NO. 94-264

IN THE SUPREME COURT OF THE STATE OF MONTANA

1gi'j

In the Matter of the Estate of

ALF A. LIEN,

Deceased.

APPEAL FROM: District Court of the Fifteenth Judicial District,

In and for the Co-;nty of Roosevelt,

The Honorable Iv;. James Sorte, Judge presiding.

COUNSEL OF KECOKD:

For Appellant:

Robert L. Johnson, Lewistown, Montana; J. Douglas

Alexander, Sidney, Montana

For Respondent:

Gene R. Jarussi, Jarussi. r, Bishop, Billings,

Montana; Philiip N. Carter, Sidney, Montana

Filed:

Submitted on Briefs: Deccntber 28, 1994

Deci.zled: March 21, 1995
Justice Fred J. Weber delivered the Opinion of the Court.

This is an appeal from a summary judgment order in the

District Court of the Fifteenth Judicial District, Roosevelt

County, in favor of Mabel Gobbs, the Personal Representative of the

Estate of Alf A. Lien. Appellant Dr. Clifton Berglee (Berglee)

contested a 1989 will being probated by Mrs. Gobbs. Berglee

claimed an earlier will should prevail and the 1989 will was

invalid based on lack of testamentary capacity, undue influence,

fraud and restraint. We affirm.

The sole question for review is whether the District Court

erred in granting summary judgment to Mabel Gobbs.

Alf A. Lien (Lien) was a lifelong bachelor who farmed land

near Brockton for many years. He died in 1991 at the age of 84,

leaving an estate of approximately $750,000, which is the subject

of this appeal.

Lien executed two wills prepared by different attorneys--one

in 1987 and one in 1989. The 1987 will named appellant Berglee as

personal representative of the estate and left all his real estate

to Berglee. It also left the remainder of Lien's personal property

in four equal shares to Berglee, Mrs. Gobbs, and two of Berglee's

brothers. Lien had numerous brothers and sisters still living in

Norway, where he had emigrated from in the 192Os, and he expressly

stated in the will that he was specifically making no bequest or

devise to them or any other persons not mentioned in the will.

The 1987 will was brought to Lien's attention by Mrs. Gobbs

when Lien and Mr. and Mrs. Gobbs went to a bank so that Lien could

2
get his naturalization papers in order to obtain a passport for a

trip to Norway. After Mrs. Gobbs questioned him about that will,

Lien remarked many times that it was not what he wanted. After

returning from the trip to Norway, Lien executed the second will

dated April 11, 1989, leaving all his real and personal property in

four equal shares to four first cousins--Mabel Gobbs, Clara Neer,

Ingeborg Wallette and Luther Larson. The only restriction in this

will was that certain named persons be given the right of first

refusal prior to selling any of the real property for a specified

period of time following Lien's death. The 1989 will nominated

Mrs. Gobbs as personal representative and again expressly devised

no property to Lien's brothers or sisters in Norway, with the

exception of directing the personal representative to reimburse

them for round-trip tickets from Oslo, Norway, to Regina, Canada if

they desired to attend Lien's funeral. The second will also

expressly revoked the 1987 will.

Berglee attacked the validity of the 1989 will on four

separate grounds: (1) Lien was incompetent at the time he executed

the will, (2) Lien was a victim of undue influence on the part of

Mabel and Howard Gobbs, (3) the will was a product of fraudulent

representations, and (4) Lien executed the will under restraint.

The District Court granted Mrs. Gobbs' motion for summary judgment,

finding no factual issues to submit to a jury.

Did the District Court err in granting summary judgment to

Mabel Gobbs on any of the four theories presented by Berglee?

Standard of Review

Our standard of review of an order by a district court

3
granting summary judgment is the same as that used by the district

court under Rule 56(c), M.R.Civ.P. Morton v. M-W-M, Inc. (1994),

263 Mont. 245, 249, 868 P.2d 576, 578. Summary judgment is proper

when there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. Rule 56(c),

M.R.Civ.P.

The moving party has the initial burden of demonstrating the

absence of genuine issues of material fact. Once the movant has

met that burden, the burden shifts to the party opposing summary

judgment to establish that a genuine issue of material fact exists.

Owen v. Ostrum (1993), 259 Mont. 249, 255-56, 855 P.2.d 1015, 1019.

The non-moving party may not rest upon the allegations or denials

in the pleadings nor on speculative, fanciful or conclusory

statements. Simmons v. Jenkins (1988), 230 Mont. 429, 432, 750

P.2d 1067, 1069. All inferences that reasonably may be drawn from

the offered proof will be made in favor of the party opposing the

motion for summary judgment. -,Owen 855 P.2d at 1019.

Material issues of fact are identified by looking to the

substantive law governing the proceeding. -,Owen 855 P.2d at 1019.

In this case, we review the record in light of the substantive law

governing contests to wills. Section 72-3-310, MCA, provides that

contestants of a will have the burden to establish the existence of

one of the statutory grounds listed. Of the four theories argued

by Berglee, 5 72-3-310, MCA, provides that a will may be contested

on the basis of three of them--lack of testamentary capacity, fraud

and undue influence. There is no provision under Montana statutory

4
or case law to contest a will because of "restraint."

A. LACK OF TESTAMENTARY CAPACITY

The test for determining testamentary capacity was set forth

in In the Matter of the Estate of Bodin (1965), 144 Mont. 555, 560,

398 P.2d 616, 619, as follows:

[Al testator is competent if he is possessed of the

mental capacity to understand the nature of the act, to

understand and recollect the nature and situation of his

property and his relations to persons having claims on

his bounty whose interests are affected by his will. . .

. The "testator must have sufficient strength and

clearness of mind and memory to know, in general, without

prompting, the nature and extent of the property of which

he is about to dispose, and the nature of the act which

he is about to perform, and the names and identity of the

persons who are to be the objects of his bounty, and his

relation towards them." . (Citations omitted.)

Testamentary capacity is determined as of the date the will was

executed--April 11, 1989 in this case--using the above test from

Bodin's Estate, which is now well-established in Montana. See,

e.q., In the Matter of the Estate of Jochems (1992), 252 Mont. 24,

29, 826 P.2d 534, 537.

Berglee argues that Lien lacked testamentary capacity at the

time he executed the second will in April 1989 because (1) the 1991

death certificate indicates he had Alzheimer's disease, (2) Lien

suffered from diabetes which affected his mind, (3) the 1989 will

is unnatural as being contrary to what would have been expected of

him, (4) he suffered from insane delusions and other physical

ailments, (5) his speech was virtually unintelligible, and (6) he

was not a usual client of the attorney who prepared the will.

As contestant to the 1989 will, Berglee bears the burden of

establishing that Lien lacked testamentary capacity. Section 72-3-

5
310, MCA. To support her claim that Lien was competent when he

executed the 1989 will, Mrs. Gobbs submitted numerous affidavits

with attachments and the deposition testimony of numerous witnesses

which provided evidence that Lien was competent to execute a will

in April 1989. Mrs. Gobbs met her burden as the party moving for

summary judgment. The burden shifted to Berglee as the non-moving

party to present affirmative evidence of a material and substantial

nature to raise a genuine issue of fact to defeat her motion. As

discussed below, Berglee did not meet this burden.

Vie Koch (Koch), the attorney who prepared the 1989 will,

testified extensively by deposition and affidavit. On the day Lien

first met with Koch, Lien drove 35 miles from his home north of

Brockton to Culbertson, then rode with Howard and Mabel Gobbs to

Sidney, and upon their return to Culbertson, drove himself home

again. The first time Lien came to Koch's office, they discussed

the terms of the will; the second time a week later, Lien executed

the will. Lien gave Koch an accurate description of real and

personal property which he owned and expressed his wish to make

specific provisions for the lessees of his land to have rights of

first refusal in the event the real property they leased was sold

within a specific time after his death. Lien provided correct

names for both lessees, one of whom was Berglee. He was able to

roughly plat out his land on a piece of paper to explain to Koch

what he desired and how it was then being leased. He provided the

full names of eight brothers and sisters in Norway who he wished to

exclude from the will other than making a provision for their

6
travel expenses should they desire to attend his funeral. Lien

also provided the names of four first cousins as devisees in equal

part under the will. Lien expressed his desire to be buried in a

specific cemetery. Koch testified that he concluded from his

personal discussions with Lien that Lien knew what property he

owned, what he wanted to do with his property and who he wanted to

receive his property upon his death. Koch verified that Lien had

read the document before signing and declared it to be his last

will and testament.

Berglee contends that the 1991 death certificate indicates

that Lien had Alzheimer's disease and demonstrates lack of

testamentary capacity. There is no indication in the record,

however, that Lien suffered from this disease in 1989 when he

executed his last will. Lien died on July 17, 1991--more than two

years after executing the 1989 will. Neither Dr. Mann nor Lien's

prior treating physician made any indication in Lien's medical

records that this was a concern at that time.

In 1989, he lived alone and cared for his own needs. Although

he suffered from mild Parkinson's disease and was unable to legibly

write his checks, he handled his own financial and personal

affairs, with the exception of having Mrs. Gobbs prepare checks for

his signature. Lien's reasons for seeking medical treatment in

1988 and 1989 were mild physical ailments having no bearing on

mental functioning.

Dr. Mann testified by deposition that, in his opinion, Lien

showed no signs of having any mental problems when he examined him

7
on May 12, 1989. Dr. Mann did not examine Lien again until March

15, 1990, at which time he admitted him to the Culbertson hospital

for treatment of leg ulcers. Lien was hospitalized for four days

and Dr. Mann spoke with him during the course of his hospital stay,

noting no problems with mental functioning. Dr. Mann also saw Lien

on March 23rd, March 29th, May 4th, June 28th and August 20th of

1990. He testified that Lien showed no symptoms of mental

deterioration on any of these occasions. It was not until January

11, 1991, that Dr. Mann first noted mental deterioration, stating

that he was "failing rapidly." Dr. Mann testified that from his

own observations and from reviewing records of other physicians

prior to the first time he examined Lien on May 12, 1989, he could

state with reasonable medical certainty that he thought Lien was

mentally competent at the time he executed his last will in 1989.

The only medical evidence provided by Berglee in support of

his claim that Lien was incompetent in 1989 relates to his claim

that Lien suffered from diabetes in 1989 and that the diabetes

affected his mind. In support of this contention, Berglee

testified about his personal experience with the disease and his

knowledge of the disease from working with animals that have

suffered from diabetes. Berglee is a veterinarian and did not

establish that he is qualified to provide expert testimony that

Lien's diabetes may have been out of control to the point where it

affected his mental functioning. Specifically, Berglee testified

in his deposition that "Alf was exhibiting abnormal behavior

consistent with a bad case of diabetes." He then admitted that he

8
was not qualified to make this sort of statement. The record shows

that Berglee and others were concerned about Lien taking his

medication and that they made sure he remembered to take it daily.

Although the death certificate indicates that diabetes was a

contributing cause of his death, no inference can be made from that

statement that it also affected his mental functioning. Nothing in

the record supports an inference that Lien did not take his

medication for diabetes or that it in any way affected his mental

functioning.

Berglee next argues that the 1989 will is an unnatural

disposition of property for Lien. He claims it is contrary to what

would have been expected of him. Berglee presented deposition

testimony from a few of his relatives to indicate that Lien

regarded him and his family as the natural recipients of his

bounty. Berglee was a neighbor of Lien, he checked in on him

periodically while Lien still lived on his farm, and he and his

family included Lien in family activities. Berglee was not a blood

relative of Lien although he was distantly related by marriage.

Instead of leaving a portion of his property to Berglee as the 1987

will had done, Lien changed this in the 1989 will to leave Berglee

with only a right of first refusal for land leased by Berglee.

Lien left his real and personal property to four of his first

cousins. A will leaving the bulk of his property to first cousins

rather than to a distant relative by marriage is not an unnatural

disposition of property as claimed by Berglee even if it is not

what others would have expected.

9
Berglee also contends that Lien suffered from insane delusions

and other physical ailments which affected his mental functioning.

The only evidence in support of this argument is Berglee's

testimony that Lien had some "really wacky ideas"; testimony by

Berglee's wife that Lien had some "strange beliefs"; and testimony

by Berglee's mother that Lien had said something on his birthday in

May of 1989 that did not make sense about some automobile or yard

lights in the distance. This evidence does not support an

inference in favor of Berglee that Lien suffered from insane

delusions and there is nothing in the record to support his

argument that Lien's physical ailments affected his mental

functioning.

Berglee also argues that Lienls speech was virtually

unintelligible and that he was not a usual client of the attorney

who prepared the will. Lien spoke with a heavy Norwegian accent.

Dr. Mann had some difficulty understanding him and relied on Mrs.

Gobbs' interpretations to some extent. There is no indication from

anyone else that they had difficulty understanding Lien's speech.

Certainly, there is nothing to support an inference that Koch would

not have understood how Lien wanted him to prepare his 1989 will.

Koch testified in his deposition that he remembered that Lien had

a Norwegian accent. He stated that he was used to talking to his

father-in-law who also had a Norwegian accent so he had no

difficulty understanding Lien.

Applying the test from Bodin's Estate to the facts and

inferences to be made from them in favor of Berglee, we conclude

10
there are no inferences that reasonably may be drawn to support

Berglee's contention that there are genuine issues of material fact

on the issue of testamentary capacity. Although the testimony of

Dr. Mann and Mrs. Gobbs indicates that Lien's mental capacity

deteriorated in the months before his death on July 17, 1991, the

earliest indication of impaired mental ability is January 1991. We

conclude that Lien had the mental capacity when he executed the

1989 will to understand the nature of his actions, that he knew the

nature and extent of his property and understood what he was doing

in naming four first cousins as devisees.

B. UNDUE INFLUENCE

Next, Berglee contends that Mabel and Howard Gobbs exerted

undue influence over Lien and that this resulted in Lien's naming

of members of Mrs. Gobbs' family as devisees rather than Berglee

and members of his family. He argues that there are many

inferences which can be drawn from Mrs. Gobbs' actions to support

this claim: Mrs. Gobbs wrote out checks for Lien, she alienated

him from his friends, she "confronted" Lien with the will when she

discovered it in his safe deposit box in October of 1988, she had

in her possession Lien's certificates of deposit and other

financial documents and she received his mail at her address.

Berglee contends that the 1989 will was a "radical departure from

the 1987 document in favor of Mrs. Gobbs' interests" and,

therefore, that Mrs. Gobbs has the burden of showing that the 1989

will was not the product of undue influence. Again, the contestant

of a will has the burden of establishing undue influence, according

11
to § 72-3-310, MCA. Berglee has not met this burden.

The test for undue influence in the making of a will is as

follows:

(1) Confidential relationship of the person attempting to

influence the testator; (2) The physical condition of the

testator as it affects his ability to withstand the

influence; (3) The mental condition of the testator as it

affects his ability to withstand influence; (4) The

unnaturalness of the disposition as it relates to showing

an unbalanced mind or a mind easily susceptible to undue

influence; (5) The demands and importunities as they may

affect particular testator taking into consideration the

time, the place, and all the surrounding circumstances.

In the Matter of the Estate of Maricich (1965), 145 Mont. 146, 161,

400 P.2d 873, 881. Each of the above elements must be satisfied in

order to prove a claim of undue influence. Flikkema v. Kimm

(1992), 255 Mont. 34, 40, 839 P.2d 1293, 1297.

As with testamentary capacity, undue influence is never

presumed and must be proven like any other fact. Dybvik v. Dybvik

(1982), 201 Mont. 389, 397, 654 P.Zd 989, 993, citinq Blackmer v.

Blackmer (1974), 165 Mont. 69, 74, 525 P.2d 559, 562. In Blackmer,

525 P.2d at 563-64, we held that the opportunity to exercise undue

influence on the testator is not sufficient to prove undue

influence and invalidate a will. The opportunity to exercise undue

influence is to be considered and correlated with the alleged acts

of influence to determine if the acts amount to undue influence.

Dybvik, 654 P.2d at 993. We conclude that the facts relied on by

Berglee, at most, show the opportunity to exercise undue influence.

Applying the test for undue influence, clearly the first

criterion is met as there was a confidential relationship between

Mrs. Gobbs and Lien. Mrs. Gobbs assisted Lien in many ways. She

12
helped him with payment of his bills by making out the checks for

his signature. She made appointments for Lien and assisted him

when he went to see his doctors by interpreting for him if needed.

Lien stayed in the home of Mr. and Mrs. Gobbs for months at a time,

particularly in winter, and Mrs. Gobbs provided him with a wooden

box to store his personal documents in. She asked him if the 1987

will was what he wanted and when he told her it was not what he

wanted, she made the appointment with Koch in Sidney so that he

could execute a new will. Some time during 1990, Lien began

receiving his bank statements at the address of Mr. and Mrs. Gobbs

in Culbertson.

The second and third criteria, physical and mental condition

of the testator as both may affect the testator's ability to

withstand influence, have not been demonstrated by Berglee as

outlined above in our discussion of Issue I. The record shows that

Lien's physical and mental condition deteriorated rapidly in the

last few months of his life; it does not demonstrate that his

mental and physical condition was deteriorating in that manner in

1989 when he executed the second will. At the time he executed the

1989 will, Lien lived alone on his farm north of Brockton. He kept

house, cooked, bought groceries, cleaned and washed his clothing.

He drove his own car and had a valid driver's license.

There is no evidence in the record that Lien was physically or

mentally susceptible to influence and Berglee points to no acts of

influence apart from the circumstances surrounding the execution of

the 1989 will. While Mrs. Gobbs admits to making the appointment

13
with Koch for Lien, nothing improper is evident from the record

concerning the making of the 1989 will. Mrs. Gobbs chose Koch upon

the recommendation of a third party accountant; Koch was not her

attorney and she did not know him prior to making the appointment.

Mr. and Mrs. Gobbs took Lien to Sidney so that Lien could meet with

Koch. Neither of them were present when Lien spoke with Koch and

Koch testified they had no involvement other than calling for the

appointment.

The circumstances surrounding the making of the 1989 will do

not indicate that Lien was susceptible in any manner to undue

influence. Mabel and Howard Gobbs rendered assistance to Lien by

driving him to Sidney. They later provided assistance to him by

having him stay in their home and by taking him shopping and doing

other sorts of things to help him as he aged. They accompanied him

on a trip to Norway. Toward the end of his life when Lien's

physical and mental condition was rapidly failing, Mrs. Gobbs cared

for Lien in her home until Dr. Mann advised that he be placed in

the Culbertson nursing home in March of 1991. None of these

actions are unusual between relatives and Mabel Gobbs was one of

Lien's closest blood relatives in this country.

Apparently Berglee views the removal of the three Berglee

brothers as devisees as an unnatural disposition. We have stated

that the unnaturalness of a disposition, the fourth criterion, is

to be considered as it relates to either an unbalanced mind or a

mind easily susceptible to undue influence. Even the fact that a

parent might leave the majority of his or her assets to only one

14
child, while excluding others, is not in and of itself unnatural.

Flikkema, 839 P.2d at 1298. The 1989 will is not a radical

departure in favor of Mrs. Gobbs' interests. Mrs. Gobbs was named

as a devisee in both wills. It is, however, a radical departure as

to Berglee's interests; in the 1987 will, Berglee was to receive

the real property and one-fourth of the personal property and two

of his brothers were each to receive one-fourth of the personal

property. However, the four devisees under the 1989 will were all

first cousins of Lien and this is not an unnatural disposition.

We are unconvinced by Berglee's argument that the actions of

Mr. and Mrs. Gobbs point to undue influence over Lien. We conclude

that Berglee has failed to establish material facts in issue on his

claim of undue influence.

C. FRAUD

Berglee's final argument is that Mabel and Howard Gobbs made

fraudulent representations to Lien so that he would turn against

Berglee. Berglee contends that Mr. and Mrs. Gobbs were responsible

for Lien's accusations in 1989 that Berglee had stolen money and

grain from him and that this influenced Lien to remove him as a

devisee in his will. He claims that Mrs. Gobbs knew that Berglee

was not stealing money from Lien because she had his financial

records in her possession and she acknowledged this in her

affidavit.

Mrs. Gobbs' affidavit states that she did not have any of his

financial records in her possession in 1989 and also that the five

banks Lien did business with did not change the mailing address on

15
Lien's statements from Brockton to Culbertson until some time in

1990. Mrs. Gobbs also presented deposition testimony from other

witnesses to support this.

Mrs. Gobbs denies she made any such statements to Lien about

Berglee. She further contends that, even if the statements were

made, Berglee has failed to set forth any evidence that Mrs. Gobbs

knew the statements were false or that they were made with the

intent to deceive Lien. We agree.

Berglee's allegations are speculative and conclusory. To

support the allegations, Berglee's counsel submitted an unsworn

statement which did not meet the requirements of Montana law.

Moreover, the evidence must be in proper form and of a substantial

nature, not fanciful, frivolous, gauzy or merely suspicious.

Morales v. Tuomi (19851, 214 Mont. 419, 424, 693 P.2.d 532, 535. An

attorney's affidavit which only recites what he intends to prove at

trial must be disregarded. Morales, 693 P.2d at 535. Berglee's

allegations on the issue of fraud are in the nature of suspicious

statements supported only by the allegations in his complaint

repeated in his deposition. Again, Berglee has failed to establish

affirmative evidence to defeat Mrs. Gobbs' motion for summary

judgment.

We hold the District Court properly granted summary judgment

to Mabel Gobbs.

Affirmed

16
We Concur: 

\