Guardianship and Conservatorship of Lanning, 19895

• Decision Date: 04 June 1997
• Docket Number: No. 19895,19895
• Citation: 1997 SD 81,565 N.W.2d 794
• Parties: In the Matter of the GUARDIANSHIP AND CONSERVATORSHIP OF Ursula LANNING, a Person In Need of Protection. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 794

565 N.W.2d 794

1997 SD 81

In the Matter of the GUARDIANSHIP AND CONSERVATORSHIP OF Ursula LANNING, a Person In Need of Protection.

No. 19895.

Supreme Court of South Dakota.

Considered on Briefs June 4, 1997.

Decided July 9, 1997.

Paul S. Swedlund and Patrick G. Goetzinger of Gunderson, Palmer, Goodsell & Nelson, Rapid City, for Appellant Cathey Children.

Randall L. Macy of Buckmaster and Macy Belle Fourche, for Appellee Pioneer Bank & Trust, Conservator for Ursula Lanning.

GILBERTSON, Justice.

¶1 The Cathey children appeal from an order denying the petition of their mother, Ursula Lanning, to make a new will and to amend her existing trust, and finding lack of testamentary capacity and undue influence. We affirm.

FACTS AND PROCEDURE

¶2 Ursula Lanning had 12 children from two marriages. Ten children were born of her first marriage to John Cathey, but one child predeceased her. She has two children from her current marriage to Edward Lanning. Mrs. Lanning did not raise the youngest Cathey children. The older Cathey children petitioned for custody and raised the youngest children themselves.

¶3 In January, 1996, at the time of the hearing for guardianship and conservatorship, Mrs. Lanning was 87 years old. She lived with her husband in a mobile home one mile outside Belle Fourche. Neither of the Lannings was in good health; Mrs. Lanning was recovering from colon cancer surgery, and Mr. Lanning was suffering from congestive heart failure. A housekeeper was paid to come in 40 hours a week to see to the daily needs of the couple. The Lannings' daughter, Sherry, lived nearby.

¶4 Mrs. Lanning and her first husband raised sheep on their ranch in Montana. Upon his death, each of the Cathey children inherited a share of the ranch from their father's estate. Mrs. Lanning eventually gifted the widow's share she received to the children of her second marriage.

¶5 Edward Lanning owned a ranch in Montana where the couple lived until ill health forced them to move to South Dakota to be near their daughter. The Lannings received royalties for oil on the property in Montana, and at the time of the hearing in this matter, the value of their combined assets was in the neighborhood of $2 million.

¶6 In 1984, Mrs. Lanning had executed a will leaving the bulk of her estate to the Lanning children. In 1993, due to the size of their assets and upon the advice of their accountant, the Lannings began estate tax planning. Edward Lanning gifted property to his wife in an attempt to equalize their estates for federal estate tax purposes. The property was placed into trust. ¹ Testimony at hearing indicated that the Lannings were aware that Edward Lanning could have placed restrictions on Mrs. Lanning's right to convey the property to the children of her first marriage, but no such restrictions were imposed. Nonetheless, Mrs. Lanning's 1984 will and the 1994 trust contained identical dispositive provisions: upon Mrs. Lanning's death, each Cathey child would receive $1,000, and the rest of the estate would be divided equally between the two Lanning children.

¶7 In November 1995, Danny Lanning petitioned for temporary guardianship of his mother. ² Pioneer Bank & Trust, which had been the Lannings' bank for some 40 years, was named as temporary conservator of Mrs. Lanning's estate. In January 1996, during the pendency of the proceedings for appointment of a permanent guardian and conservator, Mrs. Lanning executed a new will which was a 180-degree reversal of her former will. The new will gave each of the Lanning children $1,000, and gave the remainder of her $1 million estate in equal shares to the Cathey children.

¶8 Following its appointment as permanent conservator, Pioneer Bank moved to revoke the January 1996 will. ³ In April 1996, Mrs. Lanning had a third attorney prepare a new will and petition the court to allow her to amend the provisions of her trust to conform to the testamentary disposition in the new will. ⁴ Under this proposal, all of Mrs. Lanning's children would get an equal share of the estate. Following a hearing, the trial court determined that the January 1996 will was invalid and the petition to execute a new will and amend the trust should be denied because Mrs. Lanning lacked testamentary capacity and had been subjected to undue influence. The Cathey children appeal, raising the following issues:

1. Whether the trial court erred in finding that Mrs. Lanning lacked the testamentary capacity to make the proposed April 1996 will and amendments to the trust?

2. Whether the trial court erred in finding that Mrs. Lanning was subject to continuing undue influence invalidating the proposed April 1996 will and amendments to the trust?

STANDARD OF REVIEW

¶9 We review a trial court's findings of lack of testamentary capacity and undue influence under the clearly erroneous standard of review, and we give due regard to the trial court's opportunity to judge the credibility of witnesses. In re Estate of Elliott 537 N.W.2d 660, 662 (S.D.1995); In re Estate of Linnell, 388 N.W.2d 881, 883 (S.D.1986).

Under the clearly erroneous standard, the question for this Court is not whether we would have made the same findings that the trial court did, but, whether on the entire evidence, we are left with a definite and firm conviction that a mistake has been committed. That this Court may have found the facts differently had we heard the testimony is no warrant for us to substitute our judgment for the trial court's carefully considered findings.

Id. (internal citations and quotations omitted). We review documentary evidence de novo. Elliott, 537 N.W.2d at 662.

LEGAL ANALYSIS AND DECISION

¶10 1. Whether the trial court erred in finding that Mrs. Lanning lacked the testamentary capacity to make the proposed April 1996 will and amendments to the trust?

¶11 Under our law, anyone over the age of 18 years who is of sound mind may make a will. SDCL 29A-2-501. We have defined "sound mind" for purposes of testamentary capacity as follows:

One has a sound mind, for the purposes of making a will, if, without prompting, he is able 'to comprehend the nature and extent of his property, the persons who are the natural objects of his bounty and the disposition that he desires to make of such property.' In re Estate of Podgursky, 271 N.W.2d 52, 55 (S.D.1978). Soundness of mind, for the purpose of executing a will, does not mean 'that degree of intellectual vigor which one has in youth or that is usually enjoyed by one in perfect health.' Petterson v. Imbsen, 46 S.D. 540, 546, 194 N.W. 842, 844 (1923). Mere physical weakness is not determinative of the soundness of mind, In re Estate of Anders, 88 S.D. 631, 636, 226 N.W.2d 170, 173 (1975); and it is not necessary that a person desiring to make a will 'should have sufficient capacity to make contracts and do business generally nor to engage in complex and intricate business matters.' Petterson, 46 S.D. at 546, 194 N.W. at 844.

In re Estate of Burk, 468 N.W.2d 407, 409 (S.D.1991) (quoting Linnell, 388 N.W.2d at 883-84) (emphasis added).

Testamentary capacity cannot be determined based on a single moment in time, but rather is based on consideration of the condition of the testator's...