No. 80-181 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

THE MONTANA CONFERENCE OF THE SEVENTHDAY ADVENTIST CHURCH, a non-profit 

corporation, 

Plaintiff and Appellant, 

ESTATE OF SOPHIE MILLER, Deceased, by 

ARTHUR B. HARR, et al., 

Defendant and Respondent. 

Appeal from: District Court 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&&+ Clerk 
Mr. 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 the Missoula County District Court holding that 

a personal guardianship and a property conservatorship did 

not prevent Sophie Miller from revoking a trust in which 

the Conference was 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 property was under a conservatorship, she was legally 

incapacitated from revoking the trust--a trust which provided 

that it was irrevocable upon the "incompetency" or death of 

Sophie Miller. A second issue inherent in this appeal, 

although not directly raised by the Conference, is the 

contention that the Conference proved at trial that Sophie 

Miller did not have the mental capacity on July 8, 1977 to 

revoke the trust. 

After the Conference was notified that Sophie Miller 

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 

Sophie Miller 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 Sophie Miller 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 Sophie Miller was 85 

years old, named the Conference as trustee and beneficiary. 

It was to become irrevocable upon the death or incompetency 

of Sophie Miller. Before its revocation, it was amended 6 

times, and usually each amendment increased the Conference's 

share of the estate. Originally, 30 percent of Sophie's 

estate was to go to the Conference, 15 percent to the General 

Conference Foreign Mission Fund, and 15 percent was to go 

to the Voice of Prophecy (a Conference-connected organization 

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 estate was to go to Sophie's two 

daughters and her grandchildren. Under the last trust 

amendment, the Conference was to get 56 percent of the 

estate and the Voice of Prophecy was to get 25 percent of 

the estate. The remaining estate (19 percent) 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. 

These petitions were filed under the provisions of the 

Uniform Probate Code, effective July 1, 1975. The court 

appointed the granddaughter as temporary guardian but took 

no immediate action 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 conservatorship hearing. The trust revocation came 

about while Harr was acting in his capacity as attorney for 

Sophie Miller. 

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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, Sophie was 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. She was appointed as temporary guardian but 

no order was then entered on her petition for conservatorship. 

For the next two months, Frieda Miller 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 this made it easier for 

her to visit Sophie and attend to her needs. The granddaughter 

could not do this as easily if Sophie had 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 Sophie Miller wanted the granddaughter, 
Ruth Mahle, to be her guardian and conservator. The response 

was that she would 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 tape wcreadmitted in evidence at the 

trial.) She expressed dismay that by the trust agreement 

and her will, she had 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 scheme was "absolutely 

not" justice to her children and grandchildren. It was 

because of this clearly expressed declaration that Harr 

later prepared the trust revocation for Sophie to sign. 

The hearing on the application for guardianship and 

conservatorship took place on July 7, 1977. It was a brief 

hearing, lasting no more than 30 minutes, and, unfortunately, 

no court reporter was present. Although Sophie Miller was 

not present, Harr was there to represent her interests as 

her court-appointed attorney. The Conference disputes what 

took place, but the unrefuted testimony as to what took 

place is that both the guardianship and conservatorship 

applications were made because of the feeling that Sophie 

Miller could not take care of her person or property, and 

not because she lacked the mental capacity. 

No order was issued on July 7, but four days later 

(on July ll), the District Court appointed the granddaughter 

as guardian for Sophie Miller and also attorney Harr as 

temporary conservator of Sophie Miller's property. The 

guardianship order stated that Sophie Miller was "incapacitated by physical disability and advanced age . . ." The 
conservatorship order stated "that Sophie Miller is a 

person for whom appointment of a conservator is proper for 

reasons of physical disability and advanced age." 

On July 8 (between the 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 the property 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 Sophie Miller's property, Harr wrote to the 

Conference and 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, on August 17, 1977, Harr visited Sophie Miller 

and had another tape-recorded conversation with her in the 

morning--his object was to find out what she wanted done 

with her property. (The tape and a transcript of the tape 

we= admitted in evidence at the trial.) Later that afternoon, 

Sophie Miller 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 Sophie Miller's 

property, and the remaining 75 percent was to be divided 15 

percent to each of two daughters, and 45 percent was to be 

split between 11 grandchildren. The estate is a modest one. 

Between July 1, 1977 and September 19, 1977, (when the 

Conference's petition for declaratory judgment was filed) 
Harr invited the attorney for the Conference or any member 

of the Conference to visit Sophie Miller at the nursing home 

so that they could get firsthand knowledge of what 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 Conference was to get 25 percent of 

her property. Sophie died on February 19, 1978, before this 

case was tried. 

At trial, and on appeal, the Conference argues that the 

law in effect in 1968, when the trust was first created, 

should control this proceeding. With this as its premise, 

the Conference then argues that the 1968 statutory scheme on 

guardianships incapacitates a person 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 first premise. The Uniform Probate Code (effective 

July 1, 1975) was in effect for two years when the guardian 

and conservator were appointed on July 11, 1977. 

Section 72-1-107, MCA (formerly section 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 it would 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 

(formerly section 91A-6-102), states that the Uniform Probate 

Code must govern if it conflicts with any statutes adopted 

before enactment of the Uniform Probate Code. If there is 

no conflict between the 1968 and 1975 law, the Conference 
then can show no prejudice by the use of the 1975 statutes, 

for the result would be the same under either the 1968 

or 1975 statutes. But should there be a conflict between 

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 Conference has raised no constitutional 

issue, and we see no valid constitutional argument to 

prevent application of the 1975 Uniform Probate Code 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 appointment of a 

personal guardian plus a conservator for the estate, made 

Sophie Miller legally incapable of revoking the trust. First, 

the Conference is in error on its dates. When the trust was 

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. (It is true, however, that 

the granddaughter had been appointed the temporary guardian 

in April 1977, before the revocation of the trust agreement.) 

Second, assuming that a conservator had been appointed before 

Sophie Miller revoked the trust, it would 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 (entered after the trust was 

revoked) is of no aid to the Conference's argument. It stated 

that "Sophie Miller is a person for whom appointment of a 
conservator is proper for reasons of physical disability 

and advanced age." 

Although all of the same considerations do not apply, 

we reach the same basic decision on the guardianship proceedings. The application for appointment of a guardian 

alleged that Sophie Miller ". . . is an incapacitated person 

by reason of the fact of advanced age and diminished mental - 

capacity." (Emphasis added.) But the allegation as to 

"diminished mental capacity" is not found within the definition 

of an "incapacitated person" 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, it would not change the result here because all the 

evidence points to the fact that a guardianship was desired, 

and a guardian was appointed, because Sophie Miller was 

physically incapable of taking care of herself, not because 

she was mentally incapacitated. 

There is no record of the guardianship hearing, but the 

unrefuted testimony at trial from those who were present at 

the guardianship proceeding on July 7, is that application 

was made on the basis of, and the testimony was, that Sophie 

Miller was physically incapable of taking care of herself. 

The July 11 order setting out the reason for appointment of 

a guardian, stated "that Sophie Miller was 'incapacitated by 

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 Sophie 
Miller 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 feel we are splitting straws or miscontruing 

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 "a rational decision with 

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 declare here that Sophie Miller lost her 

legal capacity to revoke the trust when a temporary guardian 

had been appointed. The statute is not directed at incapacitating 

a ward from making 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 Sophie Miller was "incapacitated by 

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 the ward is mentally 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 deprive him of the power to make a will, or to 

revoke a will made by him, before he, as an adult, was 

placed under guardianship. 89 A.L.R.2d 1122; also see, 79 

Am.Jur.2d Wills S 58, at 319. The reason is that an adult 
may require a guardianship because of incapacity in one 

particular area, but he may still be entirely competent in 

other respects. 89 A.L.R.2d at 1122. That is the situation 

here: Sophie Miller 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 the word used in the Uniform Probate Code. Because there 

is room to disagree on the meaning of "incompetencyn,the 

trial court declared that the meaning is ambiguous and 

strictly construed the meaning against the Conference because 

the Conference chose the word for its printed forms. The 

trial court therefore construed the word "incompetency" to 

mean the "complete mental incompetency and lack of understanding of the Trustor [Sophie Miller] at the time she 

executed the revocation." The trial court then concluded 

that Sophie Miller was mentally 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 court was 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 Sophie 
Miller was mentally competent when 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 

Sophie Miller'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 

Sophie Miller'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, Sophie Miller's daughter, testified that she did not 

believe Sophie had the mental 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 competent witnesses and the weight 

to be given to their testimony was for the trial court, not 

this Court. The trial court chose to believe them. 

The judgment of the District Court upholding Sophie 

Miller's revocation of the trust agreement is affirmed. 
We Concur: