Evidence from a Codicil

Facts: Father wrote a will which left everything to his brother. Father then wrote a codicil which disinherited his son. Son sought to have the codicil set aside on the ground of undue influence

Rule: Where codicil does not change manner or extent of testamentary disposition in will, proper question of undue influence must be determined solely by reference to acts bearing upon execution of codicil.


Quote: In a situation such as is here presented, with reference to the question of whether an attempted direction by a testator of the disposition of his property has been unduly influenced by another person, the law is well established that, excepting only as clearly is made to appear to the contrary, a codicil to a will is an affirmation of the provisions contained in the former testamentary declaration. And, since it is here conceded that by no provision or term of the codicil was any attempt made by the testator to change or to modify either the manner or the extent of the testamentary disposition contained in the will proper, it follows that to all intents and purposes the question of whether the will and its codicil, considered as a single instrument, was induced by the undue influence of any person or persons exerted upon the testator, must be considered and determined solely by reference to the acts of such person or persons as they related to or bore upon the execution of the codicil. (253)

In re Estate of Horton 128 Cal.App. 249, 252 (1932)

EVERYONE’S GOT AN OPINION

There are certain other rules that must be kept in mind in passing on the sufficiency of the evidence. The burden of proof to show lack of testamentary capacity is, of course, on the contestant. It is well settled that a testator has sufficient mental capacity to execute a will if he has sufficient capacity to understand the nature of his act, the extent and character of his property, and the persons who are the natural objects of his bounty. Estate of Purcell, 164 Cal. 300, 128 P. 932; Estate of Arnold, 16 Cal.2d 573, 107 P.2d 25; Estate of Sexton, 199 Cal. 759, 251 P. 778; Estate of Grant, 8 Cal.App.2d 232, 47 P.2d 508; Estate of Garvey, 38 Cal.App.2d 449, 101 P.2d 551. It is also well settled that the opinion of a witness or of an expert that the testator was of unsound mind is of no greater value than the reasons given in support of the opinion. If the reasons given by such witnesses do not support the conclusion of lack of testamentary capacity, the opinion is entitled to no weight in either the trial or appellate courts. Estate of Nolan, 25 Cal.App.2d 738, 78 P.2d 456; Estate of Flint, 179 Cal. 552, 177 P. 451; In re Redfield's Estate, 116 Cal. 637, 48 P. 794; Estate of Finkler, 3 Cal.2d 584, 46 P.2d 149; Estate of Bemmerly, 110 Cal.App. 550, 294 P. 33; Estate of Dolbeer, 149 Cal. 227, 86 P. 695, 9 Ann.Cas. 795.

In re Pessagno's Estate (1943) 58 Cal.App.2d 390, 393-394.

TWO WRONGS DON’T MAKE NO A “NO WRONG”

Birney v. Birney (1933) 217 Cal. 353

Procedural context: Plaintiff brought suit to establish trust and obtain return of securities delivered to defendant in defendant’s sole name. Trial court ruled in favor of plaintiff and the appellate court affirmed the trial court’s decision.


WHAT HAPPENED:

The plaintiff was a very wealthy man. The defendant was his daughter, who had been well educated, well-cared for and supported throughout her life by her father: "The family lived extravagantly and traveled extensively." (356). The properties owned by the family included former President Van Buren’s farm in New York (Lidenwald).

The wife and mother of the parties died in 1922. Plaintiff remarried in 1927. Unfortunately, that marriage turned out poorly. Defendant, who had done two years in law school at Yale, advised the plaintiff to transfer the bulk of his assets into defendant’s separate name to protect him from his "gold-digging" soon-to-be-exwife. The "plaintiff had great confidence in her legal and business ability, considering her one of the smartest women in the country. He had like confidence in her integrity." (356)

Plaintiff later asked for a return of his property. He obtained an arrest warrant for his daughter when he discovered that she would not return his property. The defendant fled California and traveled to New York, "Upon arriving in New York she learned that her father had procured a warrant for her arrest. She then telephoned him that if he had her arrested she would inform the authorities that he had committed perjury in his wife's maintenance suit in filing an affidavit to the effect that he was worth $6,000 only." (358)

The court further explained:

Defendant was thereafter brought back to San Francisco. At this time she made no claim that the bonds belonged to her, but on the contrary she made statements to certain persons that the bonds belonged to her father and she had taken them to protect him. Like statements were made to an officer of the National City Bank at its office in San Francisco. She also informed a friend of hers that she had her father's securities in her name and that she intended to keep them for herself. This evidence is ample to support the finding that plaintiff was the owner and entitled to the possession of the securities. Aside from this positive testimony that no gift of the bonds was ever made to defendant as she claimed, her conduct during the entire transaction is inconsistent with the idea that her father made a gift of the securities to her. It is hardly probable that her aged and infirm father would have stripped himself of everything he possessed. (358)

Just before the appellate court undertook to analyze the trial court decision, it made this aside, "We are not called upon to express any opinion as to the standard of filial conduct displayed by defendant and her sister toward their aged and indulgent parent. Suffice it to say that it is the tragedy of Lear, retold." (358)

The appellate court continued:

The further claim that plaintiff is not entitled to the relief sought for the reason that he does not come into a court of equity with clean hands is also without merit. At the time of the transaction plaintiff was over seventy-two years of age and infirm, he being a physical cripple. He had great confidence in defendant's legal ability and was guided by her advice. It was upon her constant urging that he sent the bonds to her for safekeeping, and his wife had no interest in the same; they being his separate property. It is true that in the action by his wife for separate maintenance and support plaintiff made an affidavit to the effect that he was worth only about the sum of $5,000, when as a matter of fact he owned the bonds in question. In the present suit he denied ever having advised his attorney to incorporate such a statement in the affidavit, and he testified that he signed all papers prepared by his attorney upon his advice without reading them. However this may be, defendant should not be permitted to take advantage of her own wrong. As was said in Chamberlain v. Chamberlain, 7 Cal. App. 634, 95 P. 659, one cannot lay a trap for another, secure his confidence, induce him to make a conveyance of his property in expectation that it will be returned, and thereafter retain the fruits of his perfidy on the ground that the donor too readily yielded to temptation to save himself at the possible expense of his creditors. The greater offense of the tempter overshadows and renders innocuous the weakness of the one of whom advantage is taken. Though a deed made for an improper purpose is unfairly procured through the undue influence of the grantee, in violation of a fiduciary relationship, abuse of confidence, oppression, or fraud, a court of equity will still grant relief to one in fault. Such relief will not be denied to a party least in fault against one who has led him into the act by a violation of confidence. They are not in equal wrong. Anderson v. Nelson, 83 Cal. App. 1, 256 P. 294. Under the circumstances plaintiff should not be denied the relief he seeks. (358)

Son Stole the Linoleum

FACTS:

According to the court, Mrs. O’Grady had "several" children. One of her children, a son named "Harry" still lived across the street from his 80-some-year-old mother. She was weak and easily swayed. Following an accident, she became incapacitated. Fortunately, Harry was nearby and able to help. He began to manage her affairs.

Harry apparently decided that his mother should no longer be swayed by his siblings to deed the property to one of them alone (she had done this twice before; but on both occasions, the deed was not recorded and later withdrawn). According to testimony, "[H]er children could influence her to do anything that they wished." (240)

Harry got his mother to deed the property to him. He then recorded the deed, took his mother’s linoleum off her floor, took some dishes and bedding and left town. His sister, Grace was appointed guardian and brought a suit to void Harry’s deed.

At trial, the court did not set the deed aside on lack of capacity. There was no proof that the mother was incompetent; just that she was easily swayed. Therefore, "Her mental condition becomes important only in connection with the charges of undue influence against her son." (239)

THE DECISION:

The trial court voided the deed on the ground of undue influence, and the appellate court upheld that decision, as follows:

In considering the question of undue influence of Harry over his mother in obtaining a deed to all her property, we must bear in mind: (1) That the judgment rendered was upon a motion for nonsuit where the evidence, in favor of the plaintiff, must be taken as true and construed most strongly in her favor; (2) that a confidential relation of trust and confidence existed between Mrs. O'Grady and her son Harry; (3) that she was of very advanced years, physically incapacitated, uneducated, and easily influenced by any of her children; (4) that Harry was at the time her business adviser; (5) that he received a deed to all her property without other consideration than love and affection, and subsequently recorded it; (6) that thereafter he moved from Perris, taking with him linoleum from the floor of the house and part of his mother's dishes and bedding, leaving insufficient for her use so that the guardian, when appointed, had to replace the articles taken; (7) that the notary who prepared the deed and the witnesses to the mark of Mrs. O'Grady were procured by Harry; (8) that Mrs. O'Grady had no independent advice in the transaction.

We think the facts of this case bring it within the rule announced in Soberanes v. Soberanes, 97 Cal. 140, 31 P. 910, 912, as follows: "There is no doubt as to the principle applicable to cases of this kind. Transactions like the one under consideration are watched by courts of equity with the most scrutinizing jealousy, and are generally held to be presumptively void. They will be set aside upon the discovery of the least fraud, and every presumption ought to be indulged against them. The person who makes the donation and bestows the confidence is not bound to show that any imposition has been practiced upon him. It is sufficient for him to establish intimate and confidential relations with the donee. Some of the cases hold that undue influence is not to be inferred from the relation of parent and child, where the gift is from the parent to the child (Millican v. Millican, 24 Tex. 426); but where the parent is of great age, or is enfeebled by disease, and conveys his entire estate to one child, to the exclusion of other children dependent upon his bounty, the burden is unquestionably upon the donee to show that the gift was made freely and voluntarily, and with full knowledge of all the facts, and with perfect understanding of the effect of the transfer."

O'Grady v. O'Grady (1933) 129 Cal.App. 237, 242.

He stole the flooring . . . .

Before You Argue Undue Influence

Before there is imposed upon the proponent of a will the obligation of presenting evidence of volition, and before the question as to undue influence becomes one of fact for determination by a jury, there must be evidence, the probative force of which establishes (1) the relations between the one charged with exercising the undue influence and the decedent affording the former an opportunity to control the testamentary act; (2) that the decedent's condition was such as to permit of a subversion of his freedom of will; (3) that there was activity on the part of the person charged with exercising undue influence; and (4) that such person unduly profited as beneficiary under the will. Estate of Graves, 202 Cal. 258, 262, 259 P. 935; Estate of Hampton, 39 Cal.App.2d 488, 498, 103 P.2d 611. It is also the law that evidence must be produced that pressure was brought to bear directly upon the testamentary act. Estate of Arnold, 16 Cal.2d 573, 577, 107 P.2d 25.

Respondents emphasize the fact that prior to 1942 appellant took very little, if any, interest in his brother William or the latter's affairs, and was not associated in either a business or social way with the Llewellyn family group which included respondents, at the family home on Berkeley Square. That it was not until the death of the sister, Mrs. Milner, that appellant took much, if any, interest in his brother the decedent. That he then became a frequent visitor to his brother and commenced a systematic campaign to unduly influence the latter against respondents and to obtain the property and estate of decedent. We perceive nothing sinister in the active interest appellant took in his brother after 1942. Here was a family, closely associated in the development and maintenance of a large industrial concern. Appellant married and thereafter did not reside with the other members of the family. When death removed all the members thereof save and except decedent and his brother, appellant herein, it seems only natural to us that as sole survivors of a once large family the relations between these two brothers should become closer. The right of courts and juries to draw inferences is not arbitrary and unrestrained. An inference must not only be founded on a fact legally proven, but on such a deduction from that fact as is warranted by a consideration, among other things, of the propensities of people and the course of nature (Code Civ.Proc.Sec.1960). The foregoing proven facts do not warrant a natural inference of perfidy but on the contrary, under the ci here present, reflect the natural propensities of one brother toward another. Furthermore, in the absence of evidence, it cannot be assumed that a person is guilty of wrong doing. On the other hand, it must be presumed in the absence of evidence to the contrary, that one is innocent of crime or wrong doing (Sec.1963, Subdiv. 1, Code Civ.Proc.)

In re Llewellyn’s Estate (1948) 83 Cal.App.2d 534, 561, 562-564.

What Does “Strictly Construed” Mean?

The rule that a forfeiture clause is to be strictly construed means simply that no wider scope is to be given to the language employed than is plainly required, and it is the cardinal rule of construction that the intent of the testator as manifested by the terms of the will must be given effect. In re Kitchen, supra. In the instant case the only provisions that would result in a forfeiture under the will were the commencement of proceedings to contest the will, or failure to abide by any of its provisions. We find nothing in either of said actions commenced by respondent against appellants indicating a purpose to contest the will; on the contrary, by filing her petition for partial distribution, she indicated the reverse. The case of Estate of Hite, supra, and other cases relied upon by appellants, are all cases where there was a contest of the will or of some of its provisions.

In re Seipel’s Estate (1933) 130 Cal.App. 273, 276-277.

Evidence of Incapacity Before and After

If the evidence shows incapacity before and after a date, there is an inference and "perhaps there is even a legal presumption" that the incapacity existed on the in-between date:

The evidence above recited is more than adequate to sustain the finding that decedent lacked testamentary capacity at the time the purported holographic will was executed. As stated In Re Estate of Fosselman, 48 Cal.2d 179, 185-186, 308 P.2d 336, 340: 'Testamentary incompetency on a given day, * * * may be proved by evidence of incompetency at times prior to and after the day in question. In re Estate of Perkins, supra, 195 Cal. 699, at page 703, 235 P. 45; In re Estate of Lingenfelter, supra, 38 Cal.2d at page 580, 241 P.2d 990; see Vitale v. Vitale, 147 Cal.App.2d 665, 669-670, 305 P.2d 690. Once it is shown that testamentary incompetency exists and that it is caused by a mental disorder of a general and continuous nature, the inference is reasonable, see In re Estate of Baker, 176 Cal. 430, 437-438, 168 P. 881; Vitale v. Vitale, supra, perhaps there is even a legal presumption (Code Civ.Proc., § 1963, subd. 32; see In re Estate of Schwartz, 67 Cal.App.2d 512, 521, 522, 155 P.2d 76; Byrne v. Fulkerson, 254 Mo. 97, 123, 162 S.W. 171; Bever v. Spangler, 93 Iowa 576, 601, 61 N.W. 1072, that the incompetency continues to exist.'

In re Wolf's Estate,(1959) 174 Cal.App.2d 144, 148. While the inference is not conclusive evidence of incapacity, it is substantial evidence:

There was direct and circumstantial evidence that decedent's mental condition had not materially changed in the interval between the execution of the purported holographic will and the appointment, less than a month later, of proponent as guardian of the person of decedent. Such an adjudication would not conclusively establish lack of testamentary capacity (In re Estate of Jamison, supra, 41 Cal.2d 1, 13, 256 P.2d 984; see In re Estate of Worrall, 53 Cal.App.2d 243, 247-248, 127 P.2d 593), but it would constitute substantial evidence on which a finding of testamentary incapacity may rest. Cf. In re Estate of Krause, 71 Cal.App.2d 719, 725, 163 P.2d 505.

Id., at p. 149.

Evidence of Subsequent Capacity

Can evidence of the decedent’s capacity after the time of making the will be admitted to prove capacity at the time of making the will?

In (In re Bright’s Estate) Willard v. Bright (Sp. Ct. Mt. 1931) 89 Mont. 394; 300 P. 229, the court found that such evidence was "clearly admissible".

In April 1928, the decedent made out a will. In November 1928, she suffered a broken hip. At that time, Frances Goozee attended to the decedent until her death in February 1929. Certain putative heirs of the decedent were unhappy with the will and argued that the decedent was incompetent at the time she executed the will in April 1928.

The proponents of the will countered with Ms. Goozee, who testified that during the final four months of her life, the decedent was competent.

The trial court found the decedent competent and the contestants appealed, in part arguing that the evidence from Ms. Goozee was inadmissible because it was after the fact. The Supreme Court for Montana found the evidence was "clearly admissible":

"The evidence was offered in rebuttal of numerous declarations made by witnesses in support of contestants' allegation, denied by contestants, that for 2 ½ years or more, prior to her death, Mrs. Bright was ‘mentally unable to understand or transact her ordinary business affairs,’ and in that condition was unduly influenced by these contestees, and further numerous statements that during all of that period she was mentally incompetent to make a will. The testimony was clearly admissible." Id., at p. 397.

Point of application: If the nature of incompetency was an alleged degenerative condition, then proof that the decedent was competent after the time in question would be inconsistent with the alleged degenerative condition. Therefore, the evidence would be admissible. Are there circumstances in which the (alleged) incompetency could be ameliorated? Would the subsequent evidence be admissible in those cases? And, if so, to what purpose?

Testating While Intoxicated

Back Story:

Some men can’t stay married. A fourth wife sought to disinherit a son by a second wife, when their husband/father died.

The testator apparently spent the greater part of his adult life intoxicated, which could explain the four-wives thing. At the time of his death, he had separated from his fourth wife, but apparently never sobered up enough to divorce her. However, he did make a will – and therein lies a troubled tale.

When he died, the separated-but-not-yet-divorced-fourth-wife thought she deserved his stuff (after all, she was the last one on the ride when it came to a stop). Unfortunately for Number Four, the Drunken Testator left everything to his only child (four wives, one kid), a son from his second wife.

In the way that only a person who thought they were going to get free stuff from a dead guy can be, Number Four was litigating mad. Number Four argued, among other things, that the Testator was too drunk to make a will. The appellate court rejected the argument that habitual drunkenness means testating while intoxicated.

Decision:

It takes more than ‘mere guesswork and general conjecture’ to support a finding contrary to the presumption that a testator in competent. In re Estate of Teed, 112 Cal.App.2d 638, 647, 247 P.2d 54. Evidence, as in the instant action, that testator was a 'chronic alcoholic', that he has been drunk on various occasions, and that he has taken several ‘cures’, some of which consisted of bed rest, massive doses of vitamins, and food, does not tend to prove testamentary incompetence unless it is also proved that the time of decedent’s drunkenness coincided with the time of his execution of the testamentary document. In re Estate of Arnold, 16 Cal.2d 573, 585, 107 P.2d 25; In re Estate of Powers, 81 Cal.App.2d 480, 482, 184 P.2d 319.

Appellant cites and relies upon the decisions in In re Estate of Fosselman, 48 Cal.2d 179, 308 P.2d 336; and In re Estate of Collin, 150 Cal.App.2d 702, 712, 310 P.2d 663, 670, in the latter of which Mr. Justice Fourt, speaking for this court, said: ‘Proof of testamentary incapacity and of the facts upon which a testator's state of mind depends is not necessarily confined to the exact time or moment of the execution of the will.’

In re Estate of Collin, supra, affirmed on appeal a judgment admitting to probate a will dated December 19, 1951, and denying admission to probate a purported will dated October 24, 1952. That decision followed a finding that decedent 'was of unsound mind and lacked testamentary capacity and was suffering from insane delusions and hallucinations from February 2, 1952, until his death on November 3, 1952'. A reading of the eight-page summary of the evidence in that decision leaves no doubt that the finding of decedent's lack of testamentary capacity on October 24, 1952, is supported.

In Estate of Fosselman, supra, a judgment denying a petition for probate of a will and codicils was affirmed by the Supreme Court. There the trial court, sitting without a jury, found that at the time said purported testamentary documents were executed and continuously thereafter until the time of her death, decedent was 'suffering from senile dementia and was of such mental incompetency as to render her incapable of executing a Will, and was suffering from an insane delusion', that the beneficiary named in the will was ‘an old family retainer * * * and was a very old friend’, when actually she had known her only a few months and only as an employee. The evidence therein summarized supports the court's finding of testamentary incapacity.

No such evidence is called to our attention by appellant in the instant action, and a careful reading of the entire record fails to disclose any evidence of decedent's incompetence beyond his temporary incoherence and instability when drunk. All witnesses who knew him testified that he appeared to be competent when sober. Each of the attesting and other witnesses to the execution of the will dated July 2, 1953, was of the opinion that decedent was then sober and competent.

In the absence of proof that the intemperate use of alcoholic beverages, however long continued the habit is shown to have been, has actually destroyed testamentary capacity, no presumption will be indulged that it has thus been destroyed. In re Estate of Putnam, 1 Cal.2d 162, 165, 34 P.2d 148.

In the instant action, as stated by this court in In re Estate of Garvey, 38 Cal.App.2d 449, 458, 101 P.2d 551, 555, "The evidence of overindulgence in alcoholic liquor as reflected in the record before us falls far short of the quantum required to establish the fact that decedent had become so weakened in his physical and mental powers that he was incapable of the testamentary act. In re Estate of Fisher, 202 Cal. 205, 259 P. 755; In re Estate of Putnam, 1 Cal.2d 162, 165, 34 P.2d 148. Neither does not evidence in the instant case of repulsive or filthy personal habits, ill temper and a disagreeable disposition constitute insanity or unsoundness of mind. (Citations.)."

In re Warner's Estate ( 1959) 166 Cal.App.2d 677, 684-686.