SUPREME COURT OF NORTH DAKOTA
|In the Matter of the Estate of Maxine Vestre, Deceased.|
|SUPREME COURT CASE NO. 20100400|
BRIEF OF APPELLEE
Appeal from the Judgment Dated December 13, 2010
Ward County District Court, Northwest Judicial District
Honorable WILLIAM W. McLEES
Case No. 51-09-P-0017
|Michael S. McIntee (ID #03326)|
|McIN TEE LAW FIRM|
|116 West 4th Street|
|Bottin eau, ND 58318|
|Attor ney for Appellee|
|TABLE OF CONTENTS|
|TABLE OF CONTENTS ..||i.|
|TABLE OF AUTHORITIES||ii.|
|STATEMENT OF FACTS||1 18|
|LAW AND ARGUMENT|
|. Did the Trial Court commit error when it granted the respondent a jury trial; wherein the demand for jury was filed within the time limit as directed by the Court? May a Trial Court decide on its own to order a jury trial to determine the facts in dispute?.19-26|
|. Did the Trial Court act properly When It Denied the Motion for Summary Judgment and the Numerous Motions for Judgment as a Matter of Law? 27-45|
|. Did the Trial Court err in permitting Respondent to present evidence outside the day of the execution of the Will to permit the jury to consider the medical/mental history of the Decedent so as to determine the testamentary capacity of the Decedent; and to consider the relationship between the Decedent and the Petitioner to determine undue influence of the Decedent? 46-57|
|.Did the Trial Court err in its determination that the proffered non-uniform jury instruction was not required; that the issues to be determined in the proffered non-uniform jury instruction was contained in or presented in the Uniform Jury Instruction given?|
|CERTIFICATE OF SERVICE .. 65|
|TABLE OF AUTHORITIES|
|TABLE OF CASES||Paragra ph|
|American State Bank and Trust Co. v. Sorenson|
|539 NW2d 59 (ND 1995) . 29|
|Berquist v. Keller, 551NW2d 292 (ND 1996) 30|
|Estate of Mickelson, 477 NW2d 247 (ND 1991) .. 30|
|Estate of Stanton, 65 NW2d 508 53|
|Estate of Stenerson, 348 NW2d 141,143 (ND 1984) . 37|
|Estate of Wagner, 265 NW2d 459 (ND 1978) .. 36|
|Felco, Inc, v. Doug's North Hill Bottle Shop|
|1998 ND 111 ¶8, 579 NW2d 576 43|
|First Western Bank v. Wickman, 500 NW2d 261 (ND 1976) .. 23|
|In Re Hayer's Estate, 230 Iowa 880, 299 NW 433 (Iowa 1941) . 61|
|Johnson v. McEnroe, 568 NW2d 920 (ND 1997) . 28|
|Latendresse v. Latendresse, 294 NW2d 742 (ND 1980) . 28|
|Monday v. Gjesdal, 123 NW2d 33 (ND 1963) 28|
|Ohio Farmers Ins. Co. v. Dakota Agency|
|551 NW2d 564 (ND 1996) . 28|
|Production Credit Assn. v. Klein, 385 NW2d 485 (ND 1986) 29|
|Sternberger v. City of Williston, 556 NW2d 288 (ND 1996) .. 28|
|Stormon v. Weiss, 65 NW2d 475 (ND 1954) .. 58,59,60,61|
|Striegel v. Dakota Hills, Inc., 365NW2d 491 (ND 1985) .. 28|
|Symington v. Mayo, 1999 ND 48 ¶4m 590 NW2d 450 . 43|
|Whelan v. Burris, 83 NW2d 183,186 (ND 1967) 37,55,56|
|NORTH DAKOTA CENTURY CODE|
|Section 30.1-08-01 36|
|Rule 38 NDRCivP . 19, 25|
|Rule 38(e) NDRCivP 22|
|Rule 39© NDRCivP .. 25|
|Rule 50 NDRCivP . 43|
|Rule 56 NDRCivP . 27|
STATEMENT OF FACTS
.Appellant's Statement of Facts is not complete, especially as to the history of Maxine Vestre [Max or Maxine] as the facts relate to Maxine's ability to take care of her own affairs in those years prior to the start of her mental incapacity. Such information would pertain to the issues of undue influence and testamentary capacity to have prepared and execute a Will.
.Maxine J. Vestre is one of four children, born in the Souris/Bottineau area. She graduated from Trinity School of Nursing in 1949. She worked in the surgical unit for some years and worked for at least 40 years at the Trinity facility, eventually as supervisor of the nursing home in Minot. She officially retired in 1990, but continued to work as a volunteer at the nursing home in Minot; basically she visited with various individuals and took care of the birds and the bird cages. Maxine's mother had moved into the nursing home by this time and Maxine assisted in her mother's care until the mother's death in July of 2005, her father and brother having died within 10 days of each other in the early 1970's. [App. 18-19] Max was never the same after her mother's death and would at times ask questions as if her mother was still alive. This continued up to early 2008. [App. 20] After the mother's death, it was noted that Max had difficulty in making a simple phone call to a relative. [App. 21] She would not dress properly and would use tablecloths as bed sheets. [App. 22-23]
3. Maxine never married and never had any children. Two of her siblings have
died, one recently from Alzheimer's. Maxine has one brother living,
Donovan Vestre, who passed away after the trial. Donovan has several
children in the Bottineau area that assisted in the care for Max for many years. One daughter, Juli Rude was especially close to Max and saw her 10-15 times per month when Max was in her own home. [App. 24] There was one occasion in January of 2005 when Juli had gone to see Max, and Max turned her away, stating that Rose was in the home. [App. 25] This was quite unusual since Max had treated Juli as her daughter and had always welcomed Juli into her home. Max had one other niece, Lori Flaherty who resided in Arizona. After the death of her mother in 2005, Max was unable to recall that she had a niece in Arizona or what her name was. She also did not recall that she had a brother named Norris. [App. 26] Max was not a person who cooked meals and generally Juli and her family would go out to eat when visiting. Max's only fast food restaurant she ever went to was Burger King. [App. 26]
4 Juli and her family, as well as Donovan and his family were basically all the relatives that Max had in this area. Lori was in Arizona and came home infrequently. Prior to 2004, Max spent all of her holidays with Julie and family. [App. 27]
.Maxine resided in her own home until 2005, when she moved to the Trinity Retirement Home. In March of 2008, Max was moved to a psychiatric ward at Trinity Hospital for about 10 days. She was placed in the psychiatric ward by her Doctor based upon the mental incapacity of Max at the retirement home. Once she was released from the ward, she was moved to the Trinity
Nursing Home with more skilled care. Within 4-6 weeks, the staff noted that Max was very agitated and would assume she was a nurse. Max was telling other residents of the facility that they should not use wheel chairs, walkers, etc. [App. 28-29; 30-34] As a result, Maxine was placed in a secure facility for the patients who had Alzheimer's disease. She remained in that facility until her death in December, 2008.
. During the time that Max was in the various facilities, she had listed Juli
Rude as her 'first contact' person. [App.35] Some time later, Rose instructed the facility to call her first, rather than members of the family. [App. 36] As time progressed, aside from Rose and members of Max's family, Max was basically isolated from the outside world. When Max wanted to give her brother, niece or nephew or great niece/nephew gift, she delivered the gifts to the family in a parking lot rather than at Max's room. The reason was Max did not want Rose to know that Max was giving gifts to the family. [App. 37-38 and 39] Max wanted to set up an education fund for her great nieces and nephews, but did not want Rose to know about it. [App. 40-41]
7. In December of 2005, Max needed knee surgery. At the time of the surgery, Rose was not around and Juli was with Max. Max did not recall what knee was to be operated on and she was quite mentally disturbed. [App. 42-43] Max has a history of progressive dementia and Alzheimer's going back as far as 2004. The records indicated:
.Oct. 25, 2004 change in cognitive function, Max was extremely distracted; the [mental capacity] tests that were run that day were not normal; that memory disturbance is noted [App. 44]
.Oct. 18, 2005 marked change in her memory and recall; Max had been evaluated and found to have memory disturbance; was receiving medication [App. 45-48]
.Dec. 12, 2005 Max's memory was pretty poor [App. 49]
.Feb. 16, 2006 cognitive impairment improved [App. 50]
.Aug 11, 2006 dementia, stable [App. 51]
.Jan 25, 2007 dementia, surprisingly stable [App. 52]
.Feb. 15, 2007 confirmed dementia [App. 53]
.June 26, 2007 confusion and memory loss; Rose reports that Max has difficulty with numbers and difficulty telling the correct time; has problem with writing checks and money; Rose has taken over for her. [App. 54-56]
.July 4, 2007 patient is having increasing confusion [App. 57-58]
.June 3, 2007 Dementia doing better [App. 59]
.April 19, 2008 Delirium and severe dementia [App. 60-61]
.April 14, 2008 Progressive dementia severe in degree [App. 62-64]
.April 8, 2008 progressive cognitive impairment [App. 65]
8. Rose Morgan is an elderly person who presently resides in Minot. She indicated that she had first met Max, perhaps in the 1950's. She claimed that Max was providing care for Rose's mother. Rose Morgan left the Minot area in about 1965 and did not return on a permanent basis until 1981. At that time she began working at MSU and became more involved with Max. In the mid 1980's, Rose borrowed about $25,000 from Max and also had Max as a co-signer on a note so Rose could purchase a house for Rose. Actually, Max was a co-owner of the house for a few years. [App. 66] No evidence could be located that indicated that Rose had repaid Max the $25,000. Rose and Max both retired from active employment in about 1999. [App. 67] Rose admitted that Max was very smart, very intelligent, very dedicated and a person who loved her family. [App. 68]
9. In January of 2007, Rose Morgan took Max to see Rose's attorney. Rose had a long relationship with that law firm in that they had been her attorney in a prior estate proceeding and had handled her real estate transactions. Prior to going to the attorney's office, Rose had prepared a document [App. 69], in which Rose was to receive 35% of Maxine's estate. This document was presented by Rose for Maxine to the attorney. The attorney admitted that he met first with Rose and Maxine together and that was when he received the document. It was later learned that Maxine's estate was worth more than a half million dollars and thus, Rose stood to inherit at least $175,000.
Rose attempted to claim that she did not prepare the documents, however it was prepared on a computer, Rose has a computer but Max did not. Max had prepared a hand written document [App. 70], in which she had indicated that the church was to receive $4. In the Will, however, it is indicated 5% as Rose had set out.
10. There were multiple problems with these two documents. As indicated, Max was a very intelligent person and always did her work very carefully. In [App. 69], Donovan's name is spelled incorrectly; Juli's name is spelled incorrectly; Juli had never used the name 'Juli Vestre Rude'; the phone number for both Juli and James was incorrect; Lori had not been known as 'Vestre' for over 30 years, she had been married to Mr. Flaherty for over 10 years. The handwritten document gives the church $4, yet the Will indicates 5%, as directed by Rose's typewritten paper.
11. When it came time to schedule the signing of the Will, the attorney's office contacted Rose, not Maxine about the date for signing. From the first meeting which lasted 36 minutes, a Will was prepared [App. 71-74], which left 35% of the estate to Rose, and 12% to her brother and the same to other family members. Rose was named Personal Representative and the original Will was kept by the attorney. Max's family did not know that she had made a new Will until after her death.
12. Max had a prior Will executed in 1965, which left her entire estate to her family. In 1983, Max had executed a holographic document which basically bequeathed Rose $1,500 and permitted Rose to live in Max's house for one year after death. This document did not change the directive that the balance of the estate was to go to Max's family. [App. 75] This gift of $1,500 was made 26 years after the two ladies had met, a time period when Rose claimed she had become Max's best friend. The most recent Will, which Rose asked the Jury to accept, gave her at least $175,000.
13. When Maxine went in to sign her Will, Rose Morgan also had a Will prepared by the same law firm. The attorney did not meet with Maxine for the signing and no tests were conducted on Maxine to determine if she had the testamentary capacity to sign that Will. In fact, the staff, who witnessed the Will, did not even ask her if she knew what she was signing or if she knew what was in the document; her age, address, who her family was, etc. They merely said, this is your Will, here is where you sign. Rose Morgan was present during this signing. [App. 76-79; 80-82; 83-86] No one explained the documents to Max. Actually, Max was asked to sign a Will, a Legal Power of Attorney and a HealthCare Directive and this took 5-10 minutes.
15. As time progressed, Rose was hindering Max initially going into the nursing home and then the Alzheimer's unit. Rose stated that she was concerned about paying for Max's care, although she admitted she knew that Max had two insurance policies to pay for the care. Rose increased the resistance to Juli, Donovan and the rest of the family having contact with Max. Juli tried to be involved with the care of Max, but Rose told her to 'stay out of it. ' [App. 87-88] When Max sold her house in 2007, Juli had attempted to help clean out Max's house for her; Rose told Juli what she could or could not take. [App. 89-90] When Donovan started an action in 2008 to place Max under guardianship, Rose stated that unless Donovan stopped the guardianship, Juli would 'lose her inheritance'. [App. 91-92]
16. During the later years that Rose and Max were together, they had purchased a cabin in McLean County with each person putting in half of the $20,000+ purchase price. When the property was sold five years later, the financial records do not indicate that Max received any money from the sale. After Max went into the retirement home, all of her meals were provided. Yet, in a period of 18 months, the financial records indicate that Rose had used over $3,000 of Max's money for purchases at Hardees. Max never ate at Hardees so it was clear that these were purchases for Rose from Max's funds.
17. When this action began, the Court conducted a scheduling conference on April 17, 2009. During that hearing, the Court orally directed that the parties were to indicate if they wanted a jury trial by September 1, 2009. [App. 93] This was later confirmed in a written Order. [App. 94-95]
18. At the conclusion of the evidence, Rose presented her Motion for a Judgment as a Matter of Law which was opposed by James. After oral argument, the Trial Court determined that 'based upon my assessment of the situation at this point in time the Court is satisfied that an appropriate basis has not been shown for granting our Rule 50 motion and the same will be denied'. [App. 96]
19. After receiving the jury instructions and final argument, the jury returned its verdict in less than two hours. The jury unanimously determined that Rose Morgan had exercised undue influence over Maxine and that Maxine did not have the testamentary capacity to execute a Will. The Jury determined that the will was not valid for these reasons. The Court, after some discussion by counsel, entered a Judgment denying the admission of the Will and denied appointing Rose as Personal Representative. This appeal followed.
LAW AND ARGUMENT
Did the Trial Court commit error when it granted the respondent a jury trial; wherein the demand for jury was filed within the time limit as directed by the Court? May a Trial Court decide on its own to order a jury trial to determine the facts in dispute?
20. The issue of a jury trial is governed by Rule 38 N.D.R. Civ. P. However, this case had extreme difficulties in the discovery process. Initially, Rose objected to James Vestre being able to obtain medical records of Maxine or to obtain documents from the attorney, who prepared the offered Will. Several motions were required and it was difficult to obtain certain medical records from out-of-state facilities.
21. At the hearing on April 17, 2009, the Trial Court considered certain motions to obtain the requested records. The Court also conducted a 'status conference' for the purposes of determining how long discovery would take; the length of trial and other issues, including whether or not this would be a jury trial. At the hearing, the following discussion was held:
THE COURT: well, you neither side demanded a jury trial, is this the case?
MS. HOFFARTH: No. I don't believe anyone had demanded a jury trial.
MR. McINTEE: I don't know, I that's a hard thing to decide because of the because we're just starting to get this it took us six weeks, two months to get into this --- .
THE COURT: Right
MR. McINTEE: ---- or decide where we're going. I guess I would like to be able to have unless either party request a jury by September 1 there will be no jury. Or something to that effect. Would that be --- because maybe you might find something that you want to present to a jury.
MS. HOFFARTH: I --- think this is just Your Honor, this is who is going to be appointed as the PR of the estate. I don't know that a jury needs to be involved in that. And why would you want a jury to be involved with that.MR. McINTEE: I disagree without counsel. I think the issue is was the --- if the Will was validly you know, it's a valid Will, then the appointment of the PR is automatic.
THE COURT: That's why --- that's what I'm saying. This is an undue influence claim, is it not?
MR McINTEE: It's undue influence, yes.
THE COURT: Okay
MR. McINTEE: And an incapacity claim.
THE COURT: Which would properly be heard by a jury---
MR. McINTEE: Yes.
THE COURT: ---- if so requested.
MR. McINTEE: Yes.
THE COURT: That's why I'm asking.
MR. McINTEE: Yeah. We'd like to have ---
THE COURT: Much more than just the appointment of a PR, obviously.
MR. McINTEE: Right. We would like to have a jury unless we we have to confirm our jury by September 1st otherwise we waive it. But at this time we'd ask for a jury. How's that --- if you know what I'm talking about. So you can have a couple of months to figure out what you're going to do with a jury or not.
THE COURT: It works for me. I don't have any problem with that. Okay by you, Ms. Hoffarth?
MS. HOFFARTH: That's fine, Your Honor.
[Emphasis added] [App. 97-99]
22. It is clear that at the hearing on April 17th, Rose Morgan, by her attorney agreed to expand the time to demand a jury to September 1, 2009. That oral statement of agreement was confirmed in the Court's Scheduling Order of April 28, 2009 [App. 94-95] and again by reference to jury instructions in the Scheduling Order of April 9, 2010. [App. 100-101].
23. Rose does not dispute that James Vestre served his jury demand [Appellant's App. 23] by September 1st. Rose does, however, complain that a letter was sent in May, waiving the jury. Rose did not consent to the waiver, either by joining in the letter or issuing her own consent document. Rose does not dispute that at the April 17th hearing, James Vestre demanded a jury. Rule 38 (e) provides in part: 'A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.'
24. This same issue was addressed by this Court in First Western Bank v Wickman, 500 NW2d 261 (ND 1976). That case held that a waiver by an attorney can only be accepted by the trial court if the waiver is expressly authorized by the client to do so. It further requires that if a waiver is issued without the signature of the waiving client, the Trial Court must inquire of the client before proceeding with the end trial, whether the party was willing to ratify the earlier invalid waiver. James Vestre did not sign the letter waiver and the Court did not inquire of him at any other time including prior to the trial, if he waived his right to a jury trial
25. It is clear from the record that Rose Morgan consented to the case being tried as a jury trial and that a party can demand a jury trial by issuing a demand by September 1st. James Vestre did issue that demand timely and the case was properly tried to a jury.
26. Rule 39(c) N.D.R.Civ.P provides that:
'In all actions not triable of right by a right of jury the court upon motion or of its own initiative may try any issue with an advisory jury or the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right".
Rose Morgan has argued that James Vestre did not have the right to a trial by jury because he did not file a formal demand as required under the rules. However, the Court at the April 17 hearing indicated that the disputes were factual disputes and indicated that it would conduct a trial by jury if one were demanded by September 1st. Rose Morgan consented to that decision. The Trial court thereafter, issued a short 'note' to have the case tried by a jury. [App. 102] Whether this Court decides that the Trial Court used the jury as an 'advisory jury' under Rule 39 (c) or the demand for jury by September 1st complied with the provisions of Rule 38, real does not make a difference. Either way James Vestre complied with the Rule with the consent of Rose Morgan and the jury properly considered the evidence.
27. The Trial Court did not commit error when it directed the case be tried to a jury.
Did the Trial Court act properly When It Denied the Motion for
Summary Judgment and the Numerous Motions for Judgment as a Matter of Law?
27. Motions for Summary Judgment are controlled by Rule 56, N.D.R.Civ.P which provides that a motion may be submitted to the Court with or without supporting affidavits. In this case, both Rose [App 103-104] and the opponents filed Affidavits. [App. 105-114 & App. 115-133, exclusive exhibits]
28. In motions for summary judgment, the moving party has the burden of proof to show the court that there is no genuine issue as to any material fact and the movant is entitled to Judgment as a matter of law. Monday v Gjesdal, 123 NW2d 33 (ND 1963), Latendresse v Latendresse, 294 NW2d 742 (ND 1980). Even if there are certain factual issues in dispute, summary judgment is still appropriate if the law is such that the resolution of the factual dispute will not change the result. Striegel v Dakota Hills, Inc., 365 NW2d 491 (ND 1985). The Court is required to view the evidence in a light most favorable to the party opposing the Summary Judgment motion. Sternberger v City of Williston, 556 NW2d 288 (ND 1996). Summary Judgment is a procedural
device for the prompt and expeditious disposition of a controversy without trial if either party is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts or if resolving the disputed facts would not alter the result. Ohio Farmers Ins. Co. v Dakota Agency, 551 NW2d 564 (ND 1996), Johnson v McEnroe, 568 NW2d 920 (ND 1997).
29. The party opposing the motion for summary judgment must receive the benefit of all favorable inferences, which can be reasonably drawn from the evidence. Production Credit Assn. v. Klein, 385 NW2d 485 (ND 1986). Summary judgment is appropriate if the only questions to be decided are questions of law. American State Bank and Trust Co. v Sorenson, 539 NW2d 59 (ND 1995).
Capacity to make a Will
30. The standard for inquiry in a will contest, when the issue is the incapacity of the testatrix to make a will, is by a preponderance of the evidence. Berquist v Keller, 551 NW2d 292 (ND1996)The first question for the Trial Court, and eventually the fact finder was whether Max was competent to make a Will on February 2, 2007. This is at the outset, a question of fact that must be determined at trial, and not in a Summary Judgment motion. Counsel has correctly cited the majority of the cases in North Dakota addressing the
issue of capacity to make a Will. We will not restate those cases but do point out one specific case. In Estate of Mickelson, 477 NW2d 247 (ND 1991) our Supreme Court has specifically stated that a whether there is testamentary capacity to make a will is a question of fact. It is a material question in that is a person is not of sufficient mental capacity to make a Will, any document to which the testatrix signed her name is not valid due to the incapacity.
31. It is noted in Rose Morgan's affidavit in support of her motion she did not address Max's mental capacity either at the time of the signing of the Will, or any time prior thereto. Neither Rose Morgan, nor anyone else supporting the motion, addressed the fact that Max had been suffering from diminished mental capacity for at least three years if not longer; that Max was having problems caring for herself at the retirement home; that Max at least at one time, was not feeding herself.
32. A review of the affidavits from James Vestre [App 105-115] and Juli Rude, [App. 115-133], together with the medical records, clearly show that from as early at 1999, Max's mental capacity was diminishing. In 2004, the doctors had noted in her file that her cognitive abilities had diminished and that there was no medication [that Max could tolerate] that would slow down the progression of Max' dementia.
33. When you couple the medical and historical records, together with the fact that the information about Max's family was supplied not by Max, but by Rose; that the distribution of the estate was dictated by Rose, and not by Max and the fact that although [according to Rose] Rose had been a close friend to Max since 1957, at late as 1983 [a period of alleged close friendship of 26 years] Max only left Rose $1,500. Why would Max all of a sudden, after 24 years from the 1983 document, decide to give Rose 35% of her estate?
34. It is clear that there were sufficient disputes as to the mental capacity of Max at the time of the signing of the Will that the Trial Court properly determined that summary judgment motion should be denied.
35. The second issue before the Trial Court was the question as to whether or not Max was subjected to undue influence from Rose in order to have Max execute the Will in dispute. From the affidavits of James Vestre and Julie Rude, it was clear that as far back as 2005, Max was afraid of Rose and was afraid that Rose would find out that Max was spending money on the great nieces and nephews. In addition, during the later years of Max's life, Rose would not permit Donovan or anyone else from the family to be around Max; feed her; have any information about her care and basically attempted to
isolate Max from the family. These are all characteristics of a person who is exercising authority or influence over another person. In this case, it was done clearly for the purpose of preventing Max from leaving her assets to her family.
36. Section 30.1-08-01 NDCC provides that 'Any adult who is of sound mind may make a will.' The issue of course, is whether that person is of 'sound mind'. The existence or nonexistence of undue influence in the making of a Will is a question of fact for the jury, the trier of facts. Estate of Wagner, 265 NW2d 459 (ND 1978)
37.The elements necessary to invalidate a Will on the ground of undue influence are (1) that the testator was subject to such influence; (2) that the opportunity to exercise it existed; (3) that there was a disposition to exercise it; and (4) that the result appears to be the effect of such influence. Estate of Stenerson, 348 NW2d 141, 143 (ND 1984) In the case of Whelan v Burris, 83 NW2d 183, 186 (ND 1967) the Supreme Court upheld a jury instruction which stated in part: 'It is not material when the undue influence was exercised, if it was present and operating on the mind of the testator at the time the will was executed. Moreover, it may be found that the person exercised undue influence upon a testator by dominating his mind even though such person was not present when the will was made.'
38.We now examine these cases in light of the evidence presented to the Trial Court in its determination whether or not to grant the Motion for Summary Judgment. The first question was whether Max was subject to such influence. This can be shown by several factors: (1) when Juli would try to talk to Max on the phone and Rose was present, Max tried to hide the fact that she was talking to Juli; (2) when Juli would go to see Max, and Rose was present, Max would not permit Juli to come into the house; (3) when Max wanted to give her great nieces and nephews Christmas presents, she had to hide that fact from Rose. (4), when Max wanted to give money to her brother for Christmas gifts, she had to do so in the parking lot of the retirement home, so Rose would not find out. Max's actions clearly can be interpreted to mean that she did not want Rose to find out her activities as to the family and that she was, in her own mind, controlled by Rose's expected response if Rose found about the actions by Max.
39.The second question is whether Rose had the opportunity to exercise the undue influence. This is a given. Rose was in control of Max for several years and especially starting in 2005, when Max was placed in the retirement home. Juli and other family members attempted to have contact with Max and find out about her care. Rose took positive steps to isolate Max from her family and keep control over Max.
40. The third question is whether Rose had the disposition to use undue influence over Max. This is similar to the above question. Rose had sole and absolute control over Max for at least two years prior to the Will execution. In addition, Rose was the person to locate the attorney for the Will preparation [we found out at trial that the McGee Law Firm was Rose's personal attorney and has represented her in both estate and real estate proceedings in the past], and took Max to see the attorney. There is no evidence in the record which would indicate that Rose had informed Max of the prior representation so Max would have been able to determine if there was a conflict. In addition, it was Rose who prepared the typed document [App. 134-135], which set out the proposed distribution. Prior to that time Max had distributed, by her earlier Will, her estate to her parents and brothers. In 1983 she did add Rose for the sum of $1,500. Only after Rose took Max to see the attorney did this amount increase to 35% of the estate.
41. The final question is whether the undue influence caused a result, which appears to be the effect of that undue influence. This is unquestionably the finding. Rose was to receive $1,500 and now she gets 35% of the entire estate. We do not know the full value of the estate, but at trial learned that it was more than $400,000. This means that Rose's inheritance would go from $1,500 to at least $140,000. The ability to act to increase a person's income by $138,500 is a clear result and motive to exercise undue influence over a person.
42. The Trial Court is not to examine disputed facts in a Motion for Summary Judgment. It is clear that the facts surrounding the signing of the Will; the preparation of the Will; the mental capacity of Max for several years prior to the Will execution and the control and influence of Rose over Max were disputed. The Supreme Court has stated that both the issue of whether a testator has the capacity to make a Will and if that testator is being subjected to undue influence, are questions of fact. If there are fact questions, which are material to the issues in the case, summary judgment is not appropriate.
43. A trial court's decision on a motion brought under Rule 50 N.D. R. Civ. P. to grant or deny judgment as a matter of law is based upon whether the evidence, when viewed in the light most favorable to the party against whom the motion is made, leads to but one conclusion as to the verdict about which there can be no reasonable difference of opinion.Felco, Inc. v. Doug's North Hill Bottle Shop, 1998 ND 111, ¶ 8, 579 N.W.2d 576. In determining whether the evidence is sufficient to create an issue of fact, the trial court must view the evidence in the light most favorable to the non-moving party and must accept the truth of the evidence presented by the nonmoving party and the truth of all reasonable inferences from that evidence.Symington v. Mayo, 1999 ND 48, ¶ 4, 590 N.W.2d 450.
44. Rose did not point the Trial Court to any evidence or lack of evidence that would indicate that James Vestre's claims of lack of testamentary capacity and/or undue influence were not supported by the evidence. Rose made conclusionary statements to the Trial Court, and again to this Court, that James has not proven his case, but does not point to any lack of evidence. The evidence before the Trial Court, as set forth in detail in the preceding paragraphs, indicated that Rose had sole and exclusive control over Max, to the exclusion of her family; that Rose prepared the documents to indicate the distribution that were delivered to the attorney; that Rose spent part of the time with the attorney and Max; that no person conducted any inquiry of Max at the time of the execution of the Will; that Rose's claim that she received such a large share of the estate was due to her long association with Max, is not supported by the fact that after 28 years of a relationship, Rose was only to receive $1,500.
45. These facts, which the trial court is required to accept as the truth, can only lead the trial court to one conclusion, that there was sufficient evidence to deny the Motion for Judgment as a Matter of Law. The Trial Court did not err.
Did the Trial Court err in permitting Respondent to present evidence outside the day of the execution of the Will to permit the jury to consider the medical/mental history of the Decedent so as to determine the testamentary capacity of the Decedent; and to consider the relationship between the Decedent and the Petitioner to determine undue influence of the Decedent?
46. Rose has argued to this Court, that only evidence as of February 2, 2007, as to the issue of testamentary capacity and/or undue influence should have been permitted at trial. Rose argues that the jury should not have been permitted to look at any medical evidence or mental capacity evidence, except any that may have been conducted on that day, and that the jury should not have been permitted to consider any evidence of the relationship of Max to Rose or Max to any other persons, except as of that day. Rose is in error.
47. As the Trial Court properly noted in the pretrial conferences, a jury cannot view undue influence or mental incapacity in a vacuum. The surrounding circumstances must also be shown to indicate the persons' history of mental capacity; as well as a history of actions that would or would not indicate a history of undue influence.
48. Rose Morgan presented evidence that she had been a close friend of Max for many years. She indicated that since about 1981, she basically was the
person who was a companion to Max. The evidence further indicated that Max and Rose went to see attorney Van Grinsven on January 16, 2007 and Max signed the Will on February 2, 2007. Rose Morgan now argues that the trial court should have limited the evidence to the day of execution, February 2nd.
49. This issue was discussed at a pretrial conference on September 29, 2010. Rose had presented a Motion in Limine by which she had requested that James Vestre be prohibited from presenting evidence about Rose Morgan not feeding Max. The transcript [App. 136-139] of pretrial] indicates that the Court recognized that a jury cannot evaluate undue influence in a vacuum. Rose Morgan indicated that she planned on presenting evidence of the relationship between Rose and Max of many years and she further understood that as far as incapacity and undue influence, it is hard for a jury to evaluate those issues in a vacuum. The Trial Court concluded that it could not prohibit James Vestre from putting in long term evidence for undue influence and mental capacity and still permit Rose Morgan to put in evidence at trial of her long term history with Max.
50. At trial, Rose not only testified extensively of the activities she and Max conducted together of many years, but also the services Rose claimed to have provided to Max from the day of signing of the Will to the date of death.
At trial, Rose Morgan submitted evidentiary documentation of the medical and mental condition of Max for many dates outside the time frame she now claims the Trial Court should have limited the evidence to. By way of example, Rose offered the following:
Letter from Dr. Smith, [App. 44]
Letter from Dr. Lutz, Aug, 2000 [App. 140-142]
Letter from DR. Swenson, Feb. 2006 [App. 143]
Medical Record, Dec. 7, 2005 [App. 144]
Letter from Dr. Swenson, Jan, 2005 [App. 145]
Patient Sheet, Jan, 2000 [App. 146]
She also submitted non-medical evidence of the Rose-Max non-medical relationship:
Letter from Rose, [App. 147]
Deed, 1989 [App. 148]
Deed, 1983 [App. 149]
Satisfaction, [App. 150-151]
Letter, 2008 [App. 152]
Signature card, 1981 [App. 153]
Signature card, 1995 [App. 154]
Bank statement, 2009 [App. 155-157]
51. James Vestre did not argue that the signature on the 2007 Will is not that of Maxine Vestre. His argument is that Rose Morgan, by her isolation of Max from her family and others; the actions by Rose to make Max dependent on Rose; the preparation of the distribution document [App. 69] by Rose are all indicators that Rose Morgan dictated the terms of the Will and that the provisions of the Will were not the free, voluntary and knowing decisions by Max.
52. Rose Morgan appears to argue that the limitation in time is restricted to date and time of the signing of the will. At one point she argues that we can only look at the one day that the Will was signed. If that is the day, then her argument that attorney Van Grinsven testified as to Max's 3-4 weeks earlier was not relevant to the issues before the jury. On the other hand, the argument is also made that the jury should consider 'the time of execution' to mean both the January meeting of Max and Van Grinsven and the date of February 2nd. Then the position must be made that the jury should look at not only at the 'day of signing' but also other background data to consider if there was a history of undue influence and/or is there a history of mental incapacity.
53. As counsel has correctly stated, testimony of prior or subsequent actions is admissible to indicate the Testator's mental condition when the will was signed. Estate of Stanton, 65 NW2d 508. This means we need to look at the long term mental health records to determine if Max was suffering from
dementia and Alzheimer's. In addition, evidence of Max not knowing who her family was; not knowing the difference between a bed sheet and a table cloth; not remembering that her mother had died, as well as Rose Morgan's own information to the doctor that Max could not remember things, are all evidence of mental incapacity. The evidence of her actions after the signing shows the continuing decline in her mental health. It is up to the jury to determine where she was on that mental decline in February of 2007.
54. The evidence of Rose Morgan's history of using Max as a source of funds for the purchase of the home in the 1980's and the lake cabin in later years, but not paying Max for her contribution indicates control of Max's finances by Rose for many years. This continued into 2005 and thereafter when Max was afraid to let Juli in her home when Rose was present; the delivery of family gifts in the parking lot, so Rose would not find out about the gifts; the plans to fund an educational endeavor for the great nieces and nephews, but to keep that information from Rose all show a fear by Max of Rose; they show a fear by Max that Rose was controlling her.
55. This Court has previously approved of jury instructions that indicated "It is not material when the undue influence was exercised, if it was present and operating in the mind of the testator at the time the will was executed. Moreover, it may be found that the person exercised undue influence upon a testator by dominating his mind even though such person was not present when the will was made.' Whelan v Burris, 83 NW2d 183, 186 (ND 1967).
56. The Whelan case is almost identical to this case now before the Court. In Whelan the testator was an elderly gentlemen and his Will directed that all of estate [except a small amount to a church] was to go to one child, Ms. Whelan. The record indicated that Whelan had isolated the gentleman from the other children for over a year. The Will was actually drawn by an attorney in the presence of a second attorney. Ms. Whelan was not in the room when the Will was actually signed, but was eavesdropping in another adjacent room. The jury found that although the undue influence person was not specifically present at the moment of the signing, the fact that the gentleman was isolated from others and the daughter was very close at hand, would show the continuing influence by the daughter over her father.
57. These same facts are present here, but in addition, Rose took Max to Rose's attorney; Rose dictated how the distribution would be made and was actually in the room next to Max when the Will was signed. The Trial Court did not err when it permitted the parties to present evidence outside the day and date of signing.
Did the Trial Court err in its determination that the proffered non-uniform jury instruction was not required; that the issues to be determined in the proffered non-uniform jury instruction was contained in or presented in the Uniform Jury Instruction given?
58. Finally, Rose Morgan finds fault with the Court's jury instructions. The
Court gave the standard instructions of Undue Influence, Validity of Will- Undue Influence and Undue Influence Burden of Proof Greater Weight of the Evidence. [App. 158-160] Rose Morgan did not have any objection to these instructions. The Court then went on to give an instruction entitled 'Testementary Capaicty' [Appellant's App. 250]. The Court went on to explain that this instruction came from the Stormon case. [App. 161] Stormon v Weiss, 65 NW2d 475 (ND 1954) Both parties accepted the instruction as prepared by the Court but Rose Morgan wanted to add 'mere forgetfulness is not sufficient to disqualify one from making a Will". [App. 162] The Court reviewed the argument and indicated that it did not know where the discussion in Stormon should stop. [App. 163] The Court was concerned that give the fact that the term 'memory' was already in the instruction and that such term would encompass the question of forgetfulness, that the proposed additional language may confuse the jury. [App. 164-166]
59. Rose Morgan again argues that Stormon required the inclusion of the forgetfulness language. Rose misreads Stormon. In Stormon, the testatrix had executed a Will, prepared by the husband of a niece, who was also an attorney. The Will basically left everything to that attorney/nephew. The Will was challenged by the testatrix's sisters and other relatives. At trial there was
extensive testimony of individuals about the mental capacity of the testatrix. Only one witness had any slight comments about any memory questions. The central issue on the question of mental incapacity was the fact that a doctor had administered morphine to the testatrix the day of the execution of the Will. The case did not 'turn' on a question of memory, but rather mental capacity due to age and medication.
60. The Stormon decision is 41 pages in length, the majority of those pages devoted to a recitation of the testimony of various witnesses. Almost to a person, each of those witnesses were asked whether or not, in their opinion, the testatrix had sufficient mental capacity to make a Will. The Court concluded that witnesses to a Will were able to render such an opinion, but that the opinions of others were not valid evidence.
61. The Court did recite the language requested by Rose Morgan, however, not in the capacity that she has suggested. The Stormon court was citing an Iowa case [In Re Hayer's Estate, 230 Iowa 880, 299 NW 433, (Iowa 1941)] The language of Hayer's which was included in Stormon was dicta to the issues in Stormon A read of Stormon finds this language immediately after a discussion of 'the critical inquiry in determining testator's mental capacity to execute a will is directed to his condition of mind at the very time he signed the will and evidence of his previous or subsequent conduct is admissible
only so far as it may throw light on his mental condition at the precise moment that the will was signed." Stormon ¶ 10. In Stormon the issue was medication, a factor we do not have in this case.
62. The question of a person's forgetfulness is a question of a person's memory. The Court had included the fact that the jury did have the question of a person's memory to consider in determining whether or not Max had the mental capacity to issue a testamentary instrument. What Rose had requested was given to the jury in another form. In her closing argument [App. 167-184], Rose Morgan did not argue memory, forgetfulness or any question about what Max did or did not remember about her family. She had, as the court indicated, the opening to argue a memory issue as the same was included in the instructions, yet she chose not to. The reason is that forgetfulness was not a factor in this case; a lack of memory of who Max's family was, was a factor as set forth in the instructions given by the Court. Rose did not have any evidence to which she could point forgetfulness was momentary and thus, her request for such separate instruction was without any basis.
63. The Trial Court gave the proper instructions and the Court did not err.
64. The Court properly permitted the questions of fact to be submitted to the jury. The Court gave time for the parties to make that determination and James Vestre issued his request timely. There were many questions of fact to be determined and the Court properly denied the motions for summary judgment and directed verdict. The Court did not error when it permitted evidence to be presented outside of the time and date of the Will execution, especially when Rose also presented such evidence. The jury instruction was proper.
The jury determination should be affirmed.
|Respectfully submitted, this 29th day of April, 2011.|
|Michael S. McIntee #03326|
|Attorney for Appellee|
|McINTEE LAW FIRM|
|116 West 5th Street|
Bottineau, ND 58318