Lucero v. Lucero

• Court: Court of Appeals of New Mexico
• Writing for the Court: BLACK; MINZNER, C.J., and ALARID
• Citation: Lucero v. Lucero, 884 P.2d 527, 118 N.M. 636, 1994 NMCA 128 (N.M. App. 1994)
• Decision Date: 21 September 1994
• Docket Number: No. 14554,14554
• Parties: Patricio LUCERO, Petitioner/Appellant, v. Aristeo C. LUCERO, Jr., Cross-Petitioner/Appellee. In the Matter of the ESTATE OF Carolina M. LUCERO, Deceased.

Page 527

884 P.2d 527

118 N.M. 636

Patricio LUCERO, Petitioner/Appellant, v. Aristeo C. LUCERO, Jr., Cross-Petitioner/Appellee In the Matter of the ESTATE OF Carolina M. LUCERO, Deceased.

No. 14554.

Court of Appeals of New Mexico.

Sept. 21, 1994.

[118 N.M. 638] Stevan J. Schoen, Albuquerque, for petitioner/appellant.

Roberto C. Armijo, Civerolo, Wolf, Gralow & Hill, P.A., Albuquerque, for cross-petitioner/appellee.

OPINION

BLACK, Judge.

Carolina M. Lucero executed a will in July 1984. In December 1986, one of Mrs. Lucero's sons, Aristeo Lucero (Appellee), was appointed conservator of her estate by virtue of Mrs. Lucero's advanced age and mental deficiencies. Sometime thereafter Mrs. Lucero told Appellee she wanted to make another will. Appellee arranged for an attorney to meet with his mother, and, on August 12, 1988, Mrs. Lucero executed a new will. Mrs. Lucero died on November 25, 1990, at the age of 95.

After her death, another of Mrs. Lucero's sons, Patricio Lucero (Appellant), offered her 1984 will for probate. Her other seven children, including Appellee, were the proponents of the 1988 will. The district court found that, after appointment of the conservator in December 1986, there was a rebuttable presumption that Mrs. Lucero lacked testamentary capacity. However, after hearing the testimony of numerous witnesses who observed Mrs. Lucero on and around August 12, 1988, and various medical experts who testified based on Mrs. Lucero's medical records, the district court concluded that, at the time of execution of the 1988 will, Mrs. Lucero "was enjoying a period of lucid interval" and that she "was capable of understanding, in a reasonable manner, the nature and effect of the act of executing her Last Will and Testament." The district court admitted the 1988 will to probate. Patricio Lucero appeals. We affirm.

I. THE EFFECT OF THE CONSERVATORSHIP

Like the probate of estates, conservatorships are governed by New Mexico's adoption of the Uniform Probate Code (UPC), NMSA 1978, Sections 45-1-101 through 45-7-522 (Repl.Pamp.1993). Appellant argues that the UPC "provides that any existing testamentary plan of a protected person must be 'preserved'." Appellant contends further that if the conservator believes the protected person legitimately wants to change her will, the conservator must either: (1) petition to terminate the conservatorship under Section 45-5-430; or (2) seek instruction from the appointing court pursuant to Section 45-5-416(B). While either of these may be a legitimate procedure, neither is required by the UPC before a person whose property is under a conservatorship is entitled to execute a will.

The UPC distinguishes between a guardian, who is appointed to care for the incompetent person, and the conservator, who is appointed to manage the property of one who is unable to manage their assets. Compare Sec. 45-5-312 (general powers and duties of the guardian) with Sec. 45-5-424 (powers of a conservator in administration); see also In re Estate of Gardner, 114 N.M. 793, 799, 845 P.2d 1247, 1253 (Ct.App.1992) ("A guardian has only care, custody, or control of the person.... A conservator, on the other hand, is defined as 'a person who is appointed by a court to manage the property or financial affairs or both of an incapacitated person[.]' " (Citations omitted.)), cert. denied (Jan. 22, 1993). The UPC is careful in separating the "disability" that is the basis for conservatorship from the "incapacity" that necessitates guardianship. John H. Langbein, Living Probate: The Conservatorship Model, 77 Mich.L.Rev. 63, 82 (1978). The UPC itself specifically provides that an order determining that there is a basis for the appointment of a temporary conservator "shall not be evidence of incapacity." Section 45-5-408(D). The mental capacity of the disabled person was thus intentionally left open for future litigation, often postmortem. See Richard W. Effland, Caring for the Elderly Under the Uniform Probate Code, 17 Ariz.L.Rev. 373, 398 (1975) [hereinafter Effland]. Therefore, nothing in the UPC prohibited Mrs. Lucero from executing the 1988 will merely because Appellee was appointed to be the conservator of her property in 1986. Cf. Lee v. Lee, 337 So.2d 713, 715 (Miss.1976) (conservatorship did not affect testamentary capacity at common law).

II. TESTAMENTARY CAPACITY

Appellant next argues that the finding of the district court that Mrs. Lucero had sufficient testamentary capacity to execute a will in August 1988 is not supported by substantial evidence. We disagree.

Mrs. Lucero was diagnosed as suffering from senile dementia and cortical atrophy prior to the 1986 conservatorship. Because of these conditions and her advanced age, the district court found that her "property ... may be better protected if a Conservator is appointed[ ]" and named Appellee to serve in that position.

In spite of her medical diagnosis, Mrs. Lucero enjoyed numerous lucid intervals. In July 1988 Mrs. Lucero attended a branding at the neighboring ranch owned by her daughter, Frances Marquez. Mrs. Lucero participated in the activities and engaged in normal conversations dealing with ranching. The testimony indicated that, although her mental status did vary, Mrs. Lucero visited with family members in person and by telephone both prior to and after the time that she executed her will in August 1988, and at such times she recognized family members and engaged in appropriate conversations.

During the summer of 1988, Mrs. Lucero informed Appellee that she wanted to make a will. Appellee contacted a Las Vegas attorney, Roberto L. Armijo, to relay Mrs. Lucero's desire to make a will and to arrange an appointment. Mr. Armijo was a licensed attorney experienced in the preparation of wills. Prior to meeting with Mrs. Lucero, Mr. Armijo prepared a handwritten list of information he believed to be relevant to the upcoming interview. On July 12, 1988, Mr. Armijo came to the Lucero ranch and spent the better part of one hour in private conversation with Mrs. Lucero. During the interview, Mr. Armijo discussed with Mrs. Lucero her children, the nature of her property and estate, and her wishes regarding her will. He testified that he formed an opinion that Mrs. Lucero knew what she was doing and was competent to make a will at that time. Mr. Armijo explained this meant that she knew what it meant to make a will; recognized the objects of her bounty, namely, her children; and was aware of the nature of her property.

Antoinette Pulcini, a witness to the execution of the 1988 will, testified that she was present on August 12 while Mr. Armijo explained and discussed the will with Mrs. Lucero. Mrs. Pulcini observed the discussions and testified it was her opinion that Mrs. Lucero understood what she was doing in executing her will.

Finally, Appellee also called a board-certified psychiatrist who reviewed Mrs. Lucero's medical records and testified that (1) he was familiar with the standard of competency necessary to execute a will; (2) Mrs. Lucero experienced lucid intervals; and (3) it was his opinion Mrs. Lucero was probably competent during her conference with Mr. Armijo and at the time she executed her will.

In order to prove testamentary capacity, evidence must be introduced that the testatrix had knowledge of (1) the meaning of executing a will; (2) the extent and character of her estate; and (3) the natural objects of her bounty. In re Estate of Kimble, 117 N.M. 258, 261, 871 P.2d 22, 25 (Ct.App.1994); In re Will of Greig, 92 N.M. 561, 562, 591 P.2d 1158, 1159 (1979). Numerous courts interpreting the UPC have found that generally senile, confused, or even mentally ill testators may possess sufficient capacity to execute a will during lucid moments. See, e.g., In re Estate of Sarras, 148 Mich.App. 171, 384 N.W.2d 119, 122 (1986); In re Estate of Olsen, 357 N.W.2d 407, 411 (Minn.Ct.App.1984), review denied (Feb. 27, 1985); Evans v. Liston, 116 Ariz. 218, 568 P.2d 1116, 1117 (Ct.App.1977), review denied (Sept. 13, 1977); see also Effland, supra, at 400 ("If an elderly person is mentally alert on some days and not on others, he may not be capable of continually managing his property, but on good days he could still make a will." (Footnote omitted.)). The above testimony was substantial evidence on each of the required elements of testamentary capacity.

Appellant points to testimony of Sadie Saiz, Mrs. Lucero's housekeeper, that, in her opinion, Mrs. Lucero was mentally disturbed and probably unable to make a will in August 1988. There is no evidence, however, that Ms. Saiz understood the criteria for the mental capacity necessary to execute a will. Appellant also relies on the testimony of two physicians, who testified exclusively based on their posthumous examination of Mrs. Lucero's medical records, that in their opinion it was unlikely Mrs. Lucero was able to understand she was making a will in August 1988. A trial court is not obliged to reject lay testimony of competence of a testator despite medical testimony to the contrary. In re Estate of Hammermann, 387 So.2d 409, 411 (Fla.Dist.Ct.App.1980); see also In re Estate of Thorpe, 152 Ariz. 341, 732 P.2d 571, 576-77 (1986) (forensic psychiatrist's opinion that decedent lacked testamentary capacity, based entirely on medical records, lacked sufficient evidentiary foundation), review denied (Feb. 13, 1987). Moreover, the fact that there is other evidence upon which the trial court could have reached a different conclusion does not make the trial court's finding erroneous. Jay Walton Enters., Inc. v. Rio Grande Oil Co., 106 N.M. 55, 60, 738 P.2d 927, 932 (Ct.App.), cert. denied, 106 N.M. 7, 738 P.2d 125 (1987).

III. FIDUCIARY DUTY

Appellant argues correctly that when Appellee was appointed as conservator of Mrs. Lucero's property, the appointment carried with it fiduciary obligations. See Sec. 45-5-417. It is also true that the conservator must avoid conflicts of...