Opinion
A120230
4-22-2009
LILI SILVERA et al., Plaintiffs and Appellants, v. LAWRENCE WONG, Individually and as Trustee, etc., Defendant and Respondent.
Not to be Published in Official Reports
Lili Silvera, Lorraine Lee, Wyman Lew, and Catherine Lew (plaintiffs) appeal from the judgment entered against them in their action to rescind Choy Mae Wongs trust. The trial court rejected plaintiffs claims that both the trust, which disinherited them, and various joint tenancy and beneficiary designations were invalid because Mrs. Wong lacked capacity or was unduly influenced. On appeal, plaintiffs advance numerous arguments involving issues of law and substantial evidence. We affirm the trial courts judgment.
Hereafter we refer to Choy Mae Wong as Mrs. Wong. Without intending any disrespect, we refer to the parties and other family members by their first names only.
I. FACTUAL AND PROCEDURAL BACKGROUND
These facts are taken from unchallenged factual findings in the trial courts statement of decision or from other portions of the record about which there is no dispute. Additional facts are found in the discussion of issues to which they relate.
Thomas Wong (Mr. Wong) and Mrs. Wong emigrated to the United States from the Guangdong Province of China. Mr. Wong came to the United States before Mrs. Wong and served in the United States Army during World War II. Mrs. Wong remained in China with the couples first child, Lili. Approximately 10 years later, shortly after the war ended, Mrs. Wong came with Lili to San Francisco to join Mr. Wong.
After being reunited in San Francisco, the Wongs had three more children—Linda, Lorraine, and Lawrence. Mr. Wong worked as a welder in the shipyards, while Mrs. Wong raised their family. Mrs. Wong did not become proficient in English, did not learn to drive, and for most of the couples life together, did not work outside the home. Mr. and Mrs. Wong saved their money, invested wisely, and came to own several apartment buildings in San Francisco.
Linda would outlive Mr. Wong, but predecease Mrs. Wong. Plaintiffs Catherine and Wyman are Lindas children.
In 1986, Mr. and Mrs. Wong made what they termed their Joint Will. In this Joint Will, they provided that when the first of them died, all assets subject to the Joint Will would pass to the surviving spouse. The Joint Will also detailed provisions for the distribution of assets if either (a) Mr. and Mrs. Wong died simultaneously, or (b) the surviving spouse "should not be inclined to execute" another testamentary instrument.
Mr. Wong died on February 9, 1987. Pursuant to the Joint Will, all of his assets passed to Mrs. Wong. Several months later, during the summer of 1987, roughly following the terms of the Joint Will, Mrs. Wong gifted three apartment buildings to her children. Lawrence received an apartment building on Clay Street. Lili, Lorraine, and Linda collectively received two apartment buildings—one on Mason Street and one on Greenwich Street. Mrs. Wong retained a fourth apartment building on Lombard Street (Lombard Street Building), in which she had lived for many years (and in which she continued to live until her death in 2005), as well as approximately $500,000 in bank deposits, certificates of deposit, and other liquid assets.
Mrs. Wong suffered a serious stroke on October 6, 1991. She was hospitalized for approximately two weeks, and then spent two months in rehabilitation at a convalescent hospital. The stroke paralyzed the left side of her body. It confined her to a wheelchair for the rest of her life, impeded her ability to use her left arm, caused some impairment of her vision, and had other adverse physical effects.
The rehabilitation therapy offered by the convalescent hospital did not result in much improvement in Mrs. Wongs condition. The parties agree that Mrs. Wong did not take full advantage of the rehabilitation services. Mrs. Wong often refused to do her exercises and instead sought a "miracle pill" that would make her walk again. In December of 1991, Mrs. Wong returned to her apartment on Lombard Street. Her children arranged for full-time caregivers, 24 hours a day, seven days a week. Mrs. Wong was cared for in this manner for the rest of her life.
Following her stroke, Mrs. Wongs children assisted her in managing her finances on an informal basis—that is, there was no formal structure to their efforts. Lawrence took responsibility for much of the management of Mrs. Wongs finances. During September and October of 1992, a dispute arose between Mrs. Wong and Lawrence over some investments that Mrs. Wong made with Lawrences assistance. Lili discovered that Lawrence had moved Mrs. Wongs investments from certificates of deposit and similar devices, to a variable annuity and two bond funds. Lili informed her mother of this change. Mrs. Wong concluded that these investments were riskier than her previous investment devices and she became extremely angry with Lawrence. As a result of this dispute, Lawrence completely withdrew from the management of his mothers finances.
Lili and Lorraine assumed the role of managing their mothers finances. They hired Stella Lau (Lau) to keep the books for Mrs. Wong. They centralized the handling of Mrs. Wongs passbooks and certificates of deposit, which Mrs. Wong had previously kept in various places throughout her apartment, in a red box in her bedroom. They prepared a list of Mrs. Wongs accounts that was kept in the apartment so that everyone was apprised of the accounts maturity dates. This system of managing Mrs. Wongs finances continued until early 1998.
In 1996, Lawrence, who had been living with his wife and children in Benicia, moved into an apartment at his mothers Lombard Street Building. Lawrence did not resume participation in his mothers finances at this time. However, Lawrence did see Mrs. Wong regularly and assist her with her other activities of daily life.
In 1997, Lili and her husband, Isaac Silvera (Dr. Silvera), came to San Francisco for a six-month period during one of Dr. Silveras sabbaticals from his professorship at Harvard University. They moved into the apartment immediately adjoining Mrs. Wongs apartment. The parties agree that it was during this time that Mrs. Wong started leveling allegations of theft and treachery against Lili.
At the end of February 1998, Lawrence resumed responsibility for his mothers financial matters. A series of events occurred at this time that form the central basis for plaintiffs claims of undue influence. Within a short period of time, the locks to Mrs. Wongs apartment and to Mrs. Wongs mailbox were changed. This effectively denied Lili and Lorraine the unfettered access to Mrs. Wongs apartment and mail they had previously enjoyed. Lau was fired from her role as bookkeeper/accountant for Mrs. Wong, and Lawrence and his wife, Pearl, assumed bookkeeping responsibilities.
All of Mrs. Wongs financial records were moved from her apartment to Lawrences apartment. The joint checking account between Mrs. Wong and Lorraine, which had been used to deposit rent receipts from the Lombard Street Building and to pay Mrs. Wongs expenses (including expenses associated with the Lombard Street Building), was closed and a new joint checking account between Mrs. Wong and Lawrence was opened. One of Mrs. Wongs longtime caregivers was fired. One of Mrs. Wongs doctors was changed. Over the course of the following six to 12 months, virtually all of Mrs. Wongs bank accounts and certificates of deposit were either put into joint tenancy with Lawrence or changed to designate Lawrence as the beneficiary on Mrs. Wongs death. Plaintiffs claim that all of these changes reflect Lawrences efforts to isolate his mother from others close to her (i.e., plaintiffs) for the purpose of unduly influencing her. Lawrence claims that Mrs. Wong herself specifically initiated each of these changes.
Lawrences resumption of an active role in managing Mrs. Wongs finances, coupled with the changes described above, led to an acute exacerbation of the already tense relationship between Lawrence and his sisters. The controversy festered through much of 1998. Lawrence simply refused to communicate with his sisters or respond to their concerned inquiries about their mothers physical and financial well-being. In October of 1998, in response to a letter written by Lorraine, Lawrence and Pearl (with the assistance of their accountant) located an estate planning attorney, Faye Lee (Lee), for Mrs. Wong. Lee, like Mrs. Wong, was fluent in the Toisanese dialect of Cantonese.
On October 16, 1998, Lee met with Mrs. Wong at her Lombard Street apartment. Mrs. Wong described her family situation to Lee, as well as her views of, and relationship with, each of her children. Mrs. Wong was critical of her daughters and particularly critical of Lili. She leveled a host of accusations against Lili, including claims that Lili was "no good," that she took clothes, a set of furniture, and a safe deposit box key, that she hired Lau to take her (Mrs. Wongs) money, that Lilis actions were "like that of a crook," that Lili made her cry, and that Mrs. Wong feared Lili might come with a gun and shoot her. Mrs. Wong also reported that she locked the door when Lili came over.
During that same meeting, Mrs. Wong spoke highly of Lawrence to Lee, stating that he was "a nice boy" who had hired three caretakers to care for her. Mrs. Wong also told Lee how she wished her remaining property to pass on her death. Mrs. Wong indicated that she wanted 50 percent of her property to go to her son, Lawrence, and 50 percent to go to her grandson, "Foo Keen." Mrs. Wong stated that her other children and grandchildren were to receive nothing from her estate.
It is undisputed that "Foo Keen" is Lawrences son, Jeremy Wong (Jeremy).
In short order, Lili and Lorraine retained legal counsel. Lawrence retained his own counsel. Lee, along with her husband and law partner, Peter Bresler, of Bresler & Lee, represented Mrs. Wong. Over the next four and one-half months, the parties dealt with each other primarily through their respective counsel, though Lawrence continued to participate in the management of his mothers affairs, and Lorraine and Lili continued to see their mother when permitted to do so.
Mrs. Wong executed her trust and a pour-over will on February 24, 1999. From the first meeting on October 16, 1998, through the meeting more than four months later at which Mrs. Wong executed her 1999 Trust, Mrs. Wong met with Lee on five different occasions—October 16, 1998, October 30, 1998, December 10, 1998, February 23, 1999, and February 24, 1999. Each of these meetings was held outside the presence of plaintiffs and Lawrence. At each of these meetings, Mrs. Wong expressed generally the same sentiments about her children and expressed the same unwavering testamentary intent—one half of her remaining estate to Lawrence and one half to Jeremy.
The trust and pour-over will, dated February 24, 1999, will hereafter be collectively referred to as "the 1999 Trust."
Mrs. Wongs attorneys met with her again on March 23, 2000, over a year after her estate plan was executed, to review Mrs. Wongs estate plan. At that time, Mrs. Wong affirmed the content of the plan and the reasons for her choices.
One week after executing the 1999 Trust, Mrs. Wong submitted to a competency evaluation arranged by her attorneys. Dr. Yim Chan, a psychiatrist who speaks Cantonese and is able to communicate with people who speak the Toisanese dialect, examined Mrs. Wong. Dr. Chans evaluation took about 50 minutes and was conducted in private with Mrs. Wong. Dr. Chan issued a report in which he concluded: "Mrs. Choy Mae Wong is unequivocally competent in making decisions about her healthcare, financial situation and estate planning."
Following Mrs. Wongs execution of her trust on February 24, 1999, Lawrence and Pearl continued to care for Mrs. Wong for the remaining six years of her life. Lawrence and Pearl supervised the caregivers and helped Mrs. Wong manage her finances. They took her to banks and medical appointments. They took her on occasional day trips in a wheelchair-equipped van. They arranged for and accompanied Mrs. Wong on a cruise to Alaska so Mrs. Wong could visit with her extended family members in Vancouver. They drove Mrs. Wong to Disneyland. They arranged for her to fly on an airplane for the first time in 2002, at the age of 83, and accompanied her to Las Vegas and then again to Disneyland.
Mrs. Wong died on May 12, 2005. At her death, Mrs. Wong owned the Lombard Street Building and approximately $ 313,000 in cash and other liquid assets. About five months later, plaintiffs filed a trust contest. Plaintiffs sought a determination that the 1999 Trust was invalid because Mrs. Wong lacked capacity or because Mrs. Wong was unduly influenced by Lawrence. Plaintiffs also claimed entitlement to certain accounts for which Mrs. Wong had designated Lawrence as a joint tenant or a pay-on-death beneficiary. Finally, plaintiffs also sought to invalidate certain gifts made by Mrs. Wong to Lawrence and his children.
The case was tried to the court. Plaintiffs expert, Abraham Nievod, Ph.D. (Dr. Nievod), testified at trial that, in his opinion, Mrs. Wong "did not have the capacity and the competence to execute a will or trust" and that she "was more likely than not subjected to undue influence prior to executing her will and trust in February of 1999." Dr. Nievod did not examine Mrs. Wong, but based his opinions on a review of her medical records, the notes taken by her attorneys, and deposition testimony. Lawrences expert, Jonathan Mueller, M.D. (Dr. Mueller), testified that, in his opinion, Mrs. Wong did not lack testamentary capacity and was particularly unsusceptible to undue influence in February of 1999. Similarly, Dr. Mueller did not examine Mrs. Wong, but based his opinions on a review of her medical records, the notes taken by her attorneys, and deposition testimony.
On October 11, 2007, the trial court entered judgment in Lawrences favor and issued its statement of decision. The trial court found "that [Mrs.] Wong was mentally competent to make her February 24, 1999 trust—that she neither lacked mental capacity nor suffered from delusions." The trial court further found "that Mrs. Wong was not unduly influenced to make her trust—that the February 24, 1999 trust reflected the free exercise of [Mrs.] Wongs testamentary intent." With respect to plaintiffs claimed entitlement to certain accounts for which Mrs. Wong designated Lawrence either a joint tenant or a pay-on-death beneficiary, the trial court concluded "[t]here is insufficient evidence that Mrs. Wong lacked capacity, and ample evidence that Mrs. Wong was a strong-willed person who consistently expressed her desire to favor her son, Lawrence." Furthermore, the trial court concluded that the account designations "were not the product of undue influence." Finally, the trial court concluded that plaintiffs lacked standing to challenge gifts made by Mrs. Wong to Lawrence and his children. Accordingly, the court denied plaintiffs petition in all respects. Plaintiffs filed a timely notice of appeal.
Plaintiffs do not raise their gift claims on appeal.
II. DISCUSSION
"As a general proposition, California law allows a testator to dispose of property as he or she sees fit without regard to whether the dispositions specified are appropriate or fair. [Citations.] Testamentary competence is presumed. [Citations.]" (Estate of Sarabia (1990) 221 Cal.App.3d 599, 604; accord, In re Spencer (1892) 96 Cal. 448, 452-453 ["In disposing of her property, [the testator] was not called upon to consult the wishes or views of juries or courts; her own will was supreme"].) It is against this backdrop that we review plaintiffs contentions on appeal.
Although many of the cases cited speak in terms of "wills" and "testators," rather than "trusts" and "settlors," the law of testamentary capacity and undue influence applies equally to contests of revocable trusts. (Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 182 ["These principles are manifestly as applicable to an estate plan formalized by simultaneously executed inter vivos trust and pour-over will as to a will alone"]; see also Goodman v. Zimmerman (1994) 25 Cal.App.4th 1667.)
Plaintiffs challenge the trial courts determination that Mrs. Wong was competent to execute the 1999 Trust and make the joint tenancy and beneficiary designations in favor of Lawrence. In addition, plaintiffs attack the trial courts determination that Mrs. Wong was not unduly influenced. We separately address each of plaintiffs arguments below.
A. Standard of Review
When the trial courts judgment and statement of decision contain both findings of fact and conclusions of law, the reviewing court "`review[s] the trial courts findings of fact to determine whether they are supported by substantial evidence. [Citation.] To the extent the trial court drew conclusions of law based upon its findings of fact, we review those conclusions of law de novo. [Citation.] [Citations.]" (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266.)
Under the substantial evidence standard of review, the reviewing court "must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. [Citations.] [¶] It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn. . . ." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.)
Substantial evidence is evidence of ponderable legal significance, reasonable in nature, credible, and of solid value. (Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 631.) "Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence. [Citations.]" (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) "The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record. [Citation.]" (Id. at p. 652.)
B. Testamentary Capacity
Probate Code 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."
All further statutory references are to the Probate Code unless otherwise indicated.
Plaintiffs advance arguments under both prongs of the above statutory provision. They argue that Mrs. Wong lacked general capacity to execute the 1999 Trust and make the joint tenancy and beneficiary designations in favor of Lawrence. Plaintiffs also argue that Mrs. Wong suffered delusions that caused their disinheritance.
The relevant time, for determining capacity, is the time the will or trust is executed. (Estate of Fritschi (1963) 60 Cal.2d 367, 372.) Incompetency on a given day may, however, be established by evidence of incompetency at times before and after the day in question. (Estate of Fosselman (1957) 48 Cal.2d 179, 185.) "The testator is presumed sane and competent and the burden rests on the contestant to overcome this presumption. [Citation.]" (Estate of Fritschi, at p. 372; accord, Estate of Sarabia, supra, 221 Cal.App.3d at p. 604.)
(a) General Testamentary Capacity
With respect to Mrs. Wongs general capacity, plaintiffs argue that: (1) the trial court erred by failing to apply section 811; (2) the trial court erred in applying section 811, subdivision (b), because it used an incorrect definition of "appreciate the consequences"; and (3) the trial court erred by applying a presumption that Mrs. Wongs actions were taken during periods of lucidity when there was substantial evidence that she suffered continuing cognitive deficits.
(1) Did the Trial Court Err By Not Applying Section 811?
Plaintiffs first contend the trial court erred by not applying section 811 to its determination of Mrs. Wongs capacity. Sections 810 and 811 provide a rebuttable presumption that all persons, even those with a mental or physical disorder, have testamentary capacity. (§§ 810, 811, subd. (d).) A finding of incapacity sufficient to rebut the presumption must be "based on evidence of a deficit in one or more of the persons mental functions rather than on a diagnosis of a persons mental or physical disorder." (§ 810, subd. (c).) Furthermore, a finding that a person lacks capacity must be supported by evidence of a deficit that significantly impairs a persons ability to understand and appreciate the consequences of the challenged action; and there must be evidence of a correlation between the deficit and the challenged action. (§ 811.)
Plaintiffs waived any argument in reliance on section 812 by failing to cite it in their opening brief. (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4 [points first raised in reply brief will not be considered]; People v. Stanley (1995) 10 Cal.4th 764, 793 ["If [no legal argument with citation to authority] is furnished on a particular point, the court may treat it as waived, and pass it without consideration"].) In any event, we reject any argument that section 812 applies here. Section 812 provides: "Except where otherwise provided by law, including, but not limited to, Section 813 and 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." (Italics added.)
Section 811 provides, in relevant part: "(a) A determination that a person is of unsound mind or lacks the capacity to make a decision or do a certain act, including, but not limited to, the incapacity to contract, to make a conveyance, to marry, to make medical decisions, to execute wills, or to execute trusts, shall be supported by evidence of a deficit in at least one of the following mental functions, subject to subdivision (b), and evidence of a correlation between the deficit or deficits and the decision or acts in question: [¶] (1) Alertness and attention, including, but not limited to, the following: [¶] (A) Level of arousal or consciousness. [¶] (B) Orientation to time, place, person, and situation. [¶] (C) Ability to attend and concentrate. [¶] (2) Information processing, including, but not limited to, the following: [¶] (A) Short- and long-term memory, including immediate recall. [¶] (B) Ability to understand or communicate with others, either verbally or otherwise. [¶] (C) Recognition of familiar objects and familiar persons. [¶] (D) Ability to understand and appreciate quantities. [¶] (E) Ability to reason using abstract concepts. [¶] (F) Ability to plan, organize, and carry out actions in ones own rational self-interest. [¶] (G) Ability to reason logically. [¶] (3) Thought processes. Deficits in these functions may be demonstrated by the presence of the following: [¶] (A) Severely disorganized thinking. [¶] (B) Hallucinations. [¶] (C) Delusions. [¶] (D) Uncontrollable, repetitive, or intrusive thoughts. [¶] (4) Ability to modulate mood and affect. Deficits in this ability may be demonstrated by the presence of a pervasive and persistent or recurrent state of euphoria, anger, anxiety, fear, panic, depression, hopelessness or despair, helplessness, apathy or indifference, that is inappropriate in degree to the individuals circumstances. [¶] (b) A deficit in the mental functions listed above 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. [¶] (c) In determining whether a person suffers from a deficit in mental function so substantial that the person lacks the capacity to do a certain act, the court may take into consideration the frequency, severity, and duration of periods of impairment. [¶] (d) The mere diagnosis of a mental or physical disorder shall not be sufficient in and of itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act."
We see no conflict between section 6100.5 and section 811. The trial courts statement of decision indicates it considered both sections in reaching its determination that Mrs. Wong did not lack mental capacity. The trial court specifically noted that "[t]he parties agree that Probate Code section 811 provides a list of the types of evidence of cognitive impairment that may be considered in evaluating competency claims under Probate Code section 6100.5 . . . ." Furthermore, the trial courts statement of decision shows that it adequately considered the expert testimony of Dr. Nievod and Dr. Mueller, both of whom assessed the extent to which Mrs. Wong suffered any mental deficits listed in section 811. However, the trial court resolved conflicts in the evidence in favor of Lawrence and determined that any deficits suffered by Mrs. Wong did not "significantly impair[] [her] ability to understand and appreciate the consequences of . . . her actions," as required by section 811, subdivision (b). Even under section 811, the relevant question is not whether Mrs. Wong suffered cognitive deficits, but whether her ability to understand and appreciate the consequences of her actions was significantly impaired by those deficits. (§ 811, subd. (b).) Substantial evidence supports the trial courts finding that Mrs. Wong understood the consequences of her actions and its finding that Mrs. Wong had "the mental capacity to be able to understand the nature of the testamentary act, the nature and situation of her property, and her relations to her family members whose interests were affected by her trust . . . ." Accordingly, the court properly found that Mrs. Wong did not lack capacity when she executed the 1999 Trust.
The court also concluded that "[t]here is insufficient evidence that Mrs. Wong lacked capacity" to make the joint tenancy and beneficiary designations in favor of Lawrence. The trial court noted that plaintiffs "offer[ed] no evidence that Mrs. Wong lacked capacity at the specific time that the bank account ownership designations were made." Because plaintiffs point to no such evidence on appeal, we do not further analyze plaintiffs capacity claim with respect to the account designations.
Although there was evidence suggesting that Mrs. Wong suffered cognitive problems after her stroke in 1991, substantial evidence also existed to the contrary. The trial court relied on the testimony of Lee who, being familiar with the legal criteria for competency, testified that Mrs. Wong expressed her own opinions, knew who she was and basically what property she had, and was able to articulate reasons why she was pleased with Lawrence and angry with Lili and Lorraine. The trial court also gave some weight to Dr. Chans opinion that Mrs. Wong was "unequivocally competent." Although the court recognized the flaws of his evaluation, the trial court was "mindful of the fact that Dr. Chan is a board-certified psychiatrist experienced with geriatric patients and the only medical expert to testify who actually examined Mrs. Wong." Finally, the trial courts finding is supported by the testimony of Dr. Mueller, who opined that Mrs. Wong did not lack testamentary capacity in February of 1999.
That Mrs. Wong suffered memory lapses or that some of her statements to Lee and Dr. Chan contained factual inaccuracies is of marginal relevance. "It is well established that `old age or forgetfulness, eccentricities or mental feebleness or confusion at various times of a party making a will are not enough in themselves to warrant a holding that the testator lacked testamentary capacity. [Citations.]" (Estate of Mann (1986) 184 Cal.App.3d 593, 603; accord, Estate of Selb (1948) 84 Cal.App.2d 46, 49.)
Mrs. Wong repeatedly expressed the same unwavering intent with respect to her estate, understood that she was excluding her daughters and their children, and was aware that her children would likely litigate over the terms of her estate plan. Accordingly, we agree with the trial court that "[t]he weight of the evidence . . . suggests that Mrs. Wong did consider the likely consequences of excluding her daughters and their offspring as beneficiaries of her estate." The trial courts finding that Mrs. Wong did not lack capacity on February 24, 1999 is supported by substantial evidence.
(2) Did the Trial Court Use an Incorrect Definition of" Appreciate the Consequences?"
Plaintiffs next argue that the trial court incorrectly understood the phrase "appreciate the consequences of his or her actions," as provided in section 811, subdivision (b). As noted above, section 811, subdivision (b), provides that "[a] deficit in the mental functions listed [in section 811, subdivision (a)] 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." (Italics added). Plaintiffs argue that the trial court improperly found that Mrs. Wong appreciated the consequences of her actions, in reliance on evidence that Mrs. Wong knew she was disinheriting several of her children and grandchildren. According to plaintiffs, "[a]ppreciating the consequences of her decision should mean that Mrs. Wong would have to know that her two daughters were not out to harm her and that, nevertheless, she was going to disinherit them."
Plaintiffs apparently concede that the trial court did apply section 811.
Plaintiffs cite no authority in support of their argument. Rather, plaintiffs rely on the dictionary to claim that one cannot "appreciate the consequences" of an action unless one is fully aware of not just the consequences of ones actions, but also the true condition of all surrounding circumstances, whether those circumstances impacted the estate plan or not. We cannot read such a requirement into section 811.
Lawrence is correct that plaintiffs "are not arguing that Mrs. Wong did not appreciate the consequences; they are arguing that Mrs. Wong did not appreciate [plaintiffs]." We have no doubt that the Legislature did not intend the courts to become the final arbiter of family disagreements and misunderstandings. (See In re Spencer, supra, 96 Cal. at pp. 452-453 ["`The right of a testator to dispose of [his or her] estate depends neither on the justice of [his or her] prejudices nor the soundness of [his or her] reasoning"].) The trial court did not err in its application of section 811, subdivision (b).
(3) Did the Trial Court Err by Not Presuming Mrs. Wong to Be Incompetent?
We reject plaintiffs claim that the trial court erred by failing to apply a presumption that Mrs. Wong was incompetent at the relevant times because she suffered vascular dementia. The trial court made no finding that Mrs. Wong suffered vascular dementia. Furthermore, the plaintiffs misplace their reliance on Estate of Fosselman, supra, 48 Cal.2d 179.
Dr. Nievods opinion is the only evidence supporting plaintiffs assertion that Mrs. Wong suffered dementia of any kind. The trial court was free to reject Dr. Nievods opinion. Dr. Chan evaluated Mrs. Wong during her lifetime, but found no evidence that she suffered dementia. Dr. Mueller did not opine that Mrs. Wong suffered dementia.
The Supreme Court, in Estate of Fosselman, stated that "[o]nce 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 [citations] that the incompetency continues to exist. Such an inference is particularly strong in a case such as this in which the decedent was suffering from senile dementia, a mental disorder that becomes progressively worse." (Estate of Fosselman, supra, 48 Cal.2d at p. 186 (italics added); but see Estate of Goetz (1967) 253 Cal.App.2d 107, 114 ["When one has a mental disorder in which there are lucid periods, it is presumed that [the] will has been made during a time of lucidity"].) The Fosselman court did not hold that a presumption of continued incompetency applies in all cases involving dementia. (Estate of Fosselman, at p. 186.) Rather, the Supreme Court merely concluded that because an inference of continued incompetency was one reasonable inference, which supported the trial courts judgment, the Court of Appeal was bound by that inference. (See id. at pp. 180-181, 186; Howard v. Owens Corning, supra, 72 Cal.App.4th at pp. 630-631.) We cannot agree that the only reasonable inference here was that Mrs. Wong was continuously incompetent throughout the time period at issue.
Plaintiffs reliance on Estate of Callahan (1967) 67 Cal.2d 609, is also misplaced. In Estate of Callahan, the Supreme Court held that the evidence contestants produced on the issue of testamentary capacity, which included evidence that the subject will was executed during a period that decedent suffered from senile dementia, was "sufficient to require submission of that issue to the jury, [and] that the nonsuit was therefore improperly granted . . . ." (Id. at pp. 615-617.)
(b) Delusions
With respect to plaintiffs claim that Mrs. Wong disinherited them because she was suffering delusions, plaintiffs argue: (1) that the trial court applied an incorrect legal definition of "delusion"; (2) that the trial court erred by concluding that delusions did not cause Mrs. Wong to devise her property in a manner that, absent the delusions, she would not have followed; and (3) that the trial court erred by relying on Lees opinion that Mrs. Wong was following Chinese tradition in preparing her estate plan.
(1) What Constitutes a Delusion?
The trial court, in its statement of decision, noted that section 6100.5, subdivision (a)(2), does not define "delusions." Accordingly, the trial court relied on case law, which provides: "`One cannot be said to act under an insane delusion if his condition of mind results from a belief or inference, however irrational or unfounded, drawn from facts which are shown to exist. [Citations.]" (Estate of Putnam (1934) 1 Cal.2d 162, 172.) According to plaintiffs, the trial court incorrectly concluded that a mistaken belief with some basis in fact could not constitute a delusion.
The trial court did not misstate the law. In Goodman v. Zimmerman, supra, 25 Cal.App.4th 1667, Division Three of this court rejected a similar argument and concluded that section 6100.5 tracks California law applied before its enactment. (Id. at pp. 1674-1677.) The Goodman court found no error "in the trial courts citation to prestatutory case law for the principle that even if ones beliefs are inaccurate, a mistaken belief does not justify overturning a will where there is any evidence supporting the belief. [Citations.]" (Id. at p. 1676.) We agree. Plaintiffs cite no authority to the contrary. Section 811, which was enacted after Goodman, does not provide an alternate definition.
That both sides expert witnesses may have testified that the medical, or psychological, definition of a delusion may be less stringent is of no consequence.
Furthermore, the trial courts finding that Mrs. Wong was not delusional, but rather "was prone to making exaggerated statements intended to have a dramatic effect upon the listener," is supported by substantial evidence. Mrs. Wongs accusations regarding Lilis thievery can be traced to evidence that Lili packed and moved some of Mrs. Wongs clothing and to a dispute over whether $35,000 was given to Lili as a loan or a gift. Numerous witnesses testified that Mrs. Wong often exaggerated or made accusations to inflict hurt, gain attention, or get her way. Thus, the trial courts finding that Mrs. Wong was not delusional is supported by substantial evidence.
(2) Does Substantial Evidence Support the Trial Courts Finding that Delusions Did Not Cause Mrs. Wong to Devise her Property in a Different Manner?
In any event, even if we assume that Mrs. Wong suffered delusions, plaintiffs failed to prove that the alleged delusions caused Mrs. Wong to devise her property in a manner that she would not have otherwise pursued. (§ 6100.5, subd. (a)(2); § 811; Goodman v. Zimmerman, supra, 25 Cal.App.4th at p. 1678.) Although Mrs. Wong repeatedly accused Lili of stealing when discussing her estate plan with Lee, the trial court reasonably inferred that Mrs. Wong would have devised her property in the same manner, regardless of any delusions about her daughters.
The trial court reasonably inferred from the evidence that Mrs. Wong devised her property as she did because she favored her obedient son, Lawrence, and his son, Jeremy. Mrs. Wong repeatedly expressed her approval of her son, particularly when discussing her estate plan. The trial court noted that "[t]he record is replete with instances of Mrs. Wong manifesting favoritism toward Lawrence and his son, Jeremy, both before and after her stroke." For instance, when Mrs. Wong gave her children title to three apartment buildings, before she suffered the stroke, Lawrence received the most valuable apartment building and her three daughters were given joint ownership of two buildings. Pearl testified that, after having given birth to Jeremy, Mrs. Wong visited her in the hospital and told Pearl: "Heres $50,000. Take your daughters and go. Im taking Jeremy." Mrs. Wong organized the traditional Chinese funeral held after Mr. Wongs death so that both Lawrence and Jeremy played special roles. Furthermore, Mrs. Wong herself denied the importance, with respect to her estate plan, of her allegations against Lili. Thus, it was reasonable of the court to infer that any "delusions" had no impact on Mrs. Wongs estate plan.
The Wongs did not visit Pearl in the hospital when she gave birth to their granddaughters.
Pearl testified that "Jeremy [held] the incense, which symbolized the Wong family going into eternity. [¶] He also was holding great grandmothers cane which symbolizes he was the heir to the Wong family. [¶] Jeremy was requested to walk as the head of the family procession as we walked out of the service, and . . . he followed the casket, and he was supposed to sit in the first limo by himself."
The fact that the 1986 Joint Will provided for equal distribution among the children of certain assets (the Lombard Street Building and certain personal property) can be explained by the fact that this will evidenced the joint intent of Mr. Wong and Mrs. Wong, not the sole intent of Mrs. Wong. After Mr. Wongs death, Mrs. Wong was free to devise her property as she alone wished. Evidence was presented that Mr. Wong was generally fairer with his daughters and granddaughters, than was his wife. Substantial evidence supports the trial courts finding that any delusions Mrs. Wong suffered did not cause her to distribute her assets any differently than would have otherwise been the case.
(3) Did the Trial Court Err in Relying on Lees Opinion Testimony that Mrs. Wong Was Following Chinese Custom?
Plaintiffs argue that it was error for the trial court to rely on Lees opinion that Mrs. Wongs estate plan was based on Chinese custom. The trial court gave "deference to the observations and opinions of Mrs. Wongs attorney, Ms. Lee . . . [who believed] Mrs. Wong was creating a traditional Toisanese estate plan, which presumed that married daughters were already taken care of by their spouses." Lee testified that Toisanese families tend to devise disproportionate amounts of their property to their sons. Lee further testified that she did not view Mrs. Wongs estate plans as unnatural, given her expressions about her relationships with her children and Toisanese customs.
Even if this testimony was inadmissible speculation, as plaintiffs claim, it was merely cumulative of other evidence showing Mrs. Wong tended, consistent with Chinese custom, to favor her son and paternal grandson, Lawrence and Jeremy, even before her stroke. Even if Lees testimony of Toisanese custom had been excluded, substantial evidence existed to support the trial courts conclusion that Mrs. Wong devised her property in the manner she did because of cultural tradition and her favoritism for Lawrence and Jeremy, not because she suffered delusions, or was unduly influenced. Therefore, any error committed by the trial court in admitting Lees testimony was harmless. (American Bank of Commerce v. Corondoni (1985) 169 Cal.App.3d 368, 371, fn. 2; Kalfus v. Fraze (1955) 136 Cal.App.2d 415, 422-423 ["the erroneous admission of such cumulative evidence is ordinarily not prejudicial"].)
C. Undue Influence
With respect to their contention that Lawrence unduly influenced Mrs. Wong, plaintiffs argue: (1) that the trial court erred by failing to shift the burden of proof to Lawrence; (2) that the trial court erred by determining that Lawrence did not profit from the amounts passing to his son; (3) that the trial court erred by speculating that Mrs. Wong may have believed she had already fulfilled the purpose of the Joint Will; and (4) that the trial court erred by holding that undue influence can only be accomplished by pressure or duress, and not by fraud.
Claims of undue influence are strictly scrutinized. To qualify as undue influence, the influence must "`destroy the testators free agency and substitute for his own another persons will. [Citation.]" (Estate of Fritschi, supra, 60 Cal.2d at p. 373.) "`[T]he circumstances must be inconsistent with voluntary action on the part of the testator [citation]; and `[the] mere opportunity to influence the mind of the testator, even coupled with an interest or a motive to do so, is not sufficient [citation]." (Id. at pp. 373-374.) "Undue influence, then, is the legal condemnation of a situation in which extraordinary and abnormal pressure subverts independent free will and diverts it from its natural course in accordance with the dictates of another person. [Citations.]" (Estate of Sarabia, supra, 221 Cal.App.3d at p. 605.)
With respect to testamentary acts, "[the Supreme Court] and the Courts of Appeal have held that 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 (2002) 28 Cal.4th 89, 96-97; accord, Estate of Clegg (1978) 87 Cal.App.3d 594, 602.) "If this presumption is activated, it shifts to the proponent of the will the burden of producing proof by a preponderance of evidence that the will was not procured by undue influence." (Estate of Sarabia, supra, 221 Cal.App.3d at p. 605.) "It is for the trier of fact to determine whether the presumption will apply and whether the burden of rebutting it has been satisfied." (Ibid.) Questions of undue influence are subject, on review, to the substantial evidence standard. (David v. Hermann (2005) 129 Cal.App.4th 672, 683-685.)
(1) Did the Trial Court Err by Failing to Shift the Burden of Disproving Undue Influence to Lawrence With Respect to the Joint Tenancy and Beneficiary Designations?
Plaintiffs argue that the trial court should have shifted the burden of proof to Lawrence to show that the joint tenancy and beneficiary designations were not a product of his undue influence. In its statement of decision, the trial court noted that plaintiffs had argued that "they should prevail on their `bank account claims because the bank account designations were inter vivos transfers (subject to a lesser standard for shifting the burden of proof) and that plaintiffs successfully shifted the burden of proof to Lawrence."
"[T]he law makes a clear distinction between the proof of the existence of undue influence necessary to set aside a will and that which is required to cancel a deed of gift or conveyance inter vivos [citation]. While no presumption of undue influence is indulged in upon the contest of a will unless confidential relations are first established, with respect to gifts or conveyances inter vivos the susceptibility to imposition, the extreme age and infirmity, of the grantor, together with slight evidence of circumstances from which it may be inferred that the instrument was the product of coercion, will suffice to shift the burden and require the beneficiary to show affirmatively that the transaction was fair and free from influence. [Citations.]" (ONeil v. Spillane (1975) 45 Cal.App.3d 147, 155.)
The trial court correctly determined that the higher standard applies here. (See ONeil v. Spillane, supra, 45 Cal.App.3d at p. 155; De Puy v. Sullivan (1959) 168 Cal.App.2d 292, 295 ["[t]o make such a[n] [inter vivos] gift there must be an intent to give a present interest"]; Estate of Kreher (1951) 107 Cal.App.2d 831, 839 ["The rules applicable to proof of undue influence in a will contest apply to the creation of joint tenancies where the question of undue influence is involved"]; Kelly v. McCarthy (1936) 6 Cal.2d 347, 360.) The trial court found that the bank account designations at issue were not inter vivos transfers, but rather testamentary in nature. Plaintiffs do not cite any evidence to contradict the courts finding.
The trial court relied on the fact that plaintiffs "did not produce any evidence to prove that Mrs. Wong intended to make an inter vivos transfer when making her bank account designations."
Rather, plaintiffs argue that even under the standard applicable to testamentary transfers, the trial court should have shifted the burden of proof to Lawrence to prove that the joint tenancy and beneficiary designations were not the product of undue influence. But the trial court concluded that "[e]ven if the burden of proof did shift, [Lawrence] met his burden of showing that the account designations were not the product of undue influence." The trial courts finding was amply supported by testimony from Lawrence and Pearl that the joint tenancy and beneficiary designations were changed at Mrs. Wongs sole insistence. Furthermore, these changes were consistent with her repeatedly expressed intent to leave nothing further to her daughters.
We disagree with plaintiffs contention that "[t]he trial court never required Lawrence to carry the burden of proof on this issue because the court held that the burden shifting was immaterial because the transfers were testamentary in nature and not inter vivos." Rather, there was substantial evidence to support a finding that the joint tenancy and beneficiary designations in favor of Lawrence were the product of Mrs. Wongs free will and not Lawrences undue influence.
(2) Does Substantial Evidence Support the Trial Courts Finding that Mrs. Wong was not Unduly Influenced with Respect to the 1999 Trust?
Plaintiffs also challenge the trial courts finding that Mrs. Wong was not unduly influenced to execute the 1999 Trust. The trial court determined that plaintiffs "evidence that Lawrence unduly profited from his mothers will and trust is insufficient." In support of its conclusion, the trial court noted: "The bequest to Lawrence of 50% of the trust is in line with the donative intent Mrs. Wong expressed both directly and indirectly to her attorneys, caretakers and extended family members. The bequest to Jeremy of the remaining 50% of the trust, to the exclusion of Lawrence and his other children, is not consistent with Lawrences alleged intent to benefit himself personally or with his stated intent to benefit his children equally." The trial court further emphasized that "[i]f Lawrence had unduly influenced his mother—that is, if he had overcome her free will and had substituted his testamentary plan for that of hers—it would necessarily follow that the testamentary disposition set forth in Mrs. Wongs February 24, 1999 will and trust would reflect Lawrences intent and not Mrs. Wongs. In this case, the evidence is undisputed that any estate plan that favored Jeremy over his sisters was a reflection of Mrs. Wongs intent, not Lawrences."
Plaintiffs argue first that, with respect to the third element of the burden shifting test, the trial court "made an error of law by determining [Lawrence] did not profit by the amounts passing to his son." However, we need not comment on this argument because the trial court found that the 1999 Trust was not the product of undue influence, and noted that it "would reach this conclusion even if the burden of proof were on [Lawrence] rather than [plaintiffs]."
Furthermore, the trial court relied on the inconsistency with Lawrences wishes to show that Lawrence did not substitute his wishes for those of his mother—and that therefore he did not unduly influence her. "`"To invalidate a will on the ground of undue influence, there must be affirmative evidence of the facts from which such influence is to be inferred. It is not sufficient to show that the party benefited by the will had the motive or the opportunity to exert such influence; there must be evidence that he did exert it, and so control the actions of the testator . . . ."" (Estate of Hopkins (1934) 136 Cal.App. 590, 607.) "`Undue influence may be established by circumstantial evidence, but "`it must, however, do more than raise a suspicion. It must amount to proof, and such evidence has the force of proof only when circumstances are proven which are inconsistent with the claim that the will was the spontaneous act of the alleged testator. . . ." [Citations.]" (Id. at p. 606.) Substantial evidence supports the trial courts finding that the 1999 Trust was inconsistent with Lawrences intent, as all of the members of the Wong family testified that Lawrence and Pearl did not favor their son over their daughters.
As demonstrated above, substantial evidence supports the trial courts finding that the 1999 Trust effectuated Mrs. Wongs intent. The courts finding that Mrs. Wong was not unduly influenced is further buttressed by the evidence of her strong-willed personality, which, Dr. Mueller opined, made her particularly unsusceptible to undue influence. The trial courts finding that Mrs. Wong was not unduly influenced is supported by substantial evidence.
(3) Did the Trial Court Reasonably Infer that Mrs. Wong May Have Concluded that the Purpose of the Joint Will Had Already Been Fulfilled?
That the Joint Will, executed by Mr. and Mrs. Wong, varied in its terms from that of the 1999 Trust is of little effect with respect to the courts finding on undue influence. When "the circumstances disclose an adequate reason for a departure from the provisions of an earlier will, the fact of conflicting intention must be deemed to be without probative force or effect [citation]." (Estate of Llewellyn (1948) 83 Cal.App.2d 534, 567.) Adequate explanation may be provided by the events transpiring in the decedents life, changes in the decedents affections, and even in the peculiarities of the decedents temperament. (Ibid.) On this point, the trial court noted: "Thirteen years and Mr. Wongs death intervened between the execution of the Joint Will and the execution of Mrs. Wongs will and trust. Given the passage of time, it is quite plausible that Mrs. Wong concluded that she had already fulfilled the purpose and goal of the 1986 Joint Will by her 1987 property distribution and decided to distribute her remaining assets in the way she (not her deceased husband) wanted."
The trial courts above-quoted statement is an inference both logically and reasonably drawn from the evidence presented at trial. (See Roddenberry v. Roddenberry, supra, 44 Cal.App.4th at p. 651 ["Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence"].) It is undisputed that in 1987 Mrs. Wong gifted all of her real property, with the exception of the Lombard Street Building, to her children, in general compliance with the terms of the Joint Will. There is also evidence that Mrs. Wong mentioned this fact when discussing the omission of her daughters and Lindas children from her estate plan. The trial courts inference was not based on speculation.
(4) Did the Trial Court Err by Holding that Undue Influence Can Only be Accomplished by Pressure or Duress and Not by Fraud?
Plaintiffs argue that "[t]he trial court failed to apply the correct legal standard when it held undue influence can only be accomplished by pressure or duress and not by fraud." Plaintiffs cite no support in the record to show that the trial court made any such holding or to show that they raised fraud as a ground for invalidating the 1999 Trust.
"The theories of undue influence and fraud commonly rest on a similar factual basis since contestants relying on a theory of undue influence may claim that the beneficiary employed misrepresentations to pressure the testator. They are, however, distinct grounds for contest." (David v. Hermann, supra, 129 Cal.App.4th at p. 685, italics added.) "In cases where fraud alone is relied upon as a ground of contest it is the theory of the law that the testator, even though acting, in a manner of speaking, of his own free will, was, nevertheless, deceived by false data into doing that which he would not have done had he not been fraudulently imposed upon. [¶] It is the general rule that for false and fraudulent representations to enter as an element into undue influence it is necessary that the misrepresentations be shown to have been intermingled with or made the basis of importunities and mental pressure upon the testator. On the other hand, such false representations, even in the absence of proof that they were used as pressure upon the mind of the testator, have been held to constitute fraud if it can be shown that they were designed to and did deceive the testator into making a will different in its terms from that which he would have made had he not been misled." (Estate of Newhall (1923) 190 Cal. 709, 718.) The trial court did not err by failing to address fraud in its statement of decision. Plaintiffs petition raised no such claim.
Plaintiffs rely on Lawrences admission that, in 1995, he told Mrs. Wong that Lili had suggested the possibility of placing her in a nursing home. Plaintiffs only challenge the trial courts determination that Lawrences "misrepresentation" was "not sufficient evidence to prove that Lawrence unduly influenced Mrs. Wong some four years later."
There was testimony that Lili repeatedly brought up the issue of moving Mrs. Wong to a nursing home after her stroke, and that Lawrence informed his mother of this in 1995. Thus, it is not clear that Lawrences statement to Mrs. Wong was a false representation.
Plaintiffs argument is nothing more than a request to reweigh the evidence. As noted above, substantial evidence was presented to support the trial courts finding that Lawrence did not unduly influence Mrs. Wong. That there was some conflicting evidence presented by plaintiffs below, does not alter the result on appeal. "[I]n examining the sufficiency of the evidence to support a questioned finding, an appellate court must accept as true all evidence tending to establish the correctness of the finding as made, taking into account, as well, all inferences which might reasonably have been thought by the trial court to lead to the same conclusion. Every substantial conflict in the testimony is, under the rule which has always prevailed in this court, to be resolved in favor of the finding." (Bancroft-Whitney Co. v. McHugh (1913) 166 Cal.140, 142.)
III. DISPOSITION
The judgment is affirmed.
We concur:
Haerle, J.
Lambden, J.