Milhoan v. Koenig

• Decision Date: 01 March 1996
• Docket Number: No. 22893,22893
• Citation: 196 W.Va. 163,469 S.E.2d 99
• Court: West Virginia Supreme Court
• Parties: Marilyn MILHOAN, Petitioner Below, Appellant v. Naomi Evelyn KOENIG, Executrix of the Last Will and Testament of Robert F. Milhoan, Respondent Below, Appellee.

Page 99

469 S.E.2d 99

196 W.Va. 163

Marilyn MILHOAN, Petitioner Below, Appellant v. Naomi Evelyn KOENIG, Executrix of the Last Will and Testament of Robert F. Milhoan, Respondent Below, Appellee.

No. 22893.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 9, 1996.

Decided March 1, 1996.

Syllabus by the Court

1. "In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law 2. "Upon the trial of a case to impeach a will, the burden of proving capacity of the testator at the time of execution of the will is upon the proponent of a will." Syllabus Point 7, Montgomery v. Montgomery, 147 W.Va. 449, 128 S.E.2d 480 (1962).

[196 W.Va. 164] are subject to a de novo review. See syl. pt. 1, Burnside v. Burnside, No. 22399, W.Va. , 460 S.E.2d 264 (Mar. 24, 1995)." Phillips v. Fox, 193 W.Va. 657, 661, 458 S.E.2d 327, 331 (1995).

3. "In an action to impeach a will the burden of proving undue influence is upon the party who alleges it and mere suspicion, conjecture, possibility or guess that undue influence has been exercise is not sufficient to support a verdict which impeaches the will upon that ground." Syllabus Point 5, Frye v. Norton, 148 W.Va. 500, 135 S.E.2d 603 (1964).

Appeal from the Circuit Court of Hancock County, Honorable Fred Risovich, II, Judge, Civil Action No. 89-C-562.

Leonard Z. Alpert, Alpert, D'Anniballe & Visnic, Weirton, and Joseph L. Ludovici, Aronson, Fineman & Davis, East Liverpool, Ohio, for Appellant.

John J. Anetakis, Frankovitch & Anetakis, Weirton, for Appellee.

PER CURIAM:

Marilyn Milhoan, the daughter of the decedent, Robert F. Milhoan, appeals the circuit court's decision finding that her father's will dated October 5, 1988 was valid. The circuit court affirmed the decision of the County Commission of Hancock County finding the decedent was mentally competent, understood the nature and consequences of, and was not unduly influenced in making his October 5, 1988 will. On appeal, Ms. Milhoan argues that the circuit court and the county commission erred in those findings. Based on our review of the record, we find that the circuit court was not clearly erroneous in affirming the factual findings of the county commission, and therefore, we affirm the decision of the circuit court.

I. FACTUAL BACKGROUND

Ms. Milhoan is the only child of Robert Milhoan, the decedent, and Naomi Evelyn Koenig, the executrix under the October 5, 1988 will, is the decedent's sister. In September 1987, the decedent developed health problems that were diagnosed as lung cancer, which later metastasized to the brain. In February or March 1988, Ms. Milhoan, with her child and boyfriend, moved into the decedent's house to help care for him. Although Ms. Milhoan and her boyfriend continued with outside-the-house employment, Ms. Milhoan provided care for her father. Ms. Koenig cared for her brother when Ms. Milhoan was working.

In September 1988, a disagreement arose between Ms. Koenig and Ms. Milhoan's boyfriend over parking near the decedent's house. As a result, Ms. Koenig drafted and Mr. Milhoan signed an eviction letter, to remove Ms. Milhoan, her child and boyfriend from the decedent's house. On September 27, 1988, Ms. Koenig called John J. Anetakis, Esquire, to have changes made in her brother's will, which heretofore had bequeathed all of Mr. Milhoan's property, real and personal, to Ms. Milhoan. After a private conversation on September 27, 1988, between Mr. Milhoan and James Connolly, an associate of Mr. Anetakis, on September 28, 1988, Mr. Connolly returned to Mr. Milhoan's house where Mr. Milhoan signed a will devising Mr. Milhoan's house to Ms. Milhoan and bequeathing the residue to Ms. Koenig. On September 28, 1988, Mr. Milhoan also signed a general power of attorney appointing Ms. Koenig.

On October 2, 1988 when Ms. Milhoan was moving out of the house, another disagreement arose concerning a medicine cabinet and a box containing receipts. Thereafter, Ms. Koenig again called Mr. Anetakis' office. This time she told Mr. Anetakis to prepare a new will for Mr. Milhoan leaving all of his property to her, Ms. Koenig. Because of Mr. Milhoan's illness, he was hospitalized and Mr. Anetakis and two attorneys from his firm took the revised will to Mr. Milhoan in the hospital. Carl Frankovitch, Sr., one of the witnesses, testified that Mr. Milhoan indicated The decedent's treating physician, Cherian John, M.D., testified that although the decedent was receiving medication and was depressed during the decedent's last hospitalization, Mr. Milhoan's mental status was normal and that he had no extraordinary memory problems. Dr. John said that the decedent "could" have been influenced, but that he had no personal knowledge of such influence and could not state to any degree of medical certainty that Mr. Milhoan was influenced. Mr. Milhoan died on October 17, 1988. Ms. Milhoan did not visit her father during his last hospitalization.

                [196 W.Va. 165] that his estate was "[t]o go to his sister."   Mark Colantonio, the other witness, testified that he read Mr. Milhoan's will to him, and that Mr. Milhoan nodded affirmatively when asked if he wanted to sign the will.  The October 5, 1988 will was signed with an "X."   A friend of Mr. Milhoan, John Hart, was also present and testified that Mr. Milhoan indicated that he wanted his property to go to his sister and not his daughter
                

Before Mr. Milhoan's death, Ms. Koenig used her power of attorney to cash United States Saving Bonds in the amount of $34,536.16, to change the beneficiary designation on two life insurance policies in the amounts of $5,000 and $1,110.03 from Ms. Milhoan to herself, and to cash a $14,059.16 Individual Retirement Account (IRA account). Ms. Milhoan contends that she had been originally named on some of the United States Savings Bonds and as the beneficiary of the life insurance policies and the IRA account.

At the time of Mr. Milhoan's death, he owned the house where he lived, two Certificates of Deposit of unknown amounts, a checking account with an alleged balance of $13,000 (Ms. Koenig believes it to be substantially lower) and an IRA of about $10,500.

After Mr. Milhoan's death, Ms. Milhoan filed a Notice of Contest with the County Commission of Hancock County. After considering the evidence presented at two hearings, the county commission denied Ms. Milhoan's petition and sustained the October 5, 1988 will. Ms. Milhoan petitioned the circuit court, which based on the record made before the county commission, affirmed the decision of the county commission. Finally, Ms. Milhoan appealed to this Court requesting that (1) both the September 28, 1988 and October 5, 1988 wills be set aside in favor of an earlier will bequeathing everything to Ms. Milhoan and (2) that the September 28, 1988 power of attorney be set aside and all assets converted thereunder be returned to the decedent's estate.

II. DISCUSSION

In reviewing challenges to factual findings made by a county commission in an action contesting a will that were also adopted by the circuit court, we review the underlying factual findings under a clearly erroneous standard. Recently we discussed the standard of review applied to findings made by a family law master that were adopted by the circuit court. In Syl. pt. 1, Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995), we stated:

In reviewing challenges to findings made by a family law master that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review.

We apply a similar standard of review to the findings and conclusions of a circuit court. "In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review. See syl. pt. 1, Burnside v. Burnside, No. 22399, W.Va. , 460 S.E.2d 264 (Mar. 24, 1995)." Phillips v. Fox, 193 W.Va. 657, 661, 458 S.E.2d 327, 331 (1995). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Phillips v. Fox, 193 W.Va. at 661, 458 S.E.2d at 331, quoting, United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766 (1948).

On appeal, Ms. Milhoan argues that her father, in the later stages of his illness, lacked the mental capacity to make a will and was unduly influenced in both his September 28, 1988 and October 5, 1988 wills.

Traditionally we have placed the burden of proof on the party advocating the validity of a will to prove the mental capacity of the testator. Syl. pt. 7, Montgomery v. Montgomery, 147 W.Va. 449, 128 S.E.2d 480 (1962) states: "Upon the trial of a case to impeach a will, the burden of proving capacity of the testator at the time of execution of the will is upon the proponent of a will." See Hess v. Arbogast, 180 W.Va. 319, 323, 376 S.E.2d 333, 337 (1988). We give special consideration to the testimony of witnesses present at the execution of a will. Syl. pt. 2 of Stewart v. Lyons, 54 W.Va. 665, 47 S.E. 442 (1904) states:

Evidence of witnesses present at the execution of a Will is entitled to peculiar...