This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-96-2620

In Re:

Estate of Robert Earl Borgeson, Deceased.

Filed August 5, 1997

Affirmed

Crippen, Judge

Crow Wing County District Court

File No. P6951772

Michael G. Kula, Robert W. Johnson, P.A., 1732 Grand Avenue, St. Paul, MN 55105 (for Appellant)

George G. Seltz, Seltz & Seltz, Suite 425, 6600 France Avenue South, Minneapolis, MN 55435 (for Respondents)

Considered and decided by Crippen, Presiding Judge, Huspeni, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

CRIPPEN, Judge

Appellant Norman Ryan contests the will of his father that excludes him from any benefits. Appellant argues that his father lacked sufficient testamentary capacity to execute the will and that the will is the product of undue influence exerted by respondents Thomas and Mavis Thompson. After a bench trial, the trial court denied appellant's claims. We affirm.

FACTS

Testator Robert Borgeson was born in 1923 and died in 1995. Appellant, his only child, was born during Borgeson's brief marriage shortly after World War II. After the couple divorced, appellant's mother remarried and appellant took his stepfather's last name, but his legal relationship with his father was never terminated. Appellant had little or no contact, communication, or relationship with his father.

Borgeson was discharged from the military service with a mental disability that entitled him to full disability benefits. He returned to Minnesota, where he resided with various family members. Respondents first met Borgeson in 1967 at the home of their uncle, Richard Welch, the husband of Borgeson's sister Marge. In 1986, after his sister Marge died, Borgeson moved in with Welch, and they soon moved to a house near respondents' house. In 1987, Welch died, and Borgeson asked respondents if he could live with them. They agreed, and he resided with them until his death. From 1963 until 1995, Borgeson's father, sister, and Richfield Bank & Trust all served as his financial guardians.

In 1986 and 1989, Borgeson met with attorney Linda Jungers. He told her that he had a son who he thought was living in California, but that he was not sure if he had ever seen the son. Jungers testified that Borgeson told her that he had no contact with the son, that he considered respondents his family, and that he wanted to omit his son from the will and leave his entire estate to respondents. Jungers also testified that Borgeson was aware of the extent of his property and that he understood the purpose of a will. Eventually, Jungers referred decedent to an attorney specializing in guardianship and probate law.

In 1991 Borgeson met with attorney Jeffrey Scott to draft a will. Scott found Borgeson to be a reasonably intelligent man who was "articulate, lucid, and carrie[d] on a conversation with me." Borgeson knew his birthday, named his sister and brother, and said that he had been married and had a son but could not recall the son's name. He told Scott that he had nearly $300,000 at Richfield Bank and Trust and that he wanted his estate distributed half to Mavis and Tom Thompson and half to his sister, Lorraine. He did not want any part of his estate to go to his brother or his son, and he recognized that without a will his estate would go to his son. The will was executed on October 21, 1991. Scott subsequently referred Borgeson to psychiatrist Dr. Joseph Gendron, who determined that Borgeson was competent to make a will.

Due to his concern about what effect the long-standing financial guardianship might have on Borgeson's will and having regard for testator's desire to vote, Scott proposed an effort to modify the guardianship to a conservatorship. In a 1992 probate court hearing, Borgeson became confused as to the nature of the proceedings and as to his relationship with his son and sister, and the proposed modification was denied.

In March 1993, after the death of his sister Lorraine, Borgeson met with attorney Scott to modify his will. Scott's memo on the meeting states that Borgeson did not want to leave any part of his estate to his son. Scott asked two employees in his office to come in for part of his interview of Borgeson, and both employees drafted memos stating that they believed Borgeson had sufficient testamentary capacity. Borgeson executed the will that left 75% of his estate to Tom and Mavis Thompson and 25% to their daughter Kim Grengs. Borgeson died in 1995, and appellant objected to the 1993 will.

D E C I S I O N

We will not set aside a trial court's finding of fact, whether based on oral or documentary evidence, unless clearly erroneous and will give due regard to the trial court's opportunity to judge the credibility of the witnesses. Minn. R. Civ. P. 52.01. Under this standard, we will not disturb the findings of the trial court if they are reasonably supported by evidence in the record considered as a whole. Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 441 (Minn. 1983). Clearly erroneous means "without substantial evidentiary support or * * * induced by an erroneous view of the law." Johnson v. Ramsey County, 424 N.W.2d 800, 804 (Minn. App. 1988), review denied (Minn. Aug 24, 1988).

Citing In re Trust Known as Great Northern Iron Ore Properties, 308 Minn. 221, 243 N.W.2d 302 (1976), appellant argues that written evidence in the case renders oral testimony doubtful and urges this court to overturn the trial court's findings. But the 1985 amendment to Rule 52.01 "effectively overruled Great Northern," and the "clearly erroneous" standard now governs findings based on documentary as well as oral evidence. First Trust Co. v. Union Depot Place Ltd. Partnership, 476 N.W.2d 178, 181-82 (Minn. App. 1991), review denied (Dec. 13, 1991).

Appellant has the burdens of proof and persuasion on his claims of lack of testamentary capacity and undue influence. Minn. Stat. § 524.3-407 (1996).

1. Testamentary Capacity

A court will find that a testator had testamentary capacity if, when making the will, he understood the "extent of his property" and the claims of others on his property and he was "able to hold these things in his mind long enough to form a rational judgment concerning them." In re Estate of Congdon, 309 N.W.2d 261, 266 (Minn. 1981). If the testator had the "capacity to know and understand the nature and extent of his bounty," it need not be found that he had actual knowledge of his bounty. In re Estate of Jenks, 291 Minn. 138, 141, 189 N.W.2d 695, 697 (1971).

Factors to be considered by a trial court in determining whether a testator had the requisite testamentary capacity include the (a) reasonableness or naturalness of the property disposition, (b) testator's conduct within a reasonable time before and after execution of will, (c) prior adjudication involving testator's mental capacity, and (d) expert testimony pertaining to mental and physical condition of testator. In re Estate of Anderson, 384 N.W.2d 518, 520 (Minn. App. 1986).

Appellant argues that there is compelling evidence that Borgeson's disability rendered him incompetent to execute his 1993 will. Appellant points to Borgeson's long-term financial guardianship and his confusion at the 1992 modification hearing. The record of the modification hearing shows that testator was confused regarding his estate and his relatives. Nevertheless, evaluation of this and other evidence is for the trial court. Notwithstanding the confusion expressed by Borgeson in the stressful circumstances of the modification hearing, the court had ample evidence to support its finding that Borgeson did not lack testamentary capacity in signing his wills. In numerous instances, witnesses testified that Borgeson was lucid and clear regarding the disposition of his property. Evidence indicated that on several occasions, Borgeson knew the extent of his estate, stated clearly that he wanted to omit his son, and knew what would happen to his estate in the event that he did not have a will. Twice, Borgeson adopted an estate plan that was natural in light of the people who were close to him. Borgeson's mental state at the time he executed his will weighs most heavily in determining his testamentary capacity. In re Estate of Rechtzigel, 385 N.W.2d 827, 831 (Minn. App. 1986) (holding that testator's capacity at the moment he executes his will is "critical").

Appellant also contends that Borgeson's conduct before and after the will indicates that he did not have sufficient testamentary capacity. But this evidence only establishes that Borgeson did not prepare his tax returns, vote, have a checking account, or participate in the management of his finances; less mental capacity is required to execute a will than to conduct regular business affairs. Congdon, 309 N.W.2d at 267.

Finally, "we have no basis to question the sufficiency of the evidence on appeal when "such evidence justifies a finding either way." In re Estate of Healey, 243 Minn. 383, 387, 68 N.W.2d 401, 403 (1955). The trial court's findings of fact on decedent's testamentary capacity are not clearly erroneous.

2. Undue Influence

In order to show undue influence, the evidence must "go beyond suspicion and conjecture" and show that the influence exerted was "so dominant and controlling of the testator's mind" that the testator "ceased to act of his own free volition and became a mere puppet of the wielder of that influence." In re Estate of Pundt, 280 Minn. 102, 104-05, 157 N.W.2d 839, 841 (1968). By its nature, undue influence is often shown only by circumstantial evidence. In re Estate of Peterson, 283 Minn. 446, 449, 168 N.W.2d 502, 504 (1969). In determining whether the circumstantial evidence clearly and convincingly supports a finding of undue influence, a court considers whether the evidence shows (a) an opportunity to exercise undue influence, (b) a confidential relationship between the person making the will and the party allegedly exercising the undue influence, (c) active participation in the preparation of the will, (d) disinheritance of those whom the decedent would have been expected to remember in the will, (e) a singularity of the provisions of the will, and (f) the exercise of either influence or persuasion to induce decedent to make the will in question. Id.

Although some of these factors are present here, the evidence is not such that the trial court's findings and determinations are clearly erroneous. Where courts have found undue influence, the facts often suggest an unnatural disposition of testator's property, indicated by either the unexpected inclusion or exclusion of a beneficiary. See id. at 447-50, 168 N.W.2d at 503-05 (affirming a finding of undue influence where testator disinherited her relatives to the benefit of the children of the attorney drafting her wills); In re Estate of Wilson, 223 Minn. 409, 413-14, 27 N.W.2d 429, 432 (1947) (affirming a finding of undue influence where testator excluded sister-in-law whom he had previously expressed an intention to include in his will).

Appellant relies on In re Estate of Larson, 394 N.W.2d 617 (Minn. App. 1986) review denied (Minn. Dec. 12, 1986), and In re Estate of Olson, 176 Minn. 360, 223 N.W. 677 (1929). These cases are distinguishable. In Larson, testator disinherited all of his children except for the son who was in a position to influence him. The trial court found that the will disinherited those whom the testator normally would have remembered. 394 N.W.2d at 620. The appellate court noted that there was "much evidence that all the children had a close and loving relationship with their father" and there was no evidence of "family rancor" sufficient to have caused testator to leave his entire estate to one son at the exclusion of his other children. Id. In Olson, the court found it significant that proponent, who was testator's guardian, had made loans from testator's funds. The court noted that if testator had died intestate, proponent might have been "embarrassed in accounting for his guardianship because of the unauthorized loans he had made, several of them to his own sons." 176 Minn. at 366, 223 N.W. at 680.

In this case, there is no evidence of significant interference with Borgeson's freedom of choice. Further, the disposition of his estate is natural, having regard for his close relationship with respondents and his complete lack of a relationship with his son. The evidence shows an intent by testator to disinherit his son that dates back to 1986. We conclude that the trial court's determinations are not clearly erroneous.

3. Motion for a new trial

In his posttrial motion, appellant moved for a new trial on the purported grounds that the trial court's decision is not justified by the evidence or is contrary to law. Minn. R. Civ. P. 59.01(g). The decision to grant a new trial lies within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). Because the trial court's decision is justified by the evidence and is not contrary to law, the trial court did not abuse its discretion in denying appellant's motion.

Affirmed.