NO. 96-112 IN THESUPREME

COURTOFTHESTATEOFMONTANA 1996

IN THEMATTEROFTHEESTATEOF i\iliv2fi!%fi KATHERYNMAYBROOKS,Deceased.

APPEALFROM: District Court of the Twenty-First Judicial District,

In andfor the County of Ravalli, The Honorable Jeffrey H. Langton, Judge presiding.

COUNSELOFRECORD:

For Appellant: Howard C. Greenwood, Attorney at Law, Hamilton, Montana For Respondent: Richard A. Weber, Jr.; Koch, Johnson, Weber &Goheen, Hamilton, Montana

Filed: Submitted onBriefs: August 22, 1996 Decided: November 26, 1996Justice 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, andordering that her estate bedistributed accordingly. Weaffirm. The restated dispositive issue on appeal is whether the District Court erred in denying admission of the March 21, 1995, document to probate. Katheryn MayBrooks (Kay) died onMarch 24, 1995, in Ravalli County, Montana, at the age of seventy-nine. Shewas 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 homeownedby KayandVirgil. Thereafter, hemovedinto the family home. Kaylived with Jean in Spokanefrom the time of Virgil's death in the spring of 1992 until late in December of 1993, when she returned to the family homein 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. 2The following month, Kaymoved to the Discovery Care Center

(Discovery), a nursing home in Hamilton, as a result of deteriorating health. Jean drove over from Spokaneto visit Kayat 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 andJean which upset Kay. Kayhad executed a"home-drawn" will prior to Virgil's death. Onor about March 10, 1995, Bruce assisted Kay in updating that will. Hebrought 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 Kayduring which they discussed the revisions to Kay's will. OnMarch 21, 1995, Bruce typed up the new document. Kay signed the document that sameday, in the presence of Bruce and his long-time friend Carolynne Merrell (Merrell). Merrell signed the document as a witness. Thedocument listed specific bequests to Bruce, Jean and their children, and left the family homeandthe remainder of the furnishings and contents--Kay's most substantial asset--to Bruce. Bruce and Merrell then took the document to Leroy White (White), anotary public andBrooks family friend. White hadknown 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. Kaydied three days later. OnMay5, 1995, Bruce filed apetition for formal probate of the March 21, 1995, document as Kay's last will and testament,

3determination 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 anddeclared that Kaydied intestate. Bruce appeals. Additional facts are provided below as necessary to our resolution of the issue before us. STANDARDS OFREVIEW Wewill not disturb adistrict 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 amistake has been committed. Daines v. Knight (1995), 269 Mont. 320, 325, 888P.2d 904, 906 (citation omitted). Wereview 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? 4A. 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

. . . awill must be:

(a) in writing; (b) signed bythe 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 byat least two individuals, each of whom signed within a reasonable time after having witnessed either the signing of the will asdescribed 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 hadbeen duly executed under §72-2-522(l), MCA,andthat it should be admitted to probate asKay's will. TheDistrict Court concluded that the document had been signed by only one person whomet the criteria set forth in §72-2-522(l) cc), MCA,and, therefore, that the document was not duly executed. TheMarch 21, 1995, document is in writing andsigned by Kay. Thus, the § 72-2-522(l) (a) and (b), MCA, criteria are met. The document also contains two signatures onsignature lines labeled "witness." Thefirst signature is Merrell's. Shesigned the document as a witness in Kay's presence immediately after observing Kaysign the document andacknowledge that it wasawill. The other "witness" signature is White's. However, White wasnot present when Kaysigned the document. Nor did Kayacknowledge to White either her signature or that the document was her will. Therefore, White's signature is not the signature of a second 5witness, 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 onewitness." Hedoes not present any analysis or application of that case to the circumstances presently before us. Estate of Weidner involved two wills. Onewas ajoint will executed by Leona andE.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]

astandard revocation clause." Estate of Weidner, 628P.2d at 286. UponLeona's death, Lorraine sought to probate the 1954will. Gale Weidner, E.J. and Leona's son, petitioned for a formal determination of intestacy and offered an unexecuted copy of the 1965will. The 1965will apparently revoked the 1954will but did not dispose of Leona's property. Estate of Weidner, 628 P.2d at 286. Thedispositive issue onappeal waswhether the 1965will was duly executed. See Estate of Weidner, 628 P.2d at 286-87. We noted that the proponent of awill bears the burden of proving due execution. Estate of Weidner, 628P.2d at 287 (citing §72-3-310, MCA). Wealso noted that, in acontested case, at least one of the attesting witnesses generally must testify. Estate of Weidner, 628

6P.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 andwas "quite certain" that hewas 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. Onthe record before us, weconcluded that there wasinsufficient 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 wasnot duly executed asrequired by §72-2-522, MCA. The number of attesting witnesses whomust 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 aduly 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 wassigned by only oneperson whowitnessed Kay signing the will or acknowledging either her signature or the will. Wehold, therefore, that the District Court correctly concludedthat the March 21, 1995, document wasnot duly executed under §72-

2-522, MCA. B. Section 72-2-523, MCA As discussed above, the proponent of awill has the burden of establishing due execution. See § 72-3-310, MCA. Where a duly executed will is admitted to probate, apresumption exists that the testator wascompetent andof soundmind. SeeIn re Bodin's Estate (1965), 144 Mont. 555, 559, 398 P.2d 616, 618-19 (citations omitted). Accordingly, 572-3-310, MCA,requires the contestant of such awill 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 avalid will under certain circumstances. Section 72-2-523, MCA,provides in pertinent part: Although adocument or writing added upon adocument 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 adocument 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 anact is done." WEBSTER'S THIRD NEWINTERNATIONAL DICTIONARY,

1176 (1971). "INTEND implies that the mind is directed to some definite accomplishment or end.

. _'I WEBSTER'S THIRD NEWINTERNATIONAL DICTIONARY, 1175 (1971). It is axiomatic that for Kay to have 8intended the document to beher will, shemust have been competent

to execute awill at the time she signed the document onMarch 21, 1995. Indeed, §72-2-521, MCA,requires that aperson beof sound mind to make awill "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 andrecollect 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 andclearness 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), 270Mont. 295, 299, 892 P.2d 530, 532; Matter of Estate of Jochems (1992), 252Mont. 24, 29, 826P.2d 534, 537. Thus, unlike the situation in which a duly executed will is admitted to probate, nopresumption that the decedent wascompetent to execute awill 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 asit imposes aburden uponthe contestant 9of awill 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 Kaywas competent when she signed the document on March 21, 1995, and intended the document to be her will. Anunderlying finding uponwhich the court based its ultimate determination that Bruce did not satisfy his burden of proof under §72-2-523, MCA,wasthat Kay "did not knowwhat property she had andwhich would be disposed of by her will." The record contains substantial evidence in support of this finding. Bruce testified that Kayhadalready given awaynumerous items of personal property disposed of by the March 21, 1995, document. Indeed, Jean and Kay's grandchildren hadreceived most of the property the March 21, 1995, document purported to bequeath to them. Moreover, the taperecorded conversation between Bruce andKayin which they discussed the proposed changes to Kay's will reveals that Kay was unaware that she owned stock until reminded by Bruce. BRUCE:Youownstock in Ford Motor Companyand stock in Australia NewZealand Bank. KAY: I do? (laughs) BRUCE:Yes, which has your's, mine, andJean's nameson them as tenants in common. Okay. Howdo you want to handle those stocks? That's also the Montana PowerStock that Dadbought prior. KAY: I amnogoodat that kind of thing. I have no idea.

10The 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 andsituation of her property, Kaywasnot competent to execute awill. See Estate of Lien, 892P.2d at 532. Thus, this evidence would besufficient,

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 Kayhadtrouble 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 memoryproblems. Bruce told Milch that Kay's memoryhadbeen declining andshe hadbecomemore 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

11mental status changes. Sheseems a little bit more tired and a

little bit more forgetful even than amonth 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 onMarch 22, 1995, showed ahigh level of acid and anextremely 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, ahigh 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 andmemory. Overall, Milch's opinion wasthat Kayhadahistory 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 andDiscovery's records regarding Kay; he also listened to the tape-recorded conversation of Bruce and Kay discussing Kay's will. Bachtestified that the following facts caused him concern about Kay's mental competence: Milch diagnosed Kaywith dementia in 1994; Kayhaddifficulty 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

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

cognitive status. Bach further testified that ablood test done onFebruary 19, 1995, revealed that the carbon dioxide level in Kay's blood was very elevated andthat approximately onemonth later, onMarch 22, that level waseven higher. Henoted that Kaysigned the purported will less than twenty-four hours prior to the second blood test and, based onthe test results, Kay's carbon dioxide level wasmost likely elevated on March 21 as well. He testified that this certainly could have affected her cognitive functioning. Bachalso wasconcerned about Kay's mental competence based on his review of the tape-recorded conversation between Bruce andKay. Most remarkable wasthe number of times [Kay] responded to questions put to her by saying something onthe 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 wasmadeof stocks andbonds, and she responded, "I do have some?", as if uncertain that she did. But basically, her verbal responses indicated awomanwhowas 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 Kaywasnot competent whenshe signed the document onMarch 21, 1995, he stated that her medical records andthe 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 Kaywasmentally competent--that is, that shehadthe

13requisite 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 onMarch 21, 1995. Bruce and Merrell testified that Kaywas strong and not easily persuaded to do something which she did not want to do. Discovery employees testified to the sameeffect. Thetestimony of Bruce, Merrell and the Discovery employees depicted a strong womanwhodesired 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 madeby 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, weaddress briefly Bruce's lengthy argument that the District Court improperly imposed the burden of disproving undue influence onhim. Hecontends that the District Court's imposition of such aburden 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 572-2-522, MCA,or that Kaywas competent and intended the document to constitute her will under § 72-2-523, MCA. Weconclude, on those bases, that the document

14properly was denied admission to probate. Under such

circumstances, as discussed above, Jean bore no burden of proof under 572-3-310, 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,andthe District Court determined that Bruce hadexerted undue influence over Kay. TheDistrict Court then concluded that Bruce bore the burden of disproving undue influence. Under these facts, it wasunnecessary 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 awill onMarch 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 aduty to disprove undue influence onthe proponent of a document purportedly intended as awill. The court's incorrect interpretation of §72-2-523, MCA,hadnoeffect onthe 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), 268Mont. 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.

15Affirmed.

Weconcur:

16November26,1996

CERTIFICATE OFSERVICE IherebycertifythatthefollowingcertifiedorderwassentbyUnitedStatesmail,prepaid, tothefollowingnamed: HowardC.Greenwood AttorneyatLaw P.O.Box1567 Hamilton,MT 59840 RichardA.Weber,Jr. Koch,Johnson,Weber&Goheen P.O.Box433 Hamilton,MT 59840

EDSMITH CLERKOFTHESUPREMECOURT STATEOFMONTANA BY: Deputy