In re Estate of Carolyn R. Buskirk

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2017-0003, In re Estate of Carolyn R. Buskirk,
the court on January 24, 2018, issued the following order:

Having considered the briefs, the record submitted on appeal, and the
oral arguments of the parties, the court concludes that a formal written opinion
is unnecessary in this case. The defendants, Edward Ota, Carla Ota, Maureen
Lussier, Joseph Lapham, Linda Lapham, and Scott Noyes, appeal an order of
the 3rd Circuit Court–Ossipee Probate Division (Patten, J.) granting the petition
of the plaintiff, Ruth Buskirk (Ruth), for probate administration of the will of
her sister, Carolyn R. Buskirk (Carolyn) dated December 21, 2011. We affirm.

I

Carolyn died on April 23, 2013, at age 72. In May 2013, Ruth petitioned
for estate administration as the named executor in a will dated December 21,
2011, in which Carolyn identified herself as a resident of Charlotte, Florida.
The 2011 will pours Carolyn’s assets over into a trust whose sole beneficiary is
Ruth.

In June 2013, Attorney Fay E. Melendy petitioned for estate
administration as the named executor in a will dated June 30, 2010, in which
Carolyn identified herself as a resident of Ossipee. The 2010 will distributes
Carolyn’s interest in her mother’s home to Ruth, makes specific cash bequests
totaling $55,000 to defendants Carla and Edward Ota, Joseph and Linda
Lapham, and Maureen Lussier, and distributes the remainder to Ruth’s three
sons, including Noyes.

These competing petitions presented the necessity of proof of the 2011
will in solemn form. See RSA 552:7 (2007). Accordingly, a bench trial was
held over five days between September 2015 and March 2016.

Based upon the evidence before it, the trial court determined that “the
2011 will has been proved and allowed for probate administration, duly
executed, without undue influence, as the last will and testament” of Carolyn.
The trial court stated that the 2011 will

makes a disposition of Carolyn Buskirk’s property to her sister,
who is a natural object of Carolyn’s bounty, particularly where
Carolyn was not survived by any children of her own. The
disposition is consistent with the agreement that the sisters had
 between them years before to care for their mother, and then each
other, when the bulk of the Buskirk family resources came to them
equally. The reciprocal wills and trust provisions are more
consistent with the sisters[’] intentions in the disposition of their
family wealth than any others that came before, and inconsistent
with the first element that must be proved in any undue influence
determination, [that the will makes an unnatural disposition of
one’s assets].

Secondly, the evidence presented by those who had first-hand
knowledge and experience with the sisters at and around the time
of the execution of the 2011 will and estate planning documents
done by both sisters support[s] a finding[ ] that Carolyn did not
appear to have been unduly influenced by Ruth. Although there
were opportunities for Ruth to have exercised undue influence on
Carolyn, it does not appear that Carolyn was susceptible to any
such influence. While Ruth may well have supported and
discussed the necessity of maintaining the family wealth in the
family name with Carolyn, Carolyn herself articulated the same
goals independent of her sister and consistent with the
testamentary plan she ultimately put into place. Persuasion,
arguments, advice and opinions of others do not themselves
invalidate a will for undue influence.

II

“The findings of fact of the judge of probate are final unless they are so
plainly erroneous that such findings could not be reasonably made.” RSA 567-
A:4 (2007). Accordingly, we will uphold the findings and rulings of the probate
division unless unsupported by the evidence or clearly erroneous as a matter of
law. See In re Estate of Washburn, 141 N.H. 658, 659 (1997). We accord
considerable weight to the trial court’s judgment on such issues as resolving
conflicts in the testimony, measuring the credibility of witnesses, and
determining the weight to be given evidence. See id.; see also Echo Consulting
Services v. North Conway Bank, 140 N.H. 566, 571 (1995).

On appeal, the defendants first argue that the trial court erred by holding
Ruth to a preponderance of the evidence standard with respect to whether the
2011 will was the product of undue influence. According to the defendants, we
“should adopt the ‘clear and convincing’ quantum of proof for cases where,
such as here, a fiduciary beneficiary has utilized her confidential relationship
to create and design a situation where evidence of her undue influence at the
time of the Will execution, and indeed the testator Carolyn herself, was hidden
from the world — except where allowed by Ruth.” This argument, however,
ignores the fact that the trial court specifically found that Ruth “has proven by
a preponderance of the evidence, and indeed by clear and convincing evidence,

2
that the 2011 Will was prepared, discussed and executed by Carolyn absent
undue influence.” (Emphasis added.)

The defendants also argue that “no reasonable factfinder could have
found that Ruth met her burden, even under a ‘preponderance standard.’”
(Capitalization and bolding omitted.) To the extent that they intend this to be
an argument that the evidence was insufficient to support the trial court’s
finding that the 2011 will was not the product of undue influence, we disagree.

Undue influence is the “use of such appliances and influences as take
away the free will of the testator, and substitute another’s will for his, so that
in fact the instrument is not the expression of the wishes of the testator in the
disposition of the property, but of the wishes of another.” Albee v. Osgood, 79
N.H. 89, 92 (1918) (quotation omitted). “But where no fraud or deception is
practised, mere persuasion will not invalidate a will on the ground of undue
influence.” Id. (quotation omitted). “On the contrary, a testator may properly
receive the advice, opinions, and arguments of others, and if, after all such
advice, opinions, and arguments, the testator is not controlled by them to the
extent of surrendering his free agency and yielding his own judgment or will,
then there is no such undue influence as is required to be proved to avoid the
will.” Id. (quotation omitted). The influence exerted must amount to “force and
coercion, destroying free agency, and not merely the influence of affection, or
merely the desire of gratifying another; but it must appear that the will was
obtained by this coercion.” Bartlett v. McKay, 80 N.H. 574, 574-75 (1923)
(quotation omitted).

Whether undue influence exists is a question of fact to be determined
based upon the surrounding facts and circumstances. In re Estate of Cass,
143 N.H. 57, 61 (1998). The will proponent bears the burden of proof. In re
Estate of Fischer, 152 N.H. 669, 671 (2005).

We review sufficiency of the evidence claims as a matter of law and
uphold the findings and rulings of the trial court unless they are lacking in
evidentiary support or tainted by error of law. Achille v. Achille, 167 N.H. 706,
715 (2015). We view the evidence in the light most favorable to the plaintiff.
See id. at 716.

Viewing the evidence in the light most favorable to the plaintiff, we
conclude that it is sufficient to support the trial court’s finding that Ruth
proved by clear and convincing evidence that the 2011 will was not the product
of undue influence. In 2011, Ruth spent the summer with Carolyn at Carolyn’s
home in Ossipee, where Carolyn visited regularly with her local friends and
Ruth hosted visitors in Carolyn’s home. During this time, they discovered that,
in November 2010, during the time of a schizoaffective episode, Carolyn had
added defendants Linda Lapham, Carla Ota, and Maureen Lussier as In Trust
For (ITF) beneficiaries of Carolyn’s bank accounts. Upset by this discovery,

3
Carolyn removed the ITF beneficiaries and named Ruth and one of Carolyn’s
friends as co-signatories on her bank accounts. Nonetheless, there is no
evidence that Ruth ever exercised any control over Carolyn’s finances.

Thereafter, the sisters left New Hampshire for Florida to live together at
Ruth’s home. Upon arriving in Florida, they learned that an ex parte
guardianship had been granted in New Hampshire as a result of a petition filed
by defendant Edward Ota and another individual. Among other things, the
temporary guardianship order restrained Ruth from having any contact with
Carolyn.

The sisters consulted with Ruth’s attorney, Rodney Salvati, regarding
how to respond to the New Hampshire guardianship. Prior to meeting with
them, Attorney Salvati arranged to have Carolyn examined by Dr. Nagarajan
Devar, who conducted a “Mini-Mental State Examination” to establish
Carolyn’s cognitive status. Devar determined that Carolyn was competent to
manage her own affairs.

After meeting with Salvati, Carolyn retained counsel in New Hampshire
to represent her in the guardianship matter. Counsel determined that the ex
parte guardianship order was without effect on jurisdictional and service
grounds, and informed Carolyn that a motion to dismiss the guardianship
action would be filed. Thereafter, the sisters settled into Ruth’s home, doing
activities together including shopping, going to luncheons, attending church,
and socializing with friends.

In November 2011, Carolyn arranged to be seen by Dr. Michael Woulas,
a clinical psychologist specializing in bipolar disorders and co-dependency.
After meeting with Carolyn three times, Woulas determined that she possessed
her own free will and was competent. He reported that “Carolyn showed no
signs or symptoms of submission to Ruth, dominance by Ruth, discomfort or
fear of Ruth,” and that “Carolyn was safe engaging in a shared life with her
sister.”

In December, Ruth and Carolyn changed their estate plans so that they
benefited one another in their reciprocal estate planning documents. Each
sister met with Salvati alone to discuss her respective will. On December 21,
Ruth and Carolyn executed new wills and intervivos trusts naming each other
as sole beneficiaries. Each sister signed her new will with Salvati and his
assistant as witnesses, with no one else in the room. Carolyn revoked her
2010 will and relinquished the original to Salvati. The 2011 will was executed
in accordance with Florida law and was proven in common form. At around
the same time, Carolyn swore out an affidavit for the New Hampshire
guardianship matter, stating that she had “re-established and [had] a very good
loving relationship” with Ruth. As the trial court found, “[a]t the point in time
relevant to the execution of the 2011 will, there is no doubt that the evidence

4
shows the sisters . . . shared a very close and likely what can be considered a
confidential relationship with one another.”

The defendants do not contend that the trial court’s findings are clearly
erroneous or unsupported by the record. Rather, they simply recite contrary
evidence that the trial court apparently either did not credit or did not find
persuasive. “[T]he trier of fact is in the best position to measure the
persuasiveness and credibility of evidence and is not compelled to believe even
uncontroverted evidence.” DeLucca v. DeLucca, 152 N.H. 100, 102 (2005)
(quotation omitted). “Furthermore, it was within the discretion of the trial
judge to resolve conflicts in the evidence. The trial court could accept or reject
such portions of the evidence presented as he found proper.” Id. (quotation
omitted). Based upon our review of the record, we cannot conclude that no
reasonable fact finder could have found that Ruth proved by clear and
convincing evidence that the will was not the product of undue influence.

Finally, the defendants argue that the trial court erred by excluding
certain affidavits and admitting Carolyn’s affidavit. With regard to the excluded
affidavits, the defendants concede that both affidavits contain hearsay, but
argue that they should have been admitted nonetheless. As to Carolyn’s
affidavit, the defendants contend that it “is highly suspect in terms of its
trustworthiness.” We will not reverse a trial court’s ruling on the admissibility
of evidence absent an unsustainable exercise of discretion. MacDonald v.
B.M.D. Golf Assocs., 148 N.H. 582, 584 (2002). To show an unsustainable
exercise of discretion, the defendants must demonstrate that the trial court’s
ruling was clearly untenable or unreasonable to the prejudice of their case. Id.
We conclude that the defendants have failed to do so.

Affirmed.

DALIANIS, C.J., and HICKS, LYNN, and HANTZ MARCONI, JJ.,
concurred.

Eileen Fox,
Clerk

5