Estate of Cook

09/22/2020
DA 19-0525
Case Number: DA 19-0525
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 240
IN THE MATTER OF THE ESTATE OF:
DANIEL COOK,
Deceased.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DP-16-107
Honorable Karen S. Townsend, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Robert A. Terrazas, Dana A. Henkel, Terrazas Henkel, P.C.,
Missoula, Montana
For Appellee:
Donald V. Snavely, Snavely Law Firm, Missoula, Montana
Submitted on Briefs: June 10, 2020
Decided: September 22, 2020
Filed:
cir-641.—if
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 The Cook family appeals following a District Court Order that Dan Cook’s Last
Will and Testament be confirmed and admitted to probate and that Kim Smith be appointed
personal representative of the estate. We affirm.
¶2 We restate the issues on appeal as follows:
Issue One: Whether Kim Smith exceeded her authority under a general Power of
Attorney granted to her by Dan Cook.
Issue Two: Whether Dan Cook had the requisite capacity to enter into a valid
marriage with Kim Smith shortly before his death.
Issue Three: Whether Dan Cook had the requisite capacity and intent to create and
amend a valid will.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Kim and Dan met as teenagers in Missoula and dated throughout most of high
school. After high school, Dan moved to Billings and operated a heating and air
conditioning business. Kim married and moved to Tennessee with her husband. Kim and
Dan stayed in touch and resumed their relationship in 1999. In October 2000, Dan closed
his business and moved to Tennessee. In 2001 Dan and Kim moved to Missoula.
¶4 Kim and Dan maintained a relationship from 1999 until his death in 2016. They
occasionally discussed marriage but did not co-mingle assets. They shared living expenses
but did not closely track these transactions. Kim and Dan maintained separate bank
accounts and did not own real property together. Dan actively managed his own assets and
did not name Kim as a beneficiary on his financial accounts.
2
¶5 In January 2016 after a colonoscopy and subsequent biopsy, Dan was diagnosed
with cancer. Kim testified that after they learned Dan had cancer, they began discussions
about end-of-life issues and trusts and wills. On February 17, 2016, after receiving a PET
scan, Dan learned that his disease was incurable, with a life expectancy of between two
weeks and two months. Dan purportedly began talking more about end-of-life issues. He
did not have a will or trust.
¶6 As of February 23, 2016, Dan’s assets included a First Security Bank checking
account naming his father, Wilfred Cook, as the pay-on-death beneficiary; a Money Market
Savings Account naming his father, his mother, Bernice Cook, and his brother, Terry Cook,
as pay-on-death beneficiaries; a Montana Medical Savings Account naming no
beneficiaries; a Health Savings Account; a MetLife Annuity; an SG Long Individual
Investment account (RBC) naming his father as beneficiary; an Allianz Variable Annuity;
and a TD Ameritrade Investment Account. Dan’s father died in 2015, approximately one
year prior to Dan’s death. Dan’s accounts had not been updated with alternate beneficiaries
at the time Dan was diagnosed with cancer.
¶7 In February 2016, Kim began preparing a power of attorney (POA), a will, and a
trust for Dan. Kim, who is not licensed to practice law but worked in the finance industry,
prepared the will using her own will, her mother’s will and trust documents, and templates
found online. Kim testified at trial that she and Dan discussed the documents while she
worked on them. Kim testified they intended to review the documents with an attorney but
“ran out of time.”
3
¶8 On February 22, 2016, Dan signed transfer paperwork to move his TD Ameritrade
account to his individual account at SG Long. On February 23, 2016, Dan went to his first
chemotherapy appointment. Lab results indicated he should be admitted to the hospital for
further evaluation. Dr. Kolendich was asked to consult with Dan. Dr. Kolendich reported
that Dan was pleasant, alert, oriented, and answered all questions appropriately. However,
after meeting with two other doctors, Dr. Scott and Dr. Seagraves, Dan forwent
chemotherapy on that day because he was too sick. Dr. Scott noted that Dan had realistic
expectations regarding his prognosis and was preparing for the end of life.
¶9 Dan’s medical records from the evening of February 23 indicated that Dan was not
confused, disoriented, or demonstrating memory loss at that time. Dan was communicating
without difficulty, was awake, alert, and oriented to person, place, and time. Dan’s medical
records on February 24 reflected that his status remained within defined limits.
At 8:20 a.m., Dr. Scott wrote that, while Dan had had a difficult night due to persistent
eructation and abdominal distention, his pain was well controlled, he was emotionally
stable, accepted his poor prognosis, and was anxious to complete paperwork in anticipation
of the end of life. Dan was provided a nasogastric (NG) tube to help with abdominal
distention and burping. Entries in his medical records from between noon and 3:27 p.m.
reflect that his speech was clear and coherent, that he was encouraged to walk, and that he
used the toilet and brushed his teeth.
¶10 On February 24 between 3:30 and 4:30 p.m., Dan signed a “Durable General Power
of Attorney of Daniel E. Cook,” the “Last Will and Testament of Daniel E. Cook,” and
“The Daniel E. Cook Revocable Living Trust dated February 24, 2016.” Dan’s Will was
4
a “pour over” will, putting everything in the Trust upon Dan’s death. Kim was named the
personal representative. Dan’s Will was not signed by two witnesses. Dan was named as
the Primary Trustee during his lifetime while competent. Upon his death or incapacity,
Kim was named as the trustee. The Trust named Bernice, Kim, Terry, and James (Dan’s
other brother) as beneficiaries. Bernice was to receive $3,000 monthly to allow her to live
in reasonable comfort in her home until her death or permanent departure from her home.
Jim was to receive $50,000. Terry was to receive $250,000. Kim was to receive $300,000
plus monthly dividends and interest earned by the Trust at her discretion. The Trust was
to terminate after all payments had been made—upon Bernice’s death or permanent
vacation of her home.
¶11 Kim and her sister, Michelle Barthelmess, were present when Dan signed the Will,
Trust, and POA on February 24 around 3:30 p.m. Kim testified at trial that she checked at
the hospital for a notary but none were available, so she called Michelle. Michelle, a notary
public, notarized the documents, but she did not assist in or create any of the documents.
Dan was purportedly “pushing hard” to complete the documents. Michelle testified Dan
was upright in bed and Kim took each document, showed it to Dan, and described what it
was. She and Dan discussed the Trust before he signed it. Dan signed one document at a
time, Michelle notarized the signature, and then they moved to the next document, signing
the POA, Will, and the Trust. Kim testified Dan was in a serious mood and that he was
not confused and knew what he was signing. Michelle testified that she stayed until around
5:00 p.m. and that Dan was talkative, conversing normally, and seemed alert. Michelle
was not concerned that Dan did not understand what was going on or that he was delusional
5
or confused. Michelle also said Kim was not putting pressure on Dan to sign documents,
and if anything, Dan was pressuring Kim to get things done. Michelle testified that she did
not perform a “mini-mental exam” on Dan before she notarized the documents he signed.
She was not aware of his symptoms and did not ask him what medications he had been
taking before notarizing the documents.
¶12 Terry, Dan’s brother, testified at trial that he also visited Dan in the hospital on
February 24 for an hour to an hour and a half. Terry testified Dan was confused, speaking
slowly, had to concentrate on what he was saying, looked jaundiced, was spitting bile in a
cup, and acted medicated. His trial testimony was inconsistent with his deposition
testimony, in which he had testified that Dan did not seem confused, that he seemed like
he was comprehending things normally, and that he understood what he was doing when
he discussed his estate plan with Terry. Terry testified at trial that he believed his
deposition testimony was inaccurate because he had been confused about what day he
talked to Dan and on what day Dan had signed the Trust. The trial court found that, because
Terry did not testify consistently about Dan’s mental status on February 24 and did not
offer a credible explanation for the inconsistency, Terry’s statements could not be
reconciled and disregarded his testimony as to Dan’s capacity on February 24.
¶13 Subsequently, Dan purportedly instructed Kim to move $30,000 into her checking
account so she could buy a 4-wheel drive vehicle. Dan also instructed Kim to transfer
several pickup trucks he owned into her name. Bernice, Dan’s mother, testified that she
visited Dan on February 25, that Dan handed her an envelope with $20,000 in it and told
her to “[t]ake this.” Bernice testified Dan was coherent and did not act confused when he
6
gave her the cash. Dan’s medical notes on February 25 indicated Dan was alert and
oriented and able to understand and communicate without difficulty.
¶14 Kim testified that on February 26, Dan instructed her to change the beneficiary on
his two bank accounts at First Security Bank to the Trust before the weekend. She signed
a check using her POA to deposit $150,051.12 from one bank account into his RBC
account. Dan continued to stabilize and improve on February 27 and 28. On February 29,
Dan quitclaimed property he owned in Florence, Montana, to Kim. Michelle notarized the
quitclaim deed. She did not ask Kim to leave the room before notarizing the document or
speak to Dan alone or ask what medications he was taking. Dan’s medical records for
February 29 reflect that he continued to understand and communicate without difficulty.
¶15 On March 1, Dan had a reaction to Ativan and expressed symptoms of confusion.
Dan was discharged later that day for home with hospice care. Kim testified that while
Dan was hospitalized, he knew who his family was, understood the nature of his assets,
and was not confused about these matters. Kim also testified that she did not tell Dan what
to do with his assets and he made all such decisions himself. Dan’s medical records reflect
that his mental faculties were routinely documented that health care providers did not
indicate that Dan was incapable of end-of-life planning.
¶16 Friends of Dan testified as to their interactions with Dan at the hospital and after he
was sent home. Dan’s friend Larry Connell, who knew Dan for about 16 years, testified
Dan knew what he wanted and was scrambling to get it done, and had loose ends to tie up.
He also testified that Dan was hardheaded and not easily influenced. Larry testified that
he saw Dan around six or eight times after Dan returned home, that he was not “out of it,”
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and that he was “real plain on what he wanted” to happen after he passed away. He also
said Dan did not suggest that there was any pressure on him, and that “you would have to
have a gun to pressure Dan, especially with his finances. That was just Dan.” Larry was
not aware of what medications Dan was taking.
¶17 Other friends of Dan who had spent time with him during his final days also
testified. All testified that Dan was not confused, that he knew who his family was and
what he wanted after he passed away, and that he did not appear pressured in any way.
Many testified that Dan was not the kind of guy you could push around.
¶18 Michelle testified that, on the evening of March 4, Kim contacted her by email. The
email requested that Michelle bring over an amendment to Dan’s Trust as soon as possible
because he was “really worried about getting this amendment done” and signed. Michelle
printed the document on the morning of March 5, brought it to the house, and Dan signed
the amendment to the Trust. The amendment affected Terry’s distribution. Rather than
receiving a distribution of $250,000 upon Dan’s death, Terry was to receive $50,000
outright and the remaining $200,000 only if he sold or closed his business within 18 months
of Dan’s death. Michelle testified Dan was not drowsy or confused. He signed the Trust
Amendment and she notarized it. Dan explained to her what it was and understood it was
an amendment to the original Trust. She did not have any concern that he did not know
what he was signing.
¶19 Later on March 5, Kim, Bernice, and Jim were present at a meeting where Dan
discussed his wishes. Bernice testified Dan could not really converse, did not look alert,
and did not know what was going on. On March 6, Terry came over. Kim testified Dan
8
was not confused and was engaged with Terry. Terry and Dan got in an argument. Terry
testified that Dan was “out of it,” and not able to communicate well. Kim explained the
trust to Terry. According to Terry, Dan was not participating in the discussion. On March
6, Dan Asked Kim to marry him. Kim testified she and Dan had been talking about getting
married for a few days. That afternoon, Mike, Dan’s best friend, came over. He testified
that Dan was not confused, was talkative and coherent. Dan told Mike he wanted to marry
Kim, and they discussed things he wanted Mike to have when he passed away. Larry
Connell testified he saw Dan on March 6 as well and he did not show any signs of
confusion.
¶20 Also on March 6, Pastor John Daniels met with Dan and Kim at their home. He
talked to Dan about the marriage. He testified Dan was cognizant and aware his death was
impending. Arrangements were made for Pastor Daniels to come again in a day or two to
perform the marriage ceremony. On March 7, Kim obtained a marriage license and
application. Dan signed the application and Michelle notarized it. Mike testified he saw
Dan sign the license application and that Dan was not pressured to sign it.
¶21 Shirley Faust, the Missoula County Clerk of Court, testified the marriage license
was issued on March 7. She testified that both parties do not need to be present before the
clerk of court to apply for a marriage license. She also testified that clerks ask the appearing
applicant if they are under the influence of intoxicating liquor or narcotic drugs. If one
party does not appear, the non-appearing party attests to the answers typed on the
application. She testified that from her perspective, being under the influence would mean
some kind of impairment as a result of drugs or alcohol.
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¶22 Pastor Daniels returned to the house on March 7. Though Dan was initially not alert
or awake enough to participate in the ceremony, after a short amount of time, Dan awoke
and Pastor Daniels testified that after talking to Dan, he felt Dan had the mental capacity
to enter into a marriage. Pastor Daniels performed a wedding ceremony that required a
formal inquiry and a response of affirmation or declination. Dan responded to the
questions, but Pastor Daniels did not recall whether he verbally answered or gestured.
Pastor Daniels testified “My sense was clearly he was saying yes.” He also testified that if
he had seen indications Dan was confused or not of sound mind, he would not have married
Dan and Kim. Mike testified he was at the wedding and observed that while Dan’s
responses were short, they indicated agreement and he fully understood what was going on
and wanted to participate.
¶23 On March 8, Dan passed away. Bernice was present in the morning and said Dan
did not know her and he was having a bad time. Following Dan’s death, Terry filed a
Petition for Formal Probate of Will and Appointment of Personal Representative. Terry
disputed the validity of the marriage on the grounds that Dan lacked the mental capacity to
enter into a marriage. Terry disputed the validity of the Will, Trust Agreement, and the
revised Trust Agreement on the grounds of lack of capacity. Terry alleged that Dan’s
medical treatments rendered him cognitively insufficient to enter into a testamentary
disposition. Terry asserted he was entitled to be appointed as personal representative of
Dan’s estate and letters should be issued to him. Kim filed a cross-petition for her
appointment as personal representative. Kim alleged that under the Last Will and
Testament, all Dan’s assets are devised to the “Daniel E. Cook Revocable Trust” dated
10
February 24, 2016. Kim alleged she was Dan’s surviving spouse and named personal
representative in Dan’s Will. She argued the Will was valid and asked that it be admitted
to probate and that the Court declare the Trust and its subsequent amendment to be a valid
and enforceable inter vivos trust.
¶24 The Fourth Judicial District Court held a non-jury trial on the matter. At trial,
Dr. Eric Kress, a family physician in Missoula, testified on behalf of the Cooks.1 Dr. Kress
had not treated Dan but was asked for an opinion based on the medical records he reviewed.
Dr. Kress estimated that Dan’s illness would make it difficult to make complicated medical
decisions and likely would have made Dan susceptible to undue influence. He also testified
that the medications Dan was given can cause confusion, disorientation, sleepiness, and
susceptibility to undue influence. In Dr. Kress’s opinion, the notations “oriented times 4”
in Dan’s medical records were likely the result of clicking a checkbox in a computerized
documentation form, which he did not view as persuasive evidence that the assessment had
actually been properly carried out. However, he agreed that Dan’s mental status was not
tested conclusively and that there was material in the medical records that could support a
finding of Dan’s competency. He also added that people in an end stage of life could go
in and out of mental lucidity. He agreed that relevant information about Dan’s mental status
could be provided by friends and family who saw Dan while he was in the hospital and in
hospice.
1
On August 2, 2017, the parties stipulated to joining Dan’s mother, Bernice Cook, and Dan’s
brother, James Cook, as parties (Cooks).
11
¶25 Dr. William Stratford, a medical doctor in private practice in Montana, testified on
behalf of Kim. He did not treat Dan. In reviewing Dan’s medical records, he testified
Dan did not undergo a formal competency determination. In his opinion, Dan was
competent to execute a will and trust on February 24 because he understood “the nature
and quality of his bounty and where he wanted it to go.” He also believed Dan was
competent and had the capacity to understand his assets and where he wanted them
distributed on March 5, when he signed the Trust Amendment. He testified regarding
Dan’s capacity on March 7, around the time of the wedding. Based on his interviews of
Pastor Daniels and persons at the wedding, Dr. Stratford believed that Dan knew “what he
was doing, which was getting married. That was his intent.” Dr. Stratford also testified
that Dan’s medications were prescribed at a reasonable, normal dose and not expected to
change his mental status, particularly on the days of February 24, March 5, or March 7.
¶26 On July 8, 2019, the District Court issued a Findings of Fact, Conclusions of Law
and Order. The District Court held that Dan was competent to give Kim POA on February
24, 2016, and Kim did not exceed the authority of the POA; that Dan had testamentary
capacity at the time he signed his Will, Trust, and Trust Amendment; that Dan’s Will was
not formally witnessed, but that there was clear and convincing evidence Dan intended the
document to constitute his Will; that Dan was not subjected to specific acts of undue
influence; and that Dan consented to marriage on March 7. The court ordered that Dan’s
Last Will and Testament be confirmed and admitted to probate, and Kim be appointed
personal representative of Dan’s estate. Cooks appeal.
12
STANDARDS OF REVIEW
¶27 This Court reviews findings of fact in a bench trial in a civil action to determine
whether they are supported by substantial credible evidence. DeNiro v. Gasvoda, 1999
MT 129, ¶ 9, 294 Mont. 478, 982 P.2d 1002. This evidence is viewed in the light most
favorable to the prevailing party. DeNiro, ¶ 9. The credibility of witnesses and weight
assigned to their testimony is left to the determination of the district court and will not be
disturbed on appeal. Barrus v. Mont. First Judicial Dist. Court, 2020 MT 14, ¶ 13, 398
Mont. 353, 456 P.3d 577. This Court reviews a district court’s conclusions of law to
determine whether they are correct. DeNiro, ¶ 9. Mixed questions of law and fact,
including the district court’s application of controlling legal principles to its factual
findings, are reviewed de novo. Barrus, ¶ 15.
DISCUSSION
¶28 Issue One: Whether Kim Smith exceeded her authority under a general Power of
Attorney granted to her by Dan Cook.
¶29 Cooks argue the District Court impermissibly ratified Kim’s POA without
addressing well-established Montana law prohibiting agents from using POAs for personal
benefit unless expressly prescribed. Cooks claim that Dan signed a POA naming Kim the
agent under a “general grant,” but did not provide Kim the authority to transfer Dan’s assets
for her benefit while Dan lived or appeared competent. Cooks maintain that the court
ignored Kim’s alleged self-dealing, claiming she improperly used Dan’s POA for her
benefit by creating and issuing a check for $150,051 from Dan’s checking account and then
depositing it into Dan’s SG Long Individual account, which she managed and of which she
13
was the primary beneficiary. Kim also used the POA when signing a letter for wire transfer
of $30,000 from Dan’s SG Long account to her individual account. They argue that the
POA does not allow Kim to personally benefit from its use.
¶30 Section 72-31-336, MCA, provides:
(1) An agent under a power of attorney may do the following on behalf of
the principal or with the principal’s property only if the power of attorney
expressly grants the agent the authority and exercise of the authority is not
otherwise prohibited by another agreement or instrument to which the
authority or property is subject:
(a) create, amend, revoke, or terminate an inter vivos trust;
(b) make a gift;
(c) create or change rights of survivorship;
(d) create or change a beneficiary designation;
(e) delegate authority granted under the power of attorney;
(f) waive the principal’s right to be a beneficiary of a joint and survivor
annuity, including a survivor benefit under a retirement plan;
(g) exercise fiduciary powers that the principal has authority to delegate;
or
(h) disclaim property, including a power of appointment.
¶31 Powers of attorney generally are construed by the rules governing the interpretation
of written instruments. McLaren Gold Mines Co. v. Morton, 124 Mont. 382, 390, 224 P.2d
975, 979 (1950). These rules require that, when possible, the parties’ intent with regard to
the authority granted be ascertained from the writing alone. McLaren Gold Mines, 124
Mont. at 390, 224 P.2d at 979. In doing so, “[t]he words used in the writing are to be
understood in their ordinary and popular sense, rather than according to their strict legal
meaning, unless used by the parties in a technical sense, or unless a special meaning is
given to them by usage, in which case the latter must be followed.” McLaren Gold Mines,
124 Mont. at 390, 224 P.2d at 979. In addition, “where power is conferred on an agent by
a power of attorney, the meaning of general words in the instrument is restricted by the
14
context and construed accordingly and the authority given is construed strictly, so as to
exclude the exercise of any power that is not warranted either by the terms actually used or
as a necessary means of executing with effect the authority given.” 3 Am. Jur. 2d Agency
§ 27 (2013); see also In re Nix’s Estate, 66 Mont. 559, 565-66, 213 P. 1089, 1091 (1923)
(citations omitted).
¶32 The POA did not prohibit or limit the authority of Kim. Instead, the POA states in
relevant part:
My agent(s) has the power to exercise or perform any act, power, duty, right,
or obligation for whatever that I now have or may hereafter acquire relating
to any person, matter, [or] transaction . . . . I grant to my agent full power and
authority to do everything necessary in exercising any of the powers herein
granted as fully as I might do if personally present . . . hereby ratifying and
confirming all that my agent shall lawfully do or cause to be done by virtue
of this power of attorney and the powers granted herein.
(Emphasis added.)
¶33 Accordingly, § 72-31-336(3) and (4), MCA, also apply:
(3) Subject to subsections (1), (2), (4), and (5), if a power of attorney
grants to an agent authority to do all acts that a principal could do, the agent
has the general authority described in 72-31-339 through 72-31-351.
(4) Unless the power of attorney otherwise provides, a grant of authority
to make a gift is subject to 72-31-352.
¶34 Section 72-31-352, MCA, provides in part that “[a]n agent may make a gift of the
principal’s property only as the agent determines is consistent with the principal’s
objectives if actually known by the agent[.]”
¶35 The express language of the POA specifically authorized Kim to exercise any power
which Dan possessed, relating to “any person.” Kim’s transfer of approximately $150,000
to Dan’s RBC account was made in Dan’s name and did not specifically benefit Kim. The
15
check was deposited in Dan’s RBC account, which he controlled. Kim did not directly
benefit from this transfer. The $30,000 transfer from First Security Bank to Kim’s personal
account, however, did benefit Kim. Dan approved of this transfer, a gift which he
authorized. The POA does not prohibit her personal benefit from its use, and further, Kim
testified that she always first received authorization from Dan prior to conducting any
transfers. 2 The District Court did not err in finding that Kim did not abuse her powers
under the POA document.
¶36 Issue Two: Whether Dan Cook had the requisite capacity to enter into a valid
marriage with Kim Smith shortly before his death.
¶37 Cooks argue that the District Court erred in concluding that Kim and Dan entered
into valid marriage, claiming Dan did not possess the requisite capacity to enter into the
marriage because he was intoxicated by prescription drugs at the time.
¶38 Section 40-1-402(1)(a), MCA, provides that:
The district court shall enter its decree declaring the invalidity of a marriage
entered into under the following circumstances:
(a) A party lacked capacity to consent to the marriage at the time that the
marriage was entered into, either because of mental incapacity or infirmity
or because of the influence of alcohol, drugs, or other incapacitating
substances, or a party was induced to enter into a marriage by force or duress
or by fraud involving the essentials of marriage[.]
¶39 However, § 40-1-402(2), MCA, goes on to provide that “[a] declaration of invalidity
under subsections (1)(a) through (1)(c) may be sought by any of the following persons and
2
Cooks argue that evidence regarding Dan’s wishes are inadmissible hearsay. However,
Cooks did not object at trial to Kim’s testimony that she “always got authorization” from Dan
when handling the First Security Bank transfer.
16
must be commenced within the times specified, but a declaration of invalidity may not be
sought after the death of either party to the marriage[.]” (Emphasis added.)
¶40 Here, Terry did not challenge the validity of the marriage until June 14, 2016, when
he filed his Petition for Formal Probate of Will and Appointment of Personal
Representative. Dan died March 8, 2016. The Cooks argue that applying this subsection
would be against public policy interests in strengthening and preserving the integrity of
marriage. We interpret a statute according to the plain meaning of the words used.
See § 1-2-102, MCA; State v. Incashola, 1998 MT 184, ¶ 11, 289 Mont. 399, 961 P.2d 745.
The District Court correctly applied the bar on challenging a marriage posthumously.3
¶41 Issue Three: Whether Dan Cook had the requisite capacity and intent to create and
amend a valid will.
¶42 Finally, Cooks challenge the validity of the Will, claiming that the Will was not duly
executed, that Dan lacked capacity, and that Kim had the burden to overcome the
presumption that Dan lacked capacity with clear and convincing evidence such that the
District Court did not correctly apply Montana law. Cooks argue that the District Court
3
Even if the bar did not apply, Cooks’ argument that Dan did not have the capacity to enter
the marriage is undermined by the evidence in the record. A number of people, including Pastor
Daniels, testified as to interactions with Dan immediately prior to and during the marriage
ceremony and all indicated that Dan understood what was happening and that he possessed the
requisite intent. Further, while Cooks assert Dan was heavily medicated with narcotics, the record
reflects that he received only a 1 mg dose of Dilaudid more than six hours prior to signing the
marriage application and, at intervals earlier in the day, two doses of Lorazepam (Ativan) which
Dr. Stratford testified is not a narcotic and, based on when Dan took the medication, would not
have affected Dan’s mental capacity at the time of the ceremony. In considering whether a party
lacked the capacity to consent, a petitioner must offer clear and definite evidence that one of the
spouses lacked “sufficient mental capacity to understand intelligently the marriage contract . . .
and the obligations it imposed upon him.” In re Marriage of Helsel, 223 Mont. 85, 87, 723 P.2d
963, 964 (1986). Cooks failed to meet this burden.
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improperly shifted the burden to them to prove that Dan lacked the capacity or intent to
execute the Will.
¶43 A will must be: (1) in writing; (2) signed by the testator or in the testator’s name by
some other individual in the testator’s conscious presence and by the testator’s direction;
and (3) signed by at least two individuals. Section 72-2-522, MCA.
¶44 Generally, a testator enjoys a presumption of mental competence in situations in
which a duly executed will is admitted to probate pursuant to § 72-2-522, MCA.
See In re Estate of Brooks, 279 Mont. 516, 522, 927 P.2d 1024, 1027 (1996). Upon
admission of a duly executed will, § 72-3-310, MCA, provides that “[c]ontestants of a will
have the burden of establishing lack of testamentary intent or capacity, undue influence,
fraud, duress, mistake, or revocation.”
¶45 However, even if a will does not satisfy the three required elements, § 72-2-523,
MCA, provides:
Although a document or writing added upon a document was not executed
in compliance with 72-2-522, the document or writing is treated as if it had
been executed in compliance with that section if the proponent of the
document or writing establishes by clear and convincing evidence that the
decedent intended the document or writing to constitute:
(1) the decedent’s will;
(2) a partial or complete revocation of the will;
(3) an addition to or an alteration of the will; or
(4) a partial or complete revival of the decedent’s formerly revoked will
or of a formerly revoked portion of the will.
¶46 Here, § 523 applies because the Will was not signed or witnessed by two individuals.
This Court has held that “no presumption that the decedent was competent to execute a will
18
exists where § 72-2-523, MCA, applies.” Brooks, 279 Mont. at 523, 927 P.2d at 1028.
The burden to prove capacity shifts to the proponent of the will.
¶47 Cooks rely on Brooks, arguing that proponents of this Will, which was not duly
executed, bear the burden of proving by clear and convincing evidence that Dan intended
the document to constitute his Will. They argue that the District Court improperly shifted
the burden to the Cooks to prove Dan lacked capacity to execute the will.
¶48 Indeed, the District Court found that “[c]ontestants of a will have the burden of
establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake
or revocation,” and that “the presumption is that the donor was competent and of sound
mind and undue influence or incompetence must be proven like any other fact.” The
District Court also held that “Terry has not carried his burden of proof as to undue
influence, lack of testamentary capacity, invalidity of marriage or other grounds for
invalidating Dan’s Will.” The District Court failed to recognize that the burden to prove a
lack of testamentary intent or capacity shifts when § 72-2-523, MCA, applies.
¶49 The District Court mistakenly applied this burden and the Cooks argue that this
improper burden shifting constitutes reversible error. However, we conclude that the
court’s incorrect interpretation does not require reversal of this case. The evidence put
forth at trial—including the testimony of Kim, her sister Michelle, Dr. Stratford, and
witnesses who visited Dan, describing him as alert, coherent, and understanding what was
going on—was sufficient to allow Kim to carry her evidentiary burden of showing that Dan
possessed the requisite mental capacity to enter into the Will, both when he first executed
his Will on February 24 and when he amended his Will on March 5. Cooks’ only evidence
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to the contrary is the testimony of Dr. Kress, who did not meet with Dan at any time or
interview those who had, and Terry’s testimony, which the District Court found unreliable
due to its conflict with his deposition testimony. Any error by the District Court was
harmless.
CONCLUSION
¶50 The District Court did not err in concluding that Kim did not exceed her POA when
she transferred Dan’s money. Neither did it err in finding that Dan was competent to marry
Kim Though the District Court erred in applying the incorrect burden of proof to determine
the validity of Dan’s Will, that error was harmless here as the District Court’s findings of
fact were sufficient, under the correct burden of proof, to support its conclusion that Dan
was competent to create and amend his Will on the dates in question. For these reasons,
we uphold the District Court’s order that Dan’s Last Will and Testament be confirmed and
admitted to probate and that Kim be appointed Personal Representative of the estate.
¶51 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR
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