Opinion
H032376
4-24-2009
TERRY HALVERSON, Plaintiff and Appellant, v. CATHERINE M. VALLONE, et al., Defendants and Respondents.
Not to be Published in Official Reports
This case involves a petition by appellant Terry Halverson ("Halverson"), the nephew and surviving heir of Bernice I. Negri, to set aside Negris amended revocable trust (entitled "First Amendment to the Bernice I. Negri Revocable Trust (Complete Amendment)") and her complementary pour-over will that she executed in 2004 (2004 Trust and 2004 Will), on the grounds that Negri failed to comply with the trusts requirements for amendment, she lacked legal capacity to execute the documents, and the documents were obtained by undue influence. The trial court granted summary judgment in favor of respondents Catherine M. Vallone and Ludd Dias, the 2004 Trusts named beneficiaries and co-trustees and Negris longtime personal friends.
The Probate Code defines "heir" to mean "any person . . . entitled to take property of the decedent by intestate succession under this code." (Prob. Code, § 44.) All further statutory references are to the Probate Code unless otherwise specified.
On appeal, Halverson challenges the grant of respondents motion for summary judgment. We conclude that the judgment must be reversed.
A. Standard of Review of Summary Judgment Motion
"On appeal from the granting of a motion for summary judgment, we examine the record de novo . . . ." (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) "In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 . . . ), liberally construing her evidentiary submission while strictly scrutinizing defendants own showing, and resolving any evidentiary doubts or ambiguities in plaintiffs favor. [Citations.]" (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.) We consider "all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence . . . ." (Code Civ. Proc., § 437c, subd. (c).)
A moving defendant has met the burden of showing that a cause of action has no merit "if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action." (Code Civ. Proc., § 437c, subd. (p)(2).) "When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true ([Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,] 851 . . . ), or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff `does not possess and cannot reasonably obtain, needed evidence. (Id. at p. 854 . . . .)" (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) "Unless the moving party meets its burden, summary judgment cannot be ordered, even if the opposing party does not respond sufficiently or at all. (Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 59-60 . . . .)" (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.)
"Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff . . . may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto." (Code Civ. Proc., § 437c, subd. (p)(2).) "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, fn. omitted.)
"The burden of persuasion remains with the party moving for summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 861 . . . .)" (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at p. 1003.) A motion for summary judgment must be granted "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) "[S]ummary judgment may not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact." (Ibid.) Of course, in examining the record, the reviewing court does not weigh the evidence or assess credibility as it would if it were sitting as trier of fact. (See Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 856.)
Appellant asserts that section 1022 "limits use of affidavits to `uncontested proceedings " and since this Probate "proceeding was fully contested," an evidentiary hearing was required. The implication of this argument is that summary judgment was precluded in this proceeding. Section 1022 states: "An affidavit or verified petition shall be received as evidence when offered in an uncontested proceeding under [the Probate Code]."
Appellant has not asserted that summary judgment procedure is generally not available in Probate Code matters. Section 1000 provides in part: "Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions, including discovery proceedings and proceedings under Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice in, proceedings under this code."
In ruling on a summary judgment motion, there is no requirement that any fact be proved "to the satisfaction of the court itself as though it were sitting as the trier of fact. [Citation.]" (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850, fn. 11; see id. at p. 845, fn. 4.) "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]" (Id. at p. 843.) Appellant has failed to cite any authority showing that section 1022s limitation on the use of affidavits alters summary judgment procedure, which involves burdens of persuasion, not proof (id. at pp. 845, fn. 4, 850, fn. 11).
B. Pleadings and Procedural Background
On May 4, 2005, respondents, as co-trustees of Negris trust, filed a formal proposed notice to creditors with the court, initiating the creditor claims procedure. On September 14, 2005, appellant filed a petition seeking court orders invalidating the 2004 Trust, imposing a constructive trust, removing the co-trustees, requiring an accounting, and awarding attorney fees and costs.
"The pleadings define the issues to be considered on a motion for summary judgment. (Sadlier v. Superior Court (1986) 184 Cal.App.3d 1050, 1055 . . . .)" (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) Appellants petition alleged that his aunt Bernice Negri failed to follow the procedures set forth in the "Negri Revocable Trust" established in 1990 (hereinafter "1990 Trust") for amending the instrument, Negri lacked the mental capacity necessary to execute the 2004 Trust, and its execution was procured by respondents undue influence.
According to appellants petition, the chief procedural defects in amending Negris trust were the alleged lack of delivery of the amended trust to the trustee and lack of acceptance or execution by the trustee. The petition stated that the 1990 Trust named Negri as both trustor and trustee. It alleged that the 1990 Trust provided: "Amendments During Settlors Life: Settlor, may at any time, amend any of the terms of this trust by a written document delivered to the Trustee. . . . The Trustee need not abide by the terms of the Amendment until it is accepted." The petition further alleged that the 1990 Trust stated that the settlors powers to revoke or amend the trust were personal to the settlor and no other person could exercise those powers. The petition asserted without specificity that there were "numerous other procedural and documentation errors which will be shown at trial according to proof and will substantiate the invalidation of the amendment and cause it to be void ab initio."
As to mental capacity, the petition alleged that the "Trustor was not of sound and disposing mind." It stated that the "Trustor did not have sufficient mental capacity to (i) understand the nature of Trustors actions in executing the purported trust, (ii) understand and recollect the nature and situation of Trustors property, or (iii) remember or understand Trustors relations to Trustors family members."
The petition also alleged that the amendment of the trust was procured by respondents undue influence in that (1) respondents had a confidential relationship with the Trustor, who "reposed trust and confidence in them," (2) respondents easily influenced and controlled the Trustor as a result of the Trustors physical and mental infirmities, (3) respondents actively procured the trust amendment, and (4) the amended trust conferred an undue benefit on respondents. It further alleged that respondents took over the Trustors financial affairs, they " `moved-in on Trustor during the last weeks of [her] life" and took "complete control of her life." It did not allege that the respondents qualified as prohibited transferees under section 21350, which statutorily invalidated the 2004 Trust.
At a hearing on respondents objections to appellants petition on various grounds including lack of standing, the trial court granted appellants oral motion to amend his petition to include an allegation to set aside a 2004 Will as well as the 2004 Trust and ordered the amendment effective as of the filing date. The court dismissed the petition based upon appellants lack of standing and appellant appealed.
We take judicial notice of the appellate record and opinion issued in Halverson v. Vallone, H029947. (Evid. Code, §§ 452, subd. (d), 459.)
On February 16, 2007, following appellant Halversons successful appeal to this court, respondents filed a motion for summary judgment.
On April 20, 2007, appellant filed his opposition and a written request to lodge the entire transcript of the deposition of attorney Blois taken on Monday March 26, 2007, even though excerpts already had been filed in support of appellants statement of undisputed facts.
On May 3, 2007, the day before the scheduled hearing on respondents summary judgment motion, appellant filed a supplemental memorandum, which relied upon a new declaration attached thereto and upon the transcripts of respondents Vallones and Diass depositions taken on Thursday April 12, 2007. He also filed a written request to lodge those deposition transcripts with the trial court.
At the outset of the hearing on May 4, 2007, respondents counsel objected to the supplemental opposition. After determining that appellant had neither attempted to work out the problem with respondents nor brought an ex parte request to the court, the court refused to lodge the deposition transcripts or to consider the supplemental memorandum based upon their untimeliness. Following the hearing, the trial court granted summary judgment in favor of respondents. The court did not explicitly rule on evidentiary objections. (See Code Civ. Proc., § 437c, subd. (c).)
C. Untimely Supplemental Memorandum and Evidence
Appellant asserts that the trial court improperly failed to consider his supplemental opposition. The record establishes that the trial court clearly acted within its discretion.
Code of Civil Procedure section 437c, subdivision (b)(2), provides: "Any opposition to the motion shall be served and filed not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise. The opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken." (Italics added.) Accordingly, all opposition papers should have been filed 14 days prior to the May 4, 2007 hearing date.
The party opposing a motion for summary judgment may under certain circumstances seek a continuance to allow for further discovery. "If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due." (Code Civ. Proc., § 427c, subd. (h), italics added.) "Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h). [Citations.]" (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.)
Appellant failed to request a continuance or seek permission from the court to file late opposition papers based upon a showing of good cause. When respondents objected at the hearing to the belated opposition that had been filed the day before, the trial court acted within its discretion in deciding that it should be disregarded. The evidence was properly limited to the timely filed papers. (§ 437c, subd. (c); see Cooksey v. Alexakis, supra, 123 Cal.App.4th at p. 259.)
D. Evidence and Undisputed Facts
On May 21, 1990, Negri established the Bernice I. Negri Revocable Trust ("1990 Trust"), which named Negri as the Settlor and original trustee and named her son Ronald as successor trustee. It identified no other contingent or successor trustee or co-trustee. The 1990 Trust required the trustee, at Negris death, to distribute and allocate the remainder of the trust estate to the beneficiary, specified as Negris son Ronald if he survived her or to Jane Marie Halverson if Ronald did not survive Negri. The 1990 Trust did not name respondents or appellant as beneficiaries of the trust.
Jane Halverson, apparently another aunt of appellant, passed away several years after execution of the 1990 Trust. Negris son Ronald died on about October 19, 2004, a few days before Negri executed her 2004 Trust and 2004 Will.
Appellants petition stated that he was "the nephew of Jane Marie Halverson" and his declaration refers to "Aunt Jane."
In his deposition, Attorney Blois explained that, on October 21, he received a call from a stockbroker who told him that he had a client, an elderly woman in a care facility, who needed a trust and a change in a will because her sole beneficiary had just died and indicated that, if Attorney Blois could help, the stockbroker would provide Bloiss number. The stockbroker also gave Blois respondents names. Later the same day, Vallone telephoned Blois and explained the situation. At his deposition, Blois could not recall whether respondent Dias was with Vallone or whether they all spoke by conference call. His declaration stated that he spoke by telephone with respondents, who told him that Negri wanted to revise her trust to add respondents as beneficiaries and co-trustees because Negris son had died.
According to his deposition testimony, Blois understood from Vallone there was an emergency because Negri was "very hard of hearing and almost legally blind" and, consequently, could not take care of herself because she could not read, sign checks, or pay bills without help. Negris son had been helping her but he had just died and Negri "needed to revise her estate plan" and "she needed somebody to take over and help her with her finances as soon as possible . . . ." Attorney Blois assumed that a telephone consultation with Negri would be very difficult based upon the information he received from Vallone. Respondents explained that, since Negris son had died, Negri wanted to change her trust to add them as beneficiaries and co-trustees. Blois received copies of Negris existing documents and Vallone gave him all the information he needed to draft the new will and trust.
In accordance with respondents instructions, attorney Blois prepared new trust and will documents, which were ready for Negri to sign the following day. The will was a pour-over will that identified the trust as beneficiary. According to his declaration, Blois had no prior relationship with respondents and his only client was Negri.
Attorney Blois stated in his declaration that, on October 22, 2004, he consulted with Negri in person for over an hour. Bloiss deposition testimony clarified that Negri was sitting in a chair in her bedroom in the Diamond Care facility and Vallone, Ludd, and Ada Morando were also present during that meeting. Blois, who was also a licensed psychologist even though he had been practicing law for 27 years, stated in his declaration that, "[a]lthough severely sight impaired and hard of hearing, Ms. Negri appeared physically healthy and competent." He spoke with her regarding the changes she wanted to be made to her trust. He "confirmed that her only son had passed away, and that Ms. Negri wanted the Amendment naming Ms. Vallone and Mr. Dias as co-trustees and beneficiaries of the trust."
Attorney Blois "counseled Ms. Negri about the nature and consequences of the transfer that would be caused by the Amendment, and attempted to determine if the intended consequence was the result of fraud, menace, duress, or undue influence." In his opinion, she was "competent to make decisions regarding her estate, understood the nature and consequences of the Amendment, and was not under any undue influence." At his deposition, Blois elaborated that he based his conclusion of competency on the time he spent with her and her responses. He believed she was "not a likely candidate for undue influence because she was quite strong-willed and opinionated and feisty" during the meeting and she "was not afraid to tell [respondents Dias and Vallone], no, that she disagreed with them." Blois acknowledged that he never reviewed Negris medical records or spoke with any of her physicians. Blois witnessed Negri execute the trust amendment and will and a durable power of attorney for health care and a power of attorney for asset management. He saw that she had a hard time writing her signature on the line and doubted that she could have read much text.
Both Dias and Vallone stated in their declarations that they often visited Negri at the Diamond Care Home nursing facility and, in about October 2004, Negri told both of them that she wanted them to be beneficiaries and trustees under her trust. According to their declarations, respondents did not pressure Negri to name them as trustees or beneficiaries.
Respondent Dias was more than 83 years old at the time respondents filed their summary judgment motion in February 2007. Dias first met Negri around 1985 at the Escuela Senior Center, where Negri ran dances. Dias and Negri became very good friends and dance partners. He often drove Negri to the dances when she needed transportation and visited her in the hospital whenever she was sick. When asked, he drove Negri around and did a few errands for her. Dias had gone to birthday dinners with Negri and their mutual group of friends.
Respondent Vallone was more than 80 years old at the time respondents filed their summary judgment motion in February 2007. Vallone first met Negri around 1995 at the Escuela Senior Center. Vallone, Dias, and Negri used to go to dances at the center together every week and they went to birthday parties held for their friends. Vallone had frequently lunched with Negri at Lyons and sometimes they had gone to church together.
Respondents both knew Negri when she was still living in her home on Church Street and continued to be friends with Negri through her move into the Diamond Care Home nursing facility. Diass and Vallones declarations indicated that, after living in a house on Church Street in Mountain View, Negri eventually moved to the Remington Assisted Living Facility in Sunnyvale. Thereafter, Negri moved in with her hairdresser "Laurie." When that living situation ended, Negri moved in with her son Ronald for about a month and, after that, she moved to an apartment in San Jose. Respondents both stated that Negri finally moved to the Diamond Care Home nursing facility, where her only caregivers were the employees of the nursing home.
The declaration of an attorney for respondents identifies a January 8, 2004 Santa Clara police report as a document retrieved by appellants subpoena. The report indicated an incident of elder abuse of Negri was reported against Lourdes OGrady, Negris long-time hairdresser, who went by the name "Lori" and with whom Negri then resided. The report indicates that the officer spoke with Negri, Negris son Ronald, Negris caregiver Valencia, OGrady, OGradys boyfriend Ron Maus, and Dias and Vallone, who had reportedly visited Negri on New Years Day in 2004 and contacted Ronald. According to the report, Negri appeared lucid and "occasionally [did] not answer a question, apparently for reasons other than a mental deficit." The report was offered as evidence in support of respondents proposed undisputed facts regarding appellants tardy discovery and Negris described physical and mental state. Appellant objected to the evidence on grounds of relevance and hearsay. Respondent Diass declaration indicates Negri moved out of the hairdressers home due to abuse. While these events might be relevant to witness credibility, at this stage "[w]e do not engage in a credibility determination or a weighing of the evidence; instead, all doubts or evidentiary conflicts are to be resolved against the moving party. [Citation.])" (McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1119.)
It was undisputed that Negris close friend Ada Morando witnessed the execution of the 2004 Trust. Ada Morando stated in her declaration that she was 89 years old and she had first met Negri about 10 to 15 years earlier at an Escuela dance. Respondents told her that Negri was going to need a witness and asked her to be a witness. She stated that she never saw respondents pressuring Negri to amend her trust. Morando observed Attorney Blois explain the amendment to Negri. It appeared to Morando that Negri already knew and understood what was going to take place. She saw Attorney Blois ask Negri to sign the document and saw Negri sign it. Morando did not receive any monetary or pecuniary benefit or compensation under the 2004 Trust.
It was undisputed that appellant Halverson had a long and close relationship with Negri and he had visited her on a number of occasions even though he had lived in Minnesota and she had lived in California. While she was in good health, Negri had visited in him in Minnesota. After appellant became ill with a liver ailment in the early 1990s and became unable to travel, he maintained at least monthly telephone contact with Negri. After appellant was unable to reach Negri in fall 2004, he was told by Ronald Negri that Ronald had cancelled Negris phone service because her poor eyesight prevented her from dialing correctly. At some point thereafter appellant spoke with Negri and Negri asked if she could come live with appellant if anything happened to Ronald, to which appellant responded "yes."
Lourdes OGrady stated in her declaration that she had known Negri for over 25 years and Negri had lived with her for an unspecified number of years. OGrady described Negri as suffering from dementia and eye problems, unable to care for herself, and often not making sense when OGrady tried to talk to her. OGrady stated that Negri "floated in and out of reality" and "went in and out of various stages of irrationality, madness and uncooperativeness." She stated that Negri had told her "on several occasions that after her expenses were paid she wanted all of her remaining assets to go to her nephew and niece in Minnesota."
Ronald Maus stated in his declaration that he had known Negri for five years. During the period Negri lived with OGrady, Maus spent the night at OGradys house four nights a week on average, which gave him an opportunity to observe Negri. According to Maus, Negris visual impairment was "so severe that . . . she could not distinguish between toilet paper and a bath towel." He believed Negri "suffered from dementia as she displayed the same behavior as [his] mother displayed when she suffered from dementia." According to Maus, Negri "often carr[ied] on conversations with persons that had been dead for many years" and "she rambled and made no sense most of the time." He stated that Negri "was not responsive to questions and appeared to be out of it most of the time."
Dr. James E. Spar stated in his declaration that he was a Board Certified psychiatrist certified in psychiatry and geriatric psychiatry, a professor of Clinical Psychology at UCLAs medical school, and a senior research investigator at the Semel Institute for Neuroscience and Human Behavior at UCLA. He had been the Director of the Division of Geriatric Psychiatry in the Department of Psychiatry and Biobehavioral Sciences at UCLA between 1998 and 2004. He had been very frequently called upon to evaluate mental competency for a variety of legal purposes, including execution of wills, trusts, gifts and contracts. Dr. Spar had "published scholarly articles and chapters on competency and susceptibility to undue influence," had lectured "various medical and legal audiences on these topics," and had been "a major contributor in the drafting of several California statutes . . . related to competency determination," including sections 810 to 813, section 6100.5, and Civil Code section 39, subdivision (b).
Civil Code section 39 provides: "(a) A conveyance or other contract of a person of unsound mind, but not entirely without understanding, made before the incapacity of the person has been judicially determined, is subject to rescission, as provided in Chapter 2 (commencing with Section 1688) of Title 5 of Part 2 of Division 3 [rescission of contracts]. [¶] (b) A rebuttable presumption affecting the burden of proof that a person is of unsound mind shall exist for purposes of this section if the person is substantially unable to manage his or her own financial resources or resist fraud or undue influence. Substantial inability may not be proved solely by isolated incidents of negligence or improvidence."
Dr. Spar had "reviewed selected copies of the medical records of Bernice I. Negri from Kaiser Permanente Hospital, covering the period from August 28, 2000, through November 6, 2004." He had also considered the declarations of OGrady and Maus and found they supported diagnoses of dementia. He concluded that the medical notations, which included repeated mention of confusion, dementia and visual impairment, "raise[d] the possibility, but [did] not prove, that she was cognitively impaired enough to lack testamentary capacity, and clearly demonstrate[d] that, by October, 2004, Ms. Negri was extremely vulnerable to manipulation, persuasion, and exploitation by those around her, particularly those upon whom she was dependent for assistance with basic activities of daily living." Dr. Spar stated that "[t]he testamentary decision that she executed on October 22, 2004, must be regarded with appropriate concern for the possibility of undue influence."
Negri died on November 15, 2004.
E. Procedural Compliance
On appeal, appellant seeks to raise procedural defects in amending the 1990 Trust that were not pleaded based upon evidence that was not timely filed. Summary judgment cannot be denied on such basis. We address only the grounds pleaded. Appellants petition alleged that "there was no delivery of the [new] instrument to the trustee," the "Complete Amendment was not accepted by the Trustee," and "the trustor as trustee did not execute the amendment whatsoever but signed it only as trustor."
A trustee may be removed in accordance with the trust instrument. (See § 15642.) As shown by the petition and attached copy of the 1990 Trust, a provision of that trust made the powers of revocation and amendment personal to the settlor, permitted amendment by "written instrument delivered to the trustee," prohibited amendment substantially increasing the trustees duties or liabilities, and provided that the trustee "need not abide by the terms of the amendment until it is accepted." The petition did not identify any other provision imposing further requirements to effectively amend the 1990 Trust.
Putting aside the issue of legal capacity discussed below, there is no triable issue of material fact as to Negris receipt and acceptance of the amendment since it was undisputed that she was both the settlor and the original trustee under the 1990 Trust, the successor trustee Ronald Negri was no longer alive, and Negri personally executed the 2004 documents. The only reasonable inference based upon the evidence submitted would be that the documents were delivered to her and she impliedly accepted the amendment and her removal as trustee. The 2004 Trust, which was attached to and incorporated into the petition by reference, contains the respondents signatures as the new "co-trustees."
F. Legal Capacity
The "Due Process in Competence Determinations Act" (§ 810 et seq.; see Stats.1995, ch. 842, § 12, p. 6413) establishes "a rebuttable presumption affecting the burden of proof that all persons have the capacity to make decisions and to be responsible for their acts or decisions." (§ 810, subd. (a).) It makes clear that "[a] person who has a mental or physical disorder may still be capable of . . . executing wills or trusts, and performing other actions." (§ 810, subd. (b).) A person cannot be deemed to lack the legal capacity to perform a specific act unless there is "evidence of a deficit in one or more of the persons mental functions." (§ 810, subd. (c).)
The act does not apply to proceedings under the under the Welfare and Institutions Code. (Stats.1995, ch. 842, § 13, p. 6413.)
Under the act, the mere diagnosis of a mental or physical disorder is not "sufficient in and of itself to support a determination that a person . . . lacks the capacity to do a certain act." (§ 811, subd. (d); 810, subd. (c).) Thus, a diagnosis of dementia alone is not sufficient to prove lack of capacity to execute a trust or will. Rather, a determination that a person lacks legal capacity to execute wills or trusts must be supported by evidence of a deficit in at least one of the enumerated mental functions and, most importantly, evidence of "a correlation between the deficit or deficits and the decision or acts in question." (§ 811, subd. (a).) A deficit in these mental functions "may be considered only if the deficit, by itself or in combination with one or more other mental function deficits, significantly impairs the persons ability to understand and appreciate the consequences of his or her actions with regard to the type of act or decision in question." (§ 811, subd. (b).) The "frequency, severity, and duration of periods of impairment" may be relevant to a judicial determination of legal capacity. (§ 811, subd. (c).)
Under section 811, areas of mental function deficit include "[a]lertness and attention," "[i]nformation processing," "[t]hought processes," "[a]bility to modulate mood and affect." The section provides examples of circumstances demonstrating each of these deficits.
Section 812 states in pertinent part: "Except where otherwise provided by law, including, but not limited to . . . the statutory and decisional law of testamentary capacity, a person lacks the capacity to make a decision unless the person has the ability to communicate verbally, or by any other means, the decision, and to understand and appreciate, to the extent relevant, all of the following: [¶] (a) The rights, duties, and responsibilities created by, or affected by the decision. [¶] (b) The probable consequences for the decisionmaker and, where appropriate, the persons affected by the decision. [¶] (c) The significant risks, benefits, and reasonable alternatives involved in the decision."
Section 6100.5, subdivision (a), provides: "An individual is not mentally competent to make a will if at the time of making the will either of the following is true: [¶] (1) The individual does not have sufficient mental capacity to be able to (A) understand the nature of the testamentary act, (B) understand and recollect the nature and situation of the individuals property, or (C) remember and understand the individuals relations to living descendants, spouse, and parents, and those whose interests are affected by the will. [¶] (2) The individual suffers from a mental disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individuals devising property in a way which, except for the existence of the delusions or hallucinations, the individual would not have done." While evidence of advanced senility resulting in a lack of the requisite understanding may establish legal incapacity (see Estate of Callahan (1967) 67 Cal.2d 609, 615), a person can suffer dementia and still be mentally competent to execute a will. (See Estate of Mann (1986) 184 Cal.App.3d 593, 605-606.)
The rebuttable presumption that Negri had legal capacity to execute a will and trust (§ 810, subd. (a)), buttressed by Attorney Bloiss declaration regarding his observations of Negri on October 22, 2004 when she executed the documents, shifted the burden of production to appellant to show a triable issue of fact on this issue. Appellant asserts that the declarations of Lourdes OGrady, Ronald Maus, and Dr. Spar created a triable issue of fact regarding Negris competence and legal capacity to execute the 2004 Trust and Will.
In this case, the declarations of OGrady and Maus indicated that Negri suffered from some degree of cognitive impairment at the time she lived with OGrady but they also implied that she was rational and lucid at least at times. There was no evidence regarding the progression of any dementia suffered by Negri or the frequency or duration of periods of mental impairment or confusion. There was no evidence that either OGrady or Maus was personally knowledgeable about Negris mental condition at or around the time she executed the new documents in October 2004. Appellant did not offer any evidence from the nursing home staff, who presumably observed Negri on a regular basis around that time. Dr. Spar opined that Negris medical records "raise[d] the possibility, but [did] not prove, that she was cognitively impaired enough to lack testamentary capacity."
"The relevant time in determining such capacity is the time of execution of the will. (In re Estate of Lingenfelter (1952) 38 Cal.2d 571, 580 . . . .)" (Estate of Fritschi (1963) 60 Cal.2d 367, 372.) While "[t]estamentary incompetency on a given day . . . may be proved by evidence of incompetency at times prior to and after the day in question" (Estate of Fosselman (1957) 48 Cal.2d 179, 185-186), "[w]hen one has a mental disorder in which there are lucid periods, it is presumed that his will has been made during a time of lucidity. (Estate of Lingenfelter, supra, 38 Cal.2d 571; Estate of Darilek, 151 Cal.App.2d 322, 327 . . . .)" (Estate of Goetz (1967) 253 Cal.App.2d 107, 114; see Estate of Mann, supra, 184 Cal.App.3d 593, 604 [same]; see also Estate of Darilek (1957) 151 Cal.App.2d 322, 327 [contestant must prove that the will was not made at a lucid interval]; see id. at p. 326 ["Proof of extreme feebleness, sickness, old age, etc., does not prove mental incapacity"]; Estate of Powers (1947) 81 Cal.App.2d 480, 482-483 [hospital records showing intermittent periods of mental confusion and irrationality did not establish testamentary incapacity on date will executed].)
In Estate of Fosselman, supra, 48 Cal.2d at page 186, the court observed: "Once it is shown that testamentary incompetency exists and that it is caused by a mental disorder of a general and continuous nature, the inference is reasonable [citations], perhaps there is even a legal presumption (Code Civ. Proc., § 1963, subd. 32; [citations]) that the incompetency continues to exist. Such an inference is particularly strong in a case . . . in which the decedent was suffering from senile dementia, a mental disorder that becomes progressively worse. [Citations.]" The presumption under former Code of Civil Procedure section 1963 to which the court referred has been reclassified as a maxim of jurisprudence under the Civil Code (see Civ. Code, § 3547 ["A thing continues to exist as long as is usual with things of that nature"]).
Appellants evidence was insufficient to show a triable issue regarding Negris legal capacity and mental competence to execute the new instruments on October 22, 2004. (See Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850; cf. Estate of Nelson (1964) 227 Cal.App.2d 42, 53, 55-56 [no triable issue of fact with respect to testamentary capacity of decedent even though committed to a state mental hospital as incompetent as a danger to himself and others and a guardian had been appointed to manage his affairs].)
Section 21350 invalidates "instruments," a statutory term that includes trusts and wills (§ 45), providing for donative transfers to seven categories of prohibited transferees. "Once it is determined that a person is prohibited under section 21350 from receiving a transfer, `section 21351 creates a rebuttable presumption that the transfer was the product of fraud, duress, menace, or undue influence. A person who is prohibited from receiving a transfer under section 21350 may still inherit, if [he or she] successfully rebuts the section 21351 presumption (§ 21351, subd. (d)). In order to rebut the presumption, the transferee must present clear and convincing evidence, which does not include his or her own testimony, that the transfer was not the product of fraud, duress, menace, or undue influence. (§ 21351, subd. (d).) [Citation.]" (Bernard v. Foley (2006) 39 Cal.4th 794, 800.) Section 21350 et seq. supplements the nonstautory law of undue influence; it does not supersede it. (See Rice v. Clark (2002) 28 Cal.4th 89, 97.)
In addition, "[s]ection 21350 does not apply if . . . [¶] (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 [prescribed] form, with a copy delivered to the drafter . . . ." (§ 21351, subd. (b).) Nothing in the evidence submitted indicates that such a certificate was executed.
As pertinent to this case, section 21350 provides that, except as provided in section 21351, no provision of any instrument is valid to make any donative transfer to "[a] care custodian of a dependent adult who is the transferor" (§ 21350, subd. (a)(6)) or to "[a]ny person who has a fiduciary relationship with the transferor, including, but not limited to, a conservator or trustee, who transcribes the instrument or causes it to be transcribed" (§ 21350, subd. (a)(4)). On appeal, appellant asserts that there was a triable issue whether respondents were prohibited transferees in that there was evidence that respondents were Negris "care custodians" or, as fiduciaries, caused the 2004 Trust and Will to be transcribed. We find no triable issues precluding summary judgment.
At the hearing on the summary judgment motion, appellants counsel argued that Blois was respondents attorney and Blois and respondents were, as the drafters of the 2004 Trust, prohibited transferees. The 1995 amendment of section 21350 "eliminated any reference to a person who `caused [the instrument] to be drafted. " (Rice v. Clark, supra, 28 Cal.4th 89, 98; see Stats. 1995, ch. 730, § 12, p. 5481; Stats. 1993, ch. 293, § 8, p. 2021.) Since respondents did not draft the instruments and attorney Blois was not a beneficiary, section 21350, subdivision (a)(1), is inapplicable. (See § 21350, subd. (a)(1) ["Except as provided in Section 21351, no provision, or provisions, of any instrument shall be valid to make any donative transfer to any of the following: [¶] (1) The person who drafted the instrument"].)
First, opposition to summary judgment is limited to the issues presented by the pleadings, which did not include whether respondents were prohibited transferees under section 21350. (See AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064 [court must identify issues framed by the pleadings since summary judgment motion responds to the pleadings allegations]; see also FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381 [pleadings are "the outer measure of materiality in a summary judgment proceeding"].) "[S]ummary judgment cannot be denied on a ground not raised by the pleadings. [Citations.]" (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663.) "A defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers. [Citation.]" (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98, fn. 4; see Robinson v. Hewlett-Packard Corp. (1986) 183 Cal.App.3d 1108, 1132 ["documentary evidence filed in opposition to a defendants motion for summary judgment may not create issues outside the pleadings, nor is it a substitute for an amendment to the pleadings"].)
Additionally, appellant first raised section 21350 in his belated supplemental memorandum of points and authorities in opposition to summary judgment, which, as discussed above, the trial court properly refused to consider.
Second, even if appellant had properly alleged the trusts invalidity pursuant to section 21350, subdivision (a)(4) or (a)(6), he failed to present evidence showing a triable issue existed. For purposes of section 21350, the term "care custodian" has a limited statutory meaning, which includes a "person providing health services or social services to elders or dependent adults." (Welf. & Inst. Code, § 15610.17, subd. (y).) Negri was residing in the Diamond Care Home nursing facility at the time she executed the 2004 Trust and Will and, according to respondents declarations, her only caregivers were the employees of the nursing home. Respondents evidence merely showed that, during their relationship with Negri, respondents had visited Negri socially and Dias had occasionally helped Negri with driving and errands. Respondents limited interaction with Attorney Blois while Negri was residing in the nursing home did not transform them into "care custodians." (Cf. Bernard v. Foley, supra, 39 Cal.4th at p. 806 [longtime personal friends who provided nursing-type care to an ill woman at the end of her life while she was residing in their home were care custodians], 809 [no professional or occupational limitation on the definition of "care custodian"]; 813 [no personal friendship exception to definition of "care custodian"]; 813 [legislative history supports broad interpretation]; Estate of Odian (2006) 145 Cal.App.4th 152, 164-167 [paid, live-in caregiver who cooked, cleaned, drove testator to appointments, meetings, and shopping, and took care of an elderly woman and her home was care custodian].) Appellant disputed respondents statements that they had never been Negris caregivers but provided no evidence creating a triable issue whether respondents were "care custodians."
"The term `care custodian has the meaning as set forth in Section 15610.17 of the Welfare and Institutions Code" (§ 21350, subd. (c)), which defines "care custodian" to mean "an administrator or an employee of [specified] public or private facilities or agencies, or persons providing care or services for elders or dependent adults, including members of the support staff and maintenance staff . . . ." The statute lists covered facilities and agencies and broadly includes "[a]ny other protective, public, sectarian, mental health, or private assistance or advocacy agency or person providing health services or social services to elders or dependent adults." (Welf. & Inst. Code, § 15610.17, subd. (y), italics added.)
In addition, there was no evidence that respondents caused the transcription of the 2004 documents. In the context of section 21350, subdivision (a)(4), "transcribe" means to make a copy of something. (Rice v. Clark, supra, 28 Cal.4th at p. 101.) "[L]ower courts construed `cause to be transcribed as limited to direct involvement in the instruments transcription, as by ordering another person to transcribe a document." (Ibid.) After reviewing the purpose and history of section 21350, the Supreme Court refused to expand the definition of "caused it be to be transcribed" to include conduct that was "a substantial factor in the creation or execution of the donative instruments" (id. at pp. 102-105), and concluded that subdivision (a)(4) of section 21350 applied to a "restricted class of persons directly involved in the donative instruments physical preparation" (id. at p. 103) since "those who directly participate in the instruments physical preparation, whether by drafting or transcribing it, are particularly well situated to insert gifts to themselves, their families or business associates, and to secure the instruments execution" (ibid.). This class of persons does not encompass a fiduciary "who provides information needed in the instruments preparation and who encourages the donor to execute it, but who does not direct or otherwise participate in the instruments transcription to final written form." (Id. at p. 92.)
H. Undue Influence
Appellants petition alleged that respondents unduly influenced Negri and sought to invalidate the 2004 Trust. Although appellant now complains that the trial court failed to decide whether Blois was respondents "de facto attorney" and asserts that Attorney Blois had a potential conflict of interest that established "the potential for undue influence," his petition did not allege that Attorney Blois unduly influenced Negri. That issue was beyond the scope of the pleadings and the motion.
"Undue influence is pressure brought to bear directly on the testamentary act, sufficient to overcome the testators free will, amounting in effect to coercion destroying the testators free agency. [Citations.]" (Rice v. Clark, supra, 28 Cal.4th at p. 96, fn. omitted.) Principles of undue influence are "manifestly as applicable to an estate plan formalized by simultaneously executed inter vivos trust and pour-over will as to a will alone." (Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 182, cited by Rice v. Clark, supra, 28 Cal.4th at p. 96.)
Section 6104 provides in pertinent part: "The execution or revocation of a will or a part of a will is ineffective to the extent the execution or revocation was procured by . . . undue influence."
Under case law, " `a presumption of undue influence, shifting the burden of proof, arises upon the challengers 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 instruments preparation or execution; and (3) the person would benefit unduly by the testamentary instrument. [Citations.]" (Rice v. Clark, supra, 28 Cal.4th at p. 97; see Evid. Code, § 600, subd. (a) [defining "presumption"].) "The effect of a presumption affecting the burden of proof is to impose upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact." (Evid. Code, § 606.) "This burden requires that the proponent produce proof by a preponderance of the evidence that the will was not induced by his undue influence. [Citations.]" (Estate of Gelonese (1974) 36 Cal.App.3d 854, 863; see Evid. Code, § 115.)
Even where all three basic facts necessary for the presumption cannot be established (see Estate of Sarabia (1990) 221 Cal.App.3d 599, 605 [all three facts must be shown]; Estate of Gelonese, supra, 36 Cal.App.3d at pp. 861-862 [same]), undue influence may still be proved by a preponderance of the evidence, usually circumstantial. (See Estate of Del Fosse (1945) 67 Cal.App.2d 490, 498; Estate of Jacobs (1938) 24 Cal.App.2d 649, 652; Estate of Leahy (1936) 5 Cal.2d 301, 304-305; Evid. Code, § 115.) "[E]vidence of mere opportunity to exercise undue influence is not sufficient . . . there must be a preponderance of evidence to the point that said influence was actually exercised, and that it influenced the mind of the testatrix at the time of the making of the will, and induced her to make a disposition of her property other than she would have made had it not been for such undue influence." (Estate of Black (1901) 132 Cal. 392, 395; see Estate of Arnold (1940) 16 Cal.2d 573, 577.)
Respondents could have satisfied their initial burden on motion for summary judgment either (1) by producing evidence that would require a reasonable trier of fact not to find more likely than not at least one of the requisite basic facts for operation of the presumption of undue influence and evidence that would require a reasonable trier of fact not to find more likely than not that respondents had unduly influenced Negri or (2) by presenting evidence that would require a reasonable trier of fact to find more likely than not that a presumption of undue influence had been overcome by a showing of the nonexistence of the presumed fact of undue influence. (See Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 845.)
We first review the evidence to determine whether, as an initial matter, respondents presented sufficient evidence to require a reasonable trier of fact not to find, more likely than not, at least one of the requisite basic facts necessary to trigger the presumption of undue influence or, stated another way, sufficient evidence to preclude a reasonable trier of fact from finding that, more likely than not, all three facts giving rise to the judicial presumption of undue influence were true. (See Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at p. 1003; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 845, 851.) We begin by examining the requirement of a confidential relationship.
"It is well settled that `[a] confidential relationship exists when one party gains the confidence of the other and purports to act or advise with the others interests in mind; it may exist although there is no fiduciary relationship; it is particularly likely to exist when there is a family relationship or one of friendship. (Kudokas v. Balkus (1972) 26 Cal.App.3d 744, 750 . . .; see also Vai v. Bank of America (1961) 56 Cal.2d 329, 337-338 . . . .) It has been more succinctly said that `[a] confidential relationship exists when trust and confidence are reposed by one person in the integrity and fidelity of another. [Citation.]" (Estate of Sanders (1985) 40 Cal.3d 607, 615.) "Whether a confidential relationship exists is always a question of fact and must depend upon the circumstances of each case. . . . The relation and the duties involved need not be legal. They may be moral, social, domestic or merely personal." (Estate of Bliss (1962) 199 Cal.App.2d 630, 640 [confidential relationship existed between decedent and nurse who took care of "his physical needs and quite frequently acted for him in his business and property matters"].) Here, respondents acknowledge that they were Negris "long-time, close and personal friends" but insist they were never in a confidential relationship with her.
In Estate of Chesney (1951) 102 Cal.App.2d 708, a case cited by appellant, the reviewing court found sufficient evidence to support a finding that a confidential relationship existed between an elderly woman and the wills beneficiaries, a husband and wife who lived across the street. (Id. at pp. 709, 711.) In that case, after the woman was widowed and became unable to care for herself, the wife contributed to her care, she visited the woman with food, she made telephone calls for her, she called an attorney who was a friend of the couple and she dictated the womans first will to the attorney, the couple took charge of the womans affairs, they paid her bills with loan proceeds obtained from property deeded to them by the woman, and womans last will naming the couple as beneficiaries was prepared by the same attorney at the wifes direction. (Id. at pp. 709-710.)
Although the evidence in this case does not show that respondents were as extensively involved in Negris care and affairs as the beneficiaries in Estate of Chesney, a reasonable trier of fact could infer from the evidence that respondents had long standing friendships with Negri and, following the death of her son upon whom she had previously relied to handle all her affairs and finances, Negri was relying upon and trusting them to facilitate changes to her estate plan by communicating with an attorney, obtain a witness for execution of new documents, participate in the meeting to execute those documents, and take over management of her amended trust as co-trustees. The evidence was not sufficient to preclude a reasonable trier of fact from finding that, more likely than not, respondents were in a confidential relationship with Negri at the time the 2004 Trust and 2004 Will were executed.
To establish the second requisite fact of active procurement, it is not enough that a beneficiary selects the attorney for a testator, obtains the witness to a will, or arranges for or is present at execution of a will. (See Estate of Fritschi, supra, 60 Cal.2d 367, 376; Estate of Lingenfelter, supra, 38 Cal.2d 571, 586; Estate of Anderson (1921) 185 Cal. 700, 717; Estate of Bould (1955) 135 Cal.App.2d 260, 275-276.) At the other extreme, active participation in the execution of the will has been found where the beneficiary "drew the will, prepared it in his own handwriting, and presented it to the decedent and the subscribing witnesses for execution." (Estate of Lances (1932) 216 Cal. 397, 403; see Estate of Garibaldi (1961) 57 Cal.2d 108, 113 [evidence that decedents son "was present when the will was executed, that he gave decedent pen, ink and paper, that she wrote the will and immediately gave it to him, that he took it to his attorney, whom she did not know, and that contestants had no knowledge of its existence for several months after her death" sufficient].)
In this case, although there was no evidence that respondents were actively involved in the physical drawing of documents, there was evidence that respondents were instrumental in having them prepared swiftly by Attorney Blois in accordance with respondents instructions to Blois to name them as the trusts beneficiaries and co-trustees. Additionally, respondents obtained the witness and were present at and participated in the only discussion of those newly drafted documents with Negri and Blois that took place at the time of execution. Since respondents apparently directed the attorney to prepare instruments providing for a particular disposition benefitting only them and provided the information necessary for drafting, the evidence would not preclude a reasonable trier of fact from finding that, more likely than not, respondents actively procured the 2004 Trust and Will.
As to the third basic fact of "undue profit," appellant claims that the evidence was sufficient because, "but for the amended trust," respondents would have no claim to the estate and they obtained the entire estate to his exclusion even though he was Negris nephew and sole heir. Respondents assert that the Negris disposition was completely natural because her children and sister Jane had predeceased her and she wished to leave her estate to them, her "devoted companions."
While the trial court accurately recognized that appellant was not the natural object of his aunts bounty (see Estate of Evans (1969) 274 Cal.App.2d 203, 212 [collateral heirs such as sisters, brothers and their descendants are not necessarily the natural or normal objects of bounty]; Estate of Mann, supra, 184 Cal.App.3d at p. 606 [a nephew is not necessarily the natural object of an aunts bounty]), undue profit is not determined by whether or not a beneficiary is the natural object of a decedents bounty. Contrariwise, mere omission of an heir who would have been entitled to inherit under the law of intestate succession is not the litmus test for undue profit. (See Estate of Sarabia, supra, 221 Cal.App.3d at p. 608.) Consideration of the law of intestate succession "has the potential for directing too much of the trier of facts attention to the presence or absence of `unnatural provisions in the will. . . . The test thus threatens to impinge on the testators right and freedom to devise property to persons or entities with whom the testator has no genetic or legal relationship." (Ibid.)
While older cases have language suggesting that undue profit may be found where someone outside the family receives the entire estate to the prejudice of omitted heirs (see e.g. Estate of Bucher (1941) 48 Cal.App.2d 465, 473-474 [testatrixs personal physician for less than two years received entire estate to exclusion of sole heir]; Estate of Lances, supra, 216 Cal. 397, 403 [testators attorney received the whole estate to the prejudice of heirs]; Estate of Graves (1927) 202 Cal. 258, 259, 262 [testatrixs will "bequeathed practically her entire estate" to real estate agent to exclusion of niece]), courts now recognize that the determination whether a beneficiary has unduly profited is a qualitative, not a quantitative, assessment. (Estate of Sarabia, supra, 221 Cal.App.3d at pp. 605-609.) "Whether between relatives, or between friends and relatives, 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, or is in comparatively greater need of financial assistance. (Estate of Jacobs, supra, 24 Cal.App.2d 649, 652 [will to friends rather than nephew]; Estate of Wright (1963) 219 Cal.App.2d 164 . . . [friend rather than nephew]; Estate of Locknane (1962) 208 Cal.App.2d 505, 515 . . . [most left to the one of several children who had cared for testator and had no other source of income].)" (Estate of Mann, supra, 184 Cal.App.3d at p. 607.) In resolving the issue of undue profit, "on the one hand, an unnatural disposition may be indicated by preference for strangers over relatives, exclusion of close relatives, or divergence from previously stated dispositive intentions (e.g., Estate of Clegg (1978) 87 Cal.App.3d 594, 603 . . .; Estate of Gelonese, supra, 36 Cal.App.3d 854, 866 . . . ), but on the other hand, a seemingly unnatural disposition may be explained by the actual relationship of the testator to the beneficiaries and excluded parties. (Estate of Jacobs, supra, 24 Cal.App.2d 649, 652 . . .; Estate of Wright, supra, 219 Cal.App.2d 164 . . .; Estate of Locknane, supra, 208 Cal.App.2d 505, 515 . . . .)" (Estate of Mann, supra, 184 Cal.App.3d at p. 613, fn. 11.)
"The trier of fact derives from the evidence introduced an appreciation of the respective relative standings of the beneficiary and the contestant to the decedent in order that the trier of fact can determine which party would be the more obvious object of the decedents testamentary disposition. (See Estate of Mann (1986) 184 Cal.App.3d 593, 612-613, & fns. 10-11 . . . .) That evidence may include dispositional provisions in previous wills executed by the decedent (see Estate of Lingenfelter, supra, at p. 584), or past expressions of the decedents testamentary intentions. (See Estate of Garibaldi, supra, 57 Cal.2d 108 at p. 113 . . . .) It may also encompass a showing of the extent to which the proponent would benefit in the absence of the challenged will. (See Estate of Pellegrini (1955) 138 Cal.App.2d 143, 146 . . . .)" (Estate of Sarabia, supra, 221 Cal.App.3d at pp. 607-608.)
In this case, respondents evidence indicated that they had a long standing, caring friendship with Negri. There was no evidence that respondents or appellant had been named as beneficiaries of any trust or will previously executed by Negri. But it was also undisputed that appellant was Negris nephew and he had a long and close relationship with her. Appellants evidence indicated that he had telephoned and occasionally visited Negri before he became too ill to travel in the 90s and thereafter he had maintained monthly telephone contact, apparently until her service was discontinued. According to OGradys declaration, Negri had told her on several occasions that she wanted any assets left after payment of expenses to go to her nephew and niece in Minnesota. Appellant met his burden of showing a triable issue of material fact remained regarding whether respondents unduly profited from the 2004 instruments.
Lastly, respondents do not argue that they submitted evidence sufficient to require a reasonable trier of fact to find, more likely than not, that any presumed fact of undue influence had been overcome. Respondents own statements that Negri approached them to be beneficiaries and co-trustees of her revised trust following the death of her son and the statements by Attorney Blois and Morando indicating that neither saw any signs of undue influence during the short meeting to execute the 2004 instruments were inadequate to satisfy respondents burden of persuasion that they were entitled to judgment as a matter of law.
Summary judgment should not have been granted. Triable issues of material fact exist with regard to the judicially declared presumption of undue influence.
The judgment is reversed.
WE CONCUR:
RUSHING, P. J.
PREMO, J.