Summary 2010 WY 143

Summary of Decision November 5, 2010

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Case Name: Kibbee v. First Interstate Bank, Sheridan Wyoming et al.

Citation: 2010 WY 143

Docket Number: S-10-0022

URL: Unavailable at this time

Appeal from the District Court of Sheridan County, Honorable Dan Spangler, Judge

Representing Appellant (Plaintiff): Patrick J. Crank of Speight, McCue & Crank, Cheyenne, Wyoming, and Greg L. Goddard and Christopher M. Wages of Goddard, Wages & Vogel, Buffalo, Wyoming.

Representing Appellee First Interstate Bank (Defendant): Tom C. Toner of Yonkee & Toner, Sheridan, Wyoming.

Representing Appellee YMCA and Other Beneficiaries (Defendant): Dennis M. Kirven and Timothy J. Kirven of Kirven & Kirven, Buffalo, Wyoming.

Representing Appellee Sharon K. de Lobo (Defendant): Kim D. Cannon of Davis & Cannon, Sheridan, Wyoming.

Representing Appellees Aurora Lobo and Joshua Kibbee Lobo (Defendant): Thomas M. Hogan of Hogan & Company Law Offices, Casper, Wyoming.

Date of Decision: November 5, 2010

Facts: Appellant appeals from the granting of multiple summary judgments arising out of a challenge by him to changes made to the estate plan of his step-mother. Appellant asserts that the documents that significantly modified the estate plan are invalid because his step-mother lacked the requisite mental capacity, that she was unduly influenced by her previously-estranged daughter, and that her daughter was also guilty of the tort of intentional interference with an inheritance expectancy.

Issues: Whether there are disputed questions of fact regarding the decedent’s mental capacity at the time she executed the documents in question. Whether there are disputed questions of fact regarding any activity by the decedent’s daughter unduly influencing the decedent. Whether the affidavits of expert witnesses should have been stricken for failure to attach the documents referenced therein and relied upon in reaching their conclusions. Whether there are disputed questions of fact regarding whether the decedent’s daughter was guilty of the tort of intentional interference with an inheritance expectancy

Holdings: Mental incompetency, which will defeat the trust, exists where a person is incapable of understanding and acting with discretion in ordinary affairs of life, or is incapable of understanding, in a reasonable manner, the nature and effect of the trust. Strictly speaking, the question presented in such a case is not necessarily whether the settlor was generally of sound mind, but whether he had sufficient mental capacity to understand the trust which he executed. In a trial setting, the party claiming that a document was executed by an individual without the requisite capacity has the burden to demonstrate such lack of capacity. However, in the context of summary judgment, the movant has the initial burden of making a prima facie showing of mental capacity. The record shows that in the present action, the evidence presented was sufficient to make a prima facie showing that the grantor had the mental capacity to execute the challenged documents.

Upon this showing, the burden shifted to Appellant to demonstrate, by clear and convincing evidence that the grantor lacked the requisite mental capacity – that is, that she did not understand in a reasonable manner the nature and effect of the act in which she was engaged. Appellant offered evidence that grantor’s signatures were weak and that shortly before the documents were signed she failed to recognize a family friend. Even viewing these facts presented to refute existence of mental capacity in the light most favorable to Appellant, it cannot be said that they are adequate to defeat the prima facie showing that grantor had the requisite capacity. Not only are the facts presented explained and refuted by sworn testimony, but as evidence they are speculative, at best. Speculation, conjecture, the suggestion of a possibility, guesses, or even probability, are insufficient to establish an issue of material fact.

Appellant also offered to rebut the prima facie showing by the appellees with the affidavits of two doctors, neither of whom had examined or treated the grantor; nevertheless, they offered opinions, presumably to refute the opinion of the grantor’s treating physician. The appellees moved to strike the affidavit of both doctors on multiple grounds. Among the appellees’ challenges to the affidavits was an assertion that they failed to comply with W.R.C.P. 56(e). Although both affidavits referenced many medical records that the doctors reviewed and upon which they relied in reaching their conclusions, none of the records were attached to the affidavits, as required. The striking of these affidavits was proper and consistent with Wyoming law. The Wyoming Rules of Civil Procedure were adopted to promote an orderly and efficient means for the handling and disposing of litigation. Compliance with these rules of procedure in summary judgment matters is mandatory. Rule 56(e), in specific terminology, requires that affidavits: 1) be made on personal knowledge; 2) set forth facts which are admissible in evidence; 3) demonstrate the competency of the affiant to testify on the subject matter of the affidavit; and 4) have attached to them the papers and documents to which the affidavit refers.

Although Appellant recognizes the general requirements of Rule 56(e) that documents referred to in an affidavit be attached, he argues that the evidentiary rules governing experts, W.R.E. 703 and 705, somehow relieve expert witnesses of this requirement. However, affidavits used in summary judgment proceedings must set forth such facts as are admissible in evidence, and that is especially true when the affidavit contains significant opinions and conclusions that may be critical in the outcome of the case. It matters not that the opinion of an expert may be admissible at trial without first revealing the underlying facts and basis for that opinion, in a summary judgment hearing the requirements are different. The fact finder must have the material facts, determine whether they are in dispute, and if undisputed, whether judgment results as a matter of law. The affidavit presented, insofar as it presents opinions and conclusions resulting from an analysis of records not before the court, may not be considered for the purpose of awarding summary judgment. Rule 56(e)’s requirement that documents referenced in an affidavit be attached is not merely a formality or technicality. To allow an expert to state opinions and conclusions without requiring any documented support of such not only violates the plain language of Rule 56(e), but is also contrary to the summary judgment requirement that evidence opposing a motion for summary be competent and admissible, lest the rule permitting summary judgments be entirely eviscerated by plaintiffs proceeding to trial on the basis of mere conjecture or wishful speculation.

In order to establish that a trust was executed under undue influence, the plaintiff must establish four elements: 1) the relation between the one charged with exercising undue influence and the decedent afforded the former an opportunity to control the testamentary act; 2) the decedent’s condition was such to permit subversion of his freedom of will; 3) there was activity on the part of the person charged with exercising undue influence; and 4) such person unduly profited as a beneficiary under the trust. In the present action, the grantor’s daughter was not even in Sheridan, Wyoming, and had not spoken with her mother during the time frame that the grantor’s estate plan was developed. The impetus and genesis of the modified estate plan was appellee First Interstate’s concern with tax consequences. The details and drafting of the estate plan arose primarily from the expertise, recommendations, and the execution facilitated by two of grantor’s attorneys. The record indicates that the attorneys were vigilant in ensuring that the plan reflected the grantor’s wishes, and that her daughter was not involved in the decisions surrounding the estate plan. Many undeniably independent professionals worked with grantor in crafting and executing her estate plan. Each of these professionals was cautious and thorough in his or her efforts to ensure that grantor’s wishes were honored, and that her decisions were made independent of outside influences. Even viewing the facts in the light most favorable to Appellant, it cannot be said that there are disputed material facts regarding whether grantor was subjected to undue influence.

Intentional interference with an inheritance Expectancy is not a tort which has been recognized in Wyoming. The record is insufficient to allow the court to undertake the careful and deliberate analysis required to warrant adoption of a new tort. Although Appellant claims the record contains “additional materials” supporting his claim, he does not specify the location or substance of such. The appellant carries the burden of bringing a complete record for review. Given the relative dearth of argument, factual analysis, or legal support found in the record supporting Appellant’s claim for adoption of the tort of intentional interference with an inheritance expectancy, this is not a proper case within which to undertake such action. Therefore, the district court’s award of summary judgment on the appellant’s claim is affirmed.

Upon plenary review of the all evidence submitted, and viewing the facts in the light most favorable to Appellant, the granting of summary judgment on all issues raised on appeal are affirmed. Appellant has failed to demonstrate a disputed question of material fact regarding grantor’s’ mental capacity to execute the estate planning documents, or her daughter’s alleged undue influence. Furthermore, because Appellant has failed to present cogent argument or cite to pertinent authority favoring adoption of the tort of intentional interference with an inheritance expectancy.




J. Voigt delivered the opinion for the court.