Corcoran v. Cushing
| Decision Date | 20 December 2000 |
| Citation | 102 Cal.Rptr.2d 457 |
| Court | California Court of Appeals Court of Appeals |
| Parties | (Cal.App. 1 Dist. 2000) Estate of REGIS SWETMANN, Deceased. Estate of VERA SWETMANN, Deceased. MARGARET CORCORAN, Petitioner and Respondent, v. GEORGE CUSHING, Objector and Appellant. A089985 Filed |
271553, Consolidated)
Trial Judge Laurence D. Kay
Counsel for Objector and Appellant George Cushing: Dario de Ghetaldi Corey, Luzaich, Manos & Pliska
Counsel for Petitioner and Respondent Margaret Corcoran: Ruth Downs Sullivan,
Sullivan Law Office, Lyn C. Bierce, Mires & Bierce
CERTIFIED FOR PUBLICATION
In this case of first impression, we are called upon to interpret section 21350 of the Probate Code insofar as it restricts transfers to a fiduciary who "transcribes the instrument or causes it to be transcribed." (Subd. (a)(4).) We then apply that interpretation to the will of Regis Swetmann, who left the residue of his estate to George Cushing (Cushing), his conservator (who also had, for many years, a power of attorney), who procured for decedent the company which produced the will, introduced the company representative to him, and as conservator paid for the services, but who had nothing to do with the contents of the will or its physical preparation. We conclude, contrary to the trial court, that those activities do not support the conclusion that Cushing caused the will to be transcribed. We therefore reverse.
Regis Swetmann (Regis) and Vera Swetmann (Vera) were husband and wife, who died within two months of each other, on November 2, 1997, and September 6, 1997, respectively. Regis, age 89, had been diagnosed with terminal prostate cancer, and Vera, age 84, had been in the beginning stages of Alzheimer's disease. The couple had no children.
Regis, a deputy district attorney in his working years, met John and Margaret Corcoran in the late 1940's and early 1950's when they, too, worked in the San Francisco District Attorney's office. The Corcorans remained lifelong friends of the Swetmanns, although they did not see each other often after the Corcorans moved out of San Francisco in the 1970's, first to Walnut Creek and then to Antioch.
John Corcoran testified at trial that at some point Regis told him that when he died he wanted the Corcorans to have certain items of personal property. Corcoran also testified that about a month before Regis died, he said he wanted the Corcorans to have a third of the proceeds from the sale of his house. Corcoran encouraged Regis to make a will. As discussed in detail below, the Corcorans initiated the proceedings leading to the issue before us and are the respondents on appeal.1
Cushing, age 89 at the time of trial, had been the Swetmanns' next door neighbor since 1972. In the early to mid-1970's Cushing began doing the Swetmanns' shopping, driving them wherever they needed to go, doing household repairs, maintaining their automobile, and helping them pay their bills. Bernice Grantz, a long time neighbor of the Swetmanns who had known them over 60 years, and who, while not herself a protagonist in the litigation, understood that she would benefit by more than $100,000 if the Corcorans were to prevail, described Cushing's relationship with the Swetmanns this way: Vera "call[ed] on [Cushing] for everything in the middle of the night or whatever."
About 1974, Regis, who was disabled from childhood polio, asked Cushing to handle his finances and gave Cushing a power of attorney. There was no evidence that the power of attorney was ever abused or misused.
In December 1993 Regis broke his hip and became physically unable to manage his own affairs. At his request, in June 1994 Vera and Cushing were appointed Regis's coconservators. The court investigator's 1995 review report found Regis "eminently satisfied" with Cushing's performance as his conservator. So, too, did the 1997 review report, which found that Regis continued to prefer Cushing as his conservator.2
Regis wrote a holographic will in 1993. That will left his estate to Vera, with specific bequests to six other beneficiaries, including the Corcorans and Cushing, but had no provision for an alternate disposition of the residue. Cushing testified that he was unaware of the holographic will at the time it was made and advised Regis many times to make a will. He also advised him to have a living trust.
Cushing testified that in 1997, several months before the Swetmanns died, Regis saw an advertisement in the newspaper for living trusts, and asked Cushing to call on his behalf. The company that had placed the advertisement was American Estate Services, based in Dallas, Texas, with branch offices elsewhere, including one in San Jose. Cushing called and made an appointment with an agent from the San Jose office, Kellie Mittnacht (Mittnacht). Mittnacht came to Cushing's house and met with Cushing for several hours to discuss Cushing's own estate plan and the purchase of an annuity. Afterward, Cushing asked Mittnacht to return to meet with the Swetmanns, informing her that he was the conservator for Regis and handled his finances.
About a week later, on June 25, 1997, Mittnacht again met Cushing at his home, and Cushing then escorted her to the Swetmanns' house, where she met with the Swetmanns to discuss the services offered by American Estate Services. Mittnacht sat with the Swetmanns in the dining room while Cushing remained in the adjoining living room. The Swetmanns decided to employ the company to prepare an estate plan for them, and that day they signed a written agreement to retain American Estate Services. An estate plan sold by American Estate Services included a living trust, a pour-over will, a living will, a durable springing power of attorney, and a durable power of attorney for health care. Regis told Mittnacht he wanted a trust to avoid the problems of probate. The Swetmanns also decided to purchase an annuity for Vera.
Mittnacht took down directly from the Swetmanns the necessary information for the creation of a trust and for the purchase of an annuity, and the Swetmanns signed the information sheet. As noted, Cushing was in the house at the time Mittnacht discussed the estate plan with the Swetmanns, but not in the same room. Mittnacht testified that she never discussed the Swetmanns' testamentary intentions with Cushing, nor did the Swetmanns ever defer to Cushing or indicate they needed to consult with him.
Mittnacht did obtain from Cushing a copy of Regis's 1993 holographic will, which she reviewed with Regis to determine the changes he wanted in the beneficiaries. She also received from Cushing information about the Swetmanns' bank accounts and securities holdings, information necessary to know what assets to place in the trust. Mittnacht did not discuss with Cushing which assets were to be transferred to the trust, never discussed with Cushing the contents of the trust documents, and never received any instructions from him as to the contents of the trust or wills. Mittnacht also obtained from Cushing a check in the amount of $1,895, payable from the conservatorship account, to cover the costs of preparing the entire estate plan.
The Swetmanns' annuity application was made to American Investors Life Insurance Company, Inc. The application named Vera as the annuitant, Regis as primary beneficiary, and Cushing as contingent beneficiary. The Swetmanns signed the application and also signed a form authorizing a transfer of funds from their mutual funds. Mittnacht received a check for $20,000 as a deposit, made out by Cushing, again from Regis's conservatorship account.
Mittnacht found Regis to be cantankerous and averse to dealing with his finances; he seemed to want "to get [the process] over with." Mittnacht noted that Regis did not appear in good health, but she had no doubts as to his competence. Regis told Mittnacht Cushing had been a friend for a long time, but he gave no indication that Cushing was making the testamentary decisions for him. Vera was quiet and moved rather slowly, but she seemed to follow the discussions about the estate plan and the annuity. She went along with whatever Regis wanted.
About two weeks after this initial meeting, Michael Burstein, an attorney in Los Angeles who drafted the documents for American Estate Services, telephoned Regis, as was his practice with all clients. Burstein went over all the information provided on the client data sheet, and Regis made some corrections, including the appointment of Cushing as successor trustee. From this telephone contact, Burstein found no indication Regis was subject to undue influence or fraud, and he had no doubts about his competence.3 As with Mittnacht, Burstein never spoke to Cushing about Regis's testamentary dispositions.
Over the next two months, Mittnacht returned to the Swetmanns' house a few times to obtain additional information that had been requested by Burstein. As with all of her contacts with the Swetmanns, Mittnacht telephoned Cushing in advance to make an appointment with them, doing so because Cushing was the conservator. Each time Mittnacht went first to Cushing's house, and Cushing escorted her to the Swetmanns' house, where he would remain, sitting in the adjoining living room while Mittnacht met with the Swetmanns in the dining room.
On July 31, 1997, Mittnacht delivered the annuity documents to the Swetmanns. Mittnacht explained the interest rates and beneficiaries, and Vera signed the acknowledgement.
On August 29, 1997, Mittnacht returned to the Swetmanns' house to present the final versions of the estate documents and obtain the Swetmanns' signatures. Again she made the...
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... 102 Cal.Rptr.2d 457 ... 85 Cal.App.4th 807 ... RESTATE OF Regis SWETMANN, Deceased ... Margaret Corcoran, Petitioner and Respondent, ... George Cushing, Objector and Appellant ... Estate of Vera Swetmann, Deceased ... Margaret Corcoran, Petitioner ... ...