Opinion
G044119 Super. Ct. No. 30-2008-00222616
09-15-2011
ALBERT JOE BECK, Plaintiff and Respondent, v. LINDA A. ROGERS, as Trustee etc., Defendants and Appellants.
Jay S. Belshaw for Defendants and Appellants. Harland L. Burge for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Ronald L. Bauer, Judge. Affirmed.
Jay S. Belshaw for Defendants and Appellants.
Harland L. Burge for Plaintiff and Respondent.
This is an appeal from a judgment on a petition brought under Probate Code section 17200 finding an amendment to a trust to be invalid on the ground of undue influence and fraud. The proponents of the amendment raise numerous contentions, none of which have merit, and we affirm the judgment.
All statutory references are to the Probate Code, unless otherwise indicated.
FACTS
Albert Joe Beck was the only child of Pearl C. Oppenhorst, and her sole heir pursuant to the 1993 Oppenhorst Family Trust (the Trust). The Trust was prepared by attorney Darren L. Baker for Oppenhorst and her late husband William Oppenhorst (Beck's step-father), who had no children. Oppenhorst died from cancer at the age of 94 on March 12, 2008, leaving an estate worth over $3 million.
The Trust was amended once in 1997 (the amendment was also prepared by Baker), but the amendment is not relevant to issues in this case.
Less than three weeks before Oppenhorst's death, her caregivers Clarene Boernsen and daughter Diane Boernsen (hereafter sometimes referred to by their first names for sake of clarity and sometimes collectively referred to as the Boernsens), arranged for another attorney to prepare a second amendment to the Trust and a codicil to Oppenhorst's pour-over will. The second amendment to the Trust, executed by Oppenhorst on February 21, 2008 (hereafter the Second Amendment), disinherited Beck, leaving him only approximately $75,000 in a bank account on which he was already named a joint tenant. The Second Amendment provided for 50 percent of Oppenhorst's estate to be divided equally between the Boernsens and Oppenhorst's sister, Marie Schaeffer (i.e., 16.6 percent each), and the other 50 percent to be divided between two of Schaeffer's grandchildren, Michelle Gibby and Jeffrey Presser. The Second Amendment was prepared by attorney Dennis L. Jensen. A certificate of independent review under section 21351 [supporting testamentary transfer to otherwise disqualified persons including caretakers], was prepared by attorney Donald E. Dunbar, Jr., stating he concluded the Second Amendment was not the product of fraud, menace, duress, or undue influence.
The appellants are Linda Rogers, trustee of the Oppenhorst Family Trust as amended by the Second Amendment, the Boernsens, Schaeffer, Gibby, and Presser.
Beck filed the instant petition seeking to have the Second Amendment, and the codicil to Oppenhorst's pour-over will, invalidated on the grounds of lack of capacity, undue influence, and fraud. He also alleged a conversion cause of action. In short, Beck's case was that he and his mother had a close and loving relationship throughout their lives. In her waning days, the Boernsens isolated Oppenhorst from her son and convinced Oppenhorst he was trying to hasten her death by advocating for medical treatment she did not want to have, so he could get her money and squander it by buying a town in New Mexico, causing her to change her long-established estate plan. The Boernsens and Schaeffer claimed Beck and his mother had a terrible relationship and the change to her estate plan was merely reflective of her desire in her remaining days to leave her estate to the people who really mattered to her. Their position was that when Oppenhorst was briefly hospitalized a few weeks before her death, Beck advocated surgery on her despite knowing his mother did not want any "heroics." Oppenhorst demanded to be released from the hospital, without surgery, and she was sent home on hospice care. She was extremely upset with her son for trying to force unwanted medical care on her, and that (coupled with her dislike for her son) is what prompted her to disinherit him. Following a six-day bench trial, the trial court found in favor of Beck. We summarize the evidence presented.
A videotape of Oppenhorst signing the Second Amendment was prepared by her attorneys and admitted into evidence. Oppenhorst was able to detail for Attorney Jensen her property holdings and family history. Throughout the interview, when Jensen asked why she wanted to disinherit her son, Oppenhorst replied she had learned from Clarene and Diane that Beck was trying to "hurry . . . up" her death, so he could get her money, and when he had it he was going to buy a town in New Mexico.
The trial court reviewed the videotape and admitted it into evidence. A transcript of the video is contained in the clerk's transcript. The appellants urge us to review the videotape itself, but they have not properly requested its transmittal, and it is not before us. (See Cal. Rules of Court, rule 8.224(a)(1) [requires "a party wanting the reviewing court to consider any original exhibits that were admitted in evidence" to timely serve and file the proper notice in superior court designating those exhibits].) "Where exhibits are missing we will not presume they would undermine the judgment. [Citation.]" (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 291; see also Heyman v. Franchise Mortgage Acceptance Corp. (2003) 107 Cal.App.4th 921, 925, fn. 1.)
Dr. Jey Chung, who had examined Oppenhorst at the hospital on February 12, 2008, testified Beck indicated in a telephone call he had a healthcare power of attorney for his mother and he consented to surgery, should Oppenhorst be incapable of making her own healthcare decisions. The doctor who released Oppenhorst and arranged for her hospice care testified Beck was very upset about his mother's release from the hospital. Both doctors concluded Oppenhorst was fully capable of making her own medical care decisions.
Attorney Jensen testified he was initially contacted by Clarene on February 14, 2008, who asked him to come to Oppenhorst's home to prepare a trust amendment; Oppenhorst was very ill and only had a few weeks to live. The first meeting was at Oppenhorst's house on February 18. Oppenhorst, Schaeffer, Diane, and Clarene were present. Jensen met alone with Oppenhorst for 15 to 20 minutes, and was at the house for a couple of hours with all of the women present searching for documents. Jensen returned to Oppenhorst's house on February 21, 2008, to obtain her signature on the documents. He brought attorney Dunbar to sign a certificate of independent review, because Diane and Clarene both qualified as Oppenhorst's caregivers under section 21350.
Dunbar testified he had no contact with Oppenhorst before February 21, and he did not talk to Diane, Clarene, or Schaeffer until after his interview with Oppenhorst. He knew Oppenhorst was terminally ill. He interviewed Oppenhorst in her kitchen. Schaeffer, Clarene, Diane, and others were in the adjacent living room; the door between the rooms was open. Dunbar, who the court observed had a "strong" voice, conceded the interview may have been overheard. After interviewing Oppenhorst, Dunbar executed the certificate of independent review. Back at his office, certain there would be litigation concerning the Second Amendment, Dunbar prepared a declaration summing up his impressions. In short, he came away with the impression Schaeffer, Clarene, and Diane, were hostile towards and disliked Beck, and understood Beck's step-father never liked Beck. Beck had shown little regard for Oppenhorst's welfare and their relationship was "long dead." Oppenhorst's recent change of mind (i.e., to disinherit Beck) came about when she learned Beck wanted her to have exploratory surgery, which she did not want, and "she had been told that her son was already making plans as to what he would do with the money once she died." Dunbar conceded he never inquired as to whether Oppenhorst and Beck celebrated holidays, birthdays, Christmas, Thanksgiving, or Mother's Day together, and made only passing inquiry as to what Clarene and Diane were doing for Oppenhorst. He had gleaned very little about Beck's life and could not provide any meaningful testimony about Beck's life or his interaction with his mother.
Schaeffer testified she had lived near her sister Oppenhorst for 33 years and they were very close to one another. She described Oppenhorst as being very strong-willed up until the day she died. After Oppenhorst's husband died, Beck moved into the couple's beach cottage. Oppenhorst loved the holidays and the families always celebrated Christmas at Oppenhorst's house. But Oppenhorst was too sick the last Christmas, so it was celebrated at Schaeffer's house. Beck was always known to the family by his nickname "Skeeter." Schaeffer could not recall anything specifically negative that Oppenhorst ever said about Beck. Nonetheless, she testified Beck and his mother did not have a "loving relationship all through the years." She knew they celebrated holidays together. Schaeffer knew Beck and Oppenhorst often went to church together. She believed Beck mistreated his mother by not doing things for her, although she had no knowledge of what specific things he did do for her. Schaeffer resented Beck for never thanking her for all the things she did for her sister. She had no knowledge of Beck's and Oppenhorst's outings or telephone calls. She denied indicating to the attorneys who prepared the Second Amendment that she disliked Beck, but admitted she had "feelings against him."
Schaeffer did not realize Oppenhorst was terminally ill until she came home from the hospital in February. She could not recall talking to Beck while Oppenhorst was in the hospital, or that Beck said he wanted Oppenhorst to have surgery, but she assumed that to be the case.
She testified Beck and his step-father were not close and did not get along. Schaeffer disliked the way Beck joked around. She testified Beck treated one of his other aunts very well, but was not respectful of her. Schaeffer was unaware of any birthday or Christmas cards being exchanged between Beck and his mother. Schaeffer took Oppenhorst's Cadillac the evening Oppenhorst died—Oppenhorst had given her the pink slip several months before—but she would not acknowledge that it was Beck who had repaired it for her before giving it to her.
Schaeffer learned from Clarene that Oppenhorst wanted to hire an attorney. Schaeffer was at the house when the attorneys came to have Oppenhorst sign the Second Amendment, as were Diane, Clarene, and two neighbors. She did not know her sister's attorney, Baker. She did not know Oppenhorst was disinheriting Beck until she heard Oppenhorst talking to her attorney that day, but knew when they left that she, Clarene, and Diane would be sharing half the estate.
Clarene testified she had been a friend and neighbor of the Oppenhorsts since 1971. She had known Beck almost as long, and Oppenhorst's nickname for Beck was "Skeeter." Clarene knew Beck was the sole beneficiary of Oppenhorst's trust. Clarene testified Beck and Oppenhorst had a poor relationship, she rarely saw them embrace, and when Beck hugged his mother or said he loved her, Oppenhorst would only reply "Ditto" because she did not want to have to say she loved him. Clarene said Oppenhorst was disappointed in her son, because he could not keep a job, was irresponsible, got in trouble, and Oppenhorst had to pay all his bills. Clarene testified Beck and Oppenhorst argued about everything, and testified as an example that Oppenhorst was angry with Beck because he would pick the avocados and oranges from her trees and give them away to neighbors.
Clarene claimed Oppenhorst was ashamed of Beck, there was not a single thing about him that his mother liked, and he treated his mother terribly. She identified several gifts Beck had given his mother (including a rocking horse, a King Tut head, and a stuffed sheep) and claimed Beck got them by "dumpster diving." Clarene testified Oppenhorst had no idea what Beck did for a living.
Clarene witnessed Oppenhorst's signature of a 2006 "Living Will," and knew Oppenhorst did not want special efforts taken to preserve her life in the event she was terminally ill. On the early evening of February 11, 2008, Clarene and Diane took Oppenhorst to the hospital emergency room for pain medication but checked her into the facility. They never indicated to anyone at the hospital that all Oppenhorst wanted was pain medication. Clarene knew Oppenhorst's physician, but they did not call him. Diane was with Oppenhorst continuously at the hospital. When Diane was bringing Oppenhorst home the next day, Beck was waiting for her at the house. Diane called Clarene and said Oppenhorst refused to come in the house if Beck was there and did not want to speak to him. Clarene relayed the message to Beck, and he left.
From February 11 until her death on March 12, 2008, Clarene was continuously with Oppenhorst. Clarene admitted that during that time she told Oppenhorst that Beck told her he intended to buy a town in New Mexico with the money he got from her trust. Prior to February 21, Clarene never heard Oppenhorst say she was afraid of her son, but Oppenhorst was worried about him spending the money foolishly. Clarene could not name anything on which she believed Beck spent money foolishly.
Clarene got the attorney for Oppenhorst and was there when the Second Amendment was signed. She denied she or Diane professed animosity for Beck. She knew Schaeffer did not like Beck. Clarene helped Oppenhorst write the checks to pay the attorneys.
Clarene testified that on the evening of Oppenhorst's death, Clarene, Diane, Schaeffer, and Oppenhorst's other sister were there before Beck arrived at around 3:00 a.m., almost an hour after he had been telephoned. Just before she died, Oppenhorst said she did not like her son and "'he was trying to kill her.'" Clarene heard Oppenhorst make similar statements after coming home from the hospital in February but never before then.
Diane Boernsen had worked as an in-home health caregiver for over 20 years, sometimes working with her mother Clarene. Diane is a convicted felon. Over the years, she and Clarene frequently visited Oppenhorst as a friend. Diane and Clarene took care of Oppenhorst in the fall of 2006 after a hospitalization, for which Diane was paid, and afterwards Diane would see Oppenhorst twice a month or more and sometimes stay over. Diane understood Beck had occasionally taken Oppenhorst to the hospital and to doctors appointments. Diane had access to Oppenhorst's check books and occasionally would go through them and write checks for Oppenhorst. Diane admitted she had never seen Oppenhorst write a check to Beck. Diane acknowledged she sometimes saw Beck kiss his mother and tell her he loved her, to which Oppenhorst would respond, "Ditto." Sometime before Christmas of 2007, Diane asked Beck to loan her money so she could open a donut shop, but he would not.
Diane talked to Jensen when he met with Oppenhorst, and she provided him with Oppenhorst's bank statements and other financial information. Diane told Jensen she was a caregiver, but not that she and Clarene were Oppenhorst's caregivers. Diane denied she or Clarene expressed any animosity towards Beck and it was Oppenhorst who expressed animosity towards her son.
Diane testified she was unaware Oppenhorst already had an attorney, Baker, but she was the one who provided the original trust documents to Jensen the first time he came to the house. Diane testified she wrote the checks to pay Jensen and Dunbar. Diane identified a calendar for January, February, and March 2008, that she had prepared, showing the days she and Clarene worked for Oppenhorst and what happened on those days. Upon questioning by the court, Diane admitted many of the calendar entries were recorded several days after the fact.
Diane testified she and Clarene came to Oppenhorst's house on February 11, to take care of her. They took her to the hospital around 6 p.m., because she had severe abdominal pain and wanted pain medication. They did not call Beck because Oppenhorst asked them not to inform him. Diane knew early that evening Oppenhorst did not want to be in the hospital and did not want surgery. Oppenhorst always appeared to Diane to know what she was doing. Diane spoke with two doctors who also believed Oppenhorst could make her own healthcare decisions.
On the way home from the hospital, Oppenhorst indicated to Diane that she was angry with Beck because he went against her wishes. Oppenhorst did not want to see her son. Beck did not come to the house for the next 10 days. Diane admitted he called every day, and she might have told him Oppenhorst was sleeping or not feeling well and could not speak to him.
When Oppenhorst was in the hospital, Diane talked to her about Beck wanting her to have surgery, but Diane denied trying to convince Oppenhorst one way or the other about Beck's position. They had further discussions on the subject after Oppenhorst came home. Diane admitted she talked to Oppenhorst about Beck planning to buy a town in New Mexico but testified it was Oppenhorst who initiated the discussion. Diane denied saying to Oppenhorst that Beck wanted to kill or get rid of Oppenhorst to get her money.
Diane was familiar with a new advance health care directive signed by Oppenhorst on February 27, 2008, giving Schaeffer and Clarene control over Oppenhorst's final healthcare decisions. She denied leaving Beck any telephone messages after February 27 concerning the new advance health care directive. The court received into evidence tape recordings of two lengthy messages left by Diane on Beck's telephone answering machine, in which she berated Beck, told him a new advance health care directive had been signed, and ended with, "Maybe today would be a good day to call your psychiatrist . . . ."
Beck testified he took care of his mother after his step-father passed away in 1993. She had been very ill in 2006—Beck and Schaeffer took her to the hospital. Beck "sort of" understood at that time his mother did not want extraordinary measures taken if she became seriously ill. Oppenhorst occasionally gave him money to put gas in her car. After his step-father passed away, Oppenhorst said she wanted Beck to have the beach cottage, so he moved in to it. Oppenhorst left the utilities in her name and Beck gave her money every month to reimburse her, "kind of like rent." Oppenhorst never wrote him checks for large sums of money. They routinely went to church together and on outings to the park. Beck was very close with his step-father; he and his mother both adored him, and they referred to each other as "dad" and "son."
Before February 11, 2008, Beck knew he was the sole beneficiary of his mother's trust. Beck was not married and had no children. Beck testified about his mother caring for him a few years earlier when he was going though cancer treatment. Beck testified he and his mother had a custom where when they left each other, one would say "I love you," and the other would say "di[tt]o." Beck never had the feeling his mother did not want to say "I love you," and she said it all the time. He introduced into evidence numerous cards and letters to him from Oppenhorst over the years in which she wrote that she loved him. Beck denied he ever said to Clarene he was going to buy a town in New Mexico with his mother's money.
Beck testified about his livelihood. He was 10 percent owner of a yacht business, and had bought, refurbished, and sold boats for over 30 years. Beck also had a business with a friend named Johnny Ray restoring vehicles, and had fully restored several vehicles over the years. Oppenhorst was fully aware of Beck's yacht business and car restoration business and never expressed any dissatisfaction with his efforts. Beck testified he frequently gave his mother gifts, and she never expressed dissatisfaction with them either.
Beck was familiar with Oppenhorst's January 16 instructions in handwriting about not wanting any surgery. Beck knew his mother was very ill, and over the months, he arranged for various friends and relatives to come care for her. On February 10, Clarene and Diane, both of whom he had known for many years and trusted, were coming over to care for her. Beck never authorized them to take his mother to the hospital on February 11, and did not learn they had done so until the hospital called him in the early hours the next morning. The hospital advised him Oppenhorst should have surgery. Beck no longer had possession of his mother's healthcare power of attorney. Beck knew his mother did not want surgery. Because he has cataracts, Beck could not drive at night so he could not get to the hospital. Beck denied consenting to surgery on his mother. He did receive a call from a doctor who said something about Oppenhorst having surgery or being in the surgery room, but the doctor "could hardly speak English" and Beck was confused and could not understand anything he was saying. Beck talked to Schaeffer and they agreed Oppenhorst should come home; Beck told the doctors Oppenhorst should be sent home. Beck agreed that when he was told about a "Do Not Resuscitate Order" for his mother, he became upset because he did not want his mother to die.
On February 12, Beck was with Clarene at his mother's house waiting for her to come home from the hospital. Clarene answered the telephone. She told Beck his mother was outside with Diane, she was mad at him, and she would not come in until he left, which he did. He did not see his mother again for 10 days. He telephoned the house every day, but Clarene or Diane always answered and would either tell him Oppenhorst did not want to talk to him, or was unable to talk to him.
Finally, on February 22, Beck went to his mother's house. He was working in the yard, as he often did, when a neighbor told him that attorneys had recently been at the house with Oppenhorst. When Beck asked Clarene about it, Clarene said all she knew was that Oppenhorst's "medical executor thing" was changed to Schaeffer. Beck had no suspicion anything was going on because he trusted Schaeffer, Clarene, and Diane. Beck continued to go to the house frequently to take care of Oppenhorst and the house. One of the times, Oppenhorst suggested he take the extra avocados from the trees and give them to the neighbors.
After Oppenhorst died, Clarene gave Beck his mother's wallet. Inside were handwritten notes he had sent his mother signed "Skeeter" one with her lipstick kiss on it, pictures of them together, and a picture of the house where Beck was born. Beck introduced numerous photographs of him and his mother over the years at various events and on outings. Oppenhorst kept lots of pictures of Beck around her house. In March, shortly before her death, Beck came to the house and repaired Oppenhorst's Cadillac, which he knew Oppenhorst wanted Schaffer to have after her death. Beck also testified about items of personal property including large amounts of cash (up to $75,000) and jewelry that his mother kept in a safe in the floor. When he opened the safe after her death, many of those items, including the cash, were gone.
Numerous friends and neighbors who had known the family for many years testified about the close relationship between Oppenhorst and Beck. They testified about Beck frequently visiting his mother, working around and maintaining her house, taking her on outings, picking fruit from her trees to distribute to neighbors with Oppenhorst's approval or at her suggestion. Several testified about Beck being very emotional and depressed about his mother's illness and impending death. One testified Beck was crying when he told her about there being a "D.N.R." [do not resuscitate order] for his mother. When asked if Oppenhorst ever suggested she was unhappy with Beck, one longtime friend replied, "Never. She loves that kid."
Johnny Ray, who had known Beck and Oppenhorst since 1992, visited Oppenhorst frequently, and confirmed Beck earned much of his living helping him restore boats and cars. Oppenhorst never expressed any dissatisfaction with the work her son was involved in and was proud of his work. Oppenhorst never complained about any gifts her son had given her. Beck and his mother had a routine of one saying "I love you" and the other saying "ditto." In all the years he knew them, Ray never saw an adverse interaction between Beck and his mother. Beck was always respectful to his mother, and he was always taking care of things around Oppenhorst's house.
Gibby, Schaeffer's granddaughter and one of the beneficiaries under the Second Amendment, testified she was with the family during Christmas of 2007, and everyone seemed to get along fine. There sometimes seemed to be friction between Beck and Oppenhorst because of the way Beck would joke around, but she never heard Oppenhorst tell Beck to stop, and never saw any animosity between them. Gibby did not know what Beck did for a living but heard from Schaeffer that he had no gainful employment. Gibby was very close to Oppenhorst, and Oppenhorst had made gifts of money to her in the past, but Gibby never imagined she would be named a beneficiary of her trust. Presser, another beneficiary of the Second Amendment, was Gibby's brother. Presser testified he was frequently around Oppenhorst and Beck, never sensed any animosity or tension between them, and never heard Oppenhorst say anything adverse about her son.
The Ruling
There was no request for a statement of decision, but after the bench trial, the trial court issued an extensive minute order containing its ruling. The court specifically found Diane, Clarene, and Schaeffer to lack credibility. Diane could not provide a believable explanation for her prior felony conviction for drug possession ("sounding like far less than the truth"); could not adequately explain the preparation of her calendar; damaged her credibility when she said she had no recollection of leaving a long telephone message, when to the court the message "seemed unforgettable"; and "demonstrated a derisive attitude towards . . . Beck and this litigation during the playing of the recording." The court concluded Clarene obviously hated Beck and held him in contempt, telling "unbelievable stories" about him and Oppenhorst that completely "crashed under the weight of other credible testimony." Schaeffer "could not conceal her dislike of [Beck]" and that dislike "colored her view of the relationship between . . . Oppenhorst and her son . . . ." By contrast, Gibby and Presser, both of whom stood to benefit the most from the Second Amendment, gave no biased slant to their testimony—both said they never heard anything bad about Beck from his mother, and never observed any animosity between them. The overwhelming weight of the testimony from all the other witnesses, each of whom viewed the relationship from a different perspective, was that "mother and son maintained a close and loving relationship from his birth until her death." "Their testimony was not duplicative, but was collectively a series of vignettes giving a vivid and positive picture of this relationship. It was best said thusly: 'She loved that boy.'"
The court found the testimony of the health care providers to be credible, i.e., it believed when presented with the "possibility that she might have an operation" Beck favored an operation and was upset that his mother was coming home on hospice. But the leap could not be made that because he favored surgery, he wanted his mother to die so he could get her money—just the opposite. "Ultimately, it is immaterial whether or not . . . Beck favored an operation for his mother. The point to be explored is whether or not . . . Oppenhorst reasonably and rationally concluded that . . . Beck wanted to accelerate her death and would then take her money and buy a town in New Mexico."
The court went on to make extensive findings concerning lack of capacity, undue influence, and/or fraud. The court found Oppenhorst had the capacity to execute the Second Amendment ("[r]eview of the video recording of that session reveals an alert and competent woman who understood the act she was undertaking"), but it was not the product of her free will as it was prompted by the undue influence and lies of the Boernsens. The court found the Boernsens took Oppenhorst to the hospital on February 11, 2008, instead of calling her regular physician who was known to them and without consulting Beck. There were many conversations during the night in the hospital about surgery for Oppenhorst, whether she consented or could give such consent, and whether Beck had any authority to consent. Diane told Oppenhorst that Beck wanted her to have surgery and suggested it would kill her.
When Diane brought Oppenhorst home, she made Beck leave saying his mother did not want to see him. Over the next 10 days, the Boernsens and Schaffer had exclusive access to Oppenhorst, and when Beck called, they would not let him speak to her. During this time period the Boernsens told Oppenhorst her son wanted to hasten her death with surgery to get immediate access to her money and use it to buy a town in New Mexico. The Boernsens located and arranged for Oppenhorst to meet with Jensen, who was not the attorney who had previously handled such matters for Oppenhorst and was unknown to her, to discuss and later execute a trust amendment. When Beck told Clarene that he learned from a neighbor lawyers had recently come to the house, she told him it was merely to deal with Oppenhorst's health care directives.
The court concluded the Boernsens deprived Oppenhorst of her free will through the misrepresentations about Beck wanting to hasten her death, grab her money, and run to New Mexico, during a period when they kept her in extended isolation from her son. It found the assertion Oppenhorst and her son were estranged, Oppenhorst disapproved of virtually everything about Beck, and thus her trust amendment was consistent with her poor feelings for her son, was completely "destroyed by the overwhelming evidence at the trial," including witnesses with either no financial stake in the matter, or whose financial interests were contrary to the testimony the Boernsens and Schaeffer gave.
The court further concluded the certificate of independent review was invalid and thus could not salvage the otherwise invalid transfer to the Boernsens who were Oppenhorst's care givers. The court found the circumstances surrounding the execution of this certificate did not meet the confidentiality requirements of section 21351, subdivision (b). And even if the certificate was valid, it would not replace common law rules of undue influence.
Finally, although Presser and Gibby, were not guilty of any misconduct, they could not remain as beneficiaries because the Second Amendment was invalid, having been obtained through the undue influence and fraud of the Boernsens. The court declared the documents executed by Oppenhorst on February 21, 2008, including the Second Amendment, the codicil to Oppenhorst's will, and the certificate of independent review, to be void. It declared the original trust documents and will to be valid, and declared Beck to be the sole beneficiary of the trust. The court found Beck did not present sufficient evidence to prove his conversion cause of action.
DISCUSSION
1. Substantial Evidence of Undue Influence
The appellants' opening brief contains numerous separately briefed issues, the bulk of which are best viewed as part and parcel of a substantial evidence challenge to the judgment. The contentions have no merit.
On appeal from a judgment following a bench trial, we do not consider whether there was sufficient evidence supporting the appellants' case; rather, our role is solely to determine whether substantial evidence supports the trial court's decision. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) A reviewing court starts with the presumption the record contains evidence to sustain every finding of fact. It is the appellants' burden to identify and establish deficiencies in the evidence. (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.) This burden is a "'daunting'" one. (Ibid.) Where, as is the case here, no party requested a statement of decision (Code Civ. Proc., § 632), under the doctrine of implied findings, we infer the trial court made any and all findings necessary to support the judgment, and review the implied findings under the substantial evidence standard. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134; Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 61-62.)
"As a general proposition, California law allows a testator to dispose of property as he or she sees fit without regard to whether the dispositions specified are appropriate or fair. [Citations.] Testamentary competence is presumed. [Citations.]" (Estate of Sarabia (1990) 221 Cal.App.3d 599, 604, superseded by statute on other grounds as stated in Rice v. Clark (2002) 28 Cal.4th 89 (Rice).) "'Undue influence . . . is the legal condemnation of a situation in which extraordinary and abnormal pressure subverts independent free will and diverts it from its natural course in accordance with the dictates of another person.' [Citations.]" (Conservatorship of Davidson (2003) 113 Cal.App.4th 1035, 1059, disapproved on other grounds in Bernard v. Foley (2006) 39 Cal.4th 794, 816, fn. 14.)
The appellants contend the trial court improperly found both a common law and statutory presumption of undue influence to apply in this case. "While the person challenging the testamentary instrument ordinarily has the burden of proving undue influence, 'under certain narrow circumstances, a presumption of undue influence may arise, shifting to the proponent of the disposition the burden of proving by a preponderance of the evidence that the donative instrument was not procured by undue influence.' [Citation.]" (David v. Hermann (2005) 129 Cal.App.4th 672, 684 (David).)
At common law, a presumption of undue influence arises upon a showing that "(1) the person alleged to have exerted undue influence had a confidential relationship with the testator; (2) the person actively participated in procuring the instrument's preparation or execution; and (3) the person would benefit unduly by the testamentary instrument." (Rice, supra, 28 Cal.4th at p. 97.) Where such a presumption arises, the burden shifts to the person profiting under the will to show the will is not the product of undue influence. (Estate of Baker (1982) 131 Cal.App.3d 471, 483.)
The statutory presumption of undue influence, which supplements but does not supplant the common law presumption, is set forth in section 21350, which as relevant here "precludes care custodians from being beneficiaries of testamentary transfers from dependent adults to whom they provide care services, as well as barring similar transfers to other 'disqualified persons.' [Citations.]" (Estate of Winans (2010) 183 Cal.App.4th 102, 113 (Winans); § 21350, subd. (a)(6).) The statutory presumption may be rebutted if "[t]he court determines, upon clear and convincing evidence, but not based solely upon the testimony of [the disqualified person], that the transfer was not the product of fraud, menace, duress, or undue influence." (§ 21351, subd. (d).) The statutory presumption may also be avoided if a certificate of independent review is prepared with respect to the transfer. (§ 21351, subd. (b).) "Under this procedure, the transfer is reviewed by an 'independent attorney,' who must counsel the transferor about the 'nature and consequences of the intended transfer' and 'attempt[ ] to determine if the intended consequence is the result of fraud, menace, duress, or undue influence.' The attorney must then prepare a certificate of independent review and deliver it to the transferor. [Citation.]" (Winans, supra, 183 Cal.App.4th at p. 114, fn. omitted.)
Whether the presumptions apply and, if so, whether they have been rebutted are factual issues to be resolved by the trial court. (David, supra, 129 Cal.App.4th at pp. 684-685.) On appeal, we are concerned only with whether substantial evidence supports the trial court's ultimate finding of undue influence. (Ibid.)
The appellants argue there is insufficient evidence of undue influence, largely attacking the court's conclusion the Boernsens and Schaeffer "procured" the Second Amendment. "'Undue influence,' obviously, is not something that can be seen, heard, smelt or felt; its presence can only be established by proof of circumstances from which it may be deduced." (Estate of Ferris (1960) 185 Cal.App.2d 731, 734.) "In order to set aside a will on grounds of undue influence, '[e]vidence must be produced that pressure was brought to bear directly on the testamentary act . . . . Mere general influence . . . is not enough; it must be influence used directly to procure the will and must amount to coercion destroying free agency on the part of the testator.' [Citation.] There must be proof of '"a pressure which overpowered the mind and bore down the volition of the testator at the very time the will was made."'" (Estate of Mann (1986) 184 Cal.App.3d 593, 606; see also §§ 6104, 8252.) In other words, undue influence "consists of conduct which subjugates the will of the testator to the will of another and constrains the testator to make a disposition of his property contrary to and different from that he would have done had he been permitted to follow his own inclination or judgment. [Citation.]" (Estate of Franco (1975) 50 Cal.App.3d 374, 382 (Franco).)
The law regarding undue influence that applies in the context of wills is equally applicable in the context of estate plans formalized by an inter vivos trust and pour-over will. (Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 182.)
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"Among the indicia of undue influence is evidence that '"the chief beneficiaries under the will were active in procuring the instrument to be executed."' [Citation.]" (David, supra, 129 Cal.App.4th at p. 684.) But even if that evidence is weak (or lacking altogether) other factors can support a finding of undue influence. (Ibid.) In David, the court affirmed a trial court judgment finding a mother's trust amendment substantially diminishing her older daughter's share was the result of undue influence and fraud by her younger daughter, even though the mother was sufficiently competent to execute the amendment to her trust. (Id. at p. 679.) As the mother declined in her physical and mental capacities, she became increasingly dependent on the younger daughter, who also had control over her mother's financial affairs. The mother's growing dependence on her younger daughter "was accompanied by the growth of an intense and irrational anger toward [her older daughter]. As the trial court found, '[s]he had it in her mind that [her older daughter] had stolen money from the . . . Family Trust, and she would not let this notion go.'" (Id. at p. 679.)
Similarly, here there is sufficient evidence to support the finding the Second Amendment was the result of undue influence. The appellants' argument the trial court incorrectly assessed the credibility of the witnesses fails; it is axiomatic we must defer to the trial court's considered determinations of the credibility and weight to be given to the testimony of the witnesses. (See Estate of Auen (1994) 30 Cal.App.4th 300, 311, superseded by statute on other grounds as stated in Rice, supra, 28 Cal.4th 89; Baker, supra, 131 Cal.App.3d at p. 483.) We cannot disturb its determination Clarene, Diane, and Schaffer were completely lacking in credibility.
The appellants concede Clarene and Diane were Oppenhorst's caregivers and were in a confidential relationship with her. Schaeffer too was her sister's close friend and confident. Despite overwhelming evidence of the life-long close and loving relationship between Oppenhorst and her only child, a few weeks before her death from terminal cancer, as Oppenhorst grew increasingly reliant on Diane, Clarene, and Schaeffer, she developed an irrational animosity towards Beck. Her animosity was obviously being fueled by those caring for her, who as the court observed all clearly disliked Beck and profited greatly by his being disinherited. Diane and Clarene knew Oppenhorst did not want any heroics, and wanted to die at home. But they took her to the hospital and had her admitted, without contacting Beck and without contacting her regular physician who was known to both of them. Upon her return from the hospital, Diane and Clarene maintained exclusive access to Oppenhorst, and effectively prevented Beck from speaking to or visiting his mother. They falsely told Oppenhorst that Beck was planning on using her money to buy a town in New Mexico, and fostered Oppenhorst's irrational belief her son wanted to hasten her death to get his hands on her money as soon as possible. The Boernsens located a new attorney for Oppenhorst, and arranged for him to come to the house to prepare the amendments to Oppenhorst's estate plan—the plan established by Oppenhorst and her husband 15 years earlier. After securing the trust amendment, when Beck asked Clarene why there had been lawyers at the house, she told him it was merely to deal with Oppenhorst's health care directives, when she in fact knew Oppenhorst's trust had been amended to disinherit him and to benefit her and her daughter. The court could reasonably conclude the Boernsens' conduct, feeding the fears and worries of a frail, elderly, dying woman, overcame Oppenhorst's will and caused her to make a disposition of her property "contrary to and different from that he would have done had he been permitted to follow [her] own inclination or judgment." (Franco, supra, 50 Cal.App.3d at p. 382.) We will not disturb that ruling.
The appellants' reliance on Estate of Goetz (1967) 253 Cal.App.2d 107, is misplaced. That case considered whether the parties challenging the will had presented sufficient evidence to invoke the common law presumption of undue influence, not with whether substantial evidence supported a trial court judgment based on all the evidence there was undue influence exerted. Furthermore, the facts are distinguishable. In Goetz the son transported his mother to the lawyer who prepared a will for her (the mother had no other will), was present when terms of the will were discussed, and he did not take the mother to a psychiatrist when a doctor later refused to witness the will unless a psychiatrist passed on her competency. The mother's will left her separate property to her son, who was from a prior marriage, and none of it to her current husband (from whom she was somewhat estranged) and their adult daughter. But the evidence demonstrated the husband was financially well off and the couple had substantial assets held as joint tenants that the husband would acquire upon the wife's death. The husband and his wife's son were on poor terms, and it was unlikely the husband would leave anything to him. The adult daughter was financially well off, resided out of the country, and had not visited the mother for many years (the daughter did not contest her mother's will). (Id. at p. 111.) There was no evidence the son did anything to overcome his mother's natural inclinations regarding disposition of her property.
The appellants contend the trial court misunderstood the significance of the certificate of independent review signed by Dunbar in assessing the validity of the Second Amendment. We disagree. As noted in Winans, supra, 183 Cal.App.4th 102, a section 21351 independent review certificate simply allows the presumption against such transfers to be overcome. But it is not a conclusive presumption.
Furthermore, Winans, supra, 183 Cal.App.4th at page 118, observed the validity of such a certificate is wholly dependent on the confidentiality of the counseling. In Winans, a summary judgment case, the court concluded there was a material issue of fact as to whether the counseling took place in confidence because the person otherwise disqualified under section 21350, or persons associated with that person, were present ("Timar was described as 'in and out' of Winans's room during the various consultations that occurred prior to execution of the will, and the door to his room was sometimes open. Because Winans was hard of hearing, the conversations could likely be overheard by Canterbury staff or other residents and visitors.") Winans observed, "the Legislature intended the counseling to occur under circumstances that would insulate the transferor from any improper influences giving rise to the donative transfer and encourage the transferor to speak frankly with the certifying attorney about those influences, if any. At a minimum, therefore, the disqualified person and any person associated with the disqualified person must be absent. Further, the counseling session must occur in the absence of any person whose presence might discourage the testator from speaking frankly with the attorney about the subject bequest. Accordingly, if any person other than the certifying attorney is present during a section 21351 counseling session, the burden is on the disqualified person to demonstrate the session was nonetheless 'confidential' by showing the presence of the additional persons either (1) was necessary to accomplish the counseling session, or (2) did not interfere with the transferor's full and honest disclosure to the independent attorney regarding the transfer to the disqualified person." (Winans, supra, 183 Cal.App.4th at p. 119.)
Substantial evidence supports the trial court finding Dunbar's counseling of Oppenhorst failed the confidentiality test making the certificate void. The Boernsens, Schaeffer, and two neighbors were present in the adjacent living room with the door open during the session. Dunbar conceded his voice was loud and could well have been overheard.
2. Innocent Beneficiaries
The appellants contend that even if the Boernsens exerted undue influence on Oppenhorst, Schaeffer, Gibby, and Presser are innocent of any wrongdoing. Accordingly, they argue the donative transfers to them should be upheld. We disagree.
As the trial court concluded, the Second Amendment was void because it was the product of undue influence. The cases upon which the appellants rely are inapposite. Both involved situations where a will was obtained through undue influence of one of the beneficiaries and failure to honor bequests to "innocent" beneficiaries would result in complete intestacy. (Baker, supra, 131 Cal.App.3d at pp. 483-484 ["a will must be construed according to the intention of the testator, and so as to avoid intestacy"]; see also Estate of Harkleroad (1943) 62 Cal.App.2d 60.) That is not the case here. With the Second Amendment being declared void, Oppenhorst's Trust is the operative testamentary document.
3. Admission of Hearsay
The appellants contend the trial court erred by allowing Beck to testify a neighbor told him there had been attorneys at his mother's house and he should investigate. They contend the statement was inadmissible hearsay. We find no error.
The trial court properly overruled the appellant's hearsay objection to Beck's testimony. The testimony came in response to a question about why he questioned Clarene about the reason for attorneys being at the house. Accordingly, the testimony was not offered to prove the truth of the matter but rather to show its effect on Beck, an appropriate non-hearsay purpose. (See People v. Scalzi (1981) 126 Cal.App.3d 901, 907 [extrajudicial statement may be admissible as non-hearsay if it affected hearer's state of mind]; see also People v. Hines (1997) 15 Cal.4th 997, 1047 [evidence of out-of-court statement admissible if offered for nonhearsay purpose and that purpose is relevant to issue in dispute].)
Furthermore, even if the testimony was inadmissible hearsay, i.e., the statement was offered for the truth of the matter that there had been attorneys at the house, the appellants have offered no coherent suggestion as to how they were possibly prejudiced. (Evid. Code, § 353.) Indeed, there is no possibility of prejudice in view of the extensive evidence preceding Beck's testimony that, in fact, there had been lawyers at the house!
DISPOSITION
The judgment is affirmed. Respondent is awarded his costs on appeal.
O'LEARY, ACTING P. J.
WE CONCUR:
FYBEL, J.
IKOLA, J.