In re Cook

• Decision Date: 22 September 2020
• Docket Number: DA 19-0525
• Citation: 401 Mont. 374,2020 MT 240,472 P.3d 1179
• Parties: In the MATTER OF the ESTATE OF: Daniel COOK, Deceased.
• Court: Montana Supreme Court

401 Mont. 374

472 P.3d 1179

2020 MT 240

In the MATTER OF the ESTATE OF: Daniel COOK, Deceased.

DA 19-0525

Supreme Court of Montana.

Submitted on Briefs: June 10, 2020

Decided: September 22, 2020

For Appellants: Robert A. Terrazas, Dana A. Henkel, Terrazas Henkel, P.C., Missoula, Montana

For Appellee: Donald V. Snavely, Snavely Law Firm, Missoula, Montana

Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 The Cook family appeals following a District Court Order that Dan Cook's Last Will and Testament be confirmed and admitted to probate and that Kim Smith be appointed personal representative of the estate. We affirm.

¶2 We restate the issues on appeal as follows:

Issue One: Whether Kim Smith exceeded her authority under a general Power of Attorney granted to her by Dan Cook.

Issue Two: Whether Dan Cook had the requisite capacity to enter into a valid marriage with Kim Smith shortly before his death.

Issue Three: Whether Dan Cook had the requisite capacity and intent to create and amend a valid will.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Kim and Dan met as teenagers in Missoula and dated throughout most of high school. After high school, Dan moved to Billings and operated a heating and air conditioning business. Kim married and moved to Tennessee with her husband. Kim and Dan stayed in touch and resumed their relationship in 1999. In October 2000, Dan closed his business and moved to Tennessee. In 2001 Dan and Kim moved to Missoula.

¶4 Kim and Dan maintained a relationship from 1999 until his death in 2016. They occasionally discussed marriage but did not co-mingle assets. They shared living expenses but did not closely track these transactions. Kim and Dan maintained separate bank accounts and did not own real property together. Dan actively managed his own assets and did not name Kim as a beneficiary on his financial accounts.

¶5 In January 2016 after a colonoscopy

and subsequent biopsy, Dan was diagnosed with cancer. Kim testified that after they learned Dan had cancer, they began discussions about end-of-life issues and trusts and wills. On February 17, 2016, after receiving a PET scan, Dan learned that his disease was incurable, with a life expectancy of between two weeks and two months. Dan purportedly began talking more about end-of-life issues. He did not have a will or trust.

¶6 As of February 23, 2016, Dan's assets included a First Security Bank checking account naming his father, Wilfred Cook, as the pay-on-death beneficiary; a Money Market Savings Account naming his father, his mother, Bernice Cook, and his brother, Terry Cook, as pay-on-death beneficiaries; a Montana Medical Savings Account naming no beneficiaries; a Health Savings Account; a MetLife Annuity; an SG Long Individual Investment account (RBC) naming his father as beneficiary; an Allianz Variable Annuity; and a TD Ameritrade Investment Account. Dan's father died in 2015, approximately one year prior to Dan's death. Dan's accounts had not been updated with alternate beneficiaries at the time Dan was diagnosed with cancer

.

¶7 In February 2016, Kim began preparing a power of attorney (POA), a will, and a trust for Dan. Kim, who is not licensed to practice law but worked in the finance industry, prepared the will using her own will, her mother's will and trust documents, and templates found online. Kim testified at trial that she and Dan discussed the documents while she worked on them. Kim testified they intended to review the documents with an attorney but "ran out of time."

¶8 On February 22, 2016, Dan signed transfer paperwork to move his TD Ameritrade account to his individual account at SG Long. On February 23, 2016, Dan went to his first chemotherapy appointment. Lab results indicated he should be admitted to the hospital for further evaluation. Dr. Kolendich was asked to consult with Dan. Dr. Kolendich reported that Dan was pleasant, alert, oriented, and answered all questions appropriately. However, after meeting with two other doctors, Dr. Scott and Dr. Seagraves, Dan forwent chemotherapy on that day because he was too sick. Dr. Scott noted that Dan had realistic expectations regarding his prognosis and was preparing for the end of life.

¶9 Dan's medical records from the evening of February 23 indicated that Dan was not confused, disoriented, or demonstrating memory loss at that time. Dan was communicating without difficulty, was awake, alert, and oriented to person, place, and time. Dan's medical records on February 24 reflected that his status remained within defined limits.

At 8:20 a.m., Dr. Scott wrote that, while Dan had had a difficult night due to persistent eructation and abdominal distention, his pain was well controlled, he was emotionally stable, accepted his poor prognosis, and was anxious to complete paperwork in anticipation of the end of life. Dan was provided a nasogastric (NG) tube to help with abdominal distention and burping. Entries in his medical records from between noon and 3:27 p.m. reflect that his speech was clear and coherent, that he was encouraged to walk, and that he used the toilet and brushed his teeth.

¶10 On February 24 between 3:30 and 4:30 p.m., Dan signed a "Durable General Power of Attorney of Daniel E. Cook," the "Last Will and Testament of Daniel E. Cook," and "The Daniel E. Cook Revocable Living Trust dated February 24, 2016." Dan's Will was a "pour over" will, putting everything in the Trust upon Dan's death. Kim was named the personal representative. Dan's Will was not signed by two witnesses. Dan was named as the Primary Trustee during his lifetime while competent. Upon his death or incapacity, Kim was named as the trustee. The Trust named Bernice, Kim, Terry, and James (Dan's other brother) as beneficiaries. Bernice was to receive $3,000 monthly to allow her to live in reasonable comfort in her home until her death or permanent departure from her home. Jim was to receive $50,000. Terry was to receive $250,000. Kim was to receive $300,000 plus monthly dividends and interest earned by the Trust at her discretion. The Trust was to terminate after all payments had been made—upon Bernice's death or permanent vacation of her home.

¶11 Kim and her sister, Michelle Barthelmess, were present when Dan signed the Will, Trust, and POA on February 24 around 3:30 p.m. Kim testified at trial that she checked at the hospital for a notary but none were available, so she called Michelle. Michelle, a notary public, notarized the documents, but she did not assist in or create any of the documents. Dan was purportedly "pushing hard" to complete the documents. Michelle testified Dan was upright in bed and Kim took each document, showed it to Dan, and described what it was. She and Dan discussed the Trust before he signed it. Dan signed one document at a time, Michelle notarized the signature, and then they moved to the next document, signing the POA, Will, and the Trust. Kim testified Dan was in a serious mood and that he was not confused and knew what he was signing. Michelle testified that she stayed until around 5:00 p.m. and that Dan was talkative, conversing normally, and seemed alert. Michelle was not concerned that Dan did not understand what was going on or that he was delusional or confused. Michelle also said Kim was not putting pressure on Dan to sign documents, and if anything, Dan was pressuring Kim to get things done. Michelle testified that she did not perform a "mini-mental exam" on Dan before she notarized the documents he signed. She was not aware of his symptoms and did not ask him what medications he had been taking before notarizing the documents.

¶12 Terry, Dan's brother, testified at trial that he also visited Dan in the hospital on February 24 for an hour to an hour and a half. Terry testified Dan was confused, speaking slowly, had to concentrate on what he was saying, looked jaundiced, was spitting bile in a cup, and acted medicated. His trial testimony was inconsistent with his deposition testimony, in which he had testified that Dan did not seem confused, that he seemed like he was comprehending things normally, and that he understood what he was doing when he discussed his estate plan with Terry. Terry testified at trial that he believed his deposition testimony was inaccurate because he had been confused about what day he talked to Dan and on what day Dan had signed the Trust. The trial court found that, because Terry did not testify consistently about Dan's mental status on February 24 and did not offer a credible explanation for the inconsistency, Terry's statements could not be reconciled and disregarded his testimony as to Dan's capacity on February 24.

¶13 Subsequently, Dan purportedly instructed Kim to move $30,000 into her checking account so she could buy a 4-wheel drive vehicle. Dan also instructed Kim to transfer several pickup trucks he owned into her name. Bernice, Dan's mother, testified that she visited Dan on February 25, that Dan handed her an envelope with $20,000 in it and told her to "[t]ake this." Bernice testified Dan was coherent and did not act confused when he gave her the cash. Dan's medical notes on February 25 indicated Dan was alert and oriented and able to understand and communicate without difficulty.

¶14 Kim testified that on February 26, Dan instructed her to change the beneficiary on his two bank accounts at First Security Bank to the Trust before the weekend. She signed a check using her POA to deposit $150,051.12 from one bank account into his RBC account. Dan continued to stabilize and improve on February 27 and 28. On February 29, Dan quitclaimed property he owned in Florence, Montana, to Kim. Michelle notarized the quitclaim deed. She did not ask Kim to leave the room before notarizing the document or speak to Dan alone or ask what medications he was taking. Dan's medical records for February 29 reflect that he continued to understand and communicate without difficulty.

¶15 On March 1, Dan had a reaction to Ativan

and expressed symptoms of...