No. 80-181 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

THE MONTANA CONFERENCE OF THE SEVENTHDAYADVENTIST CHURCH, a non-profit corporation, Plaintiff and Appellant,

ESTATE OF SOPHIE MILLER, Deceased,by ARTHUR B. HARR, et al., Defendant and Respondent.

Appeal from: DistrictCourt of the Fourth Judicial District, In and for the County of Missoula. Honorable John Henson, Judge presiding. Counsel of Record: For Appellant: Gregory 0. Morgan argued, Bozeman,Montana For Respondent: Murray, Holt and McChesney, Missoula, Montana Harold L. Holt argued, Missoula,Montana Morales, Volinkaty & Harr,Missoula,Montana Jon E. Ellingson, Missoula,Montana

Submitted: February 19, 1981 Decided: June 1, 1981 

# TAW, (2.

# ))zk&&+ ClerkMr. Justice Daniel J. Shea delivered the Opinion of the Court. Plaintiff,Montana Conference of the Seventh Day Adventist Church (Conference), appeals from a declaratory judgment of theMissoula County District Courtholding that

a personal guardianship and a property conservatorship did not prevent Sophie Miller from revoking a trust inwhich the Conferencewas both the trustee and a beneficiary in the event of her death or "incompetency." Although the issues can be stated in various ways, the

essence of this appeal is the claim by the Conference that because Sophie Miller was under a personal guardianship and her propertywas under a conservatorship,shewas legally incapacitated from revoking the trust--a trust which provided that itwas irrevocable upon the "incompetency"or death of SophieMiller. A second issue inherent in this appeal, althoughnot directly raised by the Conference, is the contention that the Conferenceproved at trial that Sophie Miller did not have the mental capacity on July 8, 1977 to revoke the trust. After the Conferencewas notified that SophieMiller had revoked the trust and the Conference refused to abide by the revocation, the Conference filed a declaratory judgment action in September 1977 to have the trust revocation declared invalid. The Conference, as trustee, claimed that SophieMiller was legally incompetent to revoke the trust because she was then under a personal guardianship and her property was in the hands of a conservator. The complaint did not allege that SophieMiller did not have the mental capacity on July 8, 1977 to revoke the trust. However, the defense was based in part on the contention that Sophie~iller had the required mental capacity to revoke the trust. The trust, created in 1968,when SophieMiller was 85 years old,named the Conference as trustee and beneficiary. It was to become irrevocableupon the death or incompetency of SophieMiller. Before its revocation, it was amended 6 times, and usually each amendment increased the Conference's shareof the estate. Originally, 30percent of Sophie's estatewas to go to the Conference, 15percent to the General Conference ForeignMission Fund, and 15percentwas to go to the Voice of Prophecy (aConference-connectedorganization which is an organization that provides a way for Seventh Day Adventists to continue spreading the good word after their death). The remainder of the estatewas to go to Sophie's two daughters and her grandchildren. Under the last trust amendment, the Conferencewas to get 56 percent of the estate and the Voice of Prophecywas to get 25 percent of the estate. The remaining estate (19percent) was to go to Sophie's daughters and her grandchildren. In April 1977,Ruth Mahle, Sophie Miller's granddaughter, petitioned the District Court to be appointed personal guardian for Sophie and conservator for Sophie's estate. Thesepetitionswere filed under the provisions of the Uniform Probate Code, effective July 1, 1975. The court appointed the granddaughter as temporary guardian but took no immediateaction on the application for conservatorship. The court set July 7, 1977 to hear the application for guardianship and application for conservatorship. In early June 1977, the District Court appointed attorney Arthur B. Harr to represent Sophie Miller at the guardianship and conservatorshiphearing. The trust revocation came about while Harrwas acting in his capacity as attorney for SophieMiller.



## -3-The circumstances leading to the trust revocation in July 1977, were triggered by Sophie's illness in the spring of 1977. Until the spring, Sophie Miller was still able to take care of herself and her Missoula home. But after a two week hospital stay in the spring,Sophiewas very weak and could not take care of herself or her home. In April 1977,Ruth Mahle, a granddaughter,petitioned the District Court to be appointed Sophie's personal guardian and conservator of her property. Shewas appointed as temporary guardian but

no order was then entered on her petition for conservatorship. For the next twomonths, FriedaMiller Benson,a daughter, and Ruth Mahle, the granddaughter,were unable to agree on where Sophie Miller could best be cared for,and had Sophie in and out of her Missoula home, hospitals and nursing homes. Finally, in June 1977, the granddaughter, as temporary guardian, brought Sophie to a nursing home in Ronan, and Sophie lived there until her death in February 1978,at age 96. The granddaughter,who visited Sophie Miller more than other relatives,both before and after her illness, lived in St. Ignatius,near Ronan, and thismade it easier for her tovisit Sophie and attend to her needs. The granddaughter could not do this as easily if Sophiehad stayed in a nursing home in Missoula. As stated earlier, in early June 1977, the ~istrict Court appointed attorney Harr to be guardian ad litem for Sophie Miller, and to represent her interests on the application of the granddaughter to be personal guardian and conservator of Sophie's property. On June 15,Harr had a long visit with Sophie Miller at the Ronan nursing home--and tape recorded this conversation. Most of the directed questioning concerned whether SophieMiller wanted the granddaughter,Ruth Mahle, to be her guardian and conservator. The response
was that shewould rather have Ruth Mahle do this than anyone else. (This tape and a transcript of the tape

### were admitted in evidence at trial.) On July 6, the day before the scheduled hearing, Harr again visited Sophie Miller, and had a long conversation with her--which was again tape recorded. (This tape and a transcript of the tapewcreadmitted in evidence at the trial.) She expressed dismay thatby the trust agreement and her will, shehad left so little to her children and grandchildren. In response to a very nonleading question asking her what she should do about her property, she declared that the property distribution schemewas "absolutely not" justice to her children and grandchildren. It was because of this clearly expressed declaration that Harr laterprepared the trust revocation for Sophie to sign. The hearing on the application for guardianship and conservatorship took place on July 7, 1977. Itwas a brief hearing, lasting no more than 30minutes, and,unfortunately,

no court reporterwas present. Although Sophie Miller was not present, Harr was there to represent her interests as her court-appointed attorney. The Conferencedisputes what took place, but the unrefuted testimony as towhat took place is that both the guardianship and conservatorship applicationswere made because of the feeling that Sophie Miller could not take care of her person or property, and not because she lacked themental capacity. No order was issued on July 7,but four days later (onJuly ll), the District Court appointed the granddaughter

as guardian for SophieMiller and also attorney Harr as temporary conservator of SophieMiller's property. The guardianship order stated that Sophie Miller was "incapacitated by physical disability and advanced age

# .. ." Theconservatorship order stated "thatSophie Miller is a person forwhom appointment of a conservator is proper for

reasons of physical disability and advanced age." On July 8 (betweenthe July 7 hearing and the July 11 orders) Sophie Miller signed the trust revocation. On this day, acting on the basis of the tape-recorded conversation he had with Sophie Miller on July 6 to the effect that she did not like theproperty distribution scheme set up in the trust, attorney Harr prepared a trust revocation and took it to Ronan for Sophie Miller to sign. She signed it in the presence of Harr. On July 12, the day after he had been appointed conservator for SophieMiller's property, Harr wrote to the Conferenceand told them that Sophie Miller had revoked the trust on July 8, that he had been appointed conservator on July 11, and that Ruth Mahle had been appointed guardian on July 11. He also requested that the Conference turn over the trust assets to him. Later, onAugust 17, 1977, Harr visited Sophie Miller and had another tape-recorded conversation with her in the morning--his objectwas to find out what shewanted done with her property. (Thetape and a transcript of the tape

we= admitted in evidence at the trial.) Later that afternoon, SophieMiller signed a will that was witnessed by Elizabeth + J. Doty, and Dr. Gerald Moredock, a medical doctor. This will gave the Conference 25 percent of SophieMiller's property, and the remaining 75 percent was to be divided 15 percent to each of two daughters, and 45percentwas to be splitbetween 11grandchildren. The estate is a modest one. Between July 1, 1977 and September 19, 1977, (when the Conference's petition fordeclaratory judgmentwas filed)Harr invited the attorney for the Conference or anymember of the Conference to visit Sophie Miller at the nursing home

so that they could get firsthand knowledgeofwhat her wishes were on her property distribution and so they could observe her mental capacity. They never visited Sophie, even though the Conference had been told that even under Sophie's new will, the Conferencewas to get 25 percent of her property. Sophie died on February 19, 1978,before this

casewas tried. At trial, and on appeal, the Conference argues that the law in effect in 1968, when the trustwas first created, should control this proceeding. With this as its premise, the Conference then argues that the 1968 statutory scheme on guardianships incapacitates aperson from revoking a trust if a guardian has been appointed. We do not have to decide this second question because the Conference is in error on its firstpremise. The Uniform Probate Code (effective July 1, 1975) was in effect for two yearswhen the guardian and conservatorwere appointed on July 11, 1977. Section 72-1-107, MCA (formerlysection 91A-6-102, R.C.M. 1947) not only provides an effective date of July 1, 1975,but more important here, declares that the code is to govern all proceedings in court after its effective date unless itwould be unjust to do so. Because the 1968 statutes had been repealed in 1975,we see no reason to apply them to a guardianship and conservatorship proceedings started in 1977, two years later. Further, section 72-1-107,MCA (formerlysection 91A-6-102), states that the Uniform Probate Codemust govern if it conflictswith any statutes adopted before enactment of the Uniform Probate Code. If there is

no conflict between the 1968 and 1975 law, the Conferencethen can showno prejudice by the use of the 1975 statutes, for the resultwould be the same under either the 1968

or 1975 statutes. But should there be a conflictbetween the 1975 law and the 1968 law, section 72-1-107,MCA, of the 1975 law expressly declares that the Uniform Probate Code shall control. The Conferencehas raised no constitutional issue, and we see no valid constitutional argument to prevent application of the 1975Uniform ProbateCode in this case. We hold, therefore, that the Uniform Probate Code controls. The Conference further contends that even under the Uniform Probate Code, the combination appointmentof a personal guardianplus a conservator for the estate, made SophieMiller legally incapableof revoking the trust. First, the Conference is in error on its dates. When the trustwas revoked on July 8, 1977, a permanent guardian had not yet been appointed, nor had a conservator been appointed. That

was not done until July 11, 1977. (Itis true, however, that the granddaughter had been appointed the temporary guardian inApril 1977,before the revocationof the trust agreement.) Second, assuming that a conservator had been appointed before Sophie Miller revoked the trust, itwould have had no effect

on her capacity to revoke the trust. Section 72-5-421(5), MCA (formerly section 91A-5-408, R.C.M. 1947)expressly states that an order finding a basis to appoint a conservator "has no effect on the capacity of the protected person." Thus,

even if a conservator had already been appointed before Sophie Miller revoked the trust, the order could not have decided her mental capacity to revoke the trust. Even the order appointing the conservator (enteredafter the trustwas revoked) is of no aid to the Conference's argument. It stated that "Sophie Miller is a person forwhom appointment of aconservator isproper for reasons of physical disability and advanced age." Although all of the same considerations do not apply,

we reach the samebasic decision on the guardianshipproceedings. The application for appointment of a guardian alleged that Sophie Miller 

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# . . is an incapacitated person by reason of the fact of advanced age and diminished mental - capacity." (Emphasisadded.) But the allegation as to "diminished mental capacity" isnot found within the definition of an "incapacitatedperson" in section 72-5-101(1), MCA, which sets out the grounds to apply for guardianship of an adult. Of course, no order had been entered on July 8 appointing

a guardian--that order did not come until July 11. It is true that Ruth Mahle had already been appointed the temporary guardian of Sophie Miller (April 

### 7, 1977) but we do not have that order before this Court. Even if we had that order, itwould not change the result here because all the evidence points to the fact that a guardianshipwas desired, and a guardianwas appointed, because SophieMiller was physically incapable of taking care of herself, not because shewasmentally incapacitated. There is no record of the guardianship hearing, but the unrefuted testimony at trial from thosewho were present at the guardianshipproceeding on July 

### 7, is that application

was made on the basis of, and the testimonywas, that Sophie Miller was physically incapable of taking care of herself. The July 11order setting out the reason for appointment of a guardian, stated "that Sophie Miller was 'incapacitatedby physical disability and advanced age.'" Furthermore,we cannot ignore the efforts of attorney Harr in inviting any member of the Conference or its attorney to visit with SophieMiller to find out for themselves that Sophie Miller had the mental capacity to revoke the trust and that she intended to do so. The Conference ignored those offers, apparently

on the advice of its lawyer. We do not feelwe are splitting straws ormiscontruing the intent of the guardianship statutes in reaching this decision. The statute setting out the grounds for appointment of a guardian for an adult, section 72-5-101(1), supra, is directed at the inability of one to make "responsible decisions concerning his person 

# . . ."or "arational decisionwith respect to his need for kreatment

# ..." It is silent on the legal effect a guardianship appointment has on the ward's capacity to sign legally binding papers. Therefore,

we are unwilling to declarehere that Sophie Miller losther legal capacity to revoke the trust when a temporary guardian had been appointed. The statute is not directed at incapacitating

a ward frommaking any decisions regarding his property. Further, the guardianship hearing was not directed at Sophie Miller's mental capacity,and the order appointing the guardian declared that SophieMiller was "incapacitatedby physical disability and advanced age." We reserve judgment

on the effect of a guardianship appointment where mental capacity is the issue and where a guardian is appointed because theward ismentally incapacitated. This is not the issue in this case. Thirty-one states,plus England and Canada, support the rule that the mere fact that an adult is under a guardianship does not deprivehim of the power to make a will, or to revoke a will made by him,before he, as an adult,was placed under guardianship. 89A.L.R.2d 1122; also see, 79 Am.Jur.2d Wills S 58, at 319. The reason is that an adultmay requirea guardianship because of incapacity in one particular area,but he may stillbe entirely competent in other respects. 89A.L.R.2d at 1122. That is the situation here: SophieMiller needed a guardian not because of her mental incapacity, but because of her physical incapacity-- she could no longer take care of herself or her home. After ruling that the 1975 Uniform Probate Code applied and that the guardianship order and conservatorship order did not nullify the right of Sophie Miller to revoke the trust agreement, the trial court then had to interpret the word "incompetency"as contained in the trust. The word "incompetency"was not defined in the trust agreement, nor is theword used in the Uniform ProbateCode. Because there is room to disagree on themeaning of "incompetencyn,the trial court declared that themeaning is ambiguous and strictly construed the meaning against the Conference because the Conference chose theword for its printed forms. The trial court therefore construed the word "incompetency"to

mean the "completemental incompetency and lack of understanding of the Trustor [Sophie Miller] at the time she executed the revocation." The trial court then concluded that SophieMiller wasmentally competent on the day she signed the trust revocation,and that she intended to revoke the trust. The Conference objects to the trial court strictly construing the word "incompetency" against the Conference, but the trial courtwas correct. Any ambiguity should have been resolved against the Conference, for the Conference not only supplied the printed form for the trust agreement but

was also a beneficiary under the trust agreement. Finally, although the Conference did not raise an issue the trial court's findings and conclusions that SophieMiller was mentally competentwhen she revoked the trust, the respondents argue that this is the only issue and that the evidence abundantly shows that Sophie Miller was competent when she revoked the trust. Several witnesses testified to SophieMiller's mental condition, including Harr,who was present when she revoked the trust, the granddaughter Ruth Mahle, who had more opportunity than anyone to observe SophieMiller's mental condition, and Elizabeth Dc:ty, the owner-administrator of the Ronan nursing home where Sophie Miller stayed. In addition to their testimony, tape recordings and transcripts of conversations Sophie Miller had with Harr

were admitted in evidence. Only one witness, Frieda Miller Benson, SophieMiller's daughter, testified that shedid not believe Sophie had themental capacity to revoke the trust. The Conference attacks the testimony of attorney Harr, of the guardian,Ruth Mahle, and of the nursing home operator, Elizabeth Doty,on the grounds that each of them had something to gain. But they were competentwitnesses and theweight to be given to their testimonywas for the trial court, not this Court. The trial court chose to believe them. The judgmentof the District Court upholding Sophie Miller's revocation of the trust agreement is affirmed.We Concur: