Estate of Niquette, In re

• Decision Date: 16 August 1968
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the ESTATE of Fred M. NIQUETTE, Deceased. Frances GRINNAN, Contestant and Appellant, v. George H. NIQUETTE; Shriners' Hospital for Crippled Children; Barbara Jean Rounds; Patricia Mitchell, Respondents. Civ. 32302.

Page 83

71 Cal.Rptr. 83

264 Cal.App.2d 976

In the Matter of the ESTATE of Fred M. NIQUETTE, Deceased.

Frances GRINNAN, Contestant and Appellant, v. George H. NIQUETTE; Shriners' Hospital for Crippled Children; Barbara Jean Rounds; Patricia Mitchell, Respondents.

Civ. 32302.

Court of Appeal, Second District, Division 1, California.

Aug. 16, 1968.

Johnson, Robertson, O'Sullivan & Ladenberger, and Don A. Ladenberger and Victor A. Gorham, Los Angeles, for appellant.

Bernard B. Laven, Los Angeles, for respondent George H. Niquette.

A. G. Ritter, Los Angeles, for respondent Shriners' Hospital for Crippled Children.

LILLIE, Associate Justice.

The will of Fred M. Niquette named his brother George (respondent herein) executor and bequeathed him all of his estate except $500 to the Shriners' Hospital for Crippled Children. Contest was filed by a sister Frances Grinnan (appellant herein) and two nieces. The main ground of contest set up by Frances, on information and belief, is that the will was executed as a 'direct result of the undue influence of George H. Niquette' in that George and decedent were brothers and both were directors and officers of Niquette's, Inc.; George actively assisted decedent, who was in poor health because of surgery, in the performance of his duties as president and director of the corporation, was decedent's constant business and social companion and enjoyed a confidential relationship with decedent; and George was active in the procurement of the will which, she 'is informed and believes, substantially changed a prior testamentary plan of decedent pursuant to which (she) was a substantial beneficiary of decedent's estate.' Answers were filed and George moved for summary judgment (§ 437c, Code Civ.Proc.) to dismiss the contest. The motion was heard on declarations and granted. Frances appeals from the judgment.

Fred M. Niquette died on December 18, 1966, leaving no surviving direct heirs, only collateral heirs--George, a brother, Frances, a sister, and two nieces (daughters of a deceased sister); he executed his will on September 22, 1965, and in addition to naming respondent executor and bequeathing him most of his estate, he provided, 'I have intentionally omitted to provide herein for any of my heirs, * * * particularly my surviving sister, FRANCES GRINNAN, who I have adequately provided for outside of this Will.' According to his counterdeclaration in support of the motion, Bernard B. Laven had known decedent since 1929 and had been attorney for Niquette's, Inc., since 1939; he prepared not only this will (September 22, 1965) for decedent but other wills; the sole direction in the preparation of the will was given to him by decedent and he prepared it in accord with his (decedent's) instructions; at no time prior to the preparation and execution of the will was there any discussion with respondent; decedent advised him he was changing the beneficiary on two insurance policies in the total sum of $10,000 from respondent to Frances and he (decedent) felt that this was adequate provision for Frances in exchange for bequeathing all of his stock in Niquette's, Inc.

A review of portions of her deposition and response to request for admissions reveals that Frances is unable to say what the acts of undue influence were and does not know of any acts of respondent in instructing or advising decedent to make the devises and bequests contained in his will or whether respondent knew of the terms of the will until after the death of decedent; does not know what facts she is going to allege when she takes the witness stand in court and knows of no person who was present or heard a conversation between respondent and decedent about the will; knew nothing about the execution of the will until after decedent died; knows nothing concerning how it came about that decedent changed his will or when he formed his intention to do so and knows nothing about instructions given to the attorney to change the will--she was not present, does not know who was present, does not know whether respondent gave any instructions to decedent as to how the will was to be drawn and does not know any person who knows that respondent gave instructions to the attorney or to decedent to eliminate her as a beneficiary under the will; knows respondent took decedent to and was with him in the office of William W. Lewis but does not know whether respondent knew the contents of the will but 'surmised' he did. Frances claims that the acts of undue influence were 'through constant companionship and influence over Fred (decedent)' but does not know what the acts of undue influence were or if respondent suggested decedent change his will or did any act in instructing or advising him; and that respondent was the constant business and social companion of decedent with whom the enjoyed a confidential relationship, decedent was in poor physical health and respondent assisted him in the performance of his duties as president of the corporation.

Appellant's contention that the trial court erred in granting the motion for summary judgment is predicated chiefly on her argument that by counterdeclaration she asserted a confidential relationship existing between respondent and decedent and other facts giving rise to a presumption of undue influence which placed on respondent the burden of rebutting the same at a trial.

'A summary judgment is proper only if (1) the affidavits in support of the moving party are sufficient, strictly construed, to sustain a judgment in his favor and (2) the affidavits filed by the opponent, liberally construed, do not show facts deemed by the judge hearing the motion sufficient to present a triable issue. (Code Civ.Proc., § 437c; Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 417--418(1--7), 42 Cal.Rptr. 449, 398 P.2d 785.)

'As pointed out in Stationers Corp. v. Dun & Bradstreet, Inc., supra, 62 Cal.2d 412, 417(3), 42 Cal.Rptr. 449, 398 P.2d 785, 'The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial. '' (Towne Development Co. v. Lee, 63 Cal.2d 147, 148, 45 Cal.Rptr. 316, 317, 403 P.2d 724, 725; see also Wilson v. Bittick, 63 Cal.2d 30, 34--35, 45 Cal.Rptr. 31, 403 P.2d 159.)

Liberally construed, the counterdeclarations on behalf of contestant fail to show facts sufficient to present a triable issue; and those declarations in support of the motion, strictly construed, are sufficient to sustain a judgment in respondent's favor. Not one fact stated by Frances in her deposition, response to request for admissions or counterdeclaration establishes any act of undue influence or that there had been any pressure exerted by respondent or anyone else that overpowered the mind of decedent or that at the time of making his will his mind was subjugated to and dominated by respondent's desires and designs or that respondent did any act in procuring the will; she in fact conceded that she has no personal knowledge of any such undue influence and knows of no one who could testify to such effect. It is clear from her own words that on the witness stand in a trial she would be unable to state anything further in support of her claim of undue influence. 'A will cannot be overturned on the mere speculation or suspicion that undue influence may have been used to procure it. (Estate of Gleason, 164 Cal. 756, 765 (130 P. 872); Estate of Welch, 43 Cal.2d 173 (272 P.2d 512).)' (In re Estate of Trabucco, 192 Cal.App.2d 643, 646, 13 Cal.Rptr. 468, 470; In re Estate of Robbins, 172 Cal.App.2d 549, 554, 342 P.2d 933.) Similarly in Re Estate of Nelson, 227 Cal.App.2d 42, 38 Cal.Rptr. 459, contestant "admitted that her allegation of undue influence was based upon only supposition and that she had no personal knowledge about it * * *." (p. 48, 38 Cal.Rptr. p. 463); the court affirmed a summary judgment denying revocation of probate of a will and dismissed the contest.

The undue influence that compels invalidation of a will must be influence used directly to procure its execution and 'must 'destroy the testator's free agency and substitute for his own another person's will.' (In re Estate of Arnold (1940) 16 Cal.2d 573, 577, 107 P.2d 25, 27.) 'Evidence must be produced that pressure was brought to bear directly upon the testamentary act. * * * (the influence) must amount to Coercion destroying free agency on the part of the testator.' (In re Estate of Arnold, supra, at p. 577, 107 P.2d 25; In re Estate of Welch (1954) 43 Cal.2d 173, 175, 272 P.2d 512; In re Estate of Lingenfelter, supra (1952, 38 Cal.2d 571, 241 P.2d 990.) '(T)he circumstances must be Inconsistent with voluntary action on the part of the testator' (In re Estate of Welch, supra, 43 Cal.2d at p. 178, 272 P.2d (512) at p. 515); and '(the) mere opportunity to influence the mind of the testator, even coupled with an interest or a motive to do so, is not sufficient' (Estate of Welch, supra, at p. 175, 272 P.2d (512) at p. 514.).' (In re Estate of Fritschi, 60 Cal.2d 367, 373--374, 33 Cal.Rptr. 264, 268, 384 P.2d 656, 660; In re Estate of Goetz, 253 Cal.App.2d 107, 115--116, 61 Cal.Rptr. 181; In re Estate of Nelson, 227 Cal.App.2d 42, 57--59, 38 Cal.Rptr. 459; In re Estate of Wright, 219 Cal.App.2d 164, 168--169, 33 Cal.Rptr. 5; In re Estate of Trabucco, 192 Cal.App.2d 643, 646, 13 Cal.Rptr. 468.)

It is not sufficient for a contestant to merely show circumstances consistent with the exercise of undue influence (In re Estate of Fritschi, 60 Cal.2d 367, 373, 33 Cal.Rptr. 264, 384 P.2d 656; In re Estate of Trabucco, 192 Cal.App.2d 643, 646, 13 Cal.Rptr. 468), that the proponent of the will and the testator were brothers (In re Estate of Welch, 43 Cal.2d 173, 178, 272 P.2d 512; In re Estate of Ferris, 185 Cal.App.2d 731, 736, 8 Cal.Rptr. 553) and that they were close social and business associates. Influence gained by kindness, gratitude or affection will not...