Appellant contested his wife's will, which named her son by a former marriage executor and sole beneficiary, on the grounds of lack of testamentary capacity and undue influence. The jury found in favor of the proponent of the will on the first ground; the trial judge granted a nonsuit on the issue of undue influence. So far as the judgment is based on the verdict, appellant contends that the evidence does not support the verdict and that the judge committed prejudicial misconduct. As to the nonsuit, he contends that substantial evidence had been presented in support of the contest.
The Parties and the Properties
Mabel Goetz died on November 25, 1964, at the age of 82. During her lifetime she had executed but one will, that dated November 20, 1963. This will leaves her entire estate to respondent Earl William Roberts, and expressly excludes her
William and Mabel Goetz were married on June 10, 1952, having lived together as husband and wife since 1928 or 1929. At the time of trial, in 1965, the husband was 78 years of age. Toward the end of her life, Mrs. Geotz expressed hostility toward and suspicion of her husband. On one or more occasions she suspected him of attempting to poison her, and she related incidents of his mistreating her. The husband denied any misconduct, and we may assume for purposes of the appeal that the wife's statements about her husband were, in general, unfounded and perhaps delusionary. Mrs. Goetz objected to her husband's being accompanied by a housekeeper when he visited her, his wife, at a rest home, and she remarked that the housekeeper was drinking. (Dr. Reed, witness for respondent, had observed on one occasion that the housekeeper possibly was under the influence of intoxicants.) The husband petitioned to have his wife committed as mentally ill in February 1963, but this was not carried through.
When testatrix was in a rest home she spoke of her fondness for her son, respondent, and, according to the testimony of the woman who operated the home, she "idolized him." At times she would live with the son and his wife at Cloverdale, California, about two hundred miles away from the Goetz home in Boulder Creek. Letters sent by testatrix show a maternal affection for her daughter. The daughter does not contest the will. She is named a respondent by contestant.
A parcel of land in San Jose was asserted by the son to be his mother's separate property and by the husband to be community property, in conservatorship proceedings. But whatever the status of this parcel, substantially all of the property of the Goetzes was acquired from his earnings as a manufacturing jeweler.
Other real properties were held in joint tenancy. Stocks of a value of about $350,000 were in their joint names.
The Making of the Will
On September 11, 1963, Mrs. Goetz gave her son a general power of attorney. This, he testified, was to enable him to draw funds out of her bank accounts. The son testified that on October 14, 1963, they went to her safe deposit box at a bank in Santa Cruz. He had authority to sign and enter the box, apparently because she had arthritis and could not write well. Prior to this time, Mrs. Goetz had never mentioned making a will. She asked the lady at the bank who had charge of the safe deposit vault to recommend an attorney. The lady recommended attorney Dent Snider, to whose office Mrs. Goetz and her son immediately went. The son denied any participation in the conversation with the attorney. Mrs. Goetz asked her son, "How do you want the Will made out?" and he answered that he did not care, that she should do as she wanted, and that he did not care if she left him anything.
The attorney testified that Mrs. Goetz discussed her family and the nature and extent of some of her property. She said that her husband and her daughter were both well off and were to be omitted from her will. The attorney spent considerably more time with her than he would normally for the preparation of such a simple will. She had told him of her marital difficulties, that her husband had attempted to have her committed, and that she felt he might contest the will. Because of this situation, and because of her age and poor health, he took an "abundance of precaution" to satisfy himself that she had adequate testamentary capacity. He suggested that Dr. Reed be present when the will was signed. The son participated in the conversation, but "only in a general way."
Snider telephoned Mrs. Goetz when the will was ready. She asked her husband to take her to Snider's office and go over the will, but he apparently refused. The son had written to Dr. Reed, asking him to take his mother to the office when the will was ready, but Reed had not responded to the son's letter. The son, therefore, came to Boulder Creek and he and his wife took Mrs. Goetz to Snider's office on November 20, 1963. Snider read the will to her, and she read it to herself out loud. She then signed it. Snider and his secretary witnessed the execution.
Facts and Law on the Issue of Competency
The points made by appellant on this issue, together with opposing evidence and comments on the law, are set forth in the series that follows:
2. Appellant also relies on evidence of broad character which would establish mental incompetency generally. This consists of expert testimony of Dr. Reed, testatrix' treating physician, who had known her since early 1963; of Dr. Maeth, who had examined her at the time of the proposed commitment; of Dr. Anderson, a psychiatrist who did not see her until about three and a half months after the will was made, to the effect that Mrs. Goetz suffered chronic brain syndrome
3. Opposed to the testimony of the doctors is that of six acquaintances of Mrs. Goetz during 1963 and 1964, whose testimony about her soundness of mind was not shaken under cross-examination.
The Issue of Undue Influence
At this point we take an opposite criterion, for testing the court's judgment. We must reverse the judgment of nonsuit if there is substantial evidence which would have supported a verdict for contestant. Because of the verdict on the issue of competency, it is established that testatrix knew the nature of the testamentary act, the nature of her estate, and the persons who had claim to her bounty. The evidence tending to show impaired mentality, however, is relevant so far as it may show susceptibility to undue influence.
1. Respondent took his mother into the lawyer's office on the first visit, when she gave her instructions for drafting the will. (If because of the nonsuit we ignore the testimony that the lawyer was not previously known to respondent, but was recommended by an employee of the bank, we are left with no evidence at all as to how the lawyer was engaged.) This in itself has been held not to constitute undue influence. (Estate of Ausseresses, 178 Cal.App.2d 487, 491 [3 Cal.Rptr. 124]; Estate of Bould, 135 Cal.App.2d 260, 275 [287 P.2d 8, 289 P.2d 15]; Estate of Lingenfelter, supra, 38 Cal.2d 571, 586; Estate of Anderson, 185 Cal. 700, 717 [198 P. 407].)
2. Respondent tried to get Dr. Reed to witness the will, but the doctor declined unless Mrs. Goetz were seen by a psychiatrist. Respondent did not take his mother to a psychiatrist. However, there is no requirement that a psychiatrist pass upon the competency of a person to make a will. Mrs. Goetz had expressed indignation at the proceedings initiated by her husband in February 1963. The son need not have proposed psychiatric examination to his mother, which she might have resented. As to this point, there is an asserted omission rather than positive activity on respondent's part.
3. Respondent took his mother to the lawyer's office for the execution of the will. This, too, is not such activity as to raise the presumption. (Estate of Jacobs, 24 Cal.App.2d 649, 652 [76 P.2d 128]; Estate of Lombardi, 128 Cal.App.2d 606, 608-609, 613 [276 P.2d 67]; Estate of Bould, supra, pp. 275-276; Estate of Straisinger, 247 Cal.App.2d 574, 586 [55 Cal.Rptr. 750].)
4. Respondent remained in the lawyer's office during the giving of the instructions, as well as during the execution of the will. Here, again, the activity is insufficient. It is better practice for the lawyer to exclude others during his conference with one who is about to make a will (see Estate of Gagliasso, 150 Cal.App.2d 65, 69 [309 P.2d 513], but their presence does not amount to the activity which, with other elements, creates the presumption of undue influence. (Estate
5. Appellant proposes that the question of Mrs. Goetz to respondent on their first visit to the lawyer, as testified by respondent, "How do you want the Will made out?" implies a prior discussion of the will between the two. We do not think this necessarily follows; but even if there had been a prior discussion this would not be evidence of undue influence. It is not uncommon for persons to tell their prospective legatees what they intend to do, or even to ask their preferences. Here, again, if we omit consideration of respondent's reply, disclaiming any demand for consideration, we are left with nothing to show an influence overpowering the will of the decedent. Affirmative evidence is not created by discarding that which is contradictory. (Estate of Ausseresses, supra, 178 Cal.App.2d 487, 490-491.)
We find it a bit strained to accept appellant's intercession for testatrix' daughter. The daughter herself did not join in the contest. Testatrix described her as financially well off, and there is no evidence that the description was incorrect. It is true that a successful contest would have brought about intestacy. But the joint tenancy property would have gone to the husband, and in event of intestacy the community property would have been his. (Prob. Code, § 201.) There would have been only the relatively small separate property of the wife, of which but one third would have gone to the daughter. (Prob. Code, § 221.)
Nor is there evidence that testatrix' complaint that her daughter had not visited her for many years was untrue. A few letters between mother and daughter were put into evidence. The mother did have affection for her daughter, but in one of the letters the mother chides her daughter for delay in writing. Most of the letters in the record which came from the daughter are dated subsequent to the will and would not have a bearing on the mother's reproach about the lack of visits. Testatrix had lived from time to time with respondent and his wife.
The judgment is affirmed.
Rattigan, J., and Christian, J., concurred.
A petition for a rehearing was denied August 11, 1967, and appellant's petition for a hearing by the Supreme Court was denied September 27, 1967.