No. 90-210 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

IN THE MATTER OF THE ESTATE 

OF EDWARD E. LUGER, Deceased. 

DAVID J. LLOYD, 

Petitioner and Appellant, 

INTERMOUNTAIN DEACONESS HOME 

FOR CHILDREN, and MONTANA 

CHILDREN'S HOME AND HOSPITAL, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Rosebud, 

The Honorable Kenneth R. Wilson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Craig W. Holt, Esq., Billings, Montana 

For Respondent: 

John R. Sullivan, Esq., Helena, Montana 

Garry P. Bunke, Esq., Miles City, Montana 

Jodie L. Johnson, Esq., Luxan & Murfitt, Helena, 

Montana 

Submitted on Briefs: July 19, 1990 

Decided: September 5, 1990 

Filed: 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

David J. Lloyd, nephew to the deceased Edward E. Luger, 

appeals the summary judgment of the Sixteenth Judicial District 

Court, Rosebud County, which found Edward E. Luger's will valid. 

In his will, Luger devised all of his estate to Montana Children's 

Home and Hospital and Intermountain Deaconess Home for Children, 

both located in Helena, Montana. The District Court held that no 

genuine issue of fact existed with regard to Luger's testamentary 

capacity and that Luger's will was valid as a matter of law. We 

affirm. 

Lloyd raises the following issue: 

Did the Sixteenth Judicial District Court properly grant the 

Motion for Summary Judgment filed by the respondents Montana 

Children's Home and Hospital and Intermountain Deaconess Home for 

Children? 

One-hundred-year-old Edward E. Luger died testate on February 

15, 1988. He never married or had children. His surviving heirs 

were five nieces and two nephews, all of whom lived out-of-state 

and had little personal contact with Luger throughout the years. 

In his 1980 will, Luger devised his entire estate equally between 

Montana Children's Home and Hospital (Shodair) and Intermountain 

Deaconess Home for Children (Deaconess), both located in Helena, 

Montana. Luger's charitable intent of his 1980 will was consistent 

with his intent in a previous will dated 1948 and an unsigned copy 

of a 1976 will with the exception of adding Deaconess as a 

2 
beneficiary in the 1980 will. Additionally, Luger specifically 

stated in his 1980 will that his nieces and nephews were to receive 

nothing from his estate because of their previous inheritances from 

Lugerts deceased parentst estates. 

David J. Lloyd, nephew to Luger, filed a petition contesting 

probate of the 1980 will on February 13, 1989, pursuant to 5 72- 

3-308, MCA. Although Lloyd had not seen Luger since 1947, Lloyd 

claimed that Luger had been subject to undue influence by Robert 

Martinek, Lugerts accountant and the personal representative of 

Lugerts estate. Martinek was not a named beneficiary of the 1980 

will. Additionally, Lloyd claimed that Luger was not of sound mind 

when he executed his 1980 will. Respondents Shodair and Deaconess 

moved for summary judgment, which was granted by the District Court 

on March 21, 1990. From this judgment, Lloyd appeals. 

Rule 56(c) of the Montana Rules of Civil Procedure provides 

in part: 

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to 

interrogatories, and admissions on file, 

together with the affidavits, if any, show 

that there is no qenuine issue as to any 

material fact and that the moving party is 

entitled to a judgment as a matter of law. 

(Emphasis added.) 

Lloyd argues that summary judgment was granted improperly by 

the District Court because disputed facts exist concerning Luger's 

testamentary capacity, and these facts should be presented to a 

jury for determination. First, Lloyd asserts that there are 
disputed facts with regard to Robert Martinekfs undue influence 

over Luger, and cites the five criteria for establishing undue 

influence as set forth in Christensen v. Britton (Mont. 1989), 784 

P.2d 908, 911, 46 St.Rep. 2223, 2227 (citations omitted): 

(1) Confidential relationship of the person 

attempting to influence the testator; 

(2) The physical condition of the testator as 

it affects his ability to withstand influence; 

(3) The mental condition of the testator as 

it affects his ability to withstand the influence ; 

(4) The unnaturalness of the disposition as 

it relates to showing an unbalanced mind or a 

mind easily susceptible to undue influence, 

and 

(5) The demands and importunities as they may 

affect the particular donor taking into consideration the time, the place, and all the 

surrounding circumstances. 

All of the above factors must be satisfied to prove that undue 

influence occurred. Christensen, 784 P.2d at 911. 

Lloyd argues that the District Court, in its order for summary 

judgment, implied that doubt existed as to whether Lloyd could 

satisfy four of the five criteria with regard to Martinekls undue 

influence over Luger. Accordingly, Lloyd argues that this 

implication means that disputed facts exist with regard to 

Martinekfs undue influence upon Luger. The District Court, however, found that Lloyd could prove none of the criteria. Moreover, 

the District Court specifically discussed the flnaturalnessll versus 

the llunnaturalnesslf of the disposition--the fourth criteria of 
Christensen. The District Court reasoned that because Luger's 

charitable intent in his 1980 will was consistent with his intent 

in his 1948 will and the unsigned copy of the 1976 will, Luger's 

disposition to Shodair and Deaconess appeared quite natural. Even 

though the District Court did not elaborate on all five Christensen 

criteria, it is clear that Lloyd could not satisfy the fourth 

criteria, and thus, in any event, could not prove undue influence. 

Accordingly, Lloyd's first argument fails. 

Second, Lloyd argues that summary judgment was improper 

because disputed facts exist with regard to Lugervs competency and 

argues that Luger was not of sound mind in 1980 when he executed 

his will. Lloyd bases this argument upon the depositions of Lois 

Fellows, Luger s niece, and Faye Luger, Luger' s nephew. Rule 56 (e) 

of the Montana Rules of Civil Procedure provides: 

When a motion for summary judgment is made and 

supported as provided in this rule, an adverse 

party may not rest upon the mere allegations 

or denials of his pleading, but his response, 

by affidavits or as otherwise provided in this 

rule, must set forth specific facts showing 

that there is a genuine issue for trial. If 

he does not so respond, summary judgment, if 

appropriate, shall be entered against him. 

Both Lois Fellows and Faye Luger had little personal knowledge or 

contact with Luger over the years, and their depositions were based 

on their opinions and speculations, rather than on any substantive 

evidence. !'Mere conclusory or speculative statements are insufficient to raise a genuine issue of material fact.Iv Mayer Brothers 

v. Daniel Richard Jewelers, Inc. (1986), 223 Mont. 397, 399, 726 
P. 2d 815, 816 (citations omitted) . In contrast, the individuals 

who had personal knowledge of Lugerts mental state, Martinek, 

Luger's physician, and nursing home personnel, all testified that 

Luger was mentally competent to execute a will in 1980. These 

depositions of Martinek, Luger's physician, and the nursing home 

personnel, coupled with the presumption that Luger was of sound 

mind are sufficient to establish that no genuine issue of material 

fact with regard to Lugerts competency existed. In Re Choinierets 

Estate v. Bukvich (1945), 117 Mont. 65, 71-72, 156 P.2d 635, 638. 

It is also important to note again that Lloyd himself had not even 

seen Luger since 1947. Based on the above, we hold that Luger was 

of sound mind and competent to execute his 1980 will. 

Affirmed. 

Chief Justice 

We concur: