In re:  Estate of Ann C. Dalbec, Deceased.

In re:  Estate of Ann C. Dalbec, Deceased. A04-1524, Court of Appeals Unpublished, July 12, 2005. This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

  STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1524

 

In re:  Estate of Ann C. Dalbec,
Deceased.

 

Filed July 12, 2005

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. P60311940

 

Gina L. Cesaretti, Christopher T. Shaheen, Dorsey & Whitney, 50 South Sixth Street, Suite 1500, Minneapolis, MN  55402-1498 (for appellant Constance Supple)

 

Terese A. West, Thomas J. Shroyer, Ronald A. Eisenberg, Moss & Barnett, 4800 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN  55402 (for respondent Timothy Dalbec)

 

            Considered and decided by Schumacher, Presiding Judge; Peterson, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

Appellant Constance Supple appeals from a district court order granting respondent Timothy Dalbec's petition for probate of his mother's will and appointing Dalbec as personal representative.  Supple argues that (1) Dalbec failed to meet his burden of establishing that the will was signed by the testator and two witnesses; (2) expert testimony convincingly established that the testator's signature was forged; (3) the district court offered no reasonable basis for disregarding the expert testimony; and (4) the testimony of purported eyewitnesses failed to explain the expert witness's testimony.  We affirm.

FACTS

            Decedent Ann C. Dalbec died on June 30, 2003, survived by her three children:  Timothy Dalbec, Supple, and Mary DeWolf.  She was predeceased by her husband, Roy, in 2001.  After Roy died, a dispute arose in the family about Roy's will benefiting Timothy Dalbec.  Decedent became estranged from her daughters and did not communicate with them other than through formal communications in litigation proceedings.

            In 2003, decedent's health deteriorated.  On May 5, 2003, decedent met with attorney John Mulligan about her estate plan.  Decedent told Mulligan that she wanted Timothy Dalbec to get the bulk of her estate, with the remainder to go to her grandchildren, except for one grandson to whom she wanted to leave nothing.

            To accomplish decedent's objective, Mulligan drafted a will and a trust agreement.  Decedent had mentioned to Mulligan that Dalbec would get the bulk of her estate, either 60% or 70%.  But because decedent was undecided about how to apportion her estate, Mulligan prepared the trust agreement with blanks to be filled in with percentage amounts.

            On May 12, 2003, Mulligan sent decedent drafts of the will and trust agreement.  On June 18, 2003, Mulligan sent decedent revised drafts of the will and trust agreement that were consistent with the estate-planning goals that she had expressed at the May 5 meeting.  A cover letter sent with the documents instructed decedent to "call me to discuss your decisions and to make plans to finalize and sign your Trust Agreement and Will."

            Timothy Dalbec and his wife, Sheila Dalbec, are good friends with Thomas O'Loughlin (O'Loughlin) and his wife, Paulette.  On June 22, 2003, Sheila Dalbec planned to visit decedent to provide housekeeping and daily-living assistance.  In May or June 2003, decedent had told Sheila Dalbec that she wanted work done on an outdoor deck and asked whether O'Loughlin, who is a carpenter, would give her a bid on it.  O'Loughlin had known decedent for 11 or 12 years and had performed repair work on her home.  Decedent also received on May 16, 2003, a bid from Kathy's Construction Services to replace a deck.

            On June 22, 2003, O'Loughlin agreed to go with Sheila Dalbec to decedent's home and look at the deck.  Timothy Dalbec and his son were also present at decedent's home.  O'Loughlin looked at the deck and discussed his bid with decedent.  O'Loughlin testified that during the conversation, decedent asked him if he "would be willing to witness her signatures on the will and the trust agreement" and also asked Sheila Dalbec to do the same.  Sheila Dalbec testified:

Just out of the blue she said, Sheila, would you and [O'Loughlin] witness me sign these papers?  And I didn't hear her clearly so we shut the oxygen thing off to hear . . . and she said that she trusted [O'Loughlin] and would he be willing to witness her sign these papers?  And we both said yes.

 

Decedent asked Sheila Dalbec to retrieve the documents from an ironing board in the living room.  Dalbec did so and handed the documents to decedent without reading them.

            Sheila Dalbec and O'Loughlin testified that decedent dated the documents, signed the will in two places, wrote numbers in the blanks on the trust agreement, and signed the trust agreement.  They testified that decedent signed the documents on her lap on top of one or more magazines.  They also testified that decedent separated out and signed the signature pages of the will and trust agreement individually and not on top of any other pages of those documents.  Sheila Dalbec testified that she had observed decedent do the same thing on other occasions.

            After decedent signed each document, O'Loughlin signed his name as a witness and handed the document to Sheila Dalbec, who signed her name as a witness.  Timothy Dalbec recalled hearing decedent say that she would have the documents notarized later.  Decedent was admitted to the hospital on June 23, 2003.

            Timothy Dalbec called Mulligan's office on June 25, 2003, and June 27, 2003.  Mulligan's billing records show that on June 25, they talked about "arrangements to execute wills in the event of recovery" and on June 27, they talked about decedent's status and the "timeline of preparing documents."  Timothy Dalbec did not tell Mulligan that decedent had signed the will and trust agreement.  After decedent's death, Timothy and Sheila found the signed will and trust agreement under a couch cushion at decedent's home.

            On July 10, 2003, Mulligan filed a petition for formal probate of decedent's will and formal appointment of Timothy Dalbec as personal representative of her estate.  Supple filed an objection to the petition, claiming that decedent's signature on the will was forged and that decedent lacked testamentary capacity on the date the will was allegedly executed.  The case was tried to the court.

Supple relied on the testimony of forensic document examiner Karen S. Runyon to support her forgery claim.  Runyon testified:

The conclusions that I detailed in my report are first that the questioned signatures, dates, and numerals display characteristics indicating that it's probable they are not the genuine writing of [decedent] but instead are attempts to simulate or trace, to imitate in some way the genuine writing of [decedent].  The second part of that conclusion outlines kind of a laundry list of characteristics of simulated or traced writing . . . .

 

            . . . .

 

            . . . [T]hat even heavy pen pressure where there is no variation, lack of any kind of rapid writing movement, very blunt beginning and ending strokes, places where the pen may lift or stop in the writing process, a reduction in general in the writing speed, the hesitation and tremor in the line quality, places where they may go back and retouch or patch parts of the writing habit, and then where they may misinterpret complex writing structures or the deterioration of trying to make something that's complex and they just give up, broken rhythm which you often see from that stopping and starting and a general lack of smoothness and fluency to the writing movement.

 

            The other, the second half of that first conclusion is related to the chronological comparison, that chronologically I found that there is a difference in the size, the speed, the quality of the writing from all the submitted standard signatures prior to or after the date of the questioned writing.  That difference may be due to the habit of a different error of this writer or the writing situation, there may be a manipulation of the signature habit from a different error, or the actual document date may be altered.  So those are the possibilities.

 

            The next conclusion related to the comparison of that upper signature on the will and the trust agreement signature and that the conclusion is that comparison of those found close agreement of the signatures and that no other signature submitted was found to correspond to these signatures in any type of significant or precise manner.

 

            . . . .

 

            [T]he significance of [the close agreement of the signatures] is when two signatures superimpose closely, the possibility of that occurring naturally is almost impossible.  People are not machines and writing is not machine like so for two things to just coincidentally overlay so closely would be just highly unusual in a natural setting.

 

            These, . . . they superimpose in many, many ways as to letter formation, size and spacing relationships, the slant, the approach and termination locations and the patterns of those approach and termination strokes, the alignment to the baseline, the places in the signatures where there's angularity versus a more curved pattern, and then adherence both to the vertical and horizontal dimensions of the signature, meaning . . . the first name, middle initial, and last name.  So there's almost no variation in those two signatures and especially for the . . . vertical and horizontal dimensions of the signatures to be so exact is just very unusual.

 

            And my final conclusion was that I made a comparison within all the known signature standards, found no two signatures to overlay reproducing all the writing habits identically in the same ways that you see those two superimposed.  So that tells me that this writer is not real mechanical and does have a range of variation.

 

Runyon explained that when determining whether a writing is a forgery, the deciding feature is often the line quality because when a person traces or draws something, he or she may be able to properly form the letters in a pictorial formation but will not have the same speed, slant, and fluency.  Runyon opined that a physical difficulty would cause more erratic rather than more controlled movements in writing.  Runyon compared the signatures on the will and trust agreement to forms signed by decedent in May and June 2003, including one signed June 23, 2003.  Runyon explained that people sign their name more commonly than just about anything else that they will write and that a lot of people develop a stylized signature that is unlike their other handwriting.

Runyon also testified that the signatures, dates, and percentages allegedly written by decedent on the will and trust agreement did not indent onto other pages of the document.  Yet they were written with "an immense amount of pressure."  Runyon testified that lighter pressure is commonly seen in people who are infirm or ill and that heavy pressure was inconsistent with an elderly and feeble person's writing.  On the trust agreement, both witnesses' signatures indented to the page below, while on the will, only O'Loughlin's signature indented to the page below.

Runyon admitted that there was a 25% chance of error in her conclusion that the alleged writings by decedent were forgeries.

The district court found:

39.  Ms. Runyon found that the signatures of [decedent] lacked fluency and were made slowly and with great pressure.  Ms. Runyon found the amount of pressure unusual for an elderly and ill person.  Further, Ms. Runyon found that earlier signatures of [decedent] were more fluent and made with relatively light pressure.  Ms. Runyon believes that at least two of the signatures on the questioned documents have characteristics consistent with forgeries.  Other signatures were in her opinion probably simulations.  . . . 

 

40.  Fatigue and weakness can affect one's signature in unpredictable ways.  A signature may also be affected by the position of the signer at the time of the writing, e.g., whether or not the signer is seated.  Similarly, signing a document viewed as important could affect the signature.  Ms. Runyon noted that at least one of [decedent's] signatures at issue does not have the same very close similarity as the others have to each other.  This did not change the opinion of Ms. Runyon, for she noted the possibility that the forgeries were from two different [signatures of decedent].

 

41.  Ms. Runyon did not review the writing of [decedent] in a spiral notebook in which [decedent] wrote down telephone messages and other notes.  She did feel that she had reviewed enough exemplars of [decedent's] writing to make her conclusion, including samples before and after [decedent] broke her right elbow in December of 2002.

 

            The district court determined that decedent was competent to execute the will on June 22, 2003, and that the will was properly executed.  By amended order filed August 3, 2004, the court granted the petition to probate the will and appointed Timothy Dalbec personal representative of decedent's estate.  This appeal followed.  Supple does not challenge on appeal the determination of competency.

D E C I S I O N

On appeal, a district court's findings are accorded "great deference."  In re Estate of Uliscni, 372 N.W.2d 759, 762 (Minn. App. 1985).  This court defers to the district court's opportunity to judge witness credibility and will not set aside the district court's findings of fact unless they are clearly erroneous.  Serbus' Estate v. Serbus, 324 N.W.2d 381, 385 (Minn. 1982) (citing Minn. R. Civ. P. 52.01).  A finding is clearly erroneous if it is "manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole."  Id. (quotation omitted).  We view the record in the light most favorable to the district court's judgment.  In re Estate of King, 668 N.W.2d 6, 9 (Minn. App. 2003); see also Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101-02 (Minn. 1999) (stating that "[i]t is not the province of this court to reconcile conflicting evidence" and admonishing court of appeals for reversing district court's findings "based on mere disagreement with the findings and resulting conclusion").

            To be duly executed, a will must be in writing, signed by the testator and by at least two witnesses to the execution.  Minn. Stat. § 524.2-502 (2002).  Proponents of a will must establish prima facie proof of due execution.  Minn. Stat. § 524.3-407 (2002).

Supple argues that the district court erred by ignoring Runyon's testimony.  But the supreme court has stated:

[U]ncontradicted [expert] testimony does not compel a finding in accordance therewith.  Its weight and the credibility of the witnesses is usually for the trier of fact to determine, and it is not compelled to believe any witness merely because his testimony is uncontradicted.  This is particularly true where there are other facts in evidence which refute or modify the uncontroverted testimony or where testimony is obviously untrue.

 

Costello v. Johnson, 265 Minn. 204, 211, 121 N.W.2d 70, 76 (1963); see also In re Congdon's Estate, 309 N.W.2d 261, 267 (Minn. 1981) (stating that "[e]xpert opinion testimony is not conclusive, but is merely evidence to be weighed and considered by the trier of fact" and rejecting the argument that the district court erred by failing to adopt the opinion of the only expert witness testifying on the issue of testamentary capacity).

            Supple argues that the district court offered no reasonable explanation for rejecting Runyon's testimony.  But the district court explained its reasons for rejecting Runyon's testimony, specifically stating:

The strongest evidence for the objector is the testimony of Karen Runyon, the questioned document examiner.  Ms. Runyon allows that there is a 25% chance that these signatures are genuine.  However, the cross-examination of Ms. Runyon effectively undermined even the 75% certitude she expressed.  As noted by Ms. Runyon a signature may vary depending on the seriousness of the document, the physical condition of the signer and the physical position of the signer.  Further, there were many exemplars of the handwriting of [decedent] that were not examined, and some of those were around the time of the will execution.  Those exemplars are found in the spiral notebook in which [decedent] continued to write down phone messages until very near the time she left for the hospital for her last week of life.  Quite simply, the testimony of Ms. Runyon is insufficient to overcome the evidence produced in support of the validity of the signatures.

 

As the district court noted, points brought out during cross-examination effectively undermined the credibility of Runyon's opinion.  Runyon admitted that concentrating when writing slows fluency and that serious illness or fatigue can cause a decline in writing quality, including "irregular strokes, poorly formed letters, and poor alignment and letter spacing."  Thus, writing characteristics that could indicate tracing or simulation could also be due to serious illness or fatigue and concentration.  Overwriting was a characteristic Runyon identified as indicating tracing, but Runyon observed overwriting in samples of decedent's known handwriting.  There was evidence that decedent's handwriting deteriorated during June 2003, but Runyon did not examine certain available samples of decedent's handwriting from that time period.  Although Runyon testified that "[d]ocument examiners prefer to analyze originals because photocopies are thought to conceal the finer details of line quality," most of the signature comparisons that she used were photocopies.  Runyon opined that the signatures on the will and trust agreement were simulated or traced but admitted that simulation and tracing are alternative and mutually exclusive theories.  Also, Runyon testified that the three signatures did not look like any others that she had examined, which tends to undercut the tracing theory.  Finally, while Runyon emphasized that two signatures superimposed in many ways, she admitted that there were differences between them, with at least four letters that did not align precisely.

            Supple argues that Timothy Dalbec's, Sheila Dalbec's, and O'Loughlin's accounts of how the signing occurred are implausible.  We disagree.  Except for minor inconsistencies, Timothy Dalbec, Sheila Dalbec, and O'Loughlin testified consistently at trial and in their depositions.  Minor inconsistencies do not make a witness's testimony incredible as a matter of law.  See Larsen v. Yelle, 310 Minn. 521, 527, 246 N.W.2d 841, 846 (1976) (stating that "possible inconsistency in the testimony of a witness does not mean that his testimony cannot support a verdict").

Supple points out evidence tending to undercut the credibility of Timothy Dalbec's, Sheila Dalbec's, and O'Loughlin's testimony, including Timothy Dalbec's failure to advise Mulligan during the conversations on June 25 and 27 that decedent had signed the will and trust agreement.  But other evidence bolstered their credibility, including evidence of the estrangement between decedent and her daughters and the consistency of the percentages in the executed trust with the percentages decedent had mentioned to Mulligan.  It is the fact-finder's role to resolve conflicting evidence and to weigh the credibility of the witnesses, and the fact that the record could support findings other than those made by the district court does not render the district court's findings defective.  Straus v. Straus, 254 Minn. 234, 235, 94 N.W.2d 679, 680 (1959); Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000); see Elliott v. Mitchell, 311 Minn. 533, 535, 249 N.W.2d 172, 174 (1976) (affirming district court's findings despite admitting "the evidence might support another conclusion").  The district court specifically found O'Loughlin's testimony credible.  The district court's finding that decedent's signatures on the will were not forgeries was supported by eyewitness testimony and was not clearly erroneous.

            Affirmed.