Pletz's Estate, In re
Jurisdiction | Oregon |
Parties | In re ESTATE of Mary PLETZ, Deceased. Virginia KUGEL et al., Respondents, v. William PLETZ, Personal Representative of the Estate of Mary Pletz, Deceased, Appellant. |
Citation | 538 P.2d 962,22 Or.App. 248 |
Court | Oregon Court of Appeals |
Decision Date | 11 August 1975 |
Fred A. Granata, Portland, argued the cause and filed the briefs for appellant.
Robert C. Lucas, Portland, argued the cause for respondents. With him on the brief were Benson, Arenz, Lucas & Davis, Portland.
Before SCHWAB, C.J., and THORNTON and LEE, JJ.
Appellant is the proponent and respondents are the contestants in this will contest.
Contestants (testatrix's three daughters) alleged that the will was invalid because (1) the testatrix lacked sufficient mental capacity to make a valid will and (2) the will was the product of undue influence of the proponent. Proponent (testatrix's only son) denied both of these allegations and asked the trial court to determine the validity of certain Inter vivos gifts from the testatrix to contestants. The trial court held for the contestants without assigning any reason.
Proponent urges on appeal that because of their propinquity the will and the gifts must both be valid, or both be invalid. Contestants claim that (1) the will was the product of undue influence and (2) the testatrix had mental capacity to make the gifts but (3) she had insufficient capacity to execute the will. Since we answer the first two contentions in the affirmative, we do not reach the third.
The will in contest was executed February 5, 1970 and willed half of testatrix's estate to proponent and equally divided the other half among the three contestants. It differed from a previous will executed October 13, 1967 which had provided for $1,000 to each of testatrix's eight grandchildren and division of the remainder equally among the testatrix's four children.
In 1960 proponent received $9,000 from testatrix to help him avoid foreclosure on certain real property. From October 20, 1969 to January 29, 1970, the testatrix made gifts by checks of nearly identical amounts to each of the three contestants, totalling $38,920. Contestants Kugel and Barber testified that they were each told by the testatrix that one of her reasons for giving the gifts to the daughters was so that she would be alive to see them have it.
There was some evidence that between 1968 and the time of her death (January 11, 1973) testatrix's mental capacity became impaired due to cerebral arteriosclerosis and double aphasia.
The two attorneys who had witnessed the 1970 will both predeceased the testatrix. One of them had witnessed the 1967 will. The proponent lived with the testatrix continously from 1954--1971.
Contestant Kugel, who lived across the street from testatrix and saw her nearly every day testified that the testatrix told her she changed the 1967 will to 'keep peace in the family' and because of 'static' from the proponent. Kugel also testified that the testatrix told her several times that she (the testatrix) was not sure about the new will and wanted her to look as it.
The testatrix's neighbor, Mrs. Mueller, said that in the 1969--70 period, the testatrix seemed to be voicing not her own opinions but those of the proponent. Mueller, however, did not relate this general observation directly to the will.
Dr. Uhle, testatrix's personal physician, testified that:
There was no expert medical testimony contradicting this opinion. The proponent himself testified that the testatrix knew what she was doing when she made the gifts.
The requirements for an Inter vivos gift are set forth in Grignon v. Shope, 100 Or. 611, 616, 197 P. 317, 319, 198 P. 520 (1921):
'* * * The essential elements of a gift Inter vivos are: (1) a donor competent to contract; (2) freedom of will of donor; (3) the gift must be complete and nothing left undone; and (4) the property must be delivered by the donor and accepted by the donee; (5) the gift must go into immediate and absolute effect * * *.'
Factors 2, 3, 4, and 5 are not disputed in this case. Concerning the first factor, the Supreme Court, in Kruse v. Coos Head Timber Co., 248 Or. 294, 306, 432 P.2d 1009, 1015 (1967), stated that:
* * *'
This requirement is met by the aforesaid testimony of testatrix's personal physician.
The trial judge observed that if the $9,000 received by the proponent was valued with interest to date, it would approximately equal the gifts made to the...
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