In re Dokken

• Decision Date: 19 January 2000
• Docket Number: No. 20856.,20856.
• Parties: In the Matter of the ESTATE OF Gilbert DOKKEN, Deceased.
• Court: South Dakota Supreme Court

604 N.W.2d 487

2000 SD 9

In the Matter of the ESTATE OF Gilbert DOKKEN, Deceased.

No. 20856.

Supreme Court of South Dakota.

Argued October 20, 1999.

Decided January 19, 2000.

Reed C. Richards of Richards and Richards, Deadwood, South Dakota, Attorneys for appellant Lee Thomas.

Keith R. Smit and Candi Thomson, The Morman Law Firm, Sturgis, South Dakota, Attorneys for appellee Estate.

GILBERTSON, Justice.

[¶ 1.] Lee Thomas (Thomas), contestant, appeals the trial court's order admitting his great-uncle's last will and testament to probate and denying his objections. We affirm.

FACTS

[¶ 2.] Gilbert Dokken (Dokken) died August 23, 1997 at the age of 82. He was survived by his sister, Myrtle Cross (Myrtle) and his grandnephew, Thomas.

[¶ 3.] Dokken was born on October 17, 1915 in North Dakota. He worked on his father's farm near Towner, North Dakota until he entered the army, where he was educated as an aircraft armorer. Dokken was honorably discharged as a corporal from the Army in 1945 at which time he returned to the Towner area. In 1948, Dokken was diagnosed with dementia praecox paranoid type, and was placed under the care of the Veterans Administration at its Fort Meade Hospital. In addition to the dementia praecox, in 1956 Dokken was diagnosed with schizophrenia. At this time, the Department of Veterans Affairs (VA) determined Dokken to be incompetent for VA purposes.

[¶ 4.] From 1948 until his death, Dokken spent many years both in institutional and residential supervised care. In 1967 Dokken's brother, Melvin Dokken, was appointed his VA guardian in North Dakota. In 1972 Dokken was placed in foster home care near Spearfish, South Dakota under the Community Home Care Program of Fort Meade. He remained at the foster home until his death. From 1978 through November of 1985, the foster home was owned and operated by Douglas and Mickaela Hyde.

[¶ 5.] From the late 1970s until Dokken's death, VA social workers visited with him and other VA officials made yearly field examinations of his mental and financial status. Dokken suffered primarily the negative symptoms of schizophrenia evidenced by social isolation, limited interpersonal relationships, and withdrawal. He often refused to converse with or answer questions from people he did not know and trust. Although quiet by nature and because of his mental status, he would readily converse in a responsive manner with those he knew well and trusted, such as the Hydes and the other veterans who resided at the Hyde home. He readily kept up on the events of the outside world by frequent watching of television and regularly reading newspapers and magazines.

[¶ 6.] Dokken's brother Melvin passed away in 1981. On December 2, 1982, Dokken's brother-in-law, Kenneth Cross (Kenneth), was appointed VA guardian in South Dakota. Kenneth remained Dokken's guardian until 1988 when First Bank of South Dakota was appointed as successor guardian.

[¶ 7.] In late 1984 or early 1985, Dokken told the Hydes he wished to go to his hometown of Towner, North Dakota, to view the family farm and to have the Dokken family attorney, Joseph McIntee (McIntee), make his will. The Hydes promptly relayed this request to the Crosses. There was a substantial delay in complying with Dokken's wishes until July 1985 when the Crosses arrived at Spearfish from their home in Washington for their annual visit with Dokken. The Crosses drove Dokken to Towner and on July 12, 1985, McIntee drafted and Dokken executed, Dokken's last will and testament.

[¶ 8.] Dokken's will left his entire estate of over $400,000 to Myrtle.¹ If Dokken's will had not been executed, contestant Thomas would have inherited one-half of Dokken's estate by intestate succession. Thomas objected to the will claiming Dokken lacked the testamentary capacity to execute it. Thomas also claimed undue influence was exerted upon Dokken by the Crosses. The trial court found insufficient evidence to establish lack of testamentary capacity or undue influence. Finally, Thomas objected to the testimony of the Crosses' expert, Dr. Stephen Manlove, which was allowed by the trial court. Dr. Manlove relied upon the principles of forensic psychiatry to determine Dokken was mentally competent to execute a will. On January 5, 1998, the Eighth Judicial Circuit, Lawrence County, ordered admission of Dokken's will to formal probate.

[¶ 9.] Thomas appeals the trial court's decision, raising the following issues for our consideration:

1. Was the trial court clearly erroneous in finding Thomas failed in his burden of proof to establish Dokken lacked testamentary capacity to execute a will on July 12, 1985.

2. Was the trial court clearly erroneous in finding Thomas failed in his burden of proof to establish Dokken was unduly influenced in executing his will dated July 12, 1985.

3. Did the trial court abuse its discretion in admitting the expert testimony of Dr. Stephen Manlove.

STANDARD OF REVIEW²

[¶ 10.] We review a trial court's findings as to testamentary capacity under the clearly erroneous standard. Matter of Estate of Long, 1998 SD 15, ¶ 9, 575 N.W.2d 254, 255 (citing In re Guardianship and Conservatorship of Lanning, 1997 SD 81, ¶ 9, 565 N.W.2d 794, 795). Likewise, the issue of whether undue influence exists is a question of fact for the trial court to determine. Matter of Estate of Unke, 1998 SD 94, ¶ 11, 583 N.W.2d 145, 147-48 (citing In re Estate of Madsen, 535 N.W.2d 888, 891 (S.D.1995)). In Unke, we stated:

We will not set aside a trial court's findings of fact unless they are clearly erroneous. In re Estate of Elliott, 537 N.W.2d 660, 662 (S.D.1995) (citing SDCL 15-6-52(a); In re Estate of Till, 458 N.W.2d 521, 523 (S.D.1990); In re Estate of Weickum, 317 N.W.2d 142, 145 (S.D.1982); In re Estate of Hobelsberger, 85 S.D. 282, 289, 181 N.W.2d 455, 458 (1970)). A trial court's finding is clearly erroneous if, "after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been made[.]" Id. (citations omitted). All conflicts in the evidence must be resolved in favor of the trial court's determinations. Till,458 N.W.2d at 523. "The credibility of the witnesses, the weight to be accorded their testimony, and the weight of the evidence must be determined by the trial court and we give due regard to the trial court's opportunity to observe the witnesses and the evidence." Elliott,537 N.W.2d at 662. We review any documentary or deposition evidence under a de novo standard of review. Id.

Id. "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." Long, 1998 SD 15, ¶ 9, 575 N.W.2d at 256 (quoting Lanning, 1997 SD 81, ¶ 9, 565 N.W.2d at 796).

[¶ 11.] In State v. Edelman, 1999 SD 52, ¶ 4, 593 N.W.2d 419, 421, we stated:

Expert testimony admissibility is governed by SDCL 19-15-2 (Rule 702). It is well settled that the trial court has broad discretion in regard to the admission of expert testimony. State v. Bachman, 446 N.W.2d 271 (S.D.1989); United States v. Purham, 725 F.2d 450 (8 thCir1984). Absent a clear showing of abuse of discretion, the trial court's decision will not be reversed. State v. Logue, 372 N.W.2d 151 (S.D.1985).

ANALYSIS AND DECISION

[¶ 12.] 1. Was the trial court clearly erroneous in finding Thomas failed in his burden of proof to establish Dokken lacked testamentary capacity to execute a will on July 12, 1985.

[¶ 13.] SDCL 29A-2-501 provides: "[a]n individual eighteen or more years of age who is of sound mind may make a will." Sound mind, for purposes of testamentary capacity, has been defined as:

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 purposes 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.

Long, 575 N.W.2d at 257-58 (emphasis in original) (other citations omitted).

[¶ 14.] The fact a guardian has been appointed to take care of a testator's estate does not, by itself, invalidate a will because of lack of testamentary capacity. Id. at 258 (citing In re Estate of Hastings, 347 N.W.2d 347, 350 (S.D.1984)). In addition, "the fact that a testator is ill or suffering from a disease does not necessarily prevent that testator from possessing testamentary capacity." Id. (citing In re Estate of Linnell, 388 N.W.2d 881, 884 (S.D.1986)). The testator may lack mental capacity to such an extent that according to medical science he is not of sound mind and memory, and nevertheless retain the mental capacity to execute a will. Podgursky,271 N.W.2d at 57 (citing Keely v. Moore, 196 U.S. 38, 25 S.Ct. 169, 49 L.Ed. 376 (1904)). "Testamentary capacity is not determined by any single moment in time, but must be considered as to the condition of the testator's mind a reasonable length of time before and after the will is executed." Long,575 N.W.2d at 258 (citing Lanning, 1997 SD 81, ¶ 11,565 N.W.2d at 796 (citing In re Estate of Nelson, 330 N.W.2d 151, 155 (S.D.1983))).

[¶ 15.] Thomas claims Dokken could not talk about his estate, heirs and the disposition of his estate "without prompting."³ Thomas points to the testimony of Robert...