Barber v. Johnston

586 P.2d 103, 37 Or. App. 39, 1978 Ore. App. LEXIS 2093
CourtCourt of Appeals of Oregon
DecidedNovember 6, 1978
DocketNo. 124-727, CA 9032
StatusPublished

This text of 586 P.2d 103 (Barber v. Johnston) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barber v. Johnston, 586 P.2d 103, 37 Or. App. 39, 1978 Ore. App. LEXIS 2093 (Or. Ct. App. 1978).

Opinion

RICHARDSON, J.

In this will contest case the three children of decedent challenge the will admitted to probate. They contend decedent lacked testamentary capacity and the will was the product of undue influence exerted by decedent’s uncle, Dwight Johnston, the personal representative of the estate. The court admitted the will to probate and the contestants appeal. Our review is de novo.

Decedent, Cherie Barber, who was 39 years old at her death, had a long history of emotional disorders from 1965 until her death by suicide in March, 1976. She had been placed in hospitals for treatment of her emotional problems on several different occasions. She was divorced in 1972 and received custody of two of the three children. Her former husband received custody of the third child who was retarded and a permanent resident of a care facility.

Dwight Johnston, decedent’s uncle, had a close relationship with decedent. Her father, Dwight Johnston’s twin brother, was deceased, as was her mother. She relied on Dwight Johnston for financial and personal advice and consulted with him regarding major purchases. He was given a general power of attorney by decedent which he utilized to vote her shares of stock in a family corporation. He was also a co-signator on her checking account and had issued checks to pay some of her bills. Dwight Johnston characterized himself as decedent’s confidant.

The contested will was executed February 8, 1975. On December 30, 1974, decedent was hospitalized for severe psychosis and chronic schizophrenia. Dr. McCulloch, her treating psychiatrist since 1973, released her to Dwight Johnston and her grandmother, Mrs. Queener, on January 14, 1975. The doctor advised them that she should continue taking the prescribed medication or risk a recurrence of her severe psychosis. On January 27, 1975, Dr. McCulloch again saw decedent and noted she still showed signs of [42]*42schizophrenic thought processes. He testified that her condition worsened between January 27, 1975 and the next time he saw her on February 20, 1975.

On February 1, 1975, Dwight Johnston took decedent from her home in Portland to Ontario for a period of rest. He felt she was oversedated and advised her to forego her medication, which she did. Decedent’s two children were left in decedent’s home in Portland. On February 7, 1975, after talking by telephone to the oldest child, decedent’s former husband took the children and their bedroom furniture to his home. When decedent’s grandmother, Mrs. Queener, discovered the children had gone to their father’s home she called decedent and Dwight Johnston in Ontario. Decedent became very upset and Dwight Johnston was enraged at the conduct of the former husband. Dwight Johnston called the former husband and a heated argument ensued in which following this argument decedent and Dwight Johnston discussed making a will for decedent. Dwight Johnston then typed a will and the next morning procured two persons who witnessed the execution of the will.

The will, which was a rather sophisticated estate plan, provided that upon the death of decedent each child would receive $100 and the balance of her estate would be held in trust with Dwight Johnston as trustee. The income from the trust was to be paid to Mrs. Queener during her lifetime and upon her death to Dwight Johnston and his two living brothers and upon their death the remainder passed to decedent’s three children. As trustee Dwight Johnston had authority to invade the corpus of the trust for the benefit of Mrs. Queener and upon her death for the benefit of himself and his two brothers.

After decedent’s return to Portland from Ontario she visited her former husband and the children. She told her former husband and her daughter that Dwight Johnston had made her change her will and that it wasn’t what she wanted to do. Decedent went to [43]*43a Portland attorney with her grandmother, Mrs. Queener. She told the attorney she wanted to talk to him about changing her will. The attorney testified he was unable to do so because of decedent’s reluctance to talk and the fact that Mrs. Queener dominated the conversation. Although he was aware of the will he did not see it until called as a witness in this proceedings. He testified he was surprised by the testamentary disposition in the will.

Decedent was found dead of an apparent suicide on March 13, 1976. Dwight Johnston was appointed personal representative of the estate and petitioned for admission of the will to probate. The eldest child and the former husband, as guardian ad litem for the two other children, filed petitions contesting the validity of the will. The petitions asserted that decedent lacked testamentary capacity when she executed the will and further that the will was the product of undue influence exerted by Dwight Johnston and Mrs. Queener. Since we determine the will was a product of undue influence it is unnecessary to review the claim regarding decedent’s testamentary capacity.

In admitting the will to probate the trial court made no specific findings of fact other than the general findings that the decedent had the requisite testamentary capacity and that the will was not the result of undue influence.

The Supreme Court in In re Reddaway’s Estate, 214 Or 410, 329 P2d 886 (1958), discussed the various "factors of importance” to be considered in determining whether undue influence was exercised. None of the categories of inquiry set forth by the Supreme Court are to be given priority, they are merely decisional guidelines in assessing the evidence respecting undue influence. The "factors of importance” are grouped in seven categories: (1) participation of the beneficiary in preparation of the will; (2) independent [44]*44advice; (3) secrecy and haste; (4) change in the decedent’s attitude toward others; (5) change in the testator’s plan of disposing of her property; (6) unnatural or unjust gifts in the will; and (7) the susceptibility of the testator to influence.

Ordinarily the will contestant has the burden of establishing the existence of undue influence in the making of the will, Harritt v. Linfoot, Exec, et al, 210 Or 354, 311 P2d 450 (1957). However, the Supreme Court has adopted a rule that:

"The existence of a confidential relationship * * * when taken in connection with other suspicious circumstances may justify a suspicion of undue influence so as to require the beneficiary to go forward with the proof and present evidence sufficient to overcome the adverse inference.* * *” In re Southman’s Estate, 178 Or 462, 482, 168 P2d 572 (1946).

See also in re Reddaway’s Estate, supra; Carlton v. Wolf, 21 Or App 476, 535 P2d 119 (1975). The burden does not shift unless there are suspicious circumstances in addition to the confidential relationship.

The evidence establishes that there was a confidential relationship between the decedent and Dwight Johnston. The personal representative does not dispute this conclusion. He argues, however, that Dwight Johnston and his two brothers are only technically beneficiaries of the estate. They are, he contends, persons of substantial means and would have no necessity to receive monies from the trust. The fact remains, however, that the will makes them beneficiaries. The trustee is given authority to pay the income to them and discretion to invade the corpus of the trust for their proven needs.

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Related

Harritt v. LINFOOT, EXEC.
311 P.2d 450 (Oregon Supreme Court, 1957)
Cline v. Larson
383 P.2d 75 (Oregon Supreme Court, 1963)
In Re the Estate of Reddaway
329 P.2d 886 (Oregon Supreme Court, 1958)
In Re Southman's Estate
168 P.2d 572 (Oregon Supreme Court, 1946)
Carlton v. Wolf
535 P.2d 119 (Court of Appeals of Oregon, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
586 P.2d 103, 37 Or. App. 39, 1978 Ore. App. LEXIS 2093, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barber-v-johnston-orctapp-1978.