In re Estate of Herbert

• Decision Date: 15 April 1999
• Docket Number: No. 16291.,16291.
• Citation: 979 P.2d 39,90 Haw. 443
• Parties: In the Matter of the ESTATE OF Carmen Corrine HERBERT, Deceased.
• Court: Hawaii Supreme Court

979 P.2d 39

90 Haw. 443

90 Hawai`i 443

In the Matter of the ESTATE OF Carmen Corrine HERBERT, Deceased.

No. 16291.

Supreme Court of Hawai`i.

March 17, 1999.

As Amended on Denial of Reconsideration April 15, 1999.

Arthur B. Reinwald, (Michael J. McGuigan, with him on the brief) of Reinwald O'Connor Marrack Hoskins & Playdon, on the briefs, Honolulu, for Petitioner-Proponent-Appellant Hanno Soth.

Carroll S. Taylor, Kimo C. Leong, and Gregory W.K. Chee, on the briefs, Honolulu, for Respondent-Contestant-Appellee First Church of Christ Scientist, Honolulu.

MOON, C.J., LEVINSON, NAKAYAMA, and RAMIL, JJ. and Circuit Judge SOONG, in place of KLEIN, J., recused.

Opinion of the Court by RAMIL, J.

We granted petitioner-proponent-appellant Hanno Soth's application for a writ of certiorari with respect to the Intermediate Court of Appeals' (ICA) decision in In re Estate of Herbert, No. 16291, slip op., 1997 WL 123563 (Ct.App.Haw. March 18, 1997).

It is apparent from the arguments of the parties and the ICA's decision that the bulk of our case law regarding the relevant law of wills is nearly a century old. We take this opportunity to clarify and affirm the antiquated body of the Hawai`i law of wills and the principles established therein. With particular regard to the instant case, we disagree with the ICA's legal reasoning regarding the scope of character evidence admissible to establish a disposition to exert undue influence over a testator or testatrix in the execution of a will, and we agree, in part, with the evidentiary concerns raised by Judge Simeon Acoba in his dissenting opinion.

Therefore, we affirm for different reasons.

I. FACTUAL BACKGROUND

Carmen Corrine Herbert died on July 4, 1990, at approximately 85 years of age. The next day, on July 5, 1990, Hanno Soth, a 26-year-old Canadian citizen, filed a petition to probate Carmen's third and final will, dated December 20, 1989 (the "1989 Will"). A jury, however, denied probate of the 1989 Will on April 23, 1992, on the bases that Carmen lacked the requisite testamentary capacity for its execution, was mistaken about its contents, and was unduly influenced in its execution.

The record on appeal reveals that Soth managed Carmen's financial affairs from December 1989 until the time of her death. For example, Carmen executed a general power of attorney in favor of Soth on December 18, 1989. Soth organized Carmen's bills on his computer, issued computerized checks to pay them, and was authorized to buy, sell, and withdraw funds and securities on her behalf. Soth sought legal advice for Carmen and assisted her in attending doctor visits and taking prescribed blood pressure medication, in addition to accepting her handwritten notes explaining her desire to stop taking her medication and acceding to those desires. Soth also drafted the 1989 Will for Carmen, was present when it was executed at the Kaimuk&imacr Branch of First Hawaiian Bank, and was named as the personal representative and residuary legatee of the 1989 Will, potentially receiving over $1.5 million dollars. Soth's July 5, 1990 petition to probate the 1989 Will invoked the immediate objection of respondent-contestant-appellee First Church of Christ Scientist, Honolulu (First Church), the residuary legatee of Carmen's second will, which was executed on September 8, 1988 (the "1988 Will").¹

Jury trial commenced on March 30, 1992. In support of its objections to the 1989 Will, First Church adduced the testimony of several witnesses, including Betty Pettus, Richard Mirikitani, Esq., John Mickey, M.D., Linda Parker, Diane Chong, Lilian Ishikawa, Leland Kahawai, Audrey Simao, Eliott Loden, Esq., A. Peter Howell, Esq., Floye Adams, Celia Podorean, James Pearce, M.D., Allen Lum, David Von Hamm, Hazel Kraemer, Eileen Urquhart, and Hanno Soth.

First Church adduced evidence that, on approximately September 2 or 3, 1988, Mr. and Mrs. John and Floye Adams, Carmen's friends from First Church, took Carmen to Laniolu Convalescent Home in Waik&imacrk&imacr for a temporary visit, apparently because of a leg infection acquired in a golf cart accident. On September 6, 1988, Carmen was taken to see Dr. John Mickey at Straub Clinic and Hospital. Dr. Mickey diagnosed Carmen as having chronic non-healing leg ulcers and "organic brain syndrome, secondary to aging."² Two days later, on September 8, 1988, Carmen duly executed the 1988 Will at Laniolu, with First Church potentially receiving $1.5 million dollars as the sole residuary legatee.³ On September 20, 1988, Carmen executed a general power of attorney in favor of Mr. Adams and Mr. James Pettus, equally.

Richard Mirikitani, Esq., Carmen's neighbor and friend, testified that, on October 17, 1989, he prepared for Carmen a revocation of the 1988 general power of attorney. However, he did not think that Carmen could understand a document such as the 1989 Will. He also testified that Carmen did not have sufficient mental capacity to know the nature and extent of her property, to know the natural objects of her bounty, or to formulate a rational scheme for distribution of her property. Betty Pettus, a long-time friend of Carmen, testified that, on the very morning of Carmen's death, Soth informed her that an attorney would be contacting her about Carmen's will. Pettus also testified that she did not believe that Carmen possessed the testamentary capacity to execute the 1989 will.

Linda Parker was Carmen's live-in house-keeper, who worked for Carmen for approximately eighteen months, ending on July 1, 1990, and who observed Carmen and Soth interact. Parker testified that Carmen's memory deteriorated throughout 1989, evidenced by Carmen frequently getting lost when traveling to familiar places, by Carmen's failure to recall her assets or her bequests when asked about them, and by her failure to remember what she had for lunch or what was in the morning paper. The only time that Parker vacationed away from Hawai`i and from Carmen was the last two weeks of December 1989, the time period within which the 1989 Will was executed. Parker also testified that, in her opinion, Soth was cunning, calculating, and secretive and that she did not trust him. According to Parker, Soth delivered a letter to her on June 1, 1990, explaining that Carmen was terminating her employment and giving her thirty-days notice. She finished her employment with Carmen three days before Carmen died. According to Parker, Soth spent the night, for the first time, at Carmen's home the night she died.

Although Soth eventually drafted the 1989 Will for Carmen, First Church also adduced evidence showing that Soth attempted to obtain legal advice from A. Peter Howell, Esq., regarding the drafting of a new will for a "wealthy elderly lady." First Church also adduced the testimony of Diane Chong, which showed that, on December 20, 1989, the day of the 1989 Will's execution, no one read or explained the contents of the 1989 Will to Carmen at First Hawaiian Bank before she signed it. After December 1989, Carmen appeared not to remember that she executed another will after the 1988 Will.

First Church further adduced evidence that Carmen was again diagnosed, in late January 1990, with "probable organic brain syndrome secondary to aging," after she suffered a concussion during a fall.⁴ Further, on July 2, 1990, Dr. Mickey reported that Carmen had ceased taking her medicine and "would rather resort to Christian Science practice for her blood pressure." Dr. Mickey wrote and also testified that he "believed Carmen was competent to handle her own affairs, despite her age-related memory syndrome."

Consistent with its theory that Soth had an overarching motive or plan to "unduly influence" Carmen into executing the 1989 Will, First Church adduced evidence of Soth's character, including evidence surrounding his application to become the special administrator of Carmen's estate. In particular, First Church adduced evidence, of which the trial court took judicial notice, that Soth misrepresented his residency to the probate court in both his written and oral pleadings. The Immigration and Naturalization Service (INS) proceedings revealed that Soth was arrested for overstaying his six-month tourist visa one day before filing his application to become special administrator, in which he represented his "residency" as being Hawai`i. On November 6, 1990, the INS ordered Soth to depart the United States voluntarily, eleven days prior to the probate proceeding in which he was appointed special administrator of Carmen's estate. Soth, in turn, applied for another visa to return to the United States on the basis of his appointment. Finally, First Church adduced evidence that Soth intended to attend law school in the fall of 1990, even though he allegedly agreed to take care of Carmen upon Parker's leaving in early July. Soth communicated with Whittier College School of Law about his acceptance and the deadlines for tuition deposits. He also mailed the second tuition deposit payment the day after Carmen died.

In addition to testifying on direct examination during the contestant's case-in-chief and throughout his own case, Soth adduced the testimony of several witnesses in support of the validity of the 1989 Will, including Mary Bitterman, Dorothy Theaker, Jack Larson, Henry Rodriguez, Ruth Kerr, Michele Yamamoto, Jerry Breeden, Steve Bobko, and Robert Schulz, M.D.

Soth testified, for example, that he was, in fact, not in charge of insuring that Carmen took her medication and that he was not controlling Carmen's financial affairs but, instead, protecting them. Soth explained that he sought legal advice for Carmen only at her request, drafted the 1989 Will at Carmen's request and direction, and read over the 1989 Will with Carmen, prior to arriving at First Hawaiian, to insure that it contained what she wanted. He explained that he told no one of the 1989 Will and its contents out of respect for Carmen's privacy. Soth further...