Montes Family v. Carter
878 P.2d 1168
Utah Ct. App.
1994
Check Treatment

*2 telephone occasionally sending him per- BENCH, ORME, Before BILLINGS 25, 1982, February items. On while sonal JJ. George, still St. Dale was examined Dr. *3 time, Bennee. Dr. Bennee John At that

ORME, Presiding Judge: Associate that condition concluded while Dale’s had improved remarkably a of new as result med- Family, appellants in The Montes ication, competent he was to his not handle case, claim that of Dale Everett will later, upon affairs. A based own few months testamentary for loupe is invalid lack of ca- report, Dr. Bennee’s the Veterans Adminis- pacity product it and because undue incompetent. rated tration Dale as influence. The trial court ordered probate, ruling to that the decedent admitted 1986, early Angela instigat- In late 1985 requisite capacity and was not undu- had the transfer, concurrence, ed Dale’s with his ly testamentary disposition. in his influenced facility a George nursing from the St. to disagree part with of the trial court’s We Utah, Valley City, in home West so that he analysis, judgment. affirm but Angela be closer her. visited Dale would to Valley while at the

three times he was West 1986, spring In the home. Dale re- was FACTS nursing from the home and leased went to loupe February 14, Dale Everett was born brother, Montes, adoptive David live with his 1945, County, Fort in at Duchesne Uintah Ballard, County, in Utah. Duchesne Dale was born to Elmer and Winnie Utah. released, being Because Dale was Vet- loupe was a member of and full-blood Administration, conjunction in erans with twelve, age Tribe. Ute Indian At the Dale Tasso, sister, adoptive peti- Dale’s Leonara Montes, adopted Opal was Thomas Tracy-Collins appointment tioned for the prior periodically with whom he lived to Trust as Bank & the conservator Dale’s time. Dale that resided with Montes Tracy-Collins appoint- benefits. was veteran Utah, family Brigham City, following in his conservator, solely ed as Dale’s on the adoption and until died Thomas Montes incompetence 1982 Veteran Administration time, early At 1960’s. Dale returned underlying report and the of Dr. Ben- his to live with natural relatives Whiter- nee. ocks, Utah. Angela’s August according In mid-1960’s, aunt, In the Grace Ar- Dale’s testimony, Dale him during asked her to visit sister, arranged for natural eep, Dale and his the annual Sun Dance at the Ute Indian loupe, appellee Angela attend the Stewart Angela that when Reservation. stated she City, Nevada. Indian School Carson August 14, requested arrived on Dale Angela together, testified while at school him that she take tribal land office so sibling Dale relation- she and maintained a Upon that he could will. execute his arrival school, ship. Upon leaving returned Dale office, Angela at the land Dale and were met Aunt his Grace’s home. Brafford, by H. officer of the James Bu- In Dale was inducted into the United responsible acting reau of Indian for Affairs Army. given He a medical States was dis- probate office. At as scrivener charge approximately year later and one was time, Mr. interviewed Dale to Brafford as- disability awarded Veterans Administration testamentary conjunction In sess his wishes. discharge, At the benefits. time of interview, completed with the Mr. Brafford diagnosed Dale Veterans Administration as federally required form which stated that in suffering paranoid schizophrenia. from (1) opinion experienced Mr. Brafford’s (2) decades, competent, two For the next Dale was inter- executor undue influence, mittently hospitals gave “cognizant for eared in various mental interview, impression.” Dale other institutions as a result of his chronic After the exe- Angela facility in a care a will which named his sister condition. While Dale was cuted estate, probate, beneficiary appointing personal of his to which the sole West One as representative. Brafford attached the federal interview Mr.

form. family appeal, Members of the Montes now stay

During adoptive Dale’s with his broth- claiming that the trial court failing erred Montes, payments David David received rule that the Veterans Administration in- from the conservator of Dale’s veterans ben- competency rating, conservatorships, the two defray expenses. January efits to Dale’s In appointment guardian and the of a over petitioned David also person and was pre- Dale’s combined establish appointed conservator of Dale’s estate and sumption testamentary capacity. of a lack of person by of Dale’s the Ute Indian Alternatively, the Monteses claim that even if appoint- Tribal Court. As result of David’s triggered, such a was not *4 ment, the tribal court a of released fund determining trial court erred that the $87,000 from to David Dale’s accumulated Monteses had not demonstrated such a lack royalties testamentary capacity, share of tribal and dividends. of or the existence of apparently spent David the entire amount will, undue influence the execution of appointed between the time he was Dale’s by preponderance a of evidence. conservator and the time of Dale’s death. Dale, purchases, ostensibly for a His included STANDARD OF REVIEW home, truck, trailer, pick-up horse and a Whether of testa horse. mentary incapacity appoint arises from the charge administering David was also of ques of a ment conservator or is a daily schizophrenia. Dale’s medication for his legal tion of law. a trial “We accord court’s David testified that when Dale took his medi- conclusions no deference but review them for quiet,” cation he was “real but that without it Corp. correctness.” Kennecott v. State Tax just right.” “he didn’t function David stated Comm’n, (Utah 1348, 1993). 862 P.2d 1350 him that while Dale lived with he made sure hand, On the other we defer .trial got that he his medication on time. Howev- specific findings underlying court’s of fact its disap- he also recalled that Dale would compe that determination the deceased was times,

pear running going at off or on drink- tent to make a will and that the will was not ing binges, at which times David not able was influence, reviewing made under undue to administer Dale’s medication. only for clear error. In re (Utah Bartell, 885, Estate 776 P.2d 886 loupe Dale died from acute alcohol intoxi- of 1989). the trial ultimate We review court’s February April cation on 1992. On legal testamentary capacity of conclusions Company, West One Trust successor correctness, and lack of undue influence for Tracy-Collins Company, pe- Bank and Trust although “some deference” will be accorded probate formal of Dale’s will and titioned for process reviewing to the trial court of personal representa- appointment for the of a applications certain of law to fact. See State of the Montes tive for his estate. Members (Utah 1994).1 Pena, 932, 935-39 869 P.2d family objection validity filed an will, alleging he 1987 was incom- Dale’s

petent under undue influence at the time TESTAMENTARY CAPACITY disagreed, The trial court it was executed. Presumption Competence A. compe- determining that the decedent was influence. The The Monteses claim that Dale did not have tent and acted without undue requisite capacity to make a will because trial court therefore admitted the will case, question guidance with the in this 1. Pena not offer concrete about need we wrestle for, does deference, seen, any, properly much if should be how given the trial court’s determina- as be regarding to a trial court's determinations only readily are sustainable with reference tions testamentary capacity. To undue influence and any explicit findings particular and without metaphors, we are not certain borrow the Pena Thus, any deference. examination of need for discretion, along spectrum with- where proper in this context role of deference courts, by appellate pastures in the factual fenced interest at most. would be of theoretical such issues fall. See 869 P.2d at 937-38. Nor 1172 (Utah Roosa, 1985); should 753 P.2d

of his mental illness and that he have Rather, conservatorship making a will “is presumed incapable of at 1037. been legal primarily to of the which of limited effect and relates a result determinations limitations, Roosa, receipt of from his mental includ- veterans’ benefits.” resulted ing conservator- P.2d at 1037. the establishment of two ships for his benefit. appointment Nor did tribal court’s guardian necessarily conservator and estab- law, Utah a testator must Under incapable making that decedent lish mind” to “of sound make a will. Utah Code Kesler, will. See 702 P.2d at 96. Decedent’s (1993). § rule general Ann. 75-2-501 The brother, Montes, petitioned adoptive David presumed competent testator is “[a] which, appointment, granted, for the when will, proof make a the burden gave power him decedent’s tribal bene- over testamentary incapacity is on the contestant person and also over while on fits Kesler, In re of will.” Estate of the record nor the reservation. Neither trib- 1985). 86, 88 See Utah Code Ann. evidentiary court’s order al reveal basis 75-3-407(1) (1993). However, § the Montes appointment for the of David Montes as de- argues family of in decedent’s guardian. cedent’s conservator and Nor Administration, competence by the Veterans purport to be does the tribal court’s order *5 appointment manage of to the conservators adjudication insanity testamentary of inca- benefits, his veteran and tribal and the both pacity, only but states “that the best interest guardian appointment of a him defeat over protected person welfare of the will and be presumption testamentary the usual of ca by appointment served of David Montes as a pacity presumption and establish a of lack protected of conservator the estate of the capacity. of person, person.”2 and of his disagree showing We that such a reverses presumption. manage inability the Decedent’s initial conser- Decedent’s to his justify vatorship solely ordinary was based on the business not Veterans affairs does a rating testamentary of incompetency presumption incapacity. Administration and its testamentary appointed capacity that a be condition conservator Contractual and ca fact, In pacity separate before benefits would be disbursed. involve two standards. See Estate, rating incompetence Chongas’ a of is sufficient to In re 115 202 es- Utah P.2d manage (“person may a conservatorship tablish a veter- 713 lack sufficient capacity ordinary an’s benefits Utah law. See Utah transact his business (1993). However, yet will”); § capacity Ann. 75-5-314 affairs and to make a Code have Co., Bergen of incom- Veterans Administration Travelers Ins. (standard only injury App.1989) petence means that “because of for testamen tary capacity required lacks the mental is [the veteran] or disease lower than business). manage capacity to contract or to his or her transact all that has Where been affairs, including adjudicated party’s inability of own disbursement funds is to contract 3.353(a) § manage on-going limitation.” without 38 C.F.R. or her financial and/or (1993). affairs, testamentary of determination ca Accordingly, pacity is foreclosed. we Accordingly, ineompetency rat hold that the incom Veterans Administration adjudication ing insanity, not an of nor rating, resulting petency conservator- a determination a lack of even of testamenta ships guardianship, pre create a do not Roosa, ry capacity. In re Estate of sumption incapacity decedent’s make a addition, (Wyo.1988). In the sub will. appointment sequent of a conservator based any Nonetheless, rating does on that not constitute it would erroneous Kesler, either. In re Estate to conclude that such indicia of diminished determination apparent recognition already existing scope existing those matters not of the In within conservatorship, Veterans Administration conservatorship. application court’s order tribal also limited case, specific In the trial court made capacity have no effect at all on the mental testamentary capaci- its view on general presumption of —uninfluenced arguing presumption go applicability too far in of the of testa- ty. the Monteses While presumption mentary give capacity establishing rise to a each of the that such factors — First, testamentary incapacity, we must conclude three above-stated elements. the trial that, evidence, they presumption at least neutralize on the court found testamentary capacity generally which ob- family, decedent understood who his “[t]he effect, showing were; In such a levels the tains. adoptive both natural and he under- proponent playing field and leaves the relationships to both of sib- stood sets presump- without the benefit of the usual Second, lings.” court that “[t]he found pre- tion but also without the hurdle of decedent was aware that he received Veter- sumption in the contestant’s favor. This funds; ans’ Administration funds and tribal proponent of the will with would leave the he understood that he owned a horse and a show, by simple preponder- court, the burden to Third, according house.” dece- evidence, ance of the decedent [his dent had a “valid foundation to connect capacity requisite mental to make valid Angela] sister as his sole heir his blood will. family,” testamentary dispo- which made his probably sition “natural and more rational ruling Accordingly, the trial court erred Finally, circumstances.” than not under the testamentary capaci- that the proper “that medication the trial court found incompetency rating, ty survived the conser- would allow the Dece- and alcohol abstention vatorships, guardianship intact. Howev- to function on a level consistent with dent holding presump- that no it did not err testamentary capacity,” and that decedent incapacity came into existence tion of was “not intoxicated nor under the influence factors. reason of such of intoxicants” at the time he made the will. *6 result, findings, upon its factual As Adequacy B. of Factual Basis presumption it and without reference to the Nonetheless, remand for reconsider applied, trial court determined believed principles in with the correct mind is ation possessed requisite capaci- that decedent legal necessary. The trial court’s error ty dispose property his will. While of it was harmless in this case because did not required may have conservators to decedent materially affect the court’s decision. See manage expenditure of his substantial Verde, 61; P. State v. 770 P.2d Utah R.Civ. benefits, “the standard veteran and tribal 1989). (Utah 116, though the court 120 Even measuring capacity execute a will is in Administration ruled that the Veterans capacity to stringent than the somewhat less subsequent conserva- competency gen- business contract or otherwise transact torships did not disturb Co., 776 erally.” Bergen v. Travelers Ins. specific, capacity, the trial court entered de (Utah Further, 659, App.1989). 664 P.2d findings supporting its determi tailed “ require person that a be ‘the law does not ap testamentary capacity, which nation of alert, any spe- nor need he have particularly any legal depended at all on pear not to have ” Id. in order to execute will.’ cial acumen presumption. Richards, 5 Utah 2d (quoting In re Estate of (1956)). 542, 106, Finally, in law, P.2d 548 three-part test 297 there is Under Utah is of sound determining whether testator testamentary capacity. In re to determine “ (Utah 1985). mind, 86, the testator had ‘the test is whether of Kesler, 88 702 Estate will, alleged testamentary capacity at the time the must be In to make a valid “one order (1) made, inquiry should be objects will was identify the natural able to period time not too remote relationship limited to a bounty recognize one’s one’s ” Kesler, (2) In re Estate them, from that event.’ the nature and extent of recall 1985) 86, (quoting In re 93 dispose prop 702 P.2d property, and of one’s one’s 256, Will, 261 167 P. plan 50 Utah understandingly, according to a Hansen’s erty (1917)). in one’s mind.” Id. formed

1174 resulting superiority and influence on the generally may have been

While decedent affairs, party.... confidence one other Mere managing business incapable of alone to person by another is not sufficient properly focused its attention the trial court ” relationship.’ Id. at 347- constitute such testamentary capacity during on decedent’s Rasmussen, 16 (quoting Bradbury v. Utah 48 surrounding the execution period the time (1965)). Accord 2d 401 P.2d given the trial court’s Accordingly, his will. Baker, at corresponding to the three Kesler testamentary capacity, which the elements showing made no such The Monteses have clearly erro- not shown Monteses have relationship with regarding the decedent’s neous, trial court’s determina- we affirm the fact, they In do little his natural sister. testamentary capacity had the tion that Dale Angela was than assert that because more necessary a valid will. to make sister, relation- the decedent’s a confidential contrary ship a conclusion is existed. Such INFLUENCE UNDUE to Jones. family also claims The Montes Moreover, of undue influ- a determination concluding that dece- trial erred in court out the evidence ence is not borne sister, any undue Angela, did not exert dent’s family has not established case. The Montes disposition of his influence over him in the volition, Angela overpowered Dale’s In a will invalid property. order to declare in the thereby imposing her own desires law, for undue influence under Utah fact, making In the trial court of his will. more than there must be an exhibition of contrary. According specifically found to the suggestion, influence or there must be sub- fact, findings of the dece- to the trial court’s proof overpowering of the stantial during him his sister to visit dent asked volition at the time the will was testator’s Dance and then asked her to take annual Sun made, impelled he is to do to the extent The did him to execute his will. decedent had he that which he would not have done and, fact, had not live with his sister influence, controlling free from such been infrequent with her. comparatively contact represents the of the so that the will desire The court also found that the decedent person exercising the influence rather than that he was “rather “a mind of his own” and that of the testator. things strong about the he wanted to willed” Estate, In re Lavelle’s Utah Finally, the trial court also noted do. *7 (1952). Accord Baker v. P.2d 375-76 scrivener, Brafford, official inter- Mr. (Utah 1984). Pattee, 632, 637 684 P.2d regarding his testamen- viewed the decedent he not presumed tary wishes and concluded that was influence is Undue any at the time he relationship undue influence a confidential exists be where beneficiary the will. and the of the made tween the testator Jones, 759 P.2d will. In re Estate of Accordingly, given the Monteses’ failure (Utah grounds, App.1988), rev’d on other in the trial court’s demonstrate clear error (Utah 1993). “[a] Such confidential supporting fact its determination relationship party, when one after hav arises unduly influenced that the decedent was not anoth ing gained the trust and confidence of testamentary disposition, we affirm the extraordinary influence over the exercises respect as well. trial court’s decision However, a few party.” Id. while other attorney relationships, as that of CONCLUSION confidential, client, presumed “[i]n are to be concluding trial court erred in relationships of a con While the all other the existence incom- Administration relationship question of fact.” Veterans fidential “ appoint- subsequent kinship may petence Accordingly, ‘[w]hile Id. had no determining legal ment of conservators and the existence of factor on usual of testamen- relationship, there effect ly significant confidential harmless be- kinship, tary capacity, such error was showing, must be a addition determined, separately trial court party and cause the reposal of confidence one [of] findings, that the upon specific factual make capacity to requisite decedent in conclud- court err Nor did the trial

a will. unduly influ- not

ing that the decedent disposition. Ac- testamentary in his

enced trial court’s decision

cordingly, we affirm the probate.

admitting decedent’s will

BILLINGS, J., concurs.

BENCH, Judge (concurring in the result

only): using ruling the trial court’s

I affirm would review, explained proper standard of Pena, 932, 936-39

in State v.

1994). The trial court’s determinations competent and not both

the decedent was application of law

unduly influenced involve therefore, fact, are entitled to “some opinion at- The main See id.

deference.” enlarging appel-

tempts restrict Pena questions application when

late review on findings. I specific do are

there specific factual find- the existence of

believe of review on modify our standard

ings should questions.

application Appellee, Utah, Plaintiff and

STATE JONES,

Kyle Defendant Earl *8 Appellant. 930491-CA.

No. Appeals of Utah.

Court July 1994. (argued), Brooke C. A. Peterson Michael Ass’n, Wells, Legal Salt Lake Defender Salt Aug. Rehearing Denied City, appellant. Lake Gen., A. Graham, Atty. Kenneth Jan State Gen., Atty. Salt (argued), Asst. Bronston appellee. City, for Lake BILLINGS, DAVIS Before GREENWOOD, JJ.