The final test is whether the decedent was competent at the time the will was executed. Evidence of incapacitation prior or subsequent to the time of the will's execution is relevant but it lacks the probative value of evidence revealing his mental condition at the material time. Its value diminishes the more removed it is from the crucial date. Thus, the testimony of attesting...