Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 34-2008-00019536-CU-MC-GDS
BUTZ, J.Frances “Cookie” Cook was an independent, strong-willed woman who had a close relationship with her youngest son Carroll but was deeply disappointed in her older son Robert. When she drew up a will in 1989, she told her attorney she wanted to disinherit Robert. In 1993, she hired a different attorney to draw up a living trust and gave him the same instructions. The trust excluded Robert, included several small bequests and left the bulk of Cookie’s estate to her son Carroll. As Cookie once told a longtime friend, “‘Robert will be very surprised when he finds out his share [of the estate] is “going to the nuns.”’”
We use the first names of the Cook family members for convenience only. Because Frances Cook was commonly referred to during her lifetime and in discovery proceedings as “Cookie, ” we will retain that moniker. No disrespect is intended.
After Cookie died in 2003, Robert filed this action to have the trust declared void on grounds of undue influence and lack of testamentary capacity. Carroll successfully moved for summary judgment. Robert appeals from the judgment.
This is not a difficult case. Robert failed to come forth with any proof that Cookie was mentally infirm at the time she disinherited him, nor did he produce evidence that Carroll took an active role in procurement of the trust. The record utterly fails to support Robert’s claim that his brother exerted pressure so great as to overcome Cookie’s free will. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The following undisputed facts appear on summary judgment.
Family Background
Cookie Cook died in July 2003. She was “strong-willed, ” “determined, alert, dynamic[, ]... extremely intelligent” and “caring and active” until the last months of her life, when her health began to deteriorate. Her husband Carroll Cook II predeceased her by many years, having passed away in 1984. Artz & Cook, Inc., a real estate and insurance firm, was founded in 1924 by Carroll II’s father, Carroll Cook I. While he was alive, Carroll II managed the family business by himself. Before he died, Carroll II told Cookie he had discovered their son Robert had embezzled money from the company. He warned her to “‘watch out for Bob, ’” telling her to “change the locks on all the office doors.”
Cookie grew to distrust her eldest son. She disapproved of his lifestyle, his wives, and his “wheeling and dealing.” It also “bothered her tremendously” that Robert used office space in the building she owned, but never paid rent. Cookie was “livid” when her husband told her that Robert had taken money from Artz & Cook. She told Jeanette Pruner, her friend and hairdresser of 45 years, “that’s going to be his inheritance. [H]e’s cooked his own goose.”
In contrast to Robert, Cookie had a good relationship with her son Carroll. She “trusted him totally.” In terms of values and conduct, Carroll met her high standards. After her husband passed away Cookie, who became president of Artz & Cook, designated Carroll and two others to manage its day-to-day operations. Thus, upon their father’s death, Carroll continued to participate actively in the operation of Artz & Cook. Robert, on the other hand, left and formed his own company after a few years.
We hereafter use the name “Carroll” to refer to defendant Carroll Cook III.
The 1989 Will
In 1989, Cookie hired Attorney Jim Dismukes, whom she had met at a children’s soccer game, to draw up a will for her. Carroll accompanied her to the first meeting where they discussed the estate plan, but did not participate in the discussion of the plan that was to be implemented. Dismukes considered Carroll’s presence there as “an observer.” Dismukes had no concerns about Cookie’s mental competence. He did not suspect undue influence. If he had, he would have insisted that Carroll leave the room and spoken to Cookie privately.
Cookie directed Attorney Dismukes to create several individual bequests and to set up a trust for her grandson Shawn, but she wanted Robert excluded and made no provision for any other grandchild. Dismukes considered the exclusion of Robert neither typical nor unusual. While Dismukes made certain it was Cookie’s intent to disinherit Robert, he did not delve into her reasons.
Carroll met Attorney Dismukes the next day to go over some changes Cookie wanted and to put the will in final form. After making the changes, Dismukes handed the final document to Carroll to give to his mother. The will, which appointed Carroll as executor and disinherited Robert, was signed by Cookie and three independent witnesses on February 5, 1989.
The 1993 Trust
Carroll and Cookie’s accountant, William Chessum, encouraged her to create a trust, for tax reasons. Cookie ultimately selected Guy Gibson, an experienced estate planning attorney, to prepare her living trust.
Prior to his initial meeting with Cookie in August 1993, Attorney Gibson had no contact with the Cook family. Gibson spent three or four hours with Cookie in connection with preparation of the trust. Several of the provisions of the will were carried over into the trust. Cookie specifically told Gibson to disinherit Robert from any share of her estate. She was “crystal clear” about this decision. There was no doubt in Gibson’s mind that Cookie was mentally competent and not subject to anyone’s influence during their meetings. Cookie came into his office by herself to sign her trust and pour-over will. Gibson did not meet Carroll until after Cookie’s death.
In September 2002, Cookie met with Attorney Fred Oliver, to review her trust and estate plan. When Oliver questioned Cookie about why she wanted to disinherit Robert, Cookie listed specific reasons for her decision.
Cookie’s Death and Litigation
Cookie died on July 8, 2003. A few months later, Robert filed a petition alleging the trust was void on grounds of mental incapacity, undue influence or fraud perpetrated by Carroll, or mistake of fact on the part of the decedent.
Carroll moved for summary judgment or in the alternative summary adjudication, setting forth evidence consistent with the foregoing factual summary.
Robert opposed the motion by submitting evidence of the following salient facts: (1) in 1986, Cookie put Carroll on title as a joint tenant to her Indian Wells condominium; (2) when Cookie wanted to sell her condominium in Tahoe, Carroll talked her out of it; (3) in 1996 Cookie wrote Carroll a check for $177,000 so he could invest in real estate, and he never paid her back; (4) Carroll wrote checks from Cookie’s personal account, paid some of her bills and had a key to her safe deposit box; (5) he accompanied Cookie to Attorney Dismukes’s office and “may have” brought her to Attorney Gibson’s office; after the initial meeting with Dismukes, Carroll met with Dismukes alone to discuss the changes to the 1989 will; and (6) Carroll had two meetings with Attorney Oliver in 2002, one without Cookie present, to discuss estate planning and tax issues.
The trial court granted summary adjudication, finding that there were no triable issues of fact regarding lack of testamentary capacity or undue influence. Judgment was ultimately entered in favor of Carroll.
The trial judge initially granted summary adjudication on the issues of mental capacity and undue influence, but declined to grant full summary judgment, finding a potential triable controversy over whether Robert could maintain unpleaded causes of action against Carroll for “false and derogatory” statements about him to their mother. Carroll filed a second motion, addressing hypothetical causes of action for defamation and fraud. The motion went unopposed and summary judgment was granted.
DISCUSSION
I. Pertinent Legal Principles
“A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff’s asserted causes of action can prevail.” (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) As to each claim as framed by the complaint, the defendant must present facts to negate an essential element or to establish a defense. If he does, the burden shifts to the plaintiff to demonstrate the existence of a triable, material issue of fact. (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
We review orders granting or denying a summary judgment motion de novo. (FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 72; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579.) We exercise “an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.” (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.)
An opposing party may not avoid summary judgment based on speculation or conjecture. (Padgett v. Phariss (1997) 54 Cal.App.4th 1270, 1284; Frank and Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 468-469.) Triable issues are not created by guesswork, conclusory assertions, or mere possibilities. (Myricks v. Lynwood Unified School Dist. (1999) 74 Cal.App.4th 231, 237; Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1014.)
While “[s]ummary judgment is a drastic procedure, should be used with caution [citation] and should be granted only if there is no issue of triable fact [citations]” (Brose v. Union-Tribune Publishing Co. (1986) 183 Cal.App.3d 1079, 1081), it is also true “‘“[j]ustice requires that a defendant be as much entitled to be rid of an unmeritorious lawsuit as a plaintiff is entitled to maintain a good one”’” (Casenas v. Fujisawa USA, Inc. (1997) 58 Cal.App.4th 101, 119).
II. Lack of Testamentary Capacity
In opposition to summary judgment, Robert maintained there was a triable controversy over whether Cookie had the mental capacity to execute the 1993 trust. On appeal, Robert has abandoned that position, focusing solely on the issue of whether Cookie was subject to Carroll’s undue influence. We therefore turn to that issue.
III. Undue Influence
Robert argues that he adduced evidence of all the elements necessary to raise a presumption that his brother exerted undue influence on their mother in the execution of her trust. Alternatively, he argues that even without the benefit of the presumption, there was sufficient evidence to create a triable issue of fact. Neither claim persuades us.
A will is invalid if procured by “duress, menace, fraud, or undue influence.” (Prob. Code, § 6104.) “Undue influence is pressure brought to bear directly on the testamentary act, sufficient to overcome the testator’s free will, amounting in effect to coercion destroying the testator’s free agency.” (Rice v. Clark (2002) 28 Cal.4th 89, 96 (Rice).) “It is frequently said that a strong showing is necessary, or that the proof must be by clear and convincing evidence.” (14 Witkin, Summary of Cal. Law (10th ed. 2005) Wills and Probate, § 130, p. 193 (Witkin).)
“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 [testamentary] instrument was not procured by undue influence.’” (David v. Hermann (2005) 129 Cal.App.4th 672, 684 (David).)
A. Robert Did Not Raise a Presumption of Undue Influence
In order to raise a presumption of undue influence, the challenger must show: “‘(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.’” (David, supra, 129 Cal.App.4th at p. 684, quoting Rice, supra, 28 Cal.4th at p. 97, italics added; see also Estate of Sarabia (1990) 221 Cal.App.3d 599, 605 (Sarabia).)
Assuming there was sufficient evidence to establish that Carroll had a confidential relationship with his mother, we disagree with Robert’s claim that Carroll unduly benefited from her trust. The terms “unnatural” and “undue profit” have often been used interchangeably in an examination of the element of undue benefit. (See, e.g., Sarabia, supra, 221 Cal.App.3d at pp. 607-609; Estate of Mann (1986) 184 Cal.App.3d 593, 606-607 (Mann).) As Witkin notes, “where the beneficiary is a natural object of the testator’s bounty, the will is not unnatural and no presumption arises.” (14 Witkin, Summary of Cal. Law, supra, § 135, p. 199.) It is self-evident that a child is the natural object of his parent’s bounty.
The fact that Cookie left most of her estate to one son and excluded her other is not an unnatural disposition, especially where, as here, there was overwhelming evidence that Cookie enjoyed a close relationship with Carroll, that he participated in the family business and helped with her financial affairs, and that he met her high expectations. (See Estate of Welch (1954) 43 Cal.2d 173, 179 (Welch) [testator’s bequeathment of her estate to brother to exclusion of sister and other relatives is not “unnatural”]; Mann, supra, 184 Cal.App.3d at p. 607 [“numerous cases have held that a will is not unnatural where it provides for one who has had a particularly close relationship with, or cared for the testator”].)
Relying on Estate of Gelonese (1974) 36 Cal.App.3d 854 (Gelonese), Robert argues that a testamentary disposition which treats the decedent’s children unequally is unnatural and demonstrates undue benefit to the rewarded child.
Robert cites his testimony that Cookie once promised him shares of stock as evidence that the disinheritance clause was at variance with her “expressed intentions.” The argument is weak. According to Robert’s declaration, when he told his mother he was going to sell a “small amount” of bank stock, she replied, “‘Sell it [(the stock)] to me and you will get it back anyway.’” This ambiguous and happenstance remark (made three years before the trust was drafted) does not constitute substantial evidence that Cookie intended to leave Robert a significant share of her $25 million estate.
But even if we found that Carroll unduly benefited from the trust, Robert still cannot avoid the fact that proof of active procurement is wholly lacking.
The evidence showed that Cookie was an active, strong-willed, intelligent woman who personally chose the attorneys who prepared her 1989 will and 1993 trust. Both attorneys testified without contradiction that Cookie was crystal clear about her intent to disinherit Robert. Attorney Gibson, who drafted the trust, had never even met Carroll prior to its execution. The trust was prepared, delivered and executed by Cookie without the slightest participation by Carroll. Finally, Cookie declared several times to close friends over the course of two decades that she was leaving nothing to her eldest son.
Against this showing, Robert cites evidence that Carroll (1) was present during Cookie’s 1989 meeting with Attorney Dismukes; (2) that Carroll later met with Dismukes to convey certain changes to the will and eventually delivered the will to his mother; (3) that Carroll “may have” driven Cookie to her 1993 meeting with Attorney Gibson; and (4) that Carroll met with Attorney Oliver in 2002 to discuss estate planning issues. None of this is evidence of active procurement.
It is fundamental that the opportunity to influence the testator does not constitute evidence of procurement. (Ross et al., Cal. Practice Guide: Probate (The Rutter Group 2010) ¶ 15:155 (Ross).) “‘[Mere] opportunity to influence the mind of the testator, even coupled with an interest or a motive to do so, is not sufficient.’ [Citations.] There must be activity by the beneficiary in the actual preparation of the will.” (Mann, supra, 184 Cal.App.3d at p. 607, italics added.) Robert offered no proof that Carroll had any participation in, let alone active procurement of, the 1993 trust.
Contrary to Robert’s claim, Carroll’s incidental involvement in the 1989 will prepared by Attorney Dismukes does not constitute circumstantial evidence of active procurement.
First of all, the will was signed four years before the execution of the challenged trust (see Estate of Llewellyn (1948) 83 Cal.App.2d 534, 564 [“the influence necessary to invalidate a testamentary document must be a pressure which overpowered the mind and bore down the volition of the testator at the very time the will was made, ” italics added].)
Second, “‘[the] mere fact of the beneficiary procuring an attorney to prepare the will is not sufficient “activity” to bring the presumption into play...; or selection of attorney and accompanying testator to his office...; or mere presence in the attorney’s outer office;... or presence at the execution of the will...; or presence during the giving of instructions for the will and at its execution....’” (Mann, supra, 184 Cal.App.3d at p. 608.) As the California Supreme Court once said in reversing a jury finding of undue influence, “nothing occurred in the office of [the attorney] that indicated that deceased was not acting entirely in accord with her own desire, uninfluenced by any one [sic], and in view of the circumstances shown by the record, we cannot see that the mere fact that [the beneficiary] accompanied her to the office and was present while she executed the will afforded any ground for an inference of undue influence.” (Estate of Morcel (1912) 162 Cal. 188, 197.)
The law is clear that the mere procurement of an attorney or accompanying the testator to the attorney’s office is not evidence of undue influence without “additional evidence of deception or overreaching—e.g., as where the beneficiary also urged the testator to make a particular disposition or otherwise sought to determine the contents of the will.” (Ross, Cal. Practice Guide: Probate, supra, ¶ 15:155.1.) Here, there is no evidence that Carroll exercised pressure, fraud, or even persuasion to influence his mother’s decision to disinherit Robert. On the contrary, the record shows undeniably that that decision was hers alone.
Finally, neither the fact that Carroll acted as a conduit to transmit certain desired changes to the will, nor that he delivered it to his mother, demonstrates active procurement in light of the unrefuted evidence that the trust Cookie executed four years later contained the same disinheritance clause and that the decision to disinherit Robert was the product of her own free, undisturbed volition.
We uphold the trial court’s determination that Robert did not carry his burden of producing evidence sufficient to trigger a presumption of undue influence.
B. Robert Did Not Raise a Triable Issue of Fact Without the Benefit of the Presumption
Robert’s final argument is that, even without the presumption, the evidence gave rise to a triable fact issue over whether Cookie was subject to Carroll’s undue influence.
“‘“The unbroken rule in this state is that courts must refuse to set aside the solemnly executed will of a deceased person upon the ground of undue influence unless there 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.’”’” (Welch, supra, 43 Cal.2d at pp. 175-176, quoting from Estate of Gleason (1913) 164 Cal. 756, 765.) “‘“Before a testamentary document will be overthrown because of the exercise of undue influence, the proven circumstances must be inconsistent with voluntary action on the part of the testator.”’” (Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 182.) Indispensable to a finding of undue influence is evidence of “activity by the beneficiary in the actual preparation of the will.” (Mann, supra, 184 Cal.App.3d at p. 608, citing Estate of Straisinger (1967) 247 Cal.App.2d 574, 586.)
Robert produced no evidence of this sort. The most that could be deduced from Robert’s evidence is that Cookie trusted Carroll, allowed him to manage some of her personal affairs, and occasionally made gifts to him. However, such facts are hardly remarkable and are entirely consistent with the relationship between Carroll and his mother.
We reiterate that, to overturn the testator’s expressed wishes by reason of undue influence, “[c]lear and convincing proof” that she was not exercising her free will is required. (Estate of Truckenmiller (1979) 97 Cal.App.3d 326, 334.) “Undue influence will not be inferred from ‘slight evidence.’” (Ibid.)
Even conceding that Robert’s evidence might give rise to an inference that Carroll had a confidential relationship with his mother and that he had an opportunity to influence her, there is nothing in this record tending to show that he exploited that relationship to influence the drafting of the trust. On the contrary, the record is clear that Cookie was both physically and mentally able when she instructed her attorneys to disinherit Robert in 1989 and in 1993; that she was unshakable in her determination to disinherit Robert; and that Carroll had no involvement in the creation of the challenged trust.
Robert’s evidence fell “far short of showing such undue influence as in effect destroyed [Cookie’s] free agency and overpowered [her] volition” at the time she disinherited him. (Estate of Shay (1925) 196 Cal. 355, 363.) There was simply no proof from which a reasonable jury could find the trust was invalid based on undue influence. Summary judgment was proper.
DISPOSITION
The judgment is affirmed. Carroll is awarded his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
We concur: RAYE, P. J., HULL, J.
This assertion misstates the law. Gelonese never said that a disposition which does not treat children equally shows undue profit as a matter of law. Gelonese was an appeal after a jury verdict finding undue influence. The issue was whether there was substantial evidence to support the element of undue benefit to the three children who procured the will, where they received virtually all of the decedent’s estate while the two children who contested the will were bequeathed a pittance. The court found the element satisfied based on evidence in the record that decedent wanted her children to share equally in her estate. (Gelonese, supra, 36 Cal.App.3d at p. 866.) Here, of course, the evidence showed that Cookie was unyielding and resolute in her intent to disinherit Robert.
Robert’s argument, which implicitly advances the notion that “undue profit” should be measured by what the disinherited person would have received by intestate succession, was soundly discredited in Sarabia, supra, 221 Cal.App.3d 599. There, the court called a rule that uses the law of intestate succession as the litmus test for undue profit “bizarre, ” “unworkable, ” and a threat to the testator’s right to leave her property to whomever she chooses. (Id. at p. 608.) We agree.