Estate of Lien, Matter of, 94-264

• Decision Date: 24 April 1995
• Docket Number: No. 94-264,94-264
• Citation: 892 P.2d 530,270 Mont. 295
• Parties: In the Matter of the ESTATE OF Alf A. LIEN, Deceased.
• Court: Montana Supreme Court

Page 530

892 P.2d 530

270 Mont. 295

In the Matter of the ESTATE OF Alf A. LIEN, Deceased.

No. 94-264.

Supreme Court of Montana.

Submitted on Briefs Dec. 28, 1994.

Decided March 21, 1995.

Rehearing Denied April 24, 1995.

Robert L. Johnson, Lewistown, J. Douglas Alexander, Sidney, for appellant.

Gene R. Jarussi, Jarussi & Bishop, Billings, Phillip N. Carter, Sidney, for respondent.

WEBER, Justice.

This is an appeal from a summary judgment order in the District Court of the Fifteenth Judicial District, Roosevelt County, in favor of Mabel Gobbs, the Personal Representative of the Estate of Alf A. Lien. Appellant Dr. Clifton Berglee (Berglee) contested a 1989 will being probated by Mrs. Gobbs. Berglee claimed an earlier will should prevail and the 1989 will was invalid based on lack of testamentary capacity, undue influence, fraud and restraint. We affirm.

The sole question for review is whether the District Court erred in granting summary judgment to Mabel Gobbs.

Alf A. Lien (Lien) was a lifelong bachelor who farmed land near Brockton for many years. He died in 1991 at the age of 84, leaving an estate of approximately $750,000, which is the subject of this appeal.

Lien executed two wills prepared by different attorneys--one in 1987 and one in 1989. The 1987 will named appellant Berglee as personal representative of the estate and left all his real estate to Berglee. It also left the remainder of Lien's personal property in four equal shares to Berglee, Mrs. Gobbs, and two of Berglee's brothers. Lien had numerous brothers and sisters still living in Norway, where he had emigrated from in the 1920s, and he expressly stated in the will that he was specifically making no bequest or devise to them or any other persons not mentioned in the will.

The 1987 will was brought to Lien's attention by Mrs. Gobbs when Lien and Mr. and Mrs. Gobbs went to a bank so that Lien could get his naturalization papers in order to obtain a passport for a trip to Norway. After Mrs. Gobbs questioned him about that will, Lien remarked many times that it was not what he wanted. After returning from the trip to Norway, Lien executed the second will dated April 11, 1989, leaving all his real and personal property in four equal shares to four first cousins--Mabel Gobbs, Clara Neer, Ingeborg Wallette and Luther Larson. The only restriction in this will was that certain named persons be given the right of first refusal prior to selling any of the real property for a specified period of time following Lien's death. The 1989 will nominated Mrs. Gobbs as personal representative and again expressly devised no property to Lien's brothers or sisters in Norway, with the exception of directing the personal representative to reimburse them for round-trip tickets from Oslo, Norway, to Regina, Canada if they desired to attend Lien's funeral. The second will also expressly revoked the 1987 will.

Berglee attacked the validity of the 1989 will on four separate grounds: (1) Lien was incompetent at the time he executed the will, (2) Lien was a victim of undue influence on the part of Mabel and Howard Gobbs, (3) the will was a product of fraudulent representations, and (4) Lien executed the will under restraint. The District Court granted Mrs Gobbs' motion for summary judgment, finding no factual issues to submit to a jury.

Did the District Court err in granting summary judgment to Mabel Gobbs on any of the four theories presented by Berglee?

Standard of Review

Our standard of review of an order by a district court granting summary judgment is the same as that used by the district court under Rule 56(c), M.R.Civ.P. Morton v. M-W-M, Inc. (1994), 263 Mont. 245, 249, 868 P.2d 576, 578. Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.

The moving party has the initial burden of demonstrating the absence of genuine issues of material fact. Once the movant has met that burden, the burden shifts to the party opposing summary judgment to establish that a genuine issue of material fact exists. Owen v. Ostrum (1993), 259 Mont. 249, 255-56, 855 P.2d 1015, 1019. The non-moving party may not rest upon the allegations or denials in the pleadings nor on speculative, fanciful or conclusory statements. Simmons v. Jenkins (1988), 230 Mont. 429, 432, 750 P.2d 1067, 1069. All inferences that reasonably may be drawn from the offered proof will be made in favor of the party opposing the motion for summary judgment. Owen, 855 P.2d at 1019.

Material issues of fact are identified by looking to the substantive law governing the proceeding. Owen, 855 P.2d at 1019. In this case, we review the record in light of the substantive law governing contests to wills. Section 72-3-310, MCA, provides that contestants of a will have the burden to establish the existence of one of the statutory grounds listed. Of the four theories argued by Berglee, § 72-3-310, MCA, provides that a will may be contested on the basis of three of them--lack of testamentary capacity, fraud and undue influence. There is no provision under Montana statutory or case law to contest a will because of "restraint."

A. LACK OF TESTAMENTARY CAPACITY

The test for determining testamentary capacity was set forth in In the Matter of the Estate of Bodin (1965), 144 Mont. 555, 560, 398 P.2d 616, 619, as follows:

[A] testator is competent if he is possessed of the mental capacity to understand the nature of the act, to understand and recollect the nature and situation of his property and his relations to persons having claims on his bounty whose interests are affected by his will.... The "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 the 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." ... (Citations omitted.)

Testamentary capacity is determined as of the date the will was executed--April 11, 1989 in this case--using the above test from Bodin's Estate, which is now well-established in Montana. See, e.g., In the Matter of the Estate of Jochems (1992), 252 Mont. 24, 29, 826 P.2d 534, 537.

Berglee argues that Lien lacked testamentary capacity at the time he executed the second will in April 1989 because (1) the 1991 death certificate indicates he had Alzheimer's disease, (2) Lien suffered from diabetes which affected his mind, (3) the 1989 will is unnatural as being contrary to what would have been expected of him, (4) he suffered from insane delusions and other physical ailments, (5) his speech was virtually unintelligible, and (6) he was not a usual client of the attorney who prepared the will.

As contestant to the 1989 will, Berglee bears the burden of establishing that Lien lacked testamentary capacity. Section 72-3-310, MCA. To support her claim that Lien was competent when he executed the 1989 will, Mrs. Gobbs submitted numerous affidavits with attachments and the deposition testimony of numerous witnesses which provided evidence that Lien was competent to execute a will in April 1989. Mrs. Gobbs met her burden as the party moving for summary judgment. The burden shifted to Berglee as the non-moving party to present affirmative evidence of a material and substantial nature to raise a genuine issue of fact to defeat her motion. As discussed below, Berglee did not meet this burden.

Vic Koch (Koch), the attorney who prepared the 1989 will, testified extensively by deposition and affidavit. On the day Lien first met with Koch, Lien drove 35 miles from his home north of Brockton to Culbertson, then rode with Howard and Mabel Gobbs to Sidney, and upon their return to Culbertson, drove himself home again. The first time Lien came to Koch's office, they discussed the terms of the will; the second time a week later, Lien executed the will. Lien gave Koch an accurate description of real and personal property which he owned and expressed his wish to make specific provisions for the lessees of his land to have rights of first refusal in the event the real property they leased was sold within a specific time after his death. Lien provided correct names for both lessees, one of whom was Berglee. He was able to roughly plat out his land on a piece of paper to explain to Koch what he desired and how it was then being leased. He provided the full names of eight brothers and sisters in Norway who he wished to exclude from the will other than making a provision for their travel expenses should they desire to attend his funeral. Lien also provided the names of four first cousins as devisees in equal part under the will. Lien expressed his desire to be buried in a specific cemetery. Koch testified that he concluded from his personal discussions with Lien that Lien knew what property he owned, what he wanted to do with his property and who he wanted to receive his property upon his death. Koch verified that Lien had read the document before signing and declared it to be his last will and testament.

Berglee contends that the 1991 death certificate indicates that Lien had Alzheimer's disease and demonstrates lack of testamentary capacity. There is no indication in the record, however, that Lien suffered from this disease in 1989 when he executed his last will. Lien died on July 17, 1991--more than two years after executing the 1989 will. Neither Dr. Mann nor Lien's prior treating physician made any indication in Lien's medical records that this was a concern at that time.

In 1989, he lived alone and cared for his own needs. Although he suffered from mild Parkinson's disease and was unable to legibly write his checks, he handled his own financial and personal affairs, with the exception of having Mrs. Gobbs prepare checks for his signature. Lien's reasons for...