Evans v. Stirewalt, 26322.
| Decision Date | 31 March 2005 |
| Docket Number | No. 26322.,26322. |
| Citation | 158 S.W.3d 910 |
| Parties | Dudley EVANS, Wanda Jackson, Thelma Dotson, Jewell Millard, Sally Ann Epperson, Shirley Evans, Ronnie Evans, Harold Evans, and Glen Evans, Plaintiffs-Respondents, v. Judy STIREWALT, Janet Webster, Vivian Cole, and Carl Evans, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Timothy D. Richardson, Springfield, for appellants.
Philip J. Metz, Joplin, for respondents.
This is a will contest case. The trial court ruled Amy Carlisle ("Amy") lacked testamentary capacity to make a will and, therefore, was deemed to have died intestate.1 The proponents of the will ("Defendants") appeal.2 This court affirms.
In a court-tried will contest case, appellate review is governed by Rule 84.13(d).3 We are obliged to affirm the trial court's judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Moyer v. Walker, 771 S.W.2d 363, 365[2] (Mo.App.1989) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976)).4
As to issues of fact, we exercise the power to set aside a judgment because it is against the weight of the evidence "with caution" and only when we have a "firm belief that the decree or judgment is wrong." Murphy, 536 S.W.2d at 32. "The mere existence of evidence from which another conclusion might have been reached is not enough to demonstrate that the holding of the trial court is contrary to the weight of the evidence." Moyer, 771 S.W.2d at 365-66[3]. All evidentiary conflicts are for the trial court to resolve, and we take the facts according to the result reached. Id. In the same vein, we defer to the trial court's determination of witness credibility and recognize that the court is free to accept or reject all, part, or none of the testimony presented. Christian Health Care v. Little, 145 S.W.3d 44, 48[5] (Mo.App.2004); Cockrum v. Cockrum, 550 S.W.2d 202, 205[2] (Mo.App.1977).
The following summary of the evidence heeds the principles set out above. The challenged will was prepared by attorney James Fleischaker ("Fleischaker"). Amy, born January 31, 1914, signed the will August 10, 2000. At the time, Amy was widowed — her husband of many years died May 1998 — and she had no children or other lineal descendants. Her nearest relatives were nephews, nieces, grandnephews, and grandnieces.
Amy's August 10 will (the contested one) was the last of fourteen wills (plus one codicil) prepared for Amy between May 20, 1998, and August 10, 2000. All made differing dispositions of her property, including bequests and devises to persons other than her nephews, nieces, or their descendants. These documents and testimony from lawyers who prepared them showed Amy had a history (after her husband died) of befriending people, asking for their help, making provisions for such persons via wills and codicils, giving them powers of attorney, and then quickly turning against them and revoking the wills and other documents.5
In April 2000, Amy fell in her garage and lay there for several hours before she was discovered. As a result, she was hospitalized. While there, Amy asked lawyer Tomie Kay Parsons ("Parsons") to visit her.6 Parsons was a neighbor and visited in Amy's home on occasion. She also drafted four wills and some powers of attorney for Amy between May 1998 to April 1999.
Parsons testified she had witnessed Amy's "mental state" progressively deteriorate after 1998. Parsons' visit with Amy at the hospital in April 2000 convinced her that Amy lacked testamentary capacity; consequently, she refused Amy's request to prepare another will.
Once Amy left the hospital in April 2000, she consulted another lawyer, Max Glover ("Glover"), regarding will preparation.7 On May 9, 2000, Glover prepared a will for Amy that divided her estate equally between the Salvation Army and the American Heart Association. By the very next day, Amy had changed her mind and asked Glover to make a will with three money bequests ($5000 to niece Vivian Cole, $5000 to niece Judy Stirewalt and $5000 to a mentally handicapped acquaintance who lived in the neighborhood). Via the May 10 will, Amy left the rest of her estate to Richard Dooley, a neighbor who had recently begun doing chores for her.
One day later, Amy again contacted Fleischaker about another will. Through the May 11 will, she bequeathed $5000 to her mentally disabled friend, $5000 to niece Vivian Cole, and willed the remainder of her estate to Richard Dooley and his wife. Amy told Fleischaker she had arranged to buy a modular home for the Dooleys, the home was to be moved onto her property, and the Dooleys were then going to help take care of her. This will was signed May 18. As a part of this plan, Amy made a beneficiary deed to Dooley for her real estate on May 23, 2000.
In late May or early June 2000, Amy's grandniece (Judith Brand) petitioned the probate court to have a guardian and conservator appointed for Amy. This was prompted by Amy's May 18 will, her purchase of the modular home for the Dooleys, and the preparations for moving the modular home onto Amy's property.8
The guardianship/conservatorship hearing was held July 26, 2000, and Amy was represented by Parsons (as Amy's court-appointed attorney) and Fleischaker (hired by Amy). Amy testified as did the applicant and another family member, Janet Webster (another grandniece). Medical testimony came, in part, via a letter from Dr. Browning, Amy's most recent family physician. Therein, he opined Amy's dementia and cardiovascular disease incapacitated her to the point she needed a guardian and conservator.
Additionally, the court considered reports from Dr. Kory, a board-certified psychiatrist. He diagnosed Amy with "bipolar disorder, manic, with psychotic features" and concluded that a guardian and conservator should be appointed for Amy.
When Dr. Kory was later deposed in the will contest case, he provided additional details not found in his written report that was put in evidence at the probate court hearing. Specifically, he explained he first saw Amy in late May 1998 after her husband died. His initial diagnosis was "major depression with associated anxiety." He started her on a regimen of antidepressant medications. Dr. Kory monitored Amy until October 1998, during which time he changed and adjusted her medications. Amy stopped seeing Dr. Kory.
When Amy finally returned to Dr. Kory's office in early May 2000, he learned she was no longer taking the medications prescribed in 1998. Moreover, there were now family concerns that Amy might need a guardian and conservator. He again prescribed an antidepressant medication for Amy and scheduled another visit with her for June 27, 2000. He cautioned, however, that he anticipated "her compliance would be quit [sic] poor."
When Amy returned to Dr. Kory on June 27, he observed unusual speech patterns and behavior. He concluded Amy was suffering from a "bipolar disorder, manic with psychotic features." From his observations of Amy9 and a review of Amy's recent conduct,10 Dr. Kory concluded Amy could not "understand the ordinary affairs of her life," or "make decisions in her best interest," or "intelligently appreciate who her heirs would be and what she should do with her finances concerning those people." He opined that a manic stage (such as he saw in Amy on June 27) could go on for weeks, months, sometimes longer, and if she did not take the prescribed medication her symptoms would continue.
Although Dr. Kory did not know if Amy took the medication prescribed on June 27 as she never kept her next scheduled appointment, he had read the report of another psychiatrist who visited with Amy in December 2000. That record revealed (a) Amy was not on the medication Dr. Kory prescribed in June 2000 and (b) many of Amy's symptoms in December 2000 were the same or worse than those Dr. Kory noted in June 2000.
At the conclusion of the July 26, 2000, probate hearing, the judge announced the appointment of two family members as guardians for Amy and appointed the public administrator as conservator. In doing so, he voiced concerns about how to handle the modular home and beneficiary deed issues, i.e., how to handle those transactions.11
On August 4, 2000 (ten days after the probate court adjudication), Amy again met with Fleischaker to make another will. He made notes of her wishes and prepared a new will, and on August 10, 2000, Amy signed the will that underlies the filing of this will contest. Amy died March 23, 2002, whereon this suit was filed.
On May 17, 2004, the trial court ruled that Amy lacked testamentary capacity on the day she signed the subject will. Accordingly, the court set aside the will and declared that Amy died intestate. This appeal followed.
Defendants' single point relied on urges reversal on the premise that Plaintiffs evidence was not sufficient to overcome the presumption that Amy had sufficient testamentary capacity to make a valid will.
In the argument part of their brief, Defendants point out that Amy was only placed under a limited guardianship and conservatorship. See note 11. Based on that, they insist the rule of law enunciated in Milum v. Marsh ex rel. Lacey, 53 S.W.3d 234 (Mo.App.2001)12, attends here, and that the principles of Hugenel v. Estate of Keller, 867 S.W.2d 298 (Mo.App.1993), are inapplicable.13 However, we need not decide whether the limited features of the guardianship and conservatorship trigger the Milum rule or Hugenel rule. This is so because the trial court ruled that "Plaintiffs bore the burden" of proving Amy lacked testamentary capacity (thus implicitly adopting the Milum rationale), yet no one challenged that ruling on appeal. More than that, the court found Plaintiffs presented sufficient substantial evidence to overthrow the prima facie case and prove Amy lacked testamentary...
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