Opinion
B192111
4-23-2007
Estate of WILLIAM O. HAY, Deceased. JOEL B. HANDEN, et al., Petitioners and Respondents, v. DENNIS NEIL COLVIN, Objector and Appellant.
Procter, McCarthy & Slaughter and Gabriele Mezger-Lashly for Appellant. John Derrick for Respondents.
NOT TO BE PUBLISHED
Dennis Neil Colvin appeals a probate court order which invalidates a testamentary gift from William Hay, the decedent, to Colvin, Hays domestic caregiver. (Prob. Code, § 21350, subd. (a)(6).) We affirm.
FACTS
Hay died at the age of 82. In 2003, two and a half years before his death, Hay fractured his hip. He came home after a "long hospitalization," but needed someone to take care of him. Colvin, a gardener, was temporarily living at the home of a customer near Hays residence. Colvin agreed to provide care for Hay in "exchange for room and board and financial compensation."
In 2004 Hay, a veteran, went to Vandenberg Air Force Base, which has a Judge Advocate General (JAG) unit which drafts wills for veterans. The JAG unit assisted Hay in preparing a will in which he left all of his real estate to Colvin. Joel B. Handen, Hays nephew, was listed as a residual beneficiary in that will.
In 2005 Bernice Bjerke, Hays sister, filed a petition for letters of administration to administer Hays estate. She claimed Hay died without leaving a will. But Bjerke and Handen later discovered that Hay had executed a will and Colvin was the primary beneficiary.
In 2006 Handen filed a petition to invalidate the "testamentary gift" to Colvin. He claimed the gift was invalid: 1) because Colvin was Hays "care custodian" and 2) such individuals are precluded by statute from receiving testamentary gifts from the "dependent adult[s]" they provide care for. (Prob. Code, § 21350, subd. (a)(6).)
At trial Jess Novoa, Hays friend, testified that Colvin was not a friend of Hays prior to moving into his residence to take care of him. After he moved in Colvin isolated Hay from contact with Hays friends. Hay was afraid of Colvin, who had a violent temper.
Betsy Scott, another friend of Hays, testified that Hays mental health and cognitive powers had substantially deteriorated at the time when Hay decided to leave his property to Colvin. She said that Hay had repeatedly told her that he wanted to leave his property to his nieces and nephews.
Bjerke testified that there was no friendship or other relationship between Colvin and Hay before Hay injured his hip in 2003. She said the doctors at the hospital determined that Hays "capacity had been diminished" and he therefore could not live by himself. Hay told her that he wanted all of his estate to go to his nieces and nephews.
Barbara Madrigal, Hays neighbor, testified that after Colvin moved into Hays residence it appeared to her that Colvin was "isolating [Hay] from his neighbors and friends." She was "afraid" to go to Hays residence because of Colvins temper. Colvin had violently confronted another neighbor who wanted to speak to Hay.
Patrick Dana was an attorney and a friend of Hays. Dana testified that Hay told him that he wanted his estate to go to his nieces and nephews. Hay never said that he ever intended to leave anything to Colvin.
Colvin did not testify at trial. Dale Abram, one of Colvins witnesses, testified that he knew Hay for 20 years. Abram said Hay was not easily intimidated and "he had a mind of his own." On his last visit with Hay he noticed that Hay "wasnt his normal . . . self," he was "sick" and "wasnt talking" very much.
Jones Affidavit
At trial Colvins counsel said he had subpoenaed Jack Michael Jones, an air force base captain assigned to the JAG unit, to testify, but Jones was unavailable. He said that in lieu of his testimony he wanted to introduce Jones affidavit which describes the JAG procedures for preparing wills. Colvins counsel told the court "basically all we were going to call him for was to show" the JAG procedures. The affidavit was marked as an exhibit. The court said it would "defer" ruling on its admissibility until later in the proceedings.
In his affidavit, Jones said, "I . . . will not be present for the hearing . . . because [Vandenberg Air Force Base] will be conducting a base wide exercise . . . ." He described the "usual procedures" the JAG office follows for veterans "seeking to have a will drafted" including: 1) the person "is given a will worksheet to fill out to help with the drafting of the will," 2) a "military attorney meets with the person . . . and reviews the will worksheet," 3) the attorney drafts the will using a computer software program, 4) he or she "goes over the document" with the veteran, 5) the "testator/testatrix signs up for a will execution ceremony," 6) the people "present during the execution ceremony are a military attorney, two witnesses and a USAF paralegal who acts as the notary," 7) the military attorney asks several questions including, "Do you consider yourself to be of sound mind?" and, "Do you feel you have been under any sort of duress, coercion, or undue influence as you discussed and provided information for the preparation of the will or now as you get ready to sign the will?"
In his affidavit Jones did not state that he had ever conferred with Hay and he did not name the military attorney who drafted the will. Jones did not say that he was present at the will ceremony or that he had any personal knowledge about Hay, Colvin or the events leading up to the execution of Hays will.
Withdrawing Jones Affidavit From Evidence
Near the end of trial the court asked counsel whether they would move into evidence any of the trial exhibits. Counsel for the parties agreed that none of the exhibits would be introduced. Colvins counsel stipulated that Jones affidavit would be withdrawn and not received as evidence.
The Ruling
The trial court found the gift to Colvin was invalid. It said, "there was no credible evidence that [Colvin and Hay] had a genuinely close and authentic personal relationship" before Colvin agreed to be the caregiver. Any relationship was "born out of convenience rather than friendship."
Motion For Reconsideration
Colvin filed a motion for reconsideration. He claimed that he had new evidence because Jones could testify about the procedures JAG uses to draft wills. He claimed this testimony would show that Hays will was not the product of undue influence.
The trial court denied the motion. It noted, among other things, that Colvin had the opportunity at trial to introduce Jones affidavit which discussed these procedures. But he had elected not to introduce it.
DISCUSSION
I. Undue Influence
Colvin contends that the trial court erred because the evidence demonstrates that Hays gift to him was not the product of undue influence. We disagree.
Where a dependent adult makes a testamentary gift of property to his or her "care custodian" the transfer or gift is presumed to be invalid as the product of undue influence. (Prob. Code, § 21350, subd. (a)(6); Bernard v. Foley (2006) 39 Cal.4th 794, 800.) Here Colvin concedes that Hay was a dependent adult and that Colvin was his "custodial care giver."
But he notes the presumption of undue influence and invalidity does not apply where the will "is reviewed by an independent attorney" who 1) counsels the transferor about the consequences, 2) determines whether the transfer was the product of duress or undue influence and 3) signs a "Certificate of Independent Review." (Prob. Code, § 21351, subd. (b).)
Colvin claims Jones declaration satisfies these requirements and proves that Hay made the transfer with knowledge of the consequences and without being unduly influenced. But Jones declaration was not admitted into evidence.
Colvin claims that he demonstrated by other evidence that the transfer was voluntary. But to overcome the presumption of undue influence Colvin had the burden to present "clear and convincing evidence" that "the transfer was not the product of fraud, duress, menace, or undue influence." (Bernard v. Foley, supra, 39 Cal.4th at p. 800.)
Here the trial court could reasonably find that he did not meet his burden. Moreover, there was compelling evidence the gift was the product of duress and undue influence. Hay was elderly, "frail," confined to his home and dependent on Colvin. Colvin exercised extensive control over Hays activities at a time when Hays mental capacity was deteriorating. Novoa testified that Colvin was "very aggressive" and had isolated Hay from contact with Hays friends and neighbors. He said Colvin had a violent temper and Hay was afraid of Colvin. Colvin had a violent confrontation with a neighbor who wanted to communicate with Hay.
Several witnesses testified that Hay had repeatedly told them that he wanted to leave his property to his nieces and nephews. Scott said Hay changed his estate plans when his mental capacity had substantially deteriorated and Colvin was his caregiver. Hays cognitive powers were so diminished by that time that he had trouble remembering the city where his bank was located. Dana, the attorney who conferred with Hay about his estate plans, testified that Hay never expressed any intention to leave any property to Colvin. Leaving property to Colvin was inconsistent with Hays long-term desire to leave his property to family members.
II. Denying The Motion for Reconsideration
Colvin contends that the trial court erred by denying his motion for reconsideration. We disagree.
In reviewing an order denying a motion for reconsideration we determine whether the trial court abused its discretion. (Lucas v. Santa Maria Public Airport Dist. (1995) 39 Cal.App.4h 1017, 1027.) A motion for reconsideration must be based on new facts. (Ibid.) "The moving party must provide the trial court with a satisfactory explanation as to why he or she failed to produce the evidence at an earlier time." (Id., at p. 1028.)
Here Colvin claimed that Jones testimony about the procedures the military uses to draft wills was new evidence. But the trial court found that it was not new. It said Colvin had an opportunity to introduce Jones declaration about those procedures at trial, but he voluntarily decided to withdraw it from evidence. Colvin did not explain why he did not move for a continuance at trial and his offer of proof was very general. He did not recite with any specificity the testimony he expected Jones to give. The court could reasonably find the offer of proof was insufficient and that Colvin had failed to show grounds for reconsideration.
Colvin claims the court erred by not granting a rehearing because Jones declaration satisfies the standards of Probate Code section 21351 and therefore the presumption of invalidity for undue influence does not apply. (Prob. Code, § 21350.) We disagree.
Probate Code section 21351 states, in relevant part, "Section 21350 does not apply if any of the following conditions are met: . . . (b) The instrument is reviewed by an independent attorney who (1) counsels the client (transferor) about the nature and consequences of the intended transfer, (2) attempts to determine if the intended consequence is the result of fraud, menace, duress, or undue influence, and 3) signs and delivers to the transferor an original certificate in substantially the following form, with a copy delivered to the drafter:
CERTIFICATE OF INDEPENDENT REVIEW
I,__________________________________________, have reviewed (attorneys name) ________________________________________ and counseled my client, (name of instrument) _____________________________, on the nature and consequences of the (name of client) transfer, or transfers, of property to _______________________________ (name of potentially disqualified person)
contained in the instrument. I am so disassociated from the interest of the transferee as to be in a position to advise my client independently, impartially, and confidentially as to the consequences of the transfer. On the basis of this counsel, I conclude that the transfer, or transfers, in the instrument that otherwise might be invalid under Section 21350 of the Probate Code are valid because the transfer, or transfers, are not the product of fraud, menace, duress, or undue influence.
___________________________ _________________ (Name of Attorney) (Date)"
(Prob. Code, § 21351 [form following subd. (b)] italics added.)
Jones declaration is not, and does not purport to be, a certificate of independent review. Jones did not claim that he ever conferred with or had even met Hay. Nor does he claim to have personal knowledge about what was discussed with Hay before he executed the will. His declaration is only a summary of the procedures the military normally uses to execute wills.
But that is distinct from the process involved in conducting an independent review under Probate Code section 21351. Colvin did not present evidence to show that any attorney had: 1) entered into an attorney-client relationship with Hay to determine the validity of the transfer to Colvin, 2) consulted confidentially with Hay about Colvins status as a "care custodian," 3) considered the consequences of that status, 4) knew about or considered the presumption of invalidity because of Colvins status as a will beneficiary, 5) reviewed Probate Code sections 21350 and 21351, or 6) determined whether the presumption of undue influence had been overcome. Jones did not name the military attorney who prepared the will, state whether he or she was licensed in California, or qualified to make the evaluations required by Probate Code section 21351. Colvin wanted Jones to testify, not the military attorney who drafted the will.
Moreover, Colvin has not shown that denial of reconsideration was reversible error. The trial court found that Colvin failed to show how Jones testimony would change the outcome. Jones did not have any personal knowledge about the relationship between Colvin and Hay or about Hays mental capacity. The evidence Colvin presented at trial was not persuasive to the court. Other than Jones, Colvin did not claim that he had any new witnesses or additional evidence. In his motion, Colvin did not explain why he would not testify and the trial court could draw negative inferences about the strength of his case because of that. (Evid. Code, §§ 412, 413.) Scotts, Novoas, Bjerkes, Madrigals and Danas testimony was compelling evidence showing the invalidity of the gift to Colvin. Given the strength of that evidence Colvin has failed to show a reasonable probability that he would have prevailed had Jones testified.
We conclude Colvins remaining contentions have no merit.
The judgment is affirmed. Costs are awarded to respondents on appeal.
We concur:
COFFEE, J.
PERREN, J.