Eyford v. Nord

Filed 3/18/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
SHANNON EYFORD et al.,
Plaintiffs and Appellants,
A157962
v.
JIM NORD, as Trustee, etc., et al., (Napa County Super. Ct.
No. 17PR000071)
Defendants and Respondents.
Shannon Eyford and Erin Johnson appeal from a judgment entered
after the trial court denied their petition to invalidate their grandmother’s
trust, which disinherited them. Appellants contend the court should have
invalidated the trust pursuant to Probate Code section 6100.5,
subdivision (a)(2),1 because their grandmother had delusions that negated
her testamentary capacity. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Catherine Pearson, known as “Kay,” died in December 2016 at the age
of 90 years.2 In a trust instrument she executed on February 24, 2016, she
named St. Jude Children’s Research Hospital (St. Jude) the sole beneficiary
of her estate, which was worth approximately $2 million. In that trust
1 All further statutory references are to the Probate Code.
2 The decedent was referred to simply as “Kay” throughout the trial court
proceedings. We will refer to her in the same manner here.
1
instrument, she disinherited her surviving son and her two granddaughters
(appellants Eyford and Johnson).
In April 2017, appellants filed a petition contesting the validity of the
trust instrument on the ground that Kay had a mental disorder with
symptoms including delusions or hallucinations that allegedly caused Kay to
devise her property in a way she would not otherwise have done. (§ 6100.5,
subd. (a)(2) (“6100.5(a)(2)”).) As relevant here, the petition named St. Jude
and Jim Nord, in his capacity as trustee, as respondents.3 The matter was
tried before the court. Ultimately, the court found that appellants failed to
carry their “burden of proving that Kay was suffering from a delusion within
the meaning of . . . section 6100.5(a)(2) at the time she executed the [t]rust.”
The following is a summary of the trial evidence and proceedings relevant to
this appeal.
Early Background
Kay was born in September 1926. She had two children, Cathy Noyes
and John Noyes, Jr., with her first husband, John Noyes, Sr.4 In the early
1960s, after about 17 years of marriage, Kay and John Sr. divorced but
remained friends and in contact for the rest of her life. In the 1970s, Kay
married Robert Pearson, known as “Bob.”
After her divorce from John Sr., Kay and her son became estranged.
Kay, however, remained close with her daughter, Cathy, who married Buzz
3 The petition also alleged that Kay lacked testamentary capacity on
grounds of undue influence by her accountant, Joan Sturges, and claimed
that Sturges had converted trust assets. Nord, as trustee, settled the
conversion claim against Sturges. The trial court’s rejection of the undue
influence claim is not contested on appeal and will not be discussed further.
4 For the sake of brevity, and clarity due to shared last names, we will
refer to Cathy Noyes as Cathy, and John Noyes, Sr., as John Sr. After initial
reference to Robert Pearson, below, we will refer to him as Bob.
2
Kane. Cathy and Kane had two daughters, appellants Eyford and Johnson.
Bob and Kay frequently visited and corresponded with Cathy’s family in
Washington state, where they lived. Various witnesses described the
relationship between Kay and appellants as close and loving.
In 2013, Cathy was diagnosed with cancer. After undergoing surgery,
Cathy lived with Eyford, who helped care for her until her death from cancer
in June 2014. Around the time of Cathy’s death, Kay told numerous people
that her estate was going to appellants. But the day after Cathy’s death, Kay
told a longtime friend, Roberta McCully, that appellants had caused Cathy’s
death by repositioning her in bed the night of her surgery against a doctor’s
orders. Later in 2014, Kay also told her friend Vicki Barrios that appellants
caused Cathy’s death by repositioning her in bed. At trial, appellants denied
moving Cathy in her hospital bed contrary to doctor’s orders.
Bob’s Death and Kay’s Hospitalization
In August 2014, Kay and Bob moved to a senior living community in
Napa called “The Meadows.” The Meadows offers different accommodations
to residents depending on the level of care they might need, from independent
living, to assisted living, skilled nursing, and memory care. One cannot live
in independent living with a diagnosis of dementia, and Kay stayed in
independent living until her death in December 2016. Eyford visited Bob and
Kay for the Super Bowl in 2014 and in January 2015. Appellants both visited
in 2015 for Mother’s Day. Johnson and her son visited in August 2015.
In September 2015, Eyford visited while Bob was ill and staying in a
rehabilitation facility at The Meadows. Bob died on October 1, 2015. Within
weeks, Kay called John Sr. and said she was confused and alone. She also
said that she did not know what she was doing and that Bob had taken care
of everything. Indeed, during their marriage, Kay had little or no knowledge
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of her financial affairs, including where she banked, and she had never
signed a check.
Believing Kay was acting irrationally, John Sr. told her to go to the
hospital and asked appellants to help her. On October 22, 2015, Kay was
admitted to the hospital and treated for anemia and a urinary tract infection
(UTI). Kay’s medical records indicated she presented with confusion likely
secondary to the UTI, and the confusion had “cleared” in the hospital.
Johnson spent two nights at the hospital with Kay and later testified that
Kay was combative and disoriented at the hospital and that she pulled out
her intravenous lines and said she saw Bob above her bed. In the hospital,
Johnson suggested that Kay put Bob’s contacts in Kay’s phone, then turn off
Bob’s phone. Kay did not like this idea and seemed attached to Bob’s things.
Johnson realized Kay “wasn’t ready.”
The Days Immediately Following Kay’s Hospitalization
On October 25, 2015, Kay was discharged from the hospital, and
Johnson drove her home. John Sr. and Eyford were present when Kay
arrived at The Meadows. After Kay expressed concern about her finances,
with Kay’s consent and in her presence, John Sr. and Johnson (but not
Eyford) went through Kay’s records. They shredded outdated checks and
records, and found documentation of an account worth $2.4 million, which
Kay said she had no prior knowledge of.
On October 26, 2015, Eyford took Kay to Ole Health Clinic for cognitive
testing. Eyford testified that the hospital had scheduled the appointment
because The Meadows required an evaluation to determine if Kay needed
changes to her living arrangements. At the clinic, Kay underwent a “mini
mental status exam” which indicated she was experiencing mild to moderate
cognitive impairment. Staff at the clinic scheduled another appointment to
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fill out paperwork for The Meadows and to determine whether Kay needed to
move from independent living to assisted living. That evening, Eyford went
out alone in Napa to get some food and a drink, and Kay became very
agitated, pacing and stating that Eyford was acting like a “ ‘floozy’ ” and “ ‘no
woman should go out in town alone.’ ”
On October 27, 2015, appellants, John Sr., and Kay went to Kay’s bank,
and Kay put appellants on her account so they could help with her banking.
On the same day, Kay also signed a will and a power of attorney that
appellants obtained from the internet. The notarized power of attorney form
named Eyford as Kay’s attorney-in-fact, giving her power to make financial
decisions for Kay, and it named Johnson the successor attorney-in-fact. The
will Kay signed named appellants as Kay’s sole beneficiaries. Concerned
about the validity of that will, John Sr. advised Kay to consult an attorney.
On October 28, 2015, Johnson and John Sr. left town. Eyford stayed
and took Kay to an estate planning attorney, James Watson, for purposes of
preparing a trust naming appellants as her sole beneficiaries. Watson
planned to have the documents ready for signing by November 9, 2015.
Eyford and Kay returned to the Ole Health Clinic that day. Eyford told
medical staff that Kay did not recall being there two days prior. Eyford also
expressed concern about Kay leaving The Meadows unassisted and
uncertainty whether Kay truly needed assisted living. Kay’s records from
that visit indicate that she presented as confused and disoriented, that she
was unable to leave the facility unassisted, and that she was unable to
manage her own cash. Another appointment was scheduled for mid-
November for further mental health testing. Around this time, Eyford told
Wayne Panchesson, director of The Meadows, that she did not think Kay
should be driving. Eyford testified she told Kay to “please not drive the car,”
5
to which Kay responded by begging to keep her right to drive and becoming
paranoid about where her keys were.5
During a dinner on October 28, 2015, Kay accused Eyford of being sent
by John Sr. and Johnson to do the “dirty work,” i.e., take away her
independence, put her in assisted living, and take her car. Kay also accused
Eyford of never visiting her at The Meadows. Kay pleaded with Eyford not to
take her car or make her leave her apartment. Eyford tried to explain that
she had in fact visited, and also that they “would let her maintain as much
independence as [they] could.” The next morning, Kay had no recollection of
leveling these accusations at Eyford and affirmed her intention to keep her
estate in the family. Eyford obtained Kay’s permission to record part of this
conversation. This was the last time Eyford saw or conversed with Kay.
Kay’s February 24, 2016 Trust
On November 2, 2015, John Sr. returned to Napa and drove Kay to see
attorney Watson without an appointment to try to move up the signing date
for the trust. At that meeting, Kay told Watson that appellants had been
“barging” into her home, and that she did not want to give her estate to them
though she did not talk about any other potential beneficiaries. Watson felt
uncomfortable executing Kay’s trust and said he would follow up in a month.
On December 16, 2015, Watson again met with Kay. This time, Kay
was accompanied by her accountant, Joan Sturges, and she expressed
concern about appellants taking her money. Because this was the third
meeting in less than two months, with different companions accompanying
Kay each time, Watson was uncomfortable executing documents without a
5 Kay’s friend Roberta McCully testified Eyford called her and told her
she was taking Kay’s car. It is unclear when exactly this call occurred, but
McCully indicated this was one of the bases for Kay’s complaints against
appellants after Bob died.
6
capacity declaration and was concerned about protecting both Kay and his
office. Kay dismissed Watson after this meeting because she did not like him.
After dismissing Watson, Kay retained attorney Lori Hunt. Before
seeing Hunt, Kay told Sturges she wanted her estate to go to “sick babies,”
but did not mention a particular charity or institution. On February 10,
2016, Hunt met with Kay and suggested St. Jude as a potential beneficiary;
Kay loved the idea. When asked why she was disinheriting appellants, Kay
replied that she felt she and Bob had given them enough through the years,
that what she had was attributable to Bob, and that Bob loved helping sick
babies, so she wanted to leave her estate to a charity that benefited sick
babies to honor him. On February 24, 2016, Kay signed a trust that named
St. Jude as her sole beneficiary and expressly disinherited her son and
appellants. In July and August 2016, Kay signed amendments to the trust
concerning the successor trustee, ultimately naming Jim Nord, a professional
fiduciary, as the first successor trustee. Hunt indicated that at no time
during her meetings with Kay did she form the impression Kay might have
cognitive or mental problems.
Kay’s Accusations Against Appellants and Other Evidence of Her State
of Mind
Multiple witnesses testified that starting in November 2015, Kay began
making accusations against appellants.
On November 4 and 5, 2015, Kay told Cole Hornstein, staff at The
Meadows, that Eyford was trying to sell her car and had keys to her
apartment, threatening to come in. Kay stated she was afraid of Eyford. Kay
said that appellants were interested only in her money, that they were trying
to say she had cognitive issues and could not handle her own affairs, and that
Kay did not want to associate with Eyford. Kay also reported that someone
had closed her bank account which had a zero balance. Hornstein, a
7
mandatory reporter, filed a report with an ombudsman in Napa, Adult
Protective Services, and the police. Kay later told Hornstein that she had
closed the bank account.
Officer Jarett Haggmark of the Napa Police Department interviewed
Kay. Kay said that after Bob died, appellants went through her paperwork
and tried to take her to an attorney and doctor. Kay also stated that Eyford
was still in Napa staying with her. Officer Haggmark called Eyford who said
she was at home, in Washington state. Officer Haggmark told Eyford it was
best not to further contact Kay. Officer Haggmark testified that Kay seemed
“out of it” and that Hornstein said he thought Kay was in the early stages of
dementia. At trial, Hornstein denied saying this.
Johnson spoke to Kay over the phone several times in November 2015.
During these calls, Kay called Eyford a “floozy,” and said Eyford was no
longer welcome at The Meadows because Kay did not feel safe and Eyford
stole money and a bracelet from her. Johnson eventually tried to challenge
Kay and explained she shredded Kay’s papers, not Eyford, which caused Kay
to become argumentative and end the conversation. During their final phone
conversation, Kay accused Johnson of being in “cahoots” with Eyford and cut
off contact with her as well.
In early November 2015, Kay saw her long-time accountant, Sturges,
for the first time since Bob’s death and accused appellants of stealing cash
that Bob had stashed around the apartment and a bracelet. Sturges testified
that during this first visit, Kay was underweight, nervous, paranoid, afraid,
and confused. After November, Kay did not discuss appellants a lot. That
said, Kay was afraid of “everything.” She would not allow handymen into her
home and was afraid of appellants being in town. Around June 2016, and
once or twice before, Kay said she thought appellants were back in town or
8
back at her door. In June 2016, Sturges, who was unsure if Kay meant “at
her door” literally, asked Hunt for a referral to an attorney to get a
restraining order.
In spending time with Kay, Sturges observed Kay had memory issues.
Of about 30 visits with Kay, Sturges noticed Kay having good days with no
memory problems about six times, bad days about six times, and the
remainder were somewhere in between. Sturges testified the day Kay signed
the subject trust was a “good day,” and Kay was clear-headed and expressed
things to her that caused Sturges to believe Kay knew what she was doing.
In November and December 2015, Kay began making similar
accusations about appellants to her friends Sharon Steele, Roberta McCully,
and Vicki Barrios. Steele testified that during five separate visits she had
with Kay after December 2015, Kay talked about appellants’ misdeeds.
During one visit in February 2016, Kay told Steele she changed her will
because of their misbehavior, i.e., she believed they stole cash and a bracelet,
took and waved her keys in her face, and wanted to get rid of her car. Once,
Kay told Steele she was afraid she would be pushed over the balcony.
McCully, who spoke to Kay by phone every day, testified that for about six
months after late-2015, Kay said numerous times she believed Eyford wanted
to kill her.
In addition to accusing appellants of taking cash and a bracelet, Kay
told Barrios, whom she usually saw twice a month, that appellants
“ransacked” her home looking for cash and that Eyford caused a disturbance
while drunk in the lobby at The Meadows. Kay also claimed that when she
confronted Eyford after finding her shredding documents in Bob’s office,
Eyford allegedly tried to lead her out on a balcony, causing Kay to fear for her
life and to think that appellants wanted to push her off. Kay believed Eyford
9
took Bob’s keys and could access Kay’s apartment, and she was afraid Eyford
might harm her. After December 2015, Kay repeated these stories to Barrios
from time to time.
Kay also told Barrios after Bob’s death that she changed the
beneficiary of her estate to St. Jude because Bob always wanted that, that
she had been the one to talk Bob into giving the money to family, and that
she changed her mind. Kay said Eyford and Johnson came around only
because they wanted money, and while she was sick with an infection, they
took her to a doctor to deem her incompetent and also took her to a bank and
to an attorney with “a very tight agenda around her assets.” Moreover,
although Kay was sick, grieving, and tired, Eyford kept trying to bait her into
talking about money, and at one point Kay thought Eyford recorded their
conversation. Kay told Barrios that all appellants had to do was be patient,
but they got greedy, so they would get nothing and “[s]he didn’t want them to
have one thin dime.”
Steele, McCully, and Barrios all testified that Kay always dressed very
well, that her home was always clean, and that she never displayed
confusion, disorientation, or memory issues after Bob’s death.
Kay’s doctors testified in accord. Dr. Margaret Poscher, Kay’s internist,
testified that she never noticed Kay exhibit delusions or paranoia, and that
she never formed any concern that Kay might have dementia. Dr. Yelena
Krijanovsky, Kay’s hematologist/oncologist, also never noticed any cognitive
decline or delirium in Kay.
The parties presented competing expert testimony concerning Kay’s
mental condition.
10
DISCUSSION
Appellants argue principally that the trial court erred in rejecting their
claim of testamentary incapacity under section 6100.5(a)(2) by wrongly
selecting a single false belief Kay had about appellants—i.e., that appellants
“wanted her out of the way in order to get her money”—and then wrongly
determining it was not a delusion. Instead, appellants claim, the court
should have found that Kay’s multiple false beliefs about appellants all
constituted delusions negating Kay’s testamentary capacity. Appellants
contend that but for her delusions, Kay would not have executed the 2016
trust disinheriting appellants.
A. Governing Law
“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.” (Estate of Sarabia (1990) 221 Cal.App.3d 599, 604, italics added.)
Section 6100.5(a)(2) provides that “[a]n individual is not mentally
competent to make a will if, at the time of making the will, . . . [¶] . . . [¶] . . .
[t]he individual suffers from a mental health disorder with symptoms
including delusions or hallucinations, which delusions or hallucinations
result in the individual’s devising property in a way that, except for the
existence of the delusions or hallucinations, the individual would not have
done.”6
6 By its terms, section 6100.5 applies only to wills. Relying on Andersen
v. Hunt (2011) 196 Cal.App.4th 722, appellants contend section 6100.5 also
applies to trusts or trust amendments that, in content and complexity, closely
resemble a will or codicil. (Andersen, at p. 731.) We agree and see no reason
why section 6100.5 should not apply where, as here, a trust amendment
reallocates the trust estate by disinheriting one set of possible beneficiaries
and giving the entire estate to another beneficiary. (See Lintz v. Lintz (2014)
11
In this context, a delusion “has been defined to be the conception of a
disordered mind which imagines facts to exist of which there is no evidence
and the belief in which is adhered to against all evidence and argument to
the contrary, and which cannot be accounted for on any reasonable
hypothesis. ‘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.’ ” (Estate of Putnam
(1934) 1 Cal.2d 162, 172.) “If there is any evidence, however slight or
inconclusive, which might have a tendency to create a belief, such belief is not
a delusion.” (Estate of Alegria (1948) 87 Cal.App.2d 645, 655.) “Capricious
and arbitrary likes, dislikes and mistrusts are not evidence of unsoundness of
mind.” (Ibid.) “Care must be taken to differentiate between mere
unreasonable opinions and mental derangements. Testamentary capacity
does not depend upon the testatrix’ ability to reason logically or upon her
freedom from prejudice. A belief may be illogical or preposterous, but it is
not, therefore, evidence of insanity.” (In re Estate of Perkins (1925) 195 Cal.
699, 708 (Perkins).)
“The presumption is always that a person is sane, and the burden is
always upon the contestants of the will to show affirmatively, and by a
preponderance of the evidence, that the testatrix was of unsound mind at the
time of the execution of the will.” (Perkins, supra, 195 Cal. at p. 703.) “[T]he
standard for testamentary capacity is exceptionally low.” (In re Marriage of
Greenway (2013) 217 Cal.App.4th 628, 642.) “A person challenging the
validity of a trust instrument on the grounds that the trustor lacked capacity
222 Cal.App.4th 1346, 1352.) Respondents do not contest Andersen’s
applicability here.
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to execute the document . . . carries the heavy burden of proving such
allegations.” (Doolittle v. Exchange Bank (2015) 241 Cal.App.4th 529, 545.)
B. Standard of Review
As a preliminary matter, we address the appropriate standard of
review. Respondents contend the substantial evidence standard of review
applies to the trial court’s determination as to whether Kay had a mental
health disorder and an associated delusion sufficient to invalidate the trust.
Appellants argue the de novo standard applies because the trial court
referenced only one disputed issue of fact in its decision, “i.e., whether or not
the name of St. Jude’s as the beneficiary of the trust came from CPA Joan
[Sturges] or attorney Lori Hunt,” and the court’s resolution of that disputed
fact is neither relevant nor contested on appeal.
Generally, “the application of a statutory standard to undisputed facts
is reviewed de novo.” (Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 212.)
That said, “ ‘[w]here the ruling that is the subject of appeal turns on the trial
court’s determination of disputed facts, the appropriate standard of review on
appeal is “sufficiency of the evidence.” ’ ” (Cochran v. Rubens (1996) 42
Cal.App.4th 481, 486.)
Here, the ruling upholding the trust’s validity turned on the trial
court’s determination of whether, at the time she executed her trust, Kay had
a mental health disorder with symptoms including delusions or
hallucinations that caused her to disinherit appellants. There appears no
doubt that the relevant facts concerning Kay’s mental state and mental
condition were in dispute, and the parties presented conflicting evidence over
the course of trial. For example, witnesses Hunt, Steele, McCully, and
Barrios testified that Kay never appeared disoriented or confused or to be
having mental trouble in 2016, while witnesses Sturges and John Sr. testified
13
differently. The parties also presented competing experts who provided
different opinions about Kay’s mental condition when she executed the trust.
Under these circumstances, we decline to conduct a de novo review. Instead,
we will review the trial court’s determination for substantial evidence.
C. Testamentary Capacity
Section 6100.5(a)(2) provides that an individual is not mentally
competent to make a will “if at the time of making the will,” the individual
has “a mental health disorder with symptoms including delusions or
hallucinations.” (Italics added.)
In its statement of decision, the trial court found that Kay was not
experiencing delusions within the meaning of section 6100.5(a)(2) at the time
she executed her trust. Thus, the court implicitly determined Kay did not
have the requisite mental health disorder at the time she executed her trust.
Although the court acknowledged that Kay had delusions in late October
2015 while hospitalized for UTI, it determined her delusions ended shortly
after her discharge from the hospital and were not operational when she
signed the trust. The court further indicated that the medical experts opined
Kay had moderate cognitive impairment, but “[o]ther than that, there is no
evidence that Kay had dementia or any other mental condition that becomes
worse over time. The only evidence regarding Kay’s cognition, in addition to
the mental health status exam at Ole Health, is that she had acute confusion
in October 2015 secondary to a urinary tract infection and again likely in
April and June 2016. Many of the witnesses . . . testified that they had no
concerns regarding her mental capacity from November 2015 through her
death a year later.”
The record discloses substantial evidence supporting the trial court’s
determination. Dr. Angelone, an expert in neuropsychology, testified there
14
was no objective evidence that Kay had a mental disorder as required by
section 6100.5(a)(2). Both Dr. Angelone and Dr. Cheyette, an expert in
psychiatry, testified that Kay did not have delusional disorder. Likewise,
Dr. Angelone testified there was nothing in Kay’s medical records indicating
she had dementia. Dr. Poscher—Kay’s internist who saw her once in 2011,
three times in 2012, twice in June and November 2014, and then the last
time in October 2016—testified she never formed any concern that Kay might
have dementia. Similarly, Dr. Krijanovsky—Kay’s hematologist/oncologist
who saw Kay about a dozen times from 2011 to November 2016, including in
March and September 2014, and October and November 2016—testified she
never noticed signs of cognitive impairment and never formed any concern
that Kay might have dementia.
Even Dr. Spar, appellants’ expert who opined Kay had delusions
arising from a mental disorder when she signed her trust, testified the
“second best” explanation for why Kay changed her estate plan did not
involve any delusions: specifically, it was possible that appellants upset Kay
when they “swept” into her life after her hospitalization, and that she did not
want to give her money to them.7 Dr. Spar acknowledged, after hearing all
the evidence in the case, that a trier of fact could reasonably reach a different
conclusion than the one he espoused.
Dr. Cheyette opined there was evidence that Kay had “mild cognitive
impairment”—which is a slow decline of memory or other cognitive functions
common among older people—but he testified delusions are very rarely
7 Indeed, Johnson herself testified about her concern that all of the
things they did in October 2015 might have been too much for Kay at that
time, given Bob’s recent death and her medical condition. Kay’s estranged
son, John Noyes, Jr., similarly testified that Eyford and Johnson overstepped
and did too much.
15
associated with mild cognitive impairment. Similarly, but more strongly,
Dr. Angelone testified that mild cognitive impairment means a person has
memory issues, but that delusions do not result from this condition.
Dr. Angelone also testified that “mild cognitive impairment” is not a mental
disorder in the “DSM.”8
The record does establish that Kay had delirium in late 2015. Both
Dr. Cheyette and Dr. Angelone opined that Kay developed delirium, which is
a transient mental disorder, around the time of Bob’s death and her
hospitalization for UTI.9 Both of the doctors indicated that delirium typically
continues for short periods and clears with proper treatment. Both testified
there was no evidence that Kay had recurrent UTIs.
This and other evidence, such as the testimony of Kay’s long-time
accountant, Sturges, and her attorney, Hunt, supports the trial court’s
conclusion that Kay’s delirium was not ongoing when she executed her trust
in February 2016. Sturges, who witnessed Kay sign the trust instrument,
indicated that Kay had good days and bad days with regard to her memory
and her mental state. Sturges testified that the day Kay signed the trust was
“one of her good days,” because Kay was clear-headed and had expressed
things reflecting she knew what she was doing. Hunt—who had many years
8 While Dr. Angelone testified that “mild cognitive impairment” is not in
the DSM, he acknowledged that “minor neurocognitive disorder” is in the
DSM. But Dr. Angelone never opined that Kay had a minor neurocognitive
disorder. When asked about the mini mental status exam Kay took at the
Ole Health Clinic, Dr. Angelone said her score showed she was experiencing
moderate cognitive impairment. He explained, however, that this just
captured her mental status on a particular day and was not a diagnosis of a
mental disorder.
9 The expert testimony established that infections, such as UTI, in
elderly people commonly lead to delirium.
16
of experience in estate planning and experience with clients with
questionable mental capacity—met with Kay both before and when she
executed the trust and the two subsequent trust amendments. Hunt never
observed Kay to be forgetful or confused or cognitively impaired. Kay never
exhibited paranoia or having delusions about appellants, and Hunt never
believed Kay had a mental deficit. (Estate of Hansen (1940) 38 Cal.App.2d
99, 115 [when an attorney who draws a will and becomes a witness to the
instrument testifies that the testator appeared to be of sound mind and
memory, such testimony is entitled to serious consideration though is not
conclusive when other witnesses have testified to the contrary].)
Other witness testimony, including testimony from Kay’s longtime
friends Barrios, Steele, and McCully, also generally supports that Kay was
lucid in the period when she signed her trust.
On this record, substantial evidence supports the determination that
appellants fell short of establishing that Kay was living with a mental health
disorder at the time she executed her trust. In reaching this conclusion,
which is dispositive, we note that in their opening brief, appellants never
argue Kay had a “mental health disorder” at the time she executed her trust,
and they omit all mention of Dr. Angelone. But in their reply brief,
apparently in response to respondents’ argument that Kay had no mental
health disorder, appellants argue that “[c]ase law does not require a specific
finding of mental disorder; the determinant factor is whether the trustor was
delusional at the time the testamentary document was signed.”
This argument fails for a number of reasons. First, arguments made in
a reply brief for the first time are too late. (Bell v. H.F. Cox, Inc. (2012) 209
Cal.App.4th 62, 80, fn. 7.) Second, even if we set aside its untimeliness, we
are not persuaded by appellants’ sole authority in support of the aforequoted
17
argument, Goodman v. Zimmerman (1994) 25 Cal.App.4th 1667, which never
examined whether section 6100.5(a)(2) requires a finding of a mental health
disorder. (See Goodman, at pp. 1674–1678.) Third, appellants’
interpretation would render the portion of the statute requiring that
delusions stem from a mental health disorder mere surplusage, contrary to
fundamental precepts of statutory interpretation. (Bay Guardian Co. v. New
Times Media LLC (2010) 187 Cal.App.4th 438, 453–454.)
Before concluding, we briefly address appellants’ other arguments.
First, appellants contend that the trial court erred in finding Kay had
testamentary capacity by selecting a single false belief Kay had about
appellants—i.e., that appellants “wanted her out of the way in order to get
her money”—and determining it was not a delusion. We see no error.
Reading the statement of decision as a whole, the court found that Kay had
several false beliefs and that such beliefs were tethered to facts and therefore
not delusions,10 and also that Kay had some delusions in October 2015 or
10 Specifically, in the part of its decision preceding its analysis of
appellants’ testamentary capacity claim, the trial court discussed Kay’s
various beliefs regarding appellants, observing: “[t]here was little evidence
Kay’s negative thoughts and claims about [appellants] were true. In fact,
most of her claims were demonstrably false. [Appellants] did not steal her
money or jewelry. They did not make any transactions on her bank accounts.
They shredded outdated documents only with her consent. They did not
shred photographs. They put their names on her bank account only with her
consent. They prepared powers of attorney only with Kay’s consent.
Shannon did not push her on the balcony or any other place. They did not
pressure her to name them as her beneficiaries and agents against her will.
They did not want her dead. They did not show up in the parking lot or at
her apartment trying to get in. They did not attempt to have her deemed
incompetent. They did not try to sell her car. They did not do anything to
cause the death of their mother Cathy. They did not harass her in any way.”
Following this recitation of Kay’s beliefs regarding appellants, the court
nonetheless rejected the testamentary capacity claim upon finding that Kay
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shortly thereafter which were not operational when Kay signed her trust in
February 2016. While the court specifically addressed Kay’s belief that
appellants “wanted her out of the way in order to get her money” and
whether it constituted a delusion, it is evident that the court was not
indicating this was the only false belief or alleged delusion at issue.
Second, appellants argue the trial court committed reversible error by
not specifically addressing whether each alleged false belief was a delusion as
they claimed. This argument, however, is unaccompanied by citation to
authority. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–785.)
Respondents cite to Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th
1106, which provides that “[a] statement of decision need not address all the
legal and factual issues raised by the parties. . . . [A] trial court rendering a
statement of decision is required only to set out ultimate findings rather than
evidentiary ones.” (Id. at p. 1125, citations omitted.) Appellants do not
disagree with Muzquiz, and instead explain that “[w]hat they are
complaining about is the trial court’s complete failure to recognize that there
was no evidence supporting a dozen or so of Kay Pearson’s oft expressed
beliefs about facts—not motives or attitudes, but hard facts for which there
was zero evidence in the real world. These imagined facts influenced Kay’s
decision to disinherit her granddaughters.”
Understood as an argument that the court erred by failing to find that
all of Kay’s false beliefs about appellants were delusions (including the false
belief that appellants “wanted her out of the way in order to get her money”),
we need not and do not address that argument. As discussed, there was
substantial evidence that Kay did not have “a mental health disorder” as
had “irrational and false beliefs” but they could be accounted for by a
reasonable hypothesis. (See Estate of Putnam, supra, 1 Cal.2d at p. 172.)
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contemplated in section 6100.5(a)(2) at the time she executed the trust
instrument. This is dispositive under the statute and renders unnecessary
further analysis of whether her false beliefs were not delusions because they
resulted from “ ‘a belief or inference, however irrational or unfounded, drawn
from facts which are shown to exist.’ ” (Estate of Putnam, supra, 1 Cal.2d at
p. 172.) For the same reasons, we also decline to address appellants’ claim
that, as a policy matter, the court should not allow appellants’ actions, done
with good intentions to assist Kay, to support a “reasonable hypothesis” to
preclude a false belief from being a delusion.
In closing, we recognize the result here is likely a very disappointing
one for appellants. Nevertheless, we are bound to apply the law (People v.
Mowatt (1997) 56 Cal.App.4th 713, 720) and, under the substantial evidence
standard, our role is circumscribed. We cannot reweigh the evidence; we
determine only if there is any substantial evidence, contradicted or
uncontradicted, which will support the judgment. (Estate of Sapp (2019) 36
Cal.App.5th 86, 104.)
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
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_________________________
Fujisaki, Acting P.J.
WE CONCUR:
_________________________
Petrou, J.
_________________________
Jackson, J.
A157962
21
EYFORD et al. v. NORD et al. (A157962)
Trial court: Napa County
Trial Judges: Hon. Diane M. Price
Attorneys:
Stephen H. Fredkin for Plaintiffs and Appellants.
Tara L. Cooper; Epstein & Holtzapple, Robert F. Epstein, Robyn B. Christo;
Bien & Summers, Elliot L. Bien for Defendants
and Respondents.
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