UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EMILY R. SAMPLE; KEVIN B. SAMPLE,

Plaintiffs-Appellees,

and

OCCIDENTAL LIFE INSURANCE

COMPANY OF NORTH AMERICA;

METROPOLITAN LIFE INSURANCE No. 96-1547

COMPANY,

Plaintiffs,

v.

OLA J. FLEMING,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Deborah K. Chasanow, District Judge; Jillyn K. Schulze,

Magistrate Judge.

(CA-95-304-DKC)

Argued: January 31, 1997

Decided: September 15, 1997

Before HALL and ERVIN, Circuit Judges, and CLARKE,

Senior United States District Judge for the

Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: David A. Branch, Washington, D.C., for Appellant. Griffin Vann Canada, Jr., MILES & STOCKBRIDGE, Rockville, Maryland, for Appellees. ON BRIEF: Michael S. Rosier, ROSIER &

WRIGHT, Oxon Hill, Maryland, for Appellant. J. Stephen McAuliffe,

MILES & STOCKBRIDGE, Rockville, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

This is an interpleader action originally brought in district court by

Occidental Life Insurance Company of North Carolina (OLIC)

against Emily and Kevin Sample and Ola J. Fleming. Metropolitan

Life Insurance Company (MLIC) of New York was permitted to

intervene as a co-plaintiff and file a Complaint for Interpleader. The

actions were initiated by both insurance companies in order to avoid

multiple liability for life insurance policies issued to Brenda Handy.

The Samples and Fleming both claim to be the sole beneficiaries of

these policies. The companies paid the insurance proceeds into the

registry of the district court pending the resolution of this case.

The district court realigned the parties for purposes of judicial proceedings, designating the Samples as plaintiffs and Fleming as the

defendant, and allowed discovery. The case was referred to a magistrate judge by consent of the parties, and the magistrate judge granted

the Samples' motion for summary judgment. The insurance proceeds

were ordered to be paid to the Samples. Pursuant to 28 U.S.C.

§ 636(c) Fleming appeals to us directly from the judgment of the

magistrate. She claims that the magistrate judge erred by (1) finding

that Handy was not subject to undue influence and (2) finding that

Handy was competent to change the beneficiaries of her life insurance

 2
policies from Fleming to the Samples. For the reasons hereinafter

explored, we affirm the lower court's grant of summary judgment in

favor of the Samples.

I.

We review grants of summary judgment de novo, applying the

same standard used by the lower court itself. See Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 233 (4th Cir. 1991); Shealy v.

Winston, 929 F.2d 1009 (4th Cir. 1991); Higgins v. E.I. DuPont De

Nemours & Co., 863 F.2d 1162, 1166-67 (4th Cir. 1988). "[T]he nonmoving party is entitled to have his evidence as forecast assumed, his

version of that in dispute accepted, and the benefit of all favorable

inferences." Conkwright, 933 F.2d at 233. See also E.E.O.C. v. Clay

Printing Co., 955 F.2d 936, 940 (4th Cir. 1992). However, "[the

opposing party must demonstrate that a triable issue of fact exists; he

may not rest upon mere allegations or denials. A mere scintilla of evidence supporting the case is insufficient." Shaw v. Stroud, 13 F.3d

791, 798 (4th Cir.), cert. denied, 513 U.S. 813 (1994) (internal citations omitted).

II.

Handy died in a Towson, Maryland, nursing home on December 4,

1994. At the time of her death, she was insured under two life insurance policies: the OLIC policy paid a benefit of $101,000, and the

MLIC policy had a value of $46,000.

Handy was initially hospitalized in September 1994 due to complications related to the AIDS virus. While a patient at a Washington,

D.C., area hospital, Handy was advised that she had only 24 to 48

hours to live. Upon learning of this grave prognosis, Fleming,

Handy's sister, traveled to Washington from her home in Florida.

During her stay, Fleming signed the papers necessary to become a

beneficiary under Handy's will and to exercise power of attorney over

Handy. Fleming also became acquainted with the Samples, who had

maintained a cordial relationship with Handy for some period.

 3
During a search of Handy's apartment, Fleming discovered the

OLIC policy, paid the back premiums on that policy, collected some

of Handy's clothes and jewelry, and visited Handy while wearing

Handy's sweater. Handy did not die as quickly as the doctors had predicted and, after six days, Fleming returned to Florida with the clothes

and jewelry. Subsequent to Fleming's departure, Ms. Sample

informed Handy that Fleming had taken the clothes and jewelry.

Fleming contends that Emily Sample urged her to take the belongings

in order to prepare for Handy's funeral. According to Fleming, she

did not tell her dying sister the real reason for taking the items for fear

of upsetting her. Handy became angry with Fleming because Handy

believed that she had been treated badly by her sister, because Fleming had taken the clothes and jewelry from Handy's home, and

because Fleming had worn Handy's sweater.

Prior to October 1994, Fleming had been designated as the primary

beneficiary under both the OLIC and the MLIC policies. By an

undated Designation of Beneficiary filed with Handy's employer on

October 3, 1994, Handy changed her beneficiary under the MLIC policy, naming the Samples as the parties eligible to collect. Handy also

instructed her attorney, Sheryl Fletcher, to prepare a Change of Beneficiary form to effectuate Handy's wish to change the primary beneficiary under her OLIC policy from Fleming to the Samples.

Fletcher states in her affidavit that she and Handy always met in

private, that Handy "was alert; responded intelligently to my questions; and, had very little difficulty in conveying her thoughts to me,"

and that Handy "appeared to fully understand the consequences of her

act in changing the beneficiary." Suppl. App. at 21. Further, Fletcher

noted that "Ms. Handy's instructions to me were clear, concise and

definite." Id. at 22. Because Handy expressed her fear that Fleming

might challenge her competency, Fletcher suggested that Handy

obtain a psychiatric evaluation. Dr. Lex Smith, a psychiatrist, interviewed Handy and concluded the following: "I can not make a diagnosis of mental disease on this patient. She is capable of making a

will and says that she is satisfied with the recent will she made which

removes the sister as one to inherit from her." J.A. at 30.

In addition to Fletcher's statement, the following people submitted

affidavits in support of the Samples' motion for summary judgment:

 4
Leslie Hammond, Handy's nurse at the nursing home; Charles Boone,

Handy's last love interest; Sarita Harris, Handy's close friend; and

Catherine Knustgraichen, a secretary at the nursing home. The statements of Hammond, Boone, and Harris reveal Handy's frustration

with Fleming for taking Handy's belongings to Florida and for wearing Handy's sweater. These three affidavits also included statements

attesting to Handy's mental competence to make changes to her life

insurance policies. Hammond and Boone noted the Samples' frequent

visits with Handy and Handy's fondness for the Samples. Knustgraichen was the notary who witnessed Handy's signature on the

Request for Change of Beneficiary that was sent to OLIC.

Kevin Sample exercised power of attorney over Handy in her final

days, assisted her in obtaining the services of Fletcher, and aided and

witnessed Handy's change of beneficiary for the MLIC policy.

III.

A.

The determination of whether undue influence was present in the

instant case is governed by Maryland law. Maryland courts recognize

seven elements characteristic of undue influence in the making or

changing of wills and related documents:

1. The benefactor and beneficiary are involved in a relationship of confidence and trust;

2. The will contains substantial benefit to the beneficiary;

3. The beneficiary caused or assisted in effecting execution of will;

4. There was an opportunity to exert influence;

5. The will contains an unnatural disposition;

6. The bequests constitute a change from a former will;

and

 5
7. The testator was highly susceptible to the undue influence.

Moore v. Smith, 582 A.2d 1237, 1239 (Md. 1990) (emphasis added).

The magistrate judge properly applied these factors in her analysis of

undue influence over one listing a life insurance beneficiary. In concluding that Fleming did not raise a genuine issue of fact regarding

undue influence, the lower court also pointed out, and we reiterate,

that the burden of showing undue influence is on the party seeking to

set aside a testamentary transaction. Leimbach v. Allen, 976 F.2d 912,

917 (4th Cir. 1992) (applying Maryland law), cert. denied, 507 U.S.

935 (1993).

Fleming focuses her attention only on two of the seven characteristics enunciated in Moore: (1) whether the policy "contains an unnatural disposition"; and (2) whether the insured"was highly susceptible

to undue influence." Moore, 582 A.2d at 1239.

With regard to Handy's disposition being "unnatural," Fleming

implies that she is the only natural beneficiary of the policy because

she is Handy's sister. This assertion is not supported by Maryland

law: "If a testator is competent and is exercising his own free agency,

he may leave his property to whom he pleases, and the fact that the

disposition is not to a member of the family does not make it an

unjust disposition." Stocklager v. Hartle, 92 A.2d 363, 366 (Md.

1952). The court below concluded that Handy's decision to name the

Samples as beneficiaries was not unnatural when one considers the

following facts: the Samples visited Handy regularly; the three had a

relationship of confidence and trust; the Samples treated Handy like

family; Handy, while fully competent in the opinion of a psychiatrist,

stated that she was angry with Fleming and wanted to disinherit her;

and Handy had little other family, both parents being dead and her

brother being in prison. See Sample v. Fleming , No. DKC-95-304,

slip op. at 21 (D. Md. Mar. 15, 1996). As the court concluded, "[o]nce

she decided to remove Ms. Fleming as beneficiary, it was quite natural for her to designate her close friends and caregivers," the Samples.

Id.

Fleming next attempts to convince us that Handy meets the Moore

criterion of being "highly susceptible to undue influence." However,

 6
mere suspicion of susceptibility to undue influence is not enough to

overcome summary judgment; rather, some evidence must indicate

that one has been coerced and thereby forced to follow the judgment

of another. See Moore, 582 A.2d at 1240; Anderson v. Meadowcroft,

661 A.2d 726, 731-32 (Md. 1995); Stockslager, 92 A.2d at 363-64.

Fleming offers no evidence of undue influence other than her own

statements. She claims that Emily Sample made false statements to

Handy about Fleming taking some of Handy's clothes and jewelry to

Florida.1 In fact, Fleming admits in her affidavit that she did take

Handy's clothes in preparation for the impending funeral, and

Handy's jewelry "for sentimental reasons and at Mrs. Sample's suggestion." J.A. at 59. Further, after taking the items to Florida, Fleming

talked on the telephone with Handy and had full opportunity to

explain her reasons for taking them and her claim that she had done

so at Emily Sample's urging. Handy, nevertheless, remained angry

over her sister's behavior.

Fleming's evidence of Emily Sample's false statements is even less

likely to prove that Handy was "highly susceptible to undue influence" when viewed in light of the observations of those who were

around Handy in her final days. Handy's attorney, psychiatrist, nurse,

friend, and love interest all believed she acted of her own will when

she changed the beneficiaries of her policies. Also, Smith, Fletcher,

and Hammond all recall Handy's statements about Fleming treating

her poorly.

Maryland courts recognize a high susceptibility to undue influence

where one's mental state has deteriorated or where one is highly

dependent on the beneficiary to meet vital physical needs. Cf.

Anderson, 661 A.2d at 731-32 (concluding that plaintiff did not allege

"facts sufficient to establish the decedent's high susceptibility to

undue influence" because she did not allege that the decedent's mental ability had deteriorated, that force or fear had been used to coerce

_________________________________________________________________

1 Fleming does not contend that undue influence was exerted when

Kevin Sample contacted Fletcher on Handy's behalf (Handy and Fletcher

met alone to discuss changing the OLIC policy), or when Kevin Sample

aided Handy in changing the MLIC policy. Rather, Fleming focuses on

Emily Sample's alleged false statements as creating the undue influence.

 7
the decedent, or that the decedent had been "especially dependent on

[the defendant] to meet his physical needs.").

In the instant case, Fleming has failed to allege facts necessary to

raise an issue as to Handy's mental state or any dependency on the

Samples for her "vital physical needs."2 Consequently, Fleming fails

to reveal circumstances sufficient to have made Handy highly susceptible to undue influence. Cf. Leimbach v. Allen , 976 F.2d at 914-15,

919 (finding undue influence where the testator was totally isolated

from the "outside world" by his mistress and the mistress assisted the

testator in removing his former wife as beneficiary under two life

insurance policies and inserting herself as sole beneficiary); Mills v.

Glenn, 136 A. 831 (Md. 1927) (finding undue influence where the

Mills couple moved in with an elderly, illiterate, and crippled woman,

who became dependent on the couple for her physical needs, and who

executed a deed conveying her house to the Mills); and Grove v.

Spiker, 20 A. 144 (Md. 1890) (finding undue influence where an

attorney moved into the home of an eighty-seven-year-old illiterate

and feeble-minded woman, and the attorney secretly drafted and had

executed a completely new will for the testatrix, naming himself as

a primary beneficiary).

In contrast to the facts of Leimbach, Mills, and Grove, the record

in the instant case does not indicate that Handy was mentally infirm,

that she was physically dependent on the Samples, that she was isolated by the Samples, or that the policy beneficiaries were changed

without her knowledge.3

We have previously concluded that the burden of showing undue

_________________________________________________________________

2 Handy spent the months of her declining health either in a hospital or

in a nursing home. She was dependent on the services of those institutions, not the Samples, to meet her physical needs.

3 The Maryland Court of Appeals has listed as a factor in its determination of undue influence "the absence of independent advice from disinterested sources or a reasonable opportunity to secure it." Tracey v.

Tracey, 153 A. 80, 84-86 (Md. 1931). Handy discussed with her attorney

in private her decision to change her policies. Further, Handy was not

isolated; rather, she discussed freely with her friends, a psychiatrist, and

an attorney, the reasons for changing the policies' beneficiaries.

 8
influence rests with the party seeking to set a transaction aside.

Leimbach, 976 F.2d at 917. The lower court found that Fleming only

made "conclusory allegations," without sufficient supporting facts to

state a cause of action for undue influence. Sample, slip op. at 20.

Fleming simply did not produce evidence sufficient to sustain her burden of showing that Emily Handy's actions were the product of undue

influence.

B.

Maryland law establishes that "the degree of mental capacity necessary to change the beneficiary in a life insurance policy is the same

as that necessary to execute a will or a valid deed or contract." Lynn

v. Magness, 62 A.2d 604, 608 (Md. 1948) (citations omitted). Every

person is initially presumed to have sufficient mental capacity to

make a valid will or contract, and one challenging a person's capacity

must overcome this presumption by showing that the person was of

unsound mind at the time the will or contract was made. Id. at 607;

Wall v. Heller, 486 A.2d 764, 770 (Md. Ct. Spec. App.), cert. denied,

493 A.2d 350 (Md. 1985).

In addition to the affidavits of Handy's attorney, nurse, close

friend, and love interest, an affidavit by Smith, the psychiatrist, indicates his belief in Handy's competence after having conducting a psychiatric consultation with Handy. Smith observed that Handy was

"oriented to time, place, and person . . . [and] capable of making a

will." Fleming implies that Handy's mental state deteriorated during

her period of declining health; therefore, it is significant that Smith

conducted this consultation approximately one month after Handy

delivered the change of beneficiary form to OLIC's agent.4

Fleming points out several of Handy's incorrect answers from the

psychiatric consultation that appear to Fleming to reveal Handy's

deteriorated mental state. These mistakes about certain details, such

as Fleming's state of residence, their father's age at death, Handy's

_________________________________________________________________

4 As indicated above, OLIC was dismissed from the action and discharged of any liability under its policy. Fleming, however, makes the

same arguments as to Handy's incompetence regarding her change of

beneficiaries under both the OLIC and MLIC policies.

 9
grade level when she dropped out of school, and even Handy's statement that she had an older sister when she had none, do not raise a

genuine issue as to Handy's competence when viewed in light of

Handy's overall performance during the consultation. In the opinion

of Smith, as a result of numerous other tests of Handy's mental competence, Handy was of sound enough mind to make a will and thereby

of sound enough mind to change the beneficiaries of her policies.

Fleming contends that she was "denied an opportunity to question

the doctor at trial on an issue of material fact, the doctor's credibility." The Samples properly point out that the court below offered the

parties ample opportunity for discovery in this case. Further, Fleming

offered no evidence to contradict Smith's conclusion as to Handy's

competence other than Handy's answers given during the consultation

and Fleming's own belief in her sister's incompetence.

Fleming also argues that Handy's actions were the result of an "insane delusion." She cites Benjamin v. Woodring, 303 A.2d 779, 784

(Md. 1973), as defining an insane delusion as "a belief in things

impossible . . . [or] so improbable under the surrounding circumstances that no man of sound mind could give them credence[,] . . .

[or] a false belief, for which there is no reasonable foundation." While

Fleming may think her sister overreacted to the taking of the clothes

and jewelry and the wearing of the sweater, Handy was not operating

under a false belief; Fleming did take the items and wear, perhaps

even stretch--as was Handy's concern--Handy's sweater. Also, even

if Fleming took the items at Emily Sample's urging, this does not

make Handy's understanding of the act false. As noted above, Fleming could have explained any misunderstandings which Emily Sample

may have created when Fleming spoke to her sister by phone shortly

after Fleming returned to Florida with the clothes and jewelry. Fleming's mere speculation as to her sister's incompetence is not sufficient

to overcome the law's presumption of sanity, and therefore does not

allow Fleming to survive summary judgment on the issue of competence.

Finally, in addition to the several statements specifically attesting

to Handy's mental competence, we note that Handy told her friends,

her attorney, and her psychiatrist exactly why she was removing

Fleming as policy beneficiary, and that Handy went to considerable

 10
trouble in planning just how she would defeat the foreseen attack on

her competence by Fleming. Handy's explanation for changing her

policies never varied and her actions were deliberate.

When Fleming's assertions are considered along with the affidavits

of those attesting to Handy's mental competency, Fleming has failed

to rebut the presumption that Handy possessed sufficient mental

capacity to change her policies.

IV.

Fleming has not alleged facts sufficient to raise a genuine issue of

material fact regarding whether the Samples exercised undue influence over Handy or whether Handy was mentally competent to

change the beneficiaries of her insurance policies. Therefore, the decision of the court below should be

AFFIRMED.

 11