Waters' Estate, Matter of

• Decision Date: 11 June 1981
• Docket Number: No. 5429,5429
• Citation: 629 P.2d 470
• Parties: In the Matter of the ESTATE of Alfred B. WATERS. Valda WATERS, Appellant (Proponent), v. Janet C. HOLKAN, et al., Appellees (Contestants).
• Court: Wyoming Supreme Court

Page 470

629 P.2d 470

In the Matter of the ESTATE of Alfred B. WATERS.

Valda WATERS, Appellant (Proponent), v. Janet C. HOLKAN, et al., Appellees (Contestants).

No. 5429.

Supreme Court of Wyoming.

June 11, 1981.

Bryan Sharratt, Wheatland, and Sue Davidson, Cheyenne, of Urbigkit & Whitehead, P. C., signed the brief of appellant. Mr. Sharratt appeared in oral argument for appellant.

James W. Fagan of Fagan, Fagan & Clapp, Casper, signed the brief and appeared in oral argument for appellees.

Before ROSE, C. J., RAPER, THOMAS and ROONEY, JJ., and BROWN, D. J. ^*

BROWN, Justice.

Appellant, widow of decedent, offered the will of Alfred Waters for probate. Appellees, decedent's daughters, contested the will contending that the testator did not possess testamentary capacity at the time he executed the will and that he was acting under duress, menace, fraud or undue influence. The jury found against appellees on the issue of testamentary capacity, but found that the testator was acting under duress, menace, fraud or undue influence at the time he executed the will. We affirm.

The issues on appeal are:

1. Was the evidence sufficient to sustain the jury's verdict that the testator acted under duress, menace, fraud, or undue influence.

2. Were the trial court's instructions correct and complete.

Alfred Waters was married on March 20, 1935, to the appellees' mother, Evelyn. Alfred and Evelyn Waters were divorced in 1940, but in that same year Evelyn Waters returned to the family home where they lived together until June 1965.

A second marriage by Alfred Waters took place in 1965, which resulted in divorce in 1969. By this time, drinking had become a problem for Mr. Waters and was first noticed by his daughter, Janet Holkan, in 1961.

Alfred Waters married a third time in 1970 and was divorced in 1974. By this time drinking had become a major problem for Mr. Waters and hospitalization was required on numerous occasions. Between 1969 and the time of his death on October 15, 1978, Water's drinking problem had become serious, possibly even the cause of death.

When Alfred Waters was committed to the Wyoming State Hospital in February 1974, Janet Holkan, his daughter, was appointed guardian of his estate. Upon his release in August 1974 the medical records indicated that if Mr. Waters were to continue drinking, his chances to recover, to become functional, and to manage his life, were very poor. Mr. Waters, however, resumed drinking the day he was released from the hospital.

Mr. Waters became acquainted with appellant, Valda Waters in June 1975 when he was going to the Mental Health Center in Wheatland, Wyoming. In November 1975 Mr. Waters began proceedings to terminate the guardianship. Valda Waters was an active participant and, in fact paid for a major part of the expenses in the proceedings to terminate the guardianship. Mr Waters was hospitalized in January 1976 just prior to the hearing for terminating the guardianship so that he would be "dried out" before the hearing.

Appellant and proponent of the will, Valda Waters, married Alfred B. Waters, on February 4, 1976, about a week after the termination of the guardianship. On March 18, 1976, about six weeks later, Alfred Waters signed his will, leaving all of his property to his wife and disinheriting his two daughters.

Sufficiency of the Evidence

Appellant challenges the sufficiency of the jury's finding of undue influence in three respects: 1) the verdict is inconsistent with the evidence presented at trial; 2) the verdict is not supported by the evidence presented at trial; and 3) the verdict is contrary to the great weight of the evidence. We cannot agree.

The standard of review when considering the question of the sufficiency of the evidence to support a jury verdict is well established. We must begin by assuming that the evidence supporting the prevailing party is true leaving out of consideration the conflicting evidence. This evidence must also be given every favorable inference that may be fairly drawn. Furthermore, we do not evaluate the evidence but rather determine if there was substantial evidence upon which the jury could have based its decision. Brittain v. Booth, Wyo., 601 P.2d 532 (1979).

In re Draper's Estate, Wyo., 374 P.2d 425, 431 (1962), this Court stated that:

" * * * (t)he elements of undue influence are opportunity to control; a condition permitting subversion; and activity on the part of the person charged. * * * "

The proof necessary to support a finding of undue influence has also been discussed by this court. In re Conroy's Estate, 29 Wyo. 62, 211 P. 96, 99 (1922), we stated:

"It is not necessary to cite authorities to sustain the proposition that undue influence, seldom susceptible of direct proof, may be established by proof of facts from which it may be fairly and reasonably inferred." Cited with approval in In re Merrill's Estate, 80 Wyo. 276, 341 P.2d 506, 509 (1959).

Additionally, in 79 Am.Jur.2d, Wills, § 479, p. 614, the burden of proof necessary for a finding of undue influence has been set forth as follows:

"Direct evidence is not essential to the proof of fraud or undue influence invalidating a will, and a contest on the ground of fraud or undue influence may be weighed successfully on circumstantial evidence, the contestant being entitled to the benefit of all inferences which may be reasonably and legitimately derived from established facts. * * *."

" * * * A combination of weakened mentality and unnatural bequests will warrant the submission of the issue of undue influence to the jury. * * *." 79 Am.Jur.2d, Wills, § 487, p. 619.

"The burden of proof on the issue of undue influence, which burden most courts say rests upon the contestant, is carried, in general, by a preponderance of the evidence. * * * " 79 Am.Jur.2d, Wills, § 480, p. 614.

"Most of the authorities support the view that a presumption of undue influence arises upon a showing that one who drew the will, or was otherwise active directly in preparing it or procuring its execution, obtains under the will a substantial benefit, to which he has no natural claim, or a benefit which, in amount, is out of proportion to the amounts received by other persons having an equal claim to participate in the bounty of the testator. * * * " 79 Am.Jur.2d, Wills, § 429, p. 579.

" * * * But the circumstance that the condition of the mind or the body of the testator was such as to make it probable that he was not able to resist the influence of others has been held sufficient to warrant a presumption that the will was obtained by undue influence * * *." 79 Am.Jur.2d, Wills, § 434, p. 584.

"The fact that a will is unnatural, unreasonable, or unjust in its provisions is a circumstance to be considered in connection with other evidence bearing on the question whether the will is the result of undue influence. * * * " 79 Am.Jur.2d, Wills, § 437, p. 585.

In addition, as noted by the court in Welch's Administrator v. Clifton, 294 Ky. 514, 172 S.W.2d 221, 148 A.L.R. 1220 (1943):

"Undue influence may be proved by circumstances leading up to an attendant upon the execution of a will, which, when taken together, are convincing, notwithstanding the fact that each circumstance standing alone might be inconclusive. (Citation.)"

A review of the evidence here indicates that Mr. Waters was suffering from the ravages of alcohol, he was confused and in a weakened condition, and had been in that condition some time prior to the execution of the will. Appellant furnished the testator with a place to live, provided for some of his living expenses and gave other financial assistance. Appellant also furnished the decedent with alcohol even though she knew of the dangers involved if Mr. Waters continued to consume alcohol. In addition, throughout this period, Mr. Waters continued to require frequent hospitalization.

The jury heard considerable testimony with respect to Mr. Water's lack of testamentary capacity. The jury, however, did not think this testimony sufficient to find that Mr. Waters lacked testamentary capacity. The jury, nevertheless, could properly consider this testimony insofar as it showed a weakened mentality, and thus rendered testator susceptible to undue influence. 79 Am.Jur.2d, Wills, § 480, p. 619, supra.

The attorney who prepared the testator's will was first contacted by the appellant, Valda Waters. Appellant also accompanied Mr. Waters to the attorney's office to have the will drawn. Apparently the attorney who drew the will never talked to Mr. Waters except in the presence of appellant. It would be fair to say, therefore, that the testator was completely dependent upon Valda Waters and that he was completely under her domination at the time of the execution of the will.

We wish to make it clear that we are not holding that any one of the circumstances leading up to and attendant upon the execution of the will, standing alone, was sufficient to sustain the jury's verdict. We do find that a combination of these circumstances, together with permittable inferences, is sufficient to sustain the jury's verdict that the testator acted under due influence at the time he executed his will. Welch's Administrator v. Clifton, supra.

Instructions

Appellant contends that the trial court erred when he refused to give her offered instruction Number 4. ¹ This instruction required clear and convincing evidence to support a finding of undue influence. Once again we cannot agree.

This Court has previously determined the quantum of proof necessary in will contest cases. The burden of proof is upon the contestant to show by a preponderance of the evidence that the testator was so influenced by others that he was not a free agent in making the will. Wood v. Wood, 25 Wyo. 26, 164 P. 844 (1917).

A standard of proof higher than preponderance of the evidence is not required of a deed or will contestant for every claim the contestant makes. Once certain circumstances are...