Estate of Herr, Matter of, 900020

Citation460 N.W.2d 699
Decision Date05 September 1990
Docket NumberNo. 900020,900020
PartiesIn the Matter of the ESTATE OF Clifton A. HERR, Deceased. Alberta H. CATES, Appellant, v. Charles PFEIFER, Personal Representative of the Estate of Clifton A. Herr, Deceased, Appellee. Civ.
CourtUnited States State Supreme Court of North Dakota

Garaas Law Firm, Fargo, for appellant; argued by Jonathan T. Garaas. Appearance by David A. Garaas.

Gunhus, Grinnell, Klinger, Swenson & Guy, Moorhead, Minn., for appellee; argued by Barry P. Hogan.

MESCHKE, Justice.

Alberta H. Cates appealed from a summary judgment dismissing her objection to the formal probate of Clifton Herr's will and her demand for an intestate share of Clifton's estate as his only natural child. We affirm in part, reverse in part, and remand for further proceedings.

Cates was born on October 18, 1941. Cates' mother, Lenora Bender, claimed that Clifton was Cates' father. Although Clifton initially contested paternity, a judgment was entered in 1942 in Cass County in which he admitted that he was Cates' father and agreed to pay Lenora $525 as a complete settlement of his support obligation. Cates and Lenora then moved out of state and they had no contact with Clifton until 1959 when Lenora attended a high school reunion in North Dakota. Clifton declined to see Lenora or Cates then, and they made no other attempts to contact Clifton during his lifetime.

In 1954 Clifton married Dorothy Herr, who had three daughters, Karla Gross, Sharon Pfeifer, and Patricia Hiller, by previous marriages. Clifton and Dorothy had no children from their marriage, and Clifton told relatives that he was sterile. Clifton did not adopt Dorothy's daughters, but on May 26, 1981, he executed an application for insurance which stated that they were "children of the marriage of Clifton & Dorothy Herr."

In 1986, Clifton hired attorney Richard Herr, a second cousin, to revise a 1978 will. Clifton's wife, Dorothy, died in December 1987. Clifton's final will, executed on May 12, 1987, after several meetings with Richard Herr, made twenty-five specific devises and named Gross, Pfeifer, and Hiller as residuary beneficiaries of his estate. Gross, Pfeifer, and Hiller were also residuary beneficiaries under the 1978 will. Neither will mentioned Cates.

Clifton died on May 7, 1988, at age 74, with an estate valued at over $2,000,000. Cates objected to the probate of Clifton's 1987 will, alleging that it was void because he lacked testamentary capacity, or because it was the product of undue influence or mistake. As his sole natural child, Cates sought to void the will so that she would take his entire estate in intestacy since there was no surviving spouse. She claimed that she was entitled to an intestate share of Clifton's estate under NDCC 30.1-06-02 as a pretermitted child, and that she was entitled to family or exempt property allowances as provided by statute. She also demanded a jury trial.

Clifton's estate moved for summary judgment. The trial court concluded that factual issues raised by Cates were "not contested, or [were] not material to the legal issues involved" and that "reasonable minds could not differ in their conclusion that Clifton ... never intended to include ... Cates in his Will." The court dismissed Cates' objection to the formal probate of Clifton's 1987 will.

We review under the standards applicable to summary judgment. Summary judgment is a procedural device to promptly and expeditiously dispose of an action without a trial if there is no dispute as to material facts or the inferences to be drawn from undisputed facts, or when only a question of law is involved. Wheeler v. Schmid Laboratories, Inc., 451 N.W.2d 133 (N.D.1990). On appeal from a summary judgment, we view the evidence in the light most favorable to the party against whom summary judgment was granted. Id.

Cates contends that the court erred in granting summary judgment because genuine issues of material fact existed. She asserts that those material facts included that Clifton did not recognize her as his only natural child 1 and did not name her in his will; that Clifton believed he was sterile; and that Clifton did not realize that his stepchildren were "merely stepchildren and not natural children" on an application for insurance. She argues that those facts raised genuine issues of material fact that Clifton lacked testamentary capacity to execute the 1987 will, or that it was the product of mistake or undue influence.

To begin, we examine Cates' claim that there are genuine issues of material fact about whether the 1987 will was the product of undue influence. She argues that the "method of preparing the will which included the active participation of Herr's wife, coupled with the result of disinheriting the deceased's only child, makes it a jury question as to whether the elements of undue influence exist."

In Okken v. Okken Estate, 348 N.W.2d 447, 450 (N.D.1984), we outlined the elements necessary to invalidate a will on the ground of undue influence:

(1) that the testator was subject to such influence; (2) that the opportunity to exercise it existed; (3) that there was a disposition to exercise it; and (4) that the result appears to be the effect of such influence. Okken v. Okken, supra, 325 N.W.2d at 267-68 [N.D.1982]; In re Burris' Estate, 72 N.W.2d 884, 889 (N.D.1955). To be undue, the influence must operate at the time the will is made and must dominate and control the making of the will; it must be such as to make the will express the purpose and intent of the person exercising the influence and not the purpose and intent of the testator. Okken, supra; Bender v. Bender, 72 N.W.2d 220, 223 (N.D.1955).

Although the existence or nonexistence of undue influence is a question of fact, a mere suspicion of undue influence is insufficient to require submission of the question of undue influence to the jury or to sustain a verdict. Matter of Estate of Polda, 349 N.W.2d 11 (N.D.1984). Evidence which merely shows that a party who benefited by the will had both motive and opportunity to exert influence over the testator is not sufficient to invalidate a will if there is no evidence that such influence was actually exerted. Id. A party challenging a will as invalid for undue influence must present evidence to support the assertion. Boone v. Estate of Nelson, 264 N.W.2d 881 (N.D.1978). We discern no such evidentiary basis in this case.

The evidence presented to the lower court, viewed in the light most favorable to Cates, does not raise an inference of undue influence in the execution of the 1987 will. Although Dorothy Herr, the natural mother of the three residuary beneficiaries under that will, was present when it was executed, she was not present during prior meetings when Clifton and Richard discussed the will. In the absence of any evidence that Dorothy, or anyone else, exerted any influence over Clifton at the time the will was executed, her mere presence and inquiry of Clifton about whether he included everyone in the will does not raise an inference of undue influence. Cates presented no other evidence about the circumstances surrounding the preparation and execution of the will. A competent testator may disinherit children and dispose of property without regard to the desires of prospective beneficiaries. Stormon v. Weiss, 65 N.W.2d 475 (N.D.1954). Cates' omission from the 1987 will does not create an inference of undue influence.

Viewed in the light most favorable to Cates, there was no evidence presented, by affidavit or otherwise, to raise an inference that, at the time the will was executed, someone other than Clifton "dominate[d] and control[led] the making of the will ... as to make [it] express the purpose and intent" of someone other than Clifton. Okken, 348 N.W.2d at 450. We conclude that the trial court properly granted summary judgment on the claim of undue influence.

We next examine Cates' claim that there are genuine issues of material fact as to whether Clifton lacked testamentary capacity to execute the 1987 will.

In Stormon we outlined the applicable standards for determining whether a testator lacks testamentary capacity:

With respect to the issue of incompetency we start with the fundamental principle that sanity and testamentary capacity are presumed.

* * * * * *

The capacity to execute a will has so often been defined as being the ability of the testator to know the extent and character of his property, to be mindful of the natural objects of his bounty, and to appreciate the character of the act in which he is engaged, that this simple test may be applied as elementary and without the citation of authority.

* * * * * *

The standard of testamentary capacity which has finally been agreed upon, in substance, by the great weight of authority is as follows: Testator must have sufficient strength and clearness of mind and memory, to know, in general, without prompting, the nature and extent of the property of which he is about to dispose, and nature of the act which he is about to perform, and the names and identity of the persons who are to be the objects of his bounty, and his relation towards them. He must have sufficient mind and memory to understand all of these facts; and a charge, in negative form, that capacity is lacking if testator is not able to know all of these facts, is erroneous, since he lacks capacity if he is unable to understand any one of them. He must also be able to appreciate the relations of these factors to one another, and to recollect the decision which he has formed.

* * * * * *

If testator actually remembers and knows what his property is, who are the natural objects of his bounty, and who are the proposed beneficiaries, and his duties towards them, and if he actually understands the nature of the act which he is performing, capacity to make a will is established, at least in the absence of an insane delusion.

Stormon, 65 N.W.2d at 504-505.

Cates argues that Clifton's failure to remember...

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