NO. 96-112 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

IN THE MATTER OF THE ESTATE OF 

i\iliv 2 fi !%fi 

KATHERYN MAY BROOKS, Deceased. 

APPEAL FROM: District Court of the Twenty-First Judicial District, 

In and for the County of Ravalli, 

The Honorable Jeffrey H. Langton, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Howard C. Greenwood, Attorney at Law, 

Hamilton, Montana 

For Respondent: 

Richard A. Weber, Jr.; Koch, Johnson, 

Weber & Goheen, Hamilton, Montana 

Filed: 

Submitted on Briefs: August 22, 1996 

Decided: November 26, 1996 
Justice Karla M. Gray delivered the Opinion of the Court. 

Bruce C. Brooks appeals from the Findings of Fact, Conclusions 

of Law and Order of the Twenty-First Judicial District Court, 

Ravalli County, denying admission of a document dated March 21, 

1995, to probate, declaring that Katheryn May Brooks died 

intestate, and ordering that her estate be distributed accordingly. 

We affirm. 

The restated dispositive issue on appeal is whether the 

District Court erred in denying admission of the March 21, 1995, 

document to probate. 

Katheryn May Brooks (Kay) died on March 24, 1995, in Ravalli 

County, Montana, at the age of seventy-nine. She was survived by 

two children, Bruce C. Brooks (Bruce) and Jean K. Mercer (Jean). 

At the time of Kay's death, Bruce resided in the family home in 

Hamilton, Montana. Jean lived in Spokane, Washington. 

The relevant circumstances surrounding Kay's final years are 

generally undisputed. Prior to the death of his father, Virgil 

Brooks (Virgil), in 1992, Bruce lived in a small house behind the 

family home owned by Kay and Virgil. Thereafter, he moved into the 

family home. 

Kay lived with Jean in Spokane from the time of Virgil's death 

in the spring of 1992 until late in December of 1993, when she 

returned to the family home in Hamilton. Bruce cared for her there 

until he was called away on business in early June of 1994. At 

that time, Kay returned to Jean's care in Spokane. 

2 
The following month, Kay moved to the Discovery Care Center 

(Discovery), a nursing home in Hamilton, as a result of 

deteriorating health. Jean drove over from Spokane to visit Kay at 

Discovery approximately monthly thereafter. Bruce visited daily 

when he was not away on business. Kay, Bruce and Jean began to 

discuss the disposition of the family home, resulting in ill 

feelings between Bruce and Jean which upset Kay. 

Kay had executed a "home-drawn" will prior to Virgil's death. 

On or about March 10, 1995, Bruce assisted Kay in updating that 

will. He brought it to Discovery and, according to his testimony, 

reviewed each provision with Kay, making changes as she directed. 

Bruce tape-recorded a conversation between himself and Kay during 

which they discussed the revisions to Kay's will. On March 21, 

1995, Bruce typed up the new document. Kay signed the document 

that same day, in the presence of Bruce and his long-time friend 

Carolynne Merrell (Merrell). Merrell signed the document as a 

witness. The document listed specific bequests to Bruce, Jean and 

their children, and left the family home and the remainder of the 

furnishings and contents--Kay's most substantial asset--to Bruce. 

Bruce and Merrell then took the document to Leroy White 

(White), a notary public and Brooks family friend. White had known 

Kay for more than fifty years and recognized her signature. At 

Bruce's request, White signed the document as the second witness 

and affixed his notarial seal. Kay died three days later. 

On May 5, 1995, Bruce filed a petition for formal probate of 

the March 21, 1995, document as Kay's last will and testament, 

3 
determination of testacy and heirs, and appointment as personal 

representative. In response, Jean requested that the document be 

denied admission to probate, that Kay's estate be distributed via 

intestate succession, and that she be appointed co-personal 

representative with Bruce. 

The District Court held a hearing on Bruce's petition and, 

thereafter, entered its findings of fact, conclusions of law and 

order. Briefly stated, the court denied admission to probate of 

the March 21, 1995, document and declared that Kay died intestate. 

Bruce appeals. 

Additional facts are provided below as necessary to our 

resolution of the issue before us. 

STANDARDS OF REVIEW 

We will not disturb a district court's findings of fact unless 

they are clearly erroneous. Rule 52(a), M.R.Civ.P.; Flikkema v. 

Kimm (1992), 255 Mont. 34, 37, 839 P.2d 1293, 1295. A court's 

findings are clearly erroneous if they are not supported by 

substantial credible evidence, the court has misapprehended the 

effect of the evidence, or our review of the record convinces us 

that a mistake has been committed. Daines v. Knight (1995), 269 

Mont. 320, 325, 888 P.2d 904, 906 (citation omitted). We review a 

district court's conclusions of law to determine whether the 

interpretation of the law is correct. Flikkema, 839 P.2d at 1295 

(citation omitted) 

DISCUSSION 

Did the District Court err in denying admission of the 

March 21, 1995, document to probate? 

4 
A. Section 72-2-522, MCA 

In contested cases, the proponent of a will must establish 

that it has been duly executed. Section 72-3-310, MCA. Section 

72-2-522(l), MCA, contains the requirements for a duly executed 

will: 

Except as provided in 72-2-523 . . . a will must be: 

(a) in writing; 

(b) signed by the testator or in the testator's name 

by some other individual in the testator's conscious 

presence and by the testator's direction; and 

(c) signed by at least two individuals, each of whom 

signed within a reasonable time after having witnessed 

either the signing of the will as described in subsection 

(l)(b) or the testator's acknowledgement of that 

signature or acknowledgement of the will. 

(Emphasis added.) Bruce argued that the March 21, 1995, document 

had been duly executed under § 72-2-522(l), MCA, and that it should 

be admitted to probate as Kay's will. The District Court concluded 

that the document had been signed by only one person who met the 

criteria set forth in § 72-2-522(l) cc), MCA, and, therefore, that 

the document was not duly executed. 

The March 21, 1995, document is in writing and signed by Kay. 

Thus, the § 72-2-522(l) (a) and (b), MCA, criteria are met. 

The document also contains two signatures on signature lines 

labeled "witness." The first signature is Merrell's. She signed 

the document as a witness in Kay's presence immediately after 

observing Kay sign the document and acknowledge that it was a will. 

The other "witness" signature is White's. However, White was not 

present when Kay signed the document. Nor did Kay acknowledge to 

White either her signature or that the document was her will. 

Therefore, White's signature is not the signature of a second 

5 
witness, as required by § 72-2-522(l) cc), MCA, and Bruce did not 

meet his burden under § 72-3-310, MCA, of establishing that the 

document had been duly executed. 

Bruce cites to Matter of Estate of Weidner (19811, 192 Mont. 

421, 628 P.2d 285, as authority for admitting the document to 

probate as Kay's will "on the testimony of one witness." He does 

not present any analysis or application of that case to the 

circumstances presently before us. 

Estate of Weidner involved two wills. One was a joint will 

executed by Leona and E.J. Weidner in 1954, which left all of their 

property--except for five dollars--to their daughter, Lorraine 

Brown. The other was an unexecuted copy of a will purportedly 

executed by Leona in 1965, after E.J.'s death, which "contain[ed] 

a standard revocation clause." Estate of Weidner, 628 P.2d at 286. 

Upon Leona's death, Lorraine sought to probate the 1954 will. Gale 

Weidner, E.J. and Leona's son, petitioned for a formal 

determination of intestacy and offered an unexecuted copy of the 

1965 will. The 1965 will apparently revoked the 1954 will but did 

not dispose of Leona's property. Estate of Weidner, 628 P.2d at 

286. 

The dispositive issue on appeal was whether the 1965 will was 

duly executed. See Estate of Weidner, 628 P.2d at 286-87. We 

noted that the proponent of a will bears the burden of proving due 

execution. Estate of Weidner, 628 P.2d at 287 (citing § 72-3-310, 

MCA). We also noted that, in a contested case, at least one of the 

attesting witnesses generally must testify. Estate of Weidner, 628 

6 
P.Zd at 287 (citing § 72-3-309, MCA). In Estate of Weidner, the 

attorney who drafted the 1965 will testified that he witnessed 

Leona's signing of the will and was "quite certain" that he was an 

attesting witness. He further testified that, while he was not 

certain who the other witness was, he believed it was his 

secretary. The secretary did not testify at trial, but the 

attorney stated that she did not recall signing the will. On the 

record before us, we concluded that there was insufficient evidence 

to support a determination that the 1965 will was duly executed. 

Estate of Weidner, 628 P.2d at 287. 

Estate of Weidner does not support Bruce's position here that 

the March 21, 1995, document can be admitted to probate where it 

indisputably was not duly executed as required by § 72-2-522, MCA. 

The number of attesting witnesses who must testify in a contested 

will proceeding pursuant to § 72-3-309, MCA, is an entirely 

different question from whether the purported will met the 

requirements for a duly executed will under 5 72-2-522, MCA. 

Neither § 72-3-309, MCA, nor Estate of Weidner varies, or could 

vary, the separate and distinct statutory requirements for a duly 

executed will which must be established by the proponent of the 

will. 

The record before us in this case demonstrates that the March 

21, 1995, document was signed by only one person who witnessed Kay 

signing the will or acknowledging either her signature or the will. 

We hold, therefore, that the District Court correctly concluded 
that the March 21, 1995, document was not duly executed under § 72- 

2-522, MCA. 

B. Section 72-2-523, MCA 

As discussed above, the proponent of a will has the burden of 

establishing due execution. See § 72-3-310, MCA. Where a duly 

executed will is admitted to probate, a presumption exists that the 

testator was competent and of sound mind. See In re Bodin's Estate 

(1965), 144 Mont. 555, 559, 398 P.2d 616, 618-19 (citations 

omitted). Accordingly, 5 72-3-310, MCA, requires the contestant of 

such a will to establish lack of testamentary intent or capacity or 

one of the other statutorily-specified circumstances. 

Even absent due execution, however, a document still can be 

admitted to probate as a valid will under certain circumstances. 

Section 72-2-523, MCA, provides in pertinent part: 

Although a document or writing added upon a document was 

not executed in compliance with 72-2-522, the document or 

writing is treated as if it had been executed in 

compliance with that section if the proponent of the 

document or writing establishes by clear and convincing 

evidence that the decedent intended the document or 

writing to constitute: 

(1) the decedent's will. 

(Emphasis added.) Under the express language of this statute, the 

proponent of a document bears the burden of proving the decedent's 

intent that the writing constitutes his or her will 

"Intent" is defined as "the state of mind or mental attitude 

with which an act is done." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY, 

1176 (1971). "INTEND implies that the mind is directed to some 

definite accomplishment or end. . _'I WEBSTER'S THIRD NEW INTERNATIONAL 

DICTIONARY, 1175 (1971). It is axiomatic that for Kay to have 

8 
intended the document to be her will, she must have been competent 

to execute a will at the time she signed the document on March 21, 

1995. Indeed, § 72-2-521, MCA, requires that a person be of sound 

mind to make a will 

"Sound mind," as that term is used in § 72-2-521, MCA, means 

"that [the] testator must have been able to understand and carry in 

mind, in a general way, [the] nature and situation of [her] 

property, [her1 relations to those having claim to [her1 

remembrance, and [the] nature of [her] act." BLACK'S LAW DICTIONARY, 

1567 (1968). Similarly, it is well-established in Montana that a 

testator is mentally competent if she 

is possessed of the mental capacity to understand the 

nature of the act, to understand and recollect the nature 

and situation of [her] property and [her] relations to 

persons having claims on [her] bounty whose interests are 

affected by [her] will. [Citation omitted.] 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 [she] is 

about to dispose, and [the] nature of the act which [she] 

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

persons who are to be the objects of [her] bounty, and 

[her] relation towards them." 

Bodin's Estate, 398 P.2d at 619 (citations omitted). See also 

Matter of Estate of Lien (1995), 270 Mont. 295, 299, 892 P.2d 530, 

532; Matter of Estate of Jochems (1992), 252 Mont. 24, 29, 826 P.2d 

534, 537. 

Thus, unlike the situation in which a duly executed will is 

admitted to probate, no presumption that the decedent was competent 

to execute a will exists where § 72-2-523, MCA, applies. In light 

of Bruce's burden of proof pursuant to § 72-2-523, MCA, therefore, 

§ 72-3-310, MCA--insofar as it imposes a burden upon the contestant 

9 
of a will to prove lack of testamentary intent or capacity--has no 

application here. 

Bruce attempted to have the March 21, 1995, document admitted 

to probate pursuant to § 12-2-523, MCA. The District Court 

listened to testimony and accepted evidence and, thereafter, 

determined that Bruce had not proved by clear and convincing 

evidence that Kay was competent when she signed the document on 

March 21, 1995, and intended the document to be her will. 

An underlying finding upon which the court based its ultimate 

determination that Bruce did not satisfy his burden of proof under 

§ 72-2-523, MCA, was that Kay "did not know what property she had 

and which would be disposed of by her will." The record contains 

substantial evidence in support of this finding. Bruce testified 

that Kay had already given away numerous items of personal property 

disposed of by the March 21, 1995, document. Indeed, Jean and 

Kay's grandchildren had received most of the property the March 21, 

1995, document purported to bequeath to them. Moreover, the taperecorded conversation between Bruce and Kay in which they discussed 

the proposed changes to Kay's will reveals that Kay was unaware 

that she owned stock until reminded by Bruce. 

BRUCE: You own stock in Ford Motor Company and stock in 

Australia New Zealand Bank. 

KAY: I do? (laughs) 

BRUCE: Yes, which has your's, mine, and Jean's names on 

them as tenants in common. Okay. How do you want to 

handle those stocks? That's also the Montana Power Stock 

that Dad bought prior. 

KAY: I am no good at that kind of thing. I have no idea. 

10 
The foregoing evidence indicates that Kay did not have the 

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

prompting, the nature and extent of [her] property." & Bodin's 

Estate, 398 P.2d at 619. Without such clearness of mind, and 

absent the mental capacity to recollect the nature and situation of 

her property, Kay was not competent to execute a will. See Estate 

of Lien, 892 P.2d at 532. Thus, this evidence would be sufficient, 

on a stand-alone basis, to support the District Court's 

determination that Bruce did not meet his burden of proving, by 

clear and convincing evidence, that Kay was competent when she 

signed the will. 

The record also is replete with evidence that Kay's mental 

capacity had deteriorated in the months preceding her death. Kay 

began seeing Dr. Lisa Milch (Milch) in January of 1994 for 

abdominal and back pain. Milch noted in office notes dated 

February 3, 1994, that Kay had trouble relating her medical history 

and was probably suffering from dementia. Milch's notes also 

indicate that she spoke with Bruce the following day regarding 

Kay's memory problems. Bruce told Milch that Kay's memory had been 

declining and she had become more forgetful in the preceding three 

to four months. 

Milch's office notes of March 16, 1994, state that Kay had 

complained of progressive forgetfulness and that other people 

around her had noticed her forgetfulness. Approximately six weeks 

later, Milch noted that Bruce "feels that [Kay] has had further 

11 
mental status changes. She seems a little bit more tired and a 

little bit more forgetful even than a month ago." 

In December of 1994, Milch noted that Kay's confusion had 

increased. Milch again noted Kay's confusion in her office notes 

dated March 10, 1995. Tests taken on March 22, 1995, showed a high 

level of acid and an extremely elevated level of carbon dioxide in 

Kay's blood. According to Milch, the elevated carbon dioxide level 

indicated that Kay's lungs were unable to dispose of the poisons in 

her system. Moreover, in Milch's opinion, a high level of acid in 

the bloodstream has a profound effect on a person's organs, 

including the brain. Additionally, Milch stated that Kay took a 

variety of medications that could affect her mental capabilities 

and memory. Overall, Milch's opinion was that Kay had a history of 

increasing forgetfulness and suffered from disorientation, 

especially as to higher thinking levels and cognitive processes. 

Dr. Paul Bach (Bach), a clinical psychologist, reviewed 

Milch's office notes and deposition testimony, Kay's medical 

records and Discovery's records regarding Kay; he also listened to 

the tape-recorded conversation of Bruce and Kay discussing Kay's 

will. Bach testified that the following facts caused him concern 

about Kay's mental competence: Milch diagnosed Kay with dementia 

in 1994; Kay had difficulty breathing which affected the amount of 

oxygen in her lungs and could affect Kay's cognitive ability; Kay 

was on medications including Prednisone, Flexeril, Darvocet, 

Percocet and Atarax which could have affected her cognitive 

12 
functioning; and Milch's notes regularly commented on Kay's poor 

cognitive status. 

Bach further testified that a blood test done on February 19, 

1995, revealed that the carbon dioxide level in Kay's blood was 

very elevated and that approximately one month later, on March 22, 

that level was even higher. He noted that Kay signed the purported 

will less than twenty-four hours prior to the second blood test 

and, based on the test results, Kay's carbon dioxide level was most 

likely elevated on March 21 as well. He testified that this 

certainly could have affected her cognitive functioning. 

Bach also was concerned about Kay's mental competence based on 

his review of the tape-recorded conversation between Bruce and Kay. 

Most remarkable was the number of times [Kay] responded 

to questions put to her by saying something on the order 

[of] "I'm not good at that kind of thing. 

decisions to make. , I wish. . , I want someone 

else to do it. , I don't know. . . , I don't 

remember. . , I can't remember." Particularly her 

mention was made of stocks and bonds, and she responded, 

"I do have some?" , as if uncertain that she did. But 

basically, her verbal responses indicated a woman who was 

uncertain at the time of the tape recording, and just 

would continuously give inaccurate responses to a 

question at different points throughout the tape. 

Although Bach did not testify that Kay was not competent when she 

signed the document on March 21, 1995, he stated that her medical 

records and the tape-recorded conversation raised serious concerns 

about whether she was competent at that time. Based on this 

record, substantial evidence supports the District Court's 

determination that Bruce did not establish by clear and convincing 

evidence that Kay was mentally competent--that is, that she had the 

13 
requisite testamentary capacity and intent--to execute the March 

21, 1995, document. 

Bruce did offer evidence to rebut the evidence which raised 

doubts about Kay's mental competence on March 21, 1995. Bruce and 

Merrell testified that Kay was strong and not easily persuaded to 

do something which she did not want to do. Discovery employees 

testified to the same effect. The testimony of Bruce, Merrell and 

the Discovery employees depicted a strong woman who desired input 

on her daily life and was cognizant of her surroundings. Our 

standard of review, however, is not whether the record contains 

evidence which supports findings different from those made by the 

District Court. See Caekaert v. State Compensation Mutual Ins. 

Fund (1994), 268 Mont. 105, 110, 885 P.2d 495, 499 (citation 

omitted). Moreover, it is within the province of the trier of fact 

to weigh conflicting evidence and we will not substitute our 

judgment for that of the factfinder on such matters. Topco, Inc. 

v. State Dept. of Highways (1996), 275 Mont. 352, 362, 912 P.2d 

805, 811 (citation omitted). 

Finally, we address briefly Bruce's lengthy argument that the 

District Court improperly imposed the burden of disproving undue 

influence on him. He contends that the District Court's imposition 

of such a burden is contrary to §§ 72-3-310 and 72-2-523, MCA. 

Here, Bruce failed to prove either that the March 21, 1995, 

document was duly executed under 5 72-2-522, MCA, or that Kay was 

competent and intended the document to constitute her will under § 

72-2-523, MCA. We conclude, on those bases, that the document 

14 
properly was denied admission to probate. Under such 

circumstances, as discussed above, Jean bore no burden of proof 

under 5 72-3-310, MCA, as the contestant of the will. Jean could 

not have known during the hearing, however, that Bruce would not 

meet his alternative burdens of proof as the proponent of the 

document as Kay's will. Consequently, she put on evidence 

attempting to establish undue influence pursuant to § 72-3-310, 

MCA, and the District Court determined that Bruce had exerted undue 

influence over Kay. The District Court then concluded that Bruce 

bore the burden of disproving undue influence. 

Under these facts, it was unnecessary for the District Court 

to address undue influence at all. Bruce having failed to prove 

that the document was duly executed or, by clear and convincing 

evidence, that Kay possessed the requisite mental capacity to 

execute a will on March 21, 1995, and intended the document to be 

her will, the District Court need have gone no further. 

The District Court erred in interpreting § 72-2-523, MCA, as 

imposing a duty to disprove undue influence on the proponent of a 

document purportedly intended as a will. The court's incorrect 

interpretation of § 72-2-523, MCA, had no effect on the outcome of 

this case, however. Therefore, we conclude that the error was 

harmless because it did not affect Bruce's substantial rights. & 

Rule 14, M.R.App.P.; Abbey v. City of Billings Police Comm'n 

(1994), 268 Mont. 354, 364, 886 P.2d 922, 928. 

We hold that the District Court did not err in denying 

admission of the March 21, 1995, document to probate. 

15 
Affirmed. 

We concur: 

16 
November 26, 1996 

CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, 

to the following named: 

Howard C. Greenwood 

Attorney at Law 

P.O. Box 1567 

Hamilton, MT 59840 

Richard A. Weber, Jr. 

Koch, Johnson, Weber & Goheen 

P.O. Box 433 

Hamilton, MT 59840 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY: 

Deputy