IN THE MATTER OF THE ESTATE OF: ROBERT LEE MEAD, Deceased
No. DA 13-0772
Supreme Court of Montana
Decided September 30, 2014
2014 MT 264 | 376 Mont. 386 | 336 P.3d 362
Submitted on Briefs August 6, 2014.
For Appellee: Jeffrey W. Dahood; Knight, Dahood, Everett & Sievers; Anaconda.
¶1 Roberta Jean Mead appeals the Third Judicial District Court‘s order awarding summary judgment to Bobbi Jo Harr in a dispute over their father‘s will.
¶2 We address the following issues on appeal:
¶3 1. Whether the court correctly concluded that the will was properly executed.
¶4 2. Whether the court cоrrectly concluded that Roberta Jean Mead failed to present sufficient evidence to establish undue influence.
¶5 We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶6 Robert Lee Mead (Robert) died on September 17, 2011. His daughters, Roberta Jean Mead (Roberta) and Bobbi Jo Harr (Bobbi Jо), survived him. Roberta and Bobbi Jo are half-sisters, born to different mothers.1 After Robert‘s death, Roberta initiated intestate proceedings, but Bobbi Jo petitioned for formal probate of Robert‘s purported will.
¶7 The will is dated July 18, 2011. Robert‘s long-time neighbor Teryl Rouse (Teryl) wrote its contents by hand. The will reads as follows:
On this date 7-18-2011—I am here with my neighbor of over 30 years—Robert Mead (Bob)—I am here to write down his last “will“—He is in good spirits, alert and sound of mind. On this date
Bob has asked me to write down the desires he has in regards to his earthly possessions. “I (Bob) Robert Mead do will all my earthly possessions to my daughter Bobbi Jo Harr that lives in California, she can do with them what she likes.”
¶8 Teryl and her husband Ralph Rouse (Ralph) each signed as “witnesses” and dated their signatures “7/18/2011” near the bottom of the will; Robert‘s name and signature appear beneath the Rouses’ signatures.
¶9 Ralph died before proceedings in this case occurred, leaving Teryl as the will‘s only surviving signatory. Teryl testified that, in July 2011, Robert talked to her about preparing his will. Robert was suffering from soon-to-be diagnosed terminal cancer and had just returned from the hospital. He asked Teryl to come over to his house and help prepare a will. Teryl came over and Robert handed her a piеce of paper, explaining that he could not write the will himself because his hand was too shaky. Medical records show that Robert was prescribed hydrocodone at the time. Teryl wrote the part of the document not in quotatiоn marks at her own bidding. Robert dictated the part of the document in quotation marks and Teryl wrote the dictation word-for-word.
¶10 After completing the document, Robert and Teryl signed it. Teryl suggested that she should get her husband Ralph to sign the document also, and Robert agreed. Teryl went and got Ralph. According to Teryl, after Ralph arrived he looked at the will and said, “[S]o [Teryl] wrote your will; did she sign it too?” Robert then responded, “[N]o; that‘s my shaky handwriting.” Ralph then signed the will.
¶11 After discovery, Roberta and Bobbi Jo filеd cross-motions for summary judgment about the will‘s validity and enforceability. Concluding that the will is valid and enforceable, the District Court denied summary judgment for Roberta and granted judgment in favor of Bobbi Jo.
¶12 In its October 16, 2013 Memorandum and Order, the District Court addressed three issues. First, the court determined that there was no issue of material fact about the execution of the will and that the will was properly executed as a matter of law. Second, the court ruled that Roberta failed to raise a genuinе issue of material fact showing that Robert lacked testamentary capacity. Third, the court ruled that Roberta failed to raise a genuine issue of material fact about undue influence.
¶13 Roberta challenges the District Court‘s grant of summаry judgment to Bobbi Jo.
¶14 We review a district court‘s ruling on a motion for summary judgment de novo, using the standards set out in
DISCUSSION
¶15 In Montana, any adult of sound mind may make a will.
¶16 1. Whether the court correctly concludеd that the will was properly executed.
¶17 To be valid, an executed will must generally be (1) in writing, (2) signed by the testator, and (3) signed by two witnesses.
¶18 Robert‘s will satisfies the first two execution requirements: it was in writing and Robert signed it. Roberta argues that the document does not satisfy the third requirement, however, because it laсks a second valid witness signature. Roberta does not dispute that Teryl‘s signature qualifies as a valid witness signature, but argues that Ralph‘s does not.
¶19 To Roberta‘s point, Ralph indeed did not witness Robert
¶20 Bobbi Jo argues that the evidence demonstrates that Ralph witnessed Robert‘s acknowledgment of his signature on the will. Teryl testified thаt when Ralph came over to Robert‘s house, Ralph asked Robert whether the signature on the will was Teryl‘s, and Robert responded by stating, “[N]o, that‘s my shaky handwriting.” Robert‘s statement identified and acknowledged his signature on the document. Ralph signed shortly after that acknowledgment. Robert‘s statement, then, establishes Ralph‘s signature as a valid witness‘s signature, and establishes the will as properly executed.
¶21 Although the District Court concluded as much, Roberta argues that the court improperly considered Robert‘s statement. Roberta points out that, at the summary judgment stage, a court may consider only evidence that would be admissible at trial. Alfson v. Allstate Prop. and Cas. Ins. Co., 2013 MT 326, ¶ 11, 372 Mont. 363, 313 P.3d 107. Roberta argues that the statement is not admissible because it is hearsay. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is inadmissible unless an exception applies. M. R. Evid. 801(c), 802.
¶22 Robert‘s statement is indeed an out-of-court statement, but it is not offered to prove the truth of the matter assеrted. Bobbi Jo offers the statement to prove that Robert acknowledged his signature. She does not offer the statement to prove what the statement asserted—that Robert was pointing to his own handwriting when he made the statement, or that Robert‘s handwriting was actually shaky. Those facts are immaterial.
¶23 Where the issue is the existence of a statement, not the truth of the matter asserted, Montana recognizes the verbal act doctrine. Phillip R. Morrow, Inc. v. FBS Ins. Montana-Hoiness Labаr, Inc., 236 Mont. 394, 399, 770 P.2d 859, 862 (1989). The verbal act doctrine applies when an out-of-court statement “is an operative fact which gives rise to legal consequences.” Morrow, 236 Mont. at 398, 770 P.2d at 861 (emphasis in original). Under the verbal act doctrine, “statements may be admitted ‘for the purpose of establishing the fact that the words had been said by the [dеclarant].‘” Morrow, 236 Mont. at 399, 770 P.2d at 862 (quoting State v. Collins, 178 Mont. 36, 44, 582 P.2d 1179, 1183 (1978)).
¶25 We hold that the District Court properly considered Teryl‘s testimony about Robert‘s statement and correctly awarded summary judgmеnt to Bobbi Jo on the issue of the will‘s execution. There is no dispute of material fact, and Bobbi Jo is entitled to judgment as a matter of law that the will was executed.
¶26 2. Whether the court correctly concluded that Roberta failed to raise a genuine issue of material fact about undue influence.
¶27 The party contesting a will bears the burden of establishing undue influence.
(1) the use by one in whom a confidence is reposed by another person or who holds a real or apрarent authority over the other person of the confidence or authority for the purpose of obtaining an unfair advantage over the person;
(2) taking an unfair advantage of another person‘s weakness of mind; or
(3) taking a grоssly oppressive and unfair advantage of another person‘s necessities or distress.
¶28 The District Court ruled that Roberta failed to raise a genuine issue of material fact about undue influence. On appeal, Roberta argues that she raised a fact issue because (1) Bobbi Jo‘s birth certificate does not list Robert as Bobbi Jo‘s father, which suggests that
¶29 We agree with the District Court that Roberta‘s evidentiary submissions fall short for three reasons. First, although Roberta presents evidence that Robert was on medication, she fails to present substantial evidence that Robert was affected by that medication such that he was weak of mind. In her affidavit, Roberta states that, in 2011, she “became concerned regarding [Robert‘s] mental capacity and noticed he was starting to fail.” As we have observed, “[g]eneral allegations of poor health are not sufficient to show undue influence.” Harmon, ¶ 22.
¶30 Second, that Robert is not listed on Bobbi Jo‘s birth certificate does not prove undue influence, particularly in light of Robеrta‘s admission that Robert was Bobbi Jo‘s father.
¶31 Most importantly, Roberta fails to point to evidence of “specific acts” of undue influence. Harmon, ¶ 21. Roberta provides no evidence of any party actually using “confidence or authority” over Robert, or taking “unfair advantage” of Robert‘s “weakness of mind” or “distress.”
¶32 When a party who carries the burden of production on a claim fails to make a showing sufficient to establish the existence of an essential element of that claim, there is no genuine issue of material fact. See Harmon, ¶ 47. The law placed on Roberta the burden of establishing undue influence.
CONCLUSION
¶33 Because the will was properly executed and not the result of undue influence, the District Court was correct to conclude that the will is valid and еnforceable. We affirm the District Court‘s October 16,
CHIEF JUSTICE McGRATH, JUSTICES RICE, COTTER and SHEA concur.