Wagar v. Wagar

Filed 11/12/08 Wagar v. Wagar CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Stanislaus County. David G. Vander Wall, Judge.

Gianelli & Associates, Nini T. Lee for Defendant and Appellant.

DeKlotz & Guggenheim, Richard R. Guggenheim for Plaintiff and Respondent.

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The superior court voided two amendments to the testamentary trust of James H. Wagar, Sr., deceased, and held that the original, unamended trust document was effective. The trustee who had been appointed under the amendments now claims insufficient evidence was presented at trial to support the courts finding that Wagar was mentally incompetent when he executed the amendments.

The evidence supporting the finding was sufficient. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORIES

Mr. Wagar (decedent) died on April 20, 2005, at the age of 87. His estate, consisting primarily of his house, was worth about $600,000. He left six grown children: James H. Wagar, Jr. (Jimmy), Charles K. Wagar (Kit), Robert A. Wagar (Robert), Sandra J. Gerrard (Sandra), Sharon D. Borland (Sharon), and Bradley H. Wagar (Bradley). On September 12, 2005, Jimmy filed a complaint in superior court naming Kit, who was the trustee, as defendant. As amended, the complaint alleged that decedent created a testamentary trust on March 28, 2000, under which his estate would be distributed to his children in equal shares upon his death. Decedent executed an amendment to the trust on May 29, 2003, according to which Jimmy and Sharon would receive only $10,000 each, with the remainder going in equal shares to the other four children, Kit, Robert, Sandra, and Bradley. Decedent executed another amendment on October 20, 2003, this time specifying that Jimmy, Robert, and Sandra would receive only $10,000, while the remainder would be distributed to the other three children, Kit, Sharon, and Bradley.

The complaint alleged first that, due to age and infirmity, decedent lacked the mental capacity necessary to understand the amendments when he executed them. Second, it claimed that Kit, Sharon, and Bradley unduly influenced decedent while he was mentally debilitated, keeping him isolated and out of contact with his other children and prevailing upon him to sign documents that did not reflect his free and voluntary acts. Finally, the complaint alleged fraud, claiming that Kit, Bradley, and Sharon falsely told decedent that Jimmy was immoral and indecent and that Jimmy, Robert, and Sandra did not care about him and were trying to take control of his property. The complaint asked the court to void the amendments.

During trial, the court granted the defenses motion for judgment on the claim of undue influence. The court did not expressly dismiss the fraud claim also, but it did state that [w]ere only here on cognitive, i.e., the claim of mental incapacity.

At trial, it emerged that decedents health began to decline in the years after the death of his second wife in 1999. In 2002, his daughter Sandra became concerned for him because his mental condition appeared to be deteriorating. He began to get lost while out walking and drove his car into another car in a parking lot while trying to help the other driver with a jump start. He became forgetful and had difficulty operating his microwave oven and telephone and was unable to write checks. Finally, in early 2002, he collapsed in his house in Oakdale, having accidentally taken codeine, to which he was allergic. According to Sandra, Bradley authorized decedents placement in a nursing home after this incident, but Sandra came from her home in Scotts Valley and took decedent back to his house. Bradley testified that it was Sandra who placed decedent in the nursing home. Sandra lived with decedent for a few months in his house and in August 2002 decided to move him to her house. From that time until his death, decedents children lived with him and took care of him.

Decedent lived with Sandra from August 2002 until December 2002. Incidents suggesting mental deterioration continued. One morning at 3:00 oclock, Sandra found decedent taking a shower with his shoes and socks on. He explained that he did not want to be late for a doctors appointment, which was actually three or four days away. He often left the water running after using a sink or shower, sometimes flooding the floor. He would come out of his bedroom without clothes on and began using profanity for the first time in his life. Once, while in a doctors waiting room, decedent suddenly shouted to Sandra, Evelyn, look what youve done to me. Evelyn was decedents second wife, who had died in 1999. In December 2002, decedent threatened to kill himself with a gun. He also threatened to kill his son Robert, who had taken away decedents car keys and had been driving him around. While these things were happening, Sandra was also caring for her disabled daughter and for her son, who had been injured in a car accident. Finally, Sandra called Jimmy and asked if decedent could live with him.

Jimmy agreed. Decedent stayed at Jimmys home in Morgan Hill for about two or three weeks while Jimmy looked for a retirement community. During this time, Jimmy found that decedents mental state continued to decline. He became more and more irritable and accused Jimmy of conspiring against him. He walked away from Jimmys house and got lost in the neighborhood.

Jimmy found decedent an apartment in a retirement community in San Jose. Decedent moved there in January 2003 and his son Robert moved in to take care of him. Decedent and Robert lived in the apartment for about six months, from January to July 2003. Robert did not testify at trial.

Decedent decided to move back to his house in Oakdale. At first, from July 2003 to September 2003, he lived there alone with the help of a series of housekeepers. Then, in September, Bradley moved to Oakdale from Morgan Hill to live with decedent. Bradley stayed in decedents house until February 2004, when he bought a house across the street and three doors down and moved his family there. During this time, Kit and Bradley made an arrangement where Bradley was paid a monthly stipend from decedents funds to take care of decedent. Kit, who lived in Kansas City and communicated with decedent by telephone, claimed decedents mental condition was good from January 2003 through December 2004. Bradley was asked several questions covering the same period and testified that decedents mental condition was good during that time. Sharon, who lived in Texas, testified that decedent was coherent during sporadic telephone conversations she had with him in 2003. She also said he was coherent when she was with him during his final illness from February to April 2005.

To summarize these facts, the childrens treatment in decedents amended testamentary trust corresponded to the dates of their involvement in his care. The siblings who cared for him at the beginning of his declineSandra, Jimmy and Roberthad their shares reduced in the final amendment in favor of the siblings who were not involved at the beginningKit, Bradley and Sharonbut who became involved later. Each siblings opinion of decedents mental condition corresponded to that siblings treatment in the final amendment.

Kit offered an explanation of why decedent reduced the shares of Sandra, Jimmy, and Robert. He said he went with decedent to visit decedents lawyer in December 2003. He claimed decedents mental condition was great on this day; decedent was coherent and showed no signs of confusion. The lawyer showed Kit the trust documents. Kit discovered the unequal distribution for the first time and asked decedent why he had done it.

I said, dad, is there a reason youve sort ofhavent spread this, you know, sort of equally. And he said that I absolutelythis is absolutely the way I want it.

I said, are you sure? Has anybody talked to you? Has anybody done anything? You know, and he saidhe insisted that this is what he wanted, that he didnt originally want a dime going to Bob or Jimmy. He didnt mention Sandy then. He said Bob or Jimmy.

Bobs nothing but a bum. He threatened me. Because Bob had lived with him. And all of this is consistent. This doesnt surprise me. This is the way Bob is. Bob threatened me, you know. He wouldnt take me to the storewhen he lived with me, wouldnt take me to the store when I needed to get my diabetic supplies. Im just fed up with it, and hes a bum.

With Jimmy, he saidI said, well, what about Jimmy? What did he do? And he said he was the one who moved me out of my house. I said okay. You know, Jimmy meant well. I knewat the time I knew it wasnt the right thing to do, but I said, look, Jimmy meant well. Whatever, he meant well.

And my dad said, he moved me into that place in San Jose because it has a golf course, and he could go in and out and play golf all the time for free. Thats the only reason he stuck me in that place.

And I said, well, what about Sandy? I know she tried to help. And he said, you know, she promised to take care of things when I gotyou know, when I was unable, and she justall she did was screw everything up. And I just said, okay, dad.

In his testimony, Bradley also offered several reasons other than mental incompetence that might explain why decedent changed his estate plan. Bradley claimed that in May 2003, he went with decedent to the nursing home where decedent spent a few days in August 2002; he said he showed decedent paperwork in the directors office proving that Sandra, not he, had placed him in the home. Bradley also said decedent was displeased with Jimmy because Jimmy had borrowed money from decedent for use in his real estate business and had not paid it back. Bradley corroborated Kits story that decedent thought Jimmy chose the retirement community in San Jose because it had a golf course; Jimmy played golf and decedent did not. Bradley described an argument between Jimmy and decedent in which Jimmy said he made more money than decedent. Bradley also described an incident in which decedent and Robert argued and Robert pushed decedents chest with his finger, knocking decedent down. Decedent thought Jimmy was crooked; he was disappointed in Robert.

Plaintiffs counsel impeached Bradley with evidence that he had prior convictions of petty theft, being under the influence of a controlled substance, and contributing to the delinquency of a minor; that he had once had his children taken away by child protective services; that he had twice entered rehabilitation programs for alcohol abuse; and that his wife had obtained a restraining order against him.

Plaintiffs counsel also impeached Kit, using a letter Kit wrote after decedents death to the Oakdale Police Department. Kit asserted in the letter that he was the legal owner of his fathers house and had acquired the property under the terms of the will of my father . The letter complained that Bradley was occupying the house without permission and had inflicted various forms of damage on the property. Describing Bradley as a drug-addled squatter with a pit bull at his side, Kit asked the police to arrest his brother, incarcerate him and charge him with burglary, trespassing, vandalism and any other crimes that may apply. Counsel compelled Kit to admit that he did not legally own the house but only controlled it as trustee of his fathers trusta fact he did not disclose in the letterand that he did not actually know whether Bradley was a drug user, but only suspected it based on allegations by Sandra, which he was not sure he believed.

Three physicians testified. The first, Lee Horwitz, M.D., of Oakdale, was decedents primary physician from July 2003 until his death. Horwitz noted probable dementia in his first meeting with decedent on July 14, 2003. During that appointment, decedent told Horwitz that one of his sons and his previous doctor had tried to kill him. Horwitz was also told during this appointment that decedent was having memory problems. He noted that decedent had been prescribed medications for illnesses he (decedent) did not remember having. Decedent arrived at his next appointment on July 22, 2003, six days early. Horwitz saw him anyway, and decedent told him he was having trouble with his short-term memory. Horwitz concluded that decedent had early dementia and recommended testing for dementia. The testing was not done, however. At the next appointment, on August 19, 2003, Horwitz again noted probable dementia and recommended testing, but the family wished to defer testing. The next visit was on October 21, 2003. Horwitz noted probable dementia again and once more recommended a mental evaluation. Bradley, who had accompanied decedent, did not want decedent to be evaluated for dementia until he gets his affairs in order. Finally, after decedent was hospitalized for low blood sugar and a heart attack, Horwitz referred him to a neurologist in January 2004 for testing for dementia.

The neurologist, Alan Schaffert, M.D., first saw decedent on April 5, 2004. He noted that Bradley reported decedent had had short-term memory problems for six months. He was unable to remember whether he took his pills, what he had for lunch, and what his grandchildrens names were, though he had detailed memories of events in the distant past.

On May 4, 2004, Schaffert administered a mental status evaluation, on which decedent scored 18 points out of 30. To illustrate what this meant, Schaffert explained some of the test questions decedent got wrong. He knew the year, but not the month, date, or day of the week. He could subtract seven from 100 and get 93, but could not subtract seven more. He could not spell the word world backwards. He could recall three objects immediately after the doctor named them, but not a few minutes later. Shown a key, he could not say that it was a key. He could not copy a diagram of two intersecting pentagons. Decedents score indicated severe dementia. A normal score is 29 or 30 out of 30. A person 90 years old with a third- or fourth-grade education could be borderline normal with a score of 22 or 23. Decedent, who was then 85, was trained as an engineer, served as a pilot and bombardier with the rank of lieutenant colonel in World War II, and had a career as a budget analyst for Lockheed. Schaffert diagnosed severe senile dementia of the Alzheimers type and prescribed Aricept, a medication for dementia. He said that, because Alzheimers progresses slowly, there was a high degree of likelihood that decedent was impaired for at least six months before Schafferts initial evaluation in April 2004. Schafferts records for May 4, 2004, also included results of a CT scan of the head, which showed that decedent had suffered several small strokes in the right hemisphere of the brain.

When asked specifically about the dates of the amendments to the trustMay 29, 2003 and October 20, 2003Schaffert opined that it was more likely than not that decedent was mentally incompetent in October 2003. It was possible he was also impaired in May 2003, but Schaffert could not make a determination either way.

James Missett, M.D., was a psychiatrist retained by plaintiffs counsel to testify as an expert. He testified that the first indication of Alzheimers disease in decedents medical records appeared in January 2003, when an emergency room doctor made a diagnosis of Alzheimers. The July 14, 2003, notation in Dr. Horwitzs records that decedent said his son and doctor tried to kill him was an indication of paranoid delusions, Missett said. By the time a patient expresses paranoid delusions, he likely has been experiencing them for months, at least. Similarly, the fact that Dr. Horwitz noted probable dementia on July 14, 2003, even though he was not specifically looking for mental impairments at that time, likely meant that decedent had already been suffering from dementia for months. Based on these facts and the other observations and test results reported by Drs. Horwitz and Schaffert, Missett opined that decedent lacked the mental capacity to make a will both on October 20, 2003 and May 29, 2003.

On cross-examination, Missett admitted he had no way of knowing whether decedents comments about his son and doctor trying to kill him might have been sarcastic. Kit and Bradley testified that their father often said sarcastically that people were trying to kill him.

Intending to support the claim that decedent was mentally competent when he executed the amendments, defense counsel showed each doctor a letter decedent wrote in November 2004, addressed to the manager of the retirement community in San Jose. The record contains decedents handwritten version, which is difficult to read, and a typed transcription. The transcription reads as follows:

I

202 Timberwood Drive

Oakdale, Calif

95361-8227

Mrs. Barbara Stein

8603 Vineyard Creekcourt

City of San Jose (Villages)

California 95135

Subject: Residence lease dated January 9, 2003.

Dear Mrs. Stein:

As the final payment on subject lease was paid on 7/1/03 of 696.78 my daughter dropped Bob off on 6/28/03 evening. Bob was the son who lived with me as my cook. He became so mean and ornery that I finally got rid of him, after we arrived here in Oakdale. I asked him one night to go to the drug store for my diabetic pills and he refused. I decided then that I didnt need him any longer. I had supported him for 6 months and paid all his late phone bills. He was supposed to see that everything was picked up after the movers left and properly cleaned after Sandy (my daughter) dropped him off on 6/28/03. This is how children take care of their parents nowadays. I of course havent been there since. He also stole my 38. Cal Revolver among other things I would like to have a settlement of the $600.00 cleaning deposit.

I am sure you are aware that my other son, James Jr. had and has nothing to do financially with the lease between you and I. He only lived in the area of the golf courses. That was why he sugared me into moving up there when I was ill. He has an unfortunate desire to get his hands in everyones business. The move to San Jose and back cost me a lot of money.

(continued)

[Page Two]

II

I would like to have a settlement of the $600.00 cleaning deposit. It was unfortunate that I was very ill the entire period I spent at your condominium. I hope you have been able to lease the condominium to another party since I left.

Very Truly Yours

James H. Wagar Sr.

P.S. I am sorry the writing is not legible. As I am pushing 87 years of age I am becoming rather shakey. JHW

Drs. Schaffert and Missett both testified that the letter showed neither that decedent was mentally competent when he wrote it nor that he was mentally incompetent. Dr. Horwitz testified that people with dementia can have lucid periods and that the letter showed decedent was lucid when he wrote it.

The trial, which was without a jury, concluded on May 25, 2007. The court entered judgment on November 14, 2007. It held that the two amendments were void because of the incompetence of the trustor and that the original trust was effective. It ordered that Sandra become trustee and directed Kit to transfer the trusts assets to her. No party requested a statement of decision. Kit appealed.

DISCUSSION

When an appellant asserts there is insufficient evidence to support the judgment, our review is circumscribed. [Citation.] We review the whole record most favorably to the judgment to determine whether there is substantial evidencethat is, evidence that is reasonable, credible, and of solid valuefrom which a reasonable trier of fact could have made the requisite finding under the governing standard of proof. (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.) To obtain invalidation of a testamentary instrument for lack of mental capacity on the part of the testator, a contestant must show, by a preponderance of the evidence, either (1) that the testator did not understand the nature of his act or did not understand or remember the nature or situation of his property or his relations to family members and others affected by the instrument; or (2) that the testator had a mental disorder with symptoms including delusions or hallucinations that altered his testamentary decisions. (Prob. Code,  6100.5, subd. (a)(1); Estate of Smith (1926) 200 Cal. 152, 158; 14 Witkin, Summary of Cal. Law (10th ed. 2005) Wills & Probate,  121, pp. 185-186.) More specifically, there must be evidence of a deficit in one or more of the mental functions enumerated in Probate Code section 811, subdivision (a); the deficit must significantly impair the testators ability to understand and appreciate the consequences of the decision at issue; and there must be evidence of a correlation between the deficit and the challenged action. (Prob. Code,  811, subds. (a), (b).)

The evidence in this case was sufficient to support the necessary findings. Dr. Missett, whose qualifications have not been challenged, testified to his expert opinion that decedent was mentally incompetent on the dates of both amendments. He stated adequate grounds for his opinion. His view was supported by Dr. Schafferts opinion that decedent was mentally incompetent at least on the date of the second amendment. It was further supported by the testimony of Jimmy and Sandra that decedent was increasingly forgetful, confused, and irrational in the period preceding the two amendments.

There also was evidence on which the trial court could rely that undermined the defense case. Plaintiffs counsel introduced significant impeachment evidence against Kit and Bradley. Bradleys testimony was further undermined by the evidence that he rejected medical advice to have his father evaluated for dementia on October 21, 2003, one day after decedent executed a trust amendment that increased Bradleys share. Another seven and a half months passed before the testing finally took place.

Although Kit has not argued to the contrary, we observe that the evidence satisfied the requirements of Probate Code section 811, subdivisions (a) and (b). The mental status evaluation administered by Dr. Schaffert showed deficits in decedents short-term memory (Prob. Code,  811, subd. (a)(2)(A)) and in his recognition of familiar objects (Prob. Code,  811, subd. (a)(2)(C)), among other things. From this and the other evidence, the trial court could reasonably infer that these deficits significantly impaired decedents ability to understand and appreciate the consequences of his estate-planning decisions at the times when he executed the trust amendments and that there was a correlation between the deficits and those decisions. (Prob. Code,  811, subds. (a), (b).)

Kit argues that decedents letter to Barbara Stein showed testamentary capacity. The trial court could reasonably find to the contrary. Two physicians testified that the letter showed neither capacity nor incapacity while a third said it showed decedent was lucid when he wrote it. These opinions, and the letter itselfwhich mainly contained complaints about decedents children that were irrelevant to the letters purpose of obtaining a deposit refundwere compatible with the courts finding of incapacity. We understand Kits emphasis on the testimony of the one physician who said the letter showed lucidity, but it is not part of our appellate function to reweigh conflicting items of evidence. To the contrary, we must accept evidence favorable to the judgment, discard evidence unfavorable to it, and indulge any reasonable inference that supports the trial courts determination. (Estate of Teel (1944) 25 Cal.2d 520, 526-527.)

Kit also says medical evidence is not conclusive on the issue of mental capacity, citing Probate Code section 811, subdivision (d),^[1]and cases holding that neither evidence of a mental disorder alone nor evidence of old age, feebleness, and confusion is enough to prove incapacity. He further contends the reports that decedent said some people were trying to kill him did not amount to a showing of specific delusions that gave rise to certain testamentary decisions.

In Estate of Fosselman (1957) 48 Cal.2d 179, 185-186, however, our Supreme Court held that evidence of advanced senile dementia and its consequences was sufficient to show general incapacity. In fact, Fosselman has much in common with this case. During the two years preceding her death, Fosselman executed two codicils to her will in which she devised $10,000 and her house to Harriet Palmer, a nurse who began caring for her a short time earlier. The executor and a residuary legatee under the will contested the codicils. They claimed both that Fosselman was generally mentally incompetent when she executed the codicils because she was suffering from senile dementia and that she held the specific deluded belief that Palmer was an old friend she had known many years. The trial court agreed. (Id. at pp. 180-181, 182.) The Supreme Court held the evidence sufficient to support the judgment on either basis, general mental incompetence or a specific deluded belief. (Id. at pp. 185-186.) With respect to general mental incompetence, the trial court could reasonably find from the medical and other testimony that Fosselman was suffering from advanced senile dementia before she executed the codicils and that her condition prevented her from understanding the nature and extent of her property and her relation to those affected by her will and codicils. Since senile dementia is progressive, the court reasonably could infer that Fosselmans condition continued and worsened during the period when she executed the codicils. Palmer presented contrary evidence, but the resolution of conflicts in the evidence was for the trial court. (Id. at p. 186.)

We see little to distinguish this situation from the present case. Further, assuming Probate Code section 811, subdivision (d) (which postdates Fosselman), means that more than the mere diagnosis of severe senile dementia was required, that demand was satisfied here. The medical testimony included evidence of specific functions decedent could not perform, including recognizing and naming a key and remembering a list of three objects a few minutes after it was told to him. Other testimony about decedents behaviorgetting lost, mistaking his daughter for his deceased wife, and forgetting the names of his grandchildren, among other thingsalso supported the courts conclusion.

Finally, Kit claims the trial court erroneously believed that, to enforce the amendments, it needed supporting testimony by the attorney who prepared the amendments and who was present at their execution. As Kit points out, the court mentioned several times that the attorney did not testify. (The parties stipulated that he would not testify because he had dementia caused by Parkinsons disease.) None of the courts statements imply, however, that it thought it could find testamentary capacity only if the lawyer testified. In any event, Kit never requested a statement of decision, so the record does not contain a statement of findings or an explanation of the courts reasoning. Under these circumstances, we must assume the court made the findings that were necessary to sustain the judgment. (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792-793.) The evidence is sufficient to support the judgment, and we will not assume the court made an improper finding or an error of law, such as the one Kit here suggests.

DISPOSITION

The judgment is affirmed. Costs are awarded to Respondent.

_____________________

Wiseman, Acting P. J.

WE CONCUR:

_____________________

Levy, J.

_____________________

Dawson, J.

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^[1]The mere diagnosis of a mental or physical disorder shall not be sufficient in and of itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act. (Prob. Code,  811, subd. (d).)