* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 13 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

AMERICAN FINANCIAL LIFE INSURANCE AND ANNUITY COMPANY, Plaintiff,

v. JUDY YOUN,

Defendant-Appellant and MYUNG INN YOUN, MD,

Defendant-Appellee. No. 00-6262 (D.C. No. CIV-00-475-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , PORFILIO , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral-2-

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

FACTS Hwan Youn purchased a life insurance policy from Al lamerica Life Insurance Company in April 1989. He made his wife, Judy Youn, the beneficiary of the policy. She was also the beneficiary of a w ill he signed on October 9, 1995. The couple experienced marital difficulties, culmin ating in an episode in which Mr. Youn allegedly beat Mrs. Youn severely onChristmas morning 1999. Mr. Youn was arrested for spousal abuse, and his arrest was publicized in the local newspaper. On December 28, 1999, Mr. Youn fi led for divorce from Mrs. Youn. On December 29, 1999, Mr. Youn signed a change of b eneficiary form naming his sister, Myung Youn, the new beneficiary of the Allamerica policy. On the same day, he executed a holographic will nam ing Myung Youn as the beneficiary of his probate estate. Mrs. Youn conte nds that during this time period, Mr. Youn was drinking heavily, taking large doses of psychotropic drugs, and behaving in a bizarre manner. Mr. Youn delivered the change of beneficiary form t o his financial planner, Bill Rendles, on or about December 29, 1999. On January 1, 2000, a friend and2 The Allamerica policy excluded payment of benefits in the event of suicide

within two years of the policy’s issue date, which had passed at the time of Mr. Youn’s death. -3- concerned neighbor called a psychiatrist to Mr. You n’s home. The psychiatrist determined that Mr. Youn was not a danger to himsel f. The next day, however, Mr. Youn killed himself. Mr. Rendles faxed and mai led the change of beneficiary form to Allamerica on January 4, 2000, after Mr. Youn’s death. 2 Both the October 9, 1995 and December 29, 1999 will s were filed for probate in state district court. Mrs. Youn contest ed the December 29, 1999 holographic will on the basis that Mr. Youn lacked testamentary capacity. After a trial on the merits, the probate court determinedthat Mr. Youn had been competent at the time he executed his December 29, 1999 will. On September 13, 2000, it admitted the will to probate, and rejected the earlier will. On March 7, 2000, Allamerica brought this interplea der action, seeking to determine whether Mrs. Youn or Myung Youn should be entitled to the insurance proceeds. Mrs. Youn argues that Mr. Youn lacked co mpetency to execute the change of beneficiary form, and that the change of beneficiary did not take effect because the form was not delivered to Allamerica until after his death. The federal district court granted summary judgmentin favor of Myung Youn on June 28, 2000.-4- ABSTENTION As mentioned, in the Oklahoma state probate proceed ings Mrs. Youn contested Mr. Youn’s mental capacity to execute the holographic will dated December 29, 1999. This issue parallels the issue of Mr. Youn’s mental capacity to execute the change of beneficiary form at issue in this case, which was dated the same day. See 2A Jon Alan Appleman & Jean Appleman, Insurance Law and Practice § 1024, at 58-59 (2d ed. 1966) (“It requires the s ame degree of mental capacity to make a valid change of [insurance] bene ficiary as it takes to make a will.”). Because the parties may be litigating a p arallel issue of state law in state and federal forums, we requested supplemental brief ing on the issue of whether the federal district court should have abstained fr om determining the issue of Mr. Youn’s competency until the issue is finally re solved in the state probate proceedings. Mrs. Youn argues that the district court should hav e abstained from deciding this issue, under either the Colorado River abstention doctrine, see Colorado River Water Conservation District v. United States , 424 U.S. 800 (1976), or under the Wilton /Brillhart doctrine, see Wilton v. Seven Falls Co. , 515 U.S. 277 (1995); Brillhart v. Excess Insurance Co. of America , 316 U.S. 491 (1942). If either doctrine has application here, w e should remand to the district court to consider its application in the first inst ance.3 We have located no authority specifically discussin g the choice of law issue

concerning collateral estoppel in an interpleader a ction. We apply the rule applicable to diversity cases because of the strong resemblance between a diversity action and an interpleader action broughtpursuant to 28 U.S.C. § 1335. -5- Myung Youn responds that abstention is unnecessary because the probate court has already reached a final judgment on the i ssue of Mr. Youn’s mental capacity. In her abstention briefing, and also in her “Motion to Expedite” and “Motion for Summary Affirmance,” she urges us to gi ve preclusive effect to the order of the Oklahoma probate court admitting Mr. Y oun’s holographic will to probate. We apply Oklahoma state law to determine the preclu sive effect of an Oklahoma judgment. Cf. Nanninga v. Three Rivers Elec. Coop. , 236 F.3d 902, 906 (8th Cir. 2000) (diversity case). 3 In Oklahoma, issue preclusion requires a final prior judgment. Nealis v. Baird , 996 P.2d 438, 459 (Okla. 1999). “A final judgment is one in which no appeal has been perfect ed within the time allotted by law or one in which an appeal has been properly per fected and acted upon by the highest court whose review has been sought.” Id. (footnote omitted). Under this standard, the order admitting Mr. Youn’s will to probate does not have preclusive effect. Although the order was immediately appealable under a special rule applicable to interlocutory orders in probate, see Okla. stat. tit. 58, § 721(2), it is not yet a final judgment, see In re Estate of Sneed , 953 P.2d 1111,-6-

1116 n.15 (Okla. 1998). Under Oklahoma law, a liti gant is free to await final judgment in a probate matter before appealing inter locutory decisions reached in the case. See id. Upon consideration, however, we decline to remand this case on the basis of the abstention doctrine, which was not raised in the district court. “ Colorado River abstention is based on the policy of conserving ju dicial resources in situations involving the contemporaneous exercise o f concurrent jurisdictions.” Grimes v. Crown Life Ins. Co. , 857 F.2d 699, 707 (10th Cir. 1988). For this reason, “under Colorado River , once a federal court has tried the case on its merits, it would be rare that judicial resources wo uld be conserved by abstaining on appeal.” Id. ; see also New Mexico ex rel. Reynolds v. Molybdenum Corp. of Am. , 570 F.2d 1364, 1367 (10th Cir. 1978). While Grimes and Reynolds discussed cases tried on the merits, we extend the principle to summary judgment resolution as well. Cf. Huffman v. Saul Holdings Ltd. P’ship , 194 F.3d 1072, 1079-80 (10th Cir. 1999) (extendin g, to summary judgment dispositions, rule permitting fede ral court judgment in improperly-removed case to stand if “tried in feder al court”). Our review of the materials submitted by the parties on the abstentio n issue, together with the record on appeal, convinces us that this is not the rare c ase in which judicial resources4 A similar waiver analysis, with the same result, ap plies to the issue of

Wilton /Brillhart abstention. See Gov’t Employees Ins. Co. v. Dizol , 133 F.3d 1220 (9th Cir. 1998). -7- would be conserved through abstention. 4The state court’s admittedly non-final decision on the mental capacity issue is the same a s that reached by the federal district court. Mrs. Youn makes no showing that th e probate court decision will likely be overturned on this issue. She also fails to show that the federal district court did not give the parties a sufficient opportu nity to litigate the issues surrounding Mr. Youn’s mental capacity. For these reasons, we decline to remand this case to the district court for purposes of con sidering abstention.

PROBATE EXCEPTION TO FEDERAL JURISDICTION Mrs. Youn further argues that the district court la cked jurisdiction to consider the challenge to Mr. Youn’s mental capacity. Federal courts lack jurisdiction to probate wills or to take actions th at would interfere with pending state probate proceedings. Beren v. Ropfogel , 24 F.3d 1226, 1228 (10th Cir. 1994). “The standard for determining whether feder al jurisdiction may be exercised is whether under state law the dispute wo uld be cognizable only by the probate court . . . [but] where the suit merely seeks to enforce a claim inter partes , enforceable in a state court of general jurisdictio n, federal diversity jurisdiction will be assumed.” Id. (quotation omitted).-8-

Oklahoma gives its district courts of general juris diction, acting pursuant to their equitable powers, the power to determine the ownership of life insurance policies, even in cases where the deceased’s mental capacity is at issue. See Matthews v. Acacia Mut. Life Ins. Co. , 392 P.2d 369, 371 (Okla. 1964). The federal district court, properly acting pursuant to its interpleader jurisdiction, was therefore not divested of its power by the probate exception to federal jurisdiction.

SUMMARY JUDGMENT We turn to the substantive issues presented in Mrs. Youn’s challenge to the district court’s entry of summary judgment. “We re view a district court’s grant of summary judgment de novo, applying the same legal s tandard used by the district court.” Hollins v. Delta Airlines , 238 F.3d 1255, 1257 (10th Cir. 2001). Summary judgment is proper if the moving party show s “there is no genuine issue as to any material fact and that the moving party i s entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “When appl ying this standard, we view the evidence and draw reasonable inferences therefrom i n the light most favorable to the nonmoving party.” Scull v. New Mexico , 236 F.3d 588, 595 (10th Cir. 2000) (quotation omitted).-9-

1. Mr. Youn’s mental capacity a. Insane delusion In her brief on appeal, Mrs. Youn argues that Mr. Y oun was suffering from an insane delusion when he executed the change of b eneficiary form. Mrs. Youn did not advance this theory in the district court; instead, she relied on assertions that Mr. Youn lacked mental capacity to execute the form. While both lack of mental capacity and insane delusion address the mental state of a decedent and may be used to avoid a will or other transfer by th e decedent, the two doctrines are not synonymous. In determining a decedent’s mental capacity, the co urt must inquire whether he had, at the time of the transfer “the faculty to appreciate the character and extent of the devised property” and whether he “comprehend[ed] the nature of the relationship between [himself] and the objects of [ his] bounty, and perceiv[ed] the nature and effect of the testamentary act.” In re Estate of Squire , 6 P.3d 1060, 1062-63 (Okla. Ct. App. 1999). Proof of an insane delusion, by contrast, requires a specific inquiry into whether the challenged tran sfer resulted from the decedent’s belief “in things which do not exist andwhich no rational mind would believe to exist.” Id. at 1063. “An insane delusion may exist notwithstanding full mental capacity in other respects.” Winn v. Dolezal , 355 P.2d 859, 861 (Okla. 1960). Because Mrs. Youn failed to raise th e issue of insane delusion-10-

before the district court, we decline to consider i t in the first instance on appeal. See, e.g. , Creative Gifts, Inc. v. UFO , 235 F.3d 540, 545 (10th Cir. 2000) (stating court need not consider issues raised for first tim e on appeal).

b. Evidence concerning mental capacity Mrs. Youn next argues that the district court condu cted a “trial by affidavit” and failed to view the evidence in her f avor as the nonmovant. Oklahoma law presumes that a party entering into a contract has the mental capacity to contract, and the party who contests th at fact has the burden of proof. Matthews , 392 P.2d at 373; Cushing v. McWaters , 175 P. 838, 839 (1918). Thus, in order to avoid summary judgment, Mrs. Youn was r esponsible for presenting evidence sufficient to overcome the presumption of Mr. Youn’s mental capacity. Mrs. Youn challenges the district court’s reliance on the affidavit of Dr. Kula, who opined that Mr. Youn was competent wh en he executed the change of beneficiary form. Mrs. Youn argues that Dr. Kul a’s statement is incredible because it is based upon an examination dated January 1, 2000, and Mr. Youn committed suicide the next day. As the district co urt correctly noted, however, insanity cannot be presumed from the mere fact of suicide itself. See Velez v. Metro. Life Ins. Co. , 723 F.2d 7 (10th Cir. 1983) (applying Oklahoma law, in case with factual circumstances similar to this case, to uphold district court judgment that abusive husband had sufficient mental capacityto change beneficiary of life-11-

insurance policy, notwithstanding his suicide appro ximately one month later). The district court did not err by relying on Dr. Ku la’s affidavit. Mrs. Youn next argues that the district court impro perly discounted the affidavit of her own psychologist, R. Keith Green, Ph.D. In this affidavit, Green stated that he had conducted an “initial review” into the circumstances of Mr. Youn’s suicide. Appellant’s App. at 137. This review consisted of reviewing Dr. Kula’s affidavit and discussions with Mrs. Youn and her attorney. See id. Based on this review, Green expressed his professio nal opinion that “there exists strong basis for concluding that Dr. Youn was not o f sound mind and was suffering from a mental disorder in the days immedi ately preceding his death.” Id. He further opined that the disorder “significantl y compromised Dr. Youn’s mental faculties which most likely caused him to be incapable of making decisions in his own interest and regarding a dispo sition of his property,” and caused Dr. Youn to be a danger to himself and others. Id. Finally, Green indicated that he would like to review “additional medical records and statements of others with respect to Dr. Youn’s pre-suicide conduct.” Id. A party responding to a properly-supported summary judgment motion must present affidavits or other forms of acceptable evidence that “set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e)-12-

(emphasis added). Conclusory or self-serving affid avits are insufficient for this purpose. Murray v. City of Sapulpa , 45 F.3d 1417, 1422 (10th Cir. 1995). The affidavit of R. Keith Green is conclusory in se veral respects. It does not identify the specific facts upon which Green re lied for his conclusions. It does not specify the mental disorder from which Green believed Mr. Youn was suffering, or discuss how that mental disorder inte rfered with his mental capacity to change the beneficiary of his insurance policy. Finally, it is phrased tentatively, referring to an “initial review” and r equesting an opportunity to further review other medical records. Appellant’s App. at 137. Even if this affidavit would be sufficient to create a genuine i ssue of material fact concerning Mr. Youn’s mental capacity in other contexts, it is insufficient to overcome the presumption built into Oklahoma law that Mr. Youn h ad the mental capacity to change the beneficiary designation on the Allameric a policy. Mrs. Youn also complains that the district court improperly discounted evidence she presented concerning Mr. Youn’s drug u se. In her affidavit, she stated that “I have . . . discovered since his death, that [Mr. Youn] was taking heavy doses of mind-altering medications which incl uded valium, sonata and vicadin.” Id. at 121. As the district court noted, however, Mrs . Youn’s affidavit does not discuss how these prescription drugs may h ave affected his state of mind.-13-

It was Mrs. Youn’s burden to demonstrate a genuine issue of material fact concerning Mr. Youn’s mental capacity in light of the presumption in favor of that capacity. Having conducted a de novo review o f all of the evidence, we conclude that Mrs. Youn has failed to demonstrate s uch a genuine issue of material fact. 2. Delivery of change of beneficiary form Alternatively, Mrs. Youn argues that the change of beneficiary did not take effect because it was not delivered to Allamer ica until after his death. She presented evidence that Mr. Rendles, who mailed andfaxed the form to Allamerica, was not an Allamerica agent. She conte nds that the agency relationship between Mr. Youn and Mr. Rendles did n ot survive Mr. Youn’s death, and Mr. Rendles therefore lacked the authori ty to deliver the form to Allamerica. The district court found that Mr. Youn did everythi ng necessary to change the beneficiary of the policy on December 29, 1999, and that Mr. Rendles was merely a courier for the change of beneficiary form . It relied upon language in the policy which validates a change of beneficiary form signed during the beneficiary’s lifetime but received by Allamerica after death. See Appellant’s App. at 92. We agree with this analysis. Oklahomacourts have consistently shown a willingness to honor an attempt to change the beneficiary of an insurance-14-

policy, incomplete at death, where the insured did all he reasonably could to effectuate the change of beneficiary before his death and only ministerial acts remained. See, e.g. , Shaw v. Loeffler , 796 P.2d 633, 635 (Okla. 1990); Ivey v. Wood , 387 P.2d 621, 625-26 (Okla. 1963); Bowser v. Bowser , 211 P.2d 517, 520 (Okla. 1949); Harjo v. Fox , 146 P.2d 298, 301 (Okla. 1944) (“The general rule is that where the insured has done all in his power to effect a change of beneficiaries, and after his death only ministerial acts remain to be performed, the courts may regard that as done which ought to h ave been done and treat the non-performance of such ministerial acts as immater ial.”). Mrs. Youn cites Sands v. Dildine , 54 P.2d 171 (Okla. 1936) for the proposition that delivery to one’s agent is never s ufficient to establish an actual delivery of a gift inter vivos. Id. at 172. This case is easily distinguished. Sands concerned an alleged gift of bonds which had not be en properly endorsed to the donee. “No attempt to comply with these instructio ns [for transfer] was made by the owner.” Id. at 172. Here, by contrast, Mr. Youn completed the appropriate form supplied by the insurance company for transferof the policy. We conclude, as the district court did, that the Oklahoma courts would regard the delivery as complete as of the date Mr. Youn signed the change of beneficiary form and gave it to Mr. Rendles, there being only the ministerial act of mailing the form to be completed after Mr. Youn’s death.-15-

The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED. All pending motions are D ENIED.

Entered for the Court

David M. Ebel Circuit Judge