In re Estate of Roche

In re Estate of Roche (98-464); 169 Vt. 596; 736 A.2d 777

[Filed 01-Jul-1999]
                 
                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-464

                               JUNE TERM, 1999


In re Estate of Ethel Roche	       }	APPEALED FROM:
	                               }
	                               }
                                       }	Chittenden Superior Court
	                               }	
	                               }
	                               }	DOCKET NO. S1069-96CnC	


             In the above-entitled cause, the Clerk will enter:

       Will contestants James and Robert Roche appeal from a judgment of the
  Chittenden Superior  Court concluding that their mother, Ethel Roche, was
  not unduly influenced by Jean Manchester  when making Manchester a
  beneficiary in Roche's will.  Contestants claim that the trial court erred 
  by: (1) requiring proof of absence of undue influence by a preponderance of
  the evidence rather  than by clear and convincing evidence; (2) treating
  the burden of proof as being on the contestants;  (3) making findings not
  supported by the evidence.  We affirm.
	
       The facts found by the trial court are as follows.  Following a failed
  business venture in the  mid-1980's, Jean Manchester and Ethel Roche had an
  on-and-off social relationship.  During this  period, Manchester received
  professional training as an auctioneer and appraiser.  In 1993, Roche's 
  relationship with Manchester grew closer.  At the same time, Roche's
  previously occasional  disagreements with her sons became more pronounced,
  changing their relationship from close and  loving to strained and
  noncommunicative.  Up to that point, Roche owned a condominium and a  bank
  account jointly with her sons to avoid probate if she were to predecease
  them.

       Eventually, the disputes between Roche and her sons escalated.  She
  demanded the return of  $20,000 taken from their joint account without her
  knowledge and began efforts to remove her  sons' names from the deed to the
  condominium.  Roche retained two attorneys in an effort to have  the funds
  returned to the account.  As a result of the letters written on Roche's
  behalf, the sons  returned the $20,000.  Arguments over the condominium's
  title finally prompted her to sue her sons  in 1994.  At her own choosing
  she had little contact with her sons, except for a brief period in 1995 
  when she was hospitalized with what was initially believed to be a terminal
  condition. 
  
       In May of 1994, Roche contacted attorney Barry Peterson to draft a new
  will.  She instructed  him to acknowledge her sons in the will but leave
  them nothing, bequeathing fifty percent of her  estate to Manchester and
  fifty percent to all but one of her grandchildren.  Peterson questioned her 
  about her instructions, wishing to be clear that this plan was her
  independent desire rather than the  result of some influence on her.  She
  described the situation with her sons, and explained her  reasons for
  changing her will.  She told the attorney that Manchester provided the type
  of care she  wanted, but that her sons did not.  She executed the will in
  June of 1994.  The court determined that  the will was not the product of
  undue influence.
		
 

                                     I.

       Despite the fact that the trial court stated it was led "inexorably to
  the conclusion that Ms.  Manchester did not exert undue influence over Mrs.
  Roche in connection with the June 16, 1994  will," the sons claim the court
  erred by not requiring Manchester to prove a lack of undue influence  by
  clear and convincing evidence.  Undue influence occurs when the testator no
  longer exercises  free will, causing the resulting document to be tainted.
  See In re Estate of Raedel, 152 Vt. 478, 481,  568 A.2d 331, 332-333
  (1989).  The presumption of undue influence causes the burden of proof to 
  shift to the proponent of the will. See id., 568 A.2d  at 333.  Here, the
  lower court found that  suspicious circumstances existed due to the "sudden
  and unnatural change directly benefitting  [Manchester]" which created
  doubt as to Roche's recognition of her duty to her family.  Based on  this
  determination, the burden of proof was shifted to the proponent of the
  will, Manchester.  
		
       The lower court did not err in requiring Manchester to prove the
  absence of undue influence  by a preponderance of the evidence.  We held in
  Raedel that absent an element of fraud, the burden  is on the proponent of
  the will to prove absence of undue influence by a preponderance of the 
  evidence. See id. at 485, 568 A.2d  at 335.  
	
       Contestants argue that because Manchester was a professionally trained
  auctioneer and  estate appraiser, a professional conflict existed meriting
  a higher standard of proof than  preponderance of the evidence.  They cite
  to Haynes v. First National State Bank of N.J., 432 A.2d 890, 901 (N.J.
  1981), for the proposition that where a professional conflict of interest
  exists on the  part of an attorney, the presumption of undue influence must
  be rebutted by clear and convincing  evidence.  See also Raedel, 152 Vt. at
  482 n.2, 568 A.2d  at 333 n.2.  Contestants contend that this  proposition
  should be extended to an estate appraiser.  We disagree.  In her
  professional capacity as  an appraiser and auctioneer, Manchester had no
  interaction with Ethel Roche, and thus a  professional conflict of interest
  prompting one court to require a clear and convincing standard was  not
  present. 
	
       Further, the trial court stated it was led "inexorably" to the
  conclusion that there was no  undue influence by Manchester.  Even if the
  standard were clear and convincing evidence, the  words of the court
  indicate it was met.


                                     II.

       Contestants also argue that the court failed to properly maintain the
  burden of proof on  Manchester throughout the trial, and further contend
  that Manchester failed to meet that burden.   Contestants claim that the
  final sentence of the trial court's opinion demonstrates that the burden 
  was improperly on contestants:
	
       In summary, the court concludes that there were legitimate reasons why
  Mrs. Roche  would want to benefit Ms. Manchester, legitimate reasons why
  she would not want  to benefit her sons, and no persuasive evidence of any
  force, pressure, or coercion  by Ms. Manchester in connection with the will
  in question.

       The sentence is neutral.  The language indicates that contestants did
  not produce sufficient  evidence to rebut the absence of undue influence
  illustrated by proponent's evidence.  Its phrasing  reflects the opinion of
  the court.  The fact that it makes no specific reference to which party 
  proved what facts does not indicate, in the face of statements to the
  contrary, that the trial judge  placed the burden anywhere other than on
  Manchester.
	
 

                                    III.

       Finally, contestants argue that several of the court's findings are
  not supported by the  evidence.  First, contestants contend that the
  evidence does not support findings made surrounding  the depth of the
  relationship between Manchester and Roche.  Additionally, contestants
  assert that  the finding regarding whether four attorneys believed that the
  will was a product of Roche's own  desires was unsupported by the evidence. 
  Contestants argue that the witness attorneys' testimony  was inconsistent
  and the attorneys were unable to recall with specificity questions
  regarding the  will execution and relationship between Roche and
  Manchester.  We rely on the trial court's  understanding and interpretation
  of the evidence before it.  We will not overturn the court's findings 
  unless they are demonstrated by the appellant to be clearly erroneous and
  not supported by  evidence.  See V.R.C.P. 52(a)(2); Mullin v. Phelps, 162
  Vt. 250, 260, 647 A.2d 714, 720 (1994).   Contestants' arguments fail to
  show there is no credible evidence to support the findings or that the 
  trial court did anything other than believe the evidence it found to be
  most persuasive.  See Abbiati  v. Buttura & Sons, Inc., 161 Vt. 314, 318,
  639 A.2d 988, 990 (1994) (conclusions of the trial court  supported by the
  findings will be upheld). 



       Affirmed. 






	                               BY THE COURT:



	                               _______________________________________
	                               Jeffrey L. Amestoy, Chief Justice

	                               _______________________________________
                                       John A. Dooley, Associate Justice

	                               _______________________________________
	                               James L. Morse, Associate Justice

	                               _______________________________________
	                               Denise R. Johnson, Associate Justice
	
	                               _______________________________________
	                               Marilyn S. Skoglund, Associate Justice