In Re the Estate of Berg

#25429-a-DG

2010 SD 48

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

IN THE MATTER OF THE ESTATE
OF FRED L. BERG, Deceased.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
MEADE COUNTY, SOUTH DAKOTA

* * * *

HONORABLE JEROME A. ECKRICH, III
Judge

* * * *
STEPHEN J. WESOLICK of
Wesolick Konenkamp & Rounds, LLP
Rapid City, South Dakota

JAMISON A. ROUNDS of
Wesolick Konenkamp & Rounds, LLP Attorneys for appellant
Sioux Falls, South Dakota Carol Berg Opdahl.

GREGORY A. EIESLAND
AARON D. EIESLAND
Johnson Eiesland Law Firm, PC Attorneys for appellee
Rapid City, South Dakota Helen Manns.

ROBERT VAN NORMAN of
Nooney, Solay & Van Norman, LLP Attorneys for appellee
Rapid City, South Dakota Great Western Bank.

* * * *
CONSIDERED ON BRIEFS
ON APRIL 26, 2010

OPINION FILED 06/16/10
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GILBERTSON, Chief Justice

[¶1.] In a probate proceeding, contestant Carol Opdahl (Opdahl)

unsuccessfully objected to her uncle’s will claiming lack of testamentary capacity

and undue influence. We affirm.

FACTS

[¶2.] Fred L. Berg was born on July 27, 1919, and died on November 5,

2006, at the age of 87. He was the youngest of nine children. Fred grew up in

North Dakota and served in the United States Army during World War II. He was

discharged from the Army in 1943 and admitted to hospitals in Washington State

and North Dakota due to service-connected schizophrenia.

[¶3.] Fred was eventually admitted to the Veteran Affairs (VA) Hospital in

Fort Meade, South Dakota. His medical records from 1945 through 1950 indicate

he suffered visual and auditory hallucinations. After several rounds of electro shock

therapy, Fred experienced periods of remarkable improvement. However, he

subsequently refused electro shock therapy due to unfounded fears that he had a

severe back condition that could be worsened by further treatments. His medical

records indicate several times that his doctors considered him to be incompetent.

[¶4.] In March 1950, Fred received a bilateral prefrontal lobotomy for

unclassified schizophrenia. 1 His post-operative diagnoses were: (a) schizophrenic

1. The use of lobotomy on the mentally ill “reached the height of use just after
World War II. . . . At that time, the procedure was viewed as a possible
solution to the overcrowded and understaffed conditions in state-run mental
hospitals and asylums.”
http://www.healthline.com/galecontent/psychosurgery (last visited June 8,
2010). The lobotomy was used frequently on shell-shocked returning World
(continued . . .)
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reaction, paranoid type, manifested by delusions and auditory hallucinations,

peculiar hyperactive behavior, and confusion; and (b) convulsive disorder, grand

mal type, probably secondary to bilateral prefrontal lobotomy. Fred received

psychotropic medications for the rest of his life including Stelazine for schizophrenia

and Dilantin for the convulsive disorder. He gradually improved enough to engage

in social and recreational activities, but preferred to be alone.

[¶5.] On July 6, 1950, Fred’s parents brought Fred back to North Dakota to

live with his sister Helen Manns and her husband on a trial basis.2 He was,

however, unable to function well outside of a care facility due to his tendency to set

small fires while smoking. He returned to live at the VA Hospital at Fort Meade.

[¶6.] In 1964, Fred was found to have sufficient “present contact with

reality” to try a year of foster care in a private residence that provided housing for

disabled veterans. His medical records indicated that he was no longer considered

incompetent by his physicians. At the end of a year in foster care, Fred was found

well enough to relocate to Ox Yoke Ranch, a residential facility for disabled

veterans in Nemo, South Dakota.

_________________________
(. . . continued)
War II veterans.
http://www.pbs.org/wgbh/americanexperience/features/primary-
resources/lobotomist-introduction/ (last visited June 8, 2010). Eventually, the
lobotomy was abandoned after long-term studies on the after effects began to
emerge. Id. “For many patients the procedure resulted in a vegetative state,
or reduced them to a childlike mental faculty.” Id.

2. Fred’s records indicate he lived with Helen and her husband during high
school due to some difficulty between Fred and his father.

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[¶7.] On February 1, 1967, the VA declared Fred incompetent under 38 CFR

§ 3.353. That incompetency was “limited for purposes of insurance and

disbursement of benefits.” See 38 CFR § 3.353(b)(i) (emphasis added). 3 No

determination was ever made by the VA as to Fred’s testamentary capacity under

38 CFR § 3.355. 4

3. A declaration of incompetency under 38 CFR § 3.353 is not binding on this
Court on the issue of testamentary capacity. In re Estate of Dokken, 2000 SD
9, ¶21, 604 NW2d 487, 493.

4. “A mentally incompetent person is one who because of injury or disease lacks
the mental capacity to contract or to manage his or her own affairs, including
disbursement of funds without limitation.” 38 CFR § 3.353(a). The
determination is made by the rating agency, and is limited for purposes of
insurance and disbursement of benefits. 38 CFR § 3.353(b)(1).

Testamentary capacity for purposes of executing designations or changing of
beneficiary is determined under 38 CFR § 3.355. That section provides in
relevant part:

(a) Testamentary capacity is that degree of mental capacity
necessary to enable a person to perform a testamentary act.
This, in general, requires that the testator reasonably
comprehend the nature and significance of his act, that is, the
subject and extent of his disposition, recognition of the object of
his bounty, and appreciation of the consequence of his act,
uninfluenced by any material delusion as to the property or
persons involved.
...

(c) Lack of testamentary capacity should not be confused with
insanity or mental incompetence. An insane person might have
a lucid interval during which he would possess testamentary
capacity. On the other hand, a sane person might suffer a
temporary mental aberration during which he would not possess
testamentary capacity. There is a general but rebuttable
presumption that every testator possesses testamentary
capacity. Therefore, reasonable doubts should be resolved in
favor of testamentary capacity.

(continued . . .)
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[¶8.] After Fred was found incompetent under 38 CFR § 3.353, the VA

required the appointment of a guardian as a condition precedent to the receipt of

future benefits. On February 28, 1967, a county court order appointed American

National Bank & Trust Company (nka U.S. Bank Trust National Association SD)

(“U.S. Bank”) as guardian. U.S. Bank served as guardian under SDC 1960 §

35.1907 until the relationship was changed to that of a conservatorship by the

enactment of the South Dakota Guardianship and Conservatorship Act in 1993. See

SDCL 29A-5-103. After the 1993 change in the code, a guardian was not appointed

for Fred.

[¶9.] Fred remained at Ox Yoke Ranch until it closed in 1991. He was

relocated to the nursing home care unit at the VA Hospital at Fort Meade until a

proper nursing home placement could be found. A nursing care note in his VA

Hospital records dated April 28, 1992, stated that Fred wanted to have his will

drawn up. The nursing notes indicated that Fred was competent for purposes of

making a will. Fred was referred to an attorney, but nothing in the nursing notes

indicated that a meeting took place.

[¶10.] In 1992, Fred moved to the Good Samaritan Center (Good Samaritan)

in New Underwood, South Dakota. He resided there until November 29, 1999,

when his declining physical state required a higher level of care and he returned to

the VA Hospital at Fort Meade. Fred’s file indicated an increasing number of falls

_________________________
(. . . continued)
38 CFR § 3.355.

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throughout his last three years at Good Samaritan and a progression from a cane to

a walker. However, the use of these aids did not improve his gait or balance.

Relationship with Roger Berg

[¶11.] In 1991, Roger Berg (Roger), one of Fred’s many nephews, and Roger’s

son visited Fred at the VA Hospital at Fort Meade while in the Black Hills for a

vacation. This was the first time Roger and Fred had seen each other since the two

first met in 1961 when Roger was fifteen or sixteen and Fred was visiting his

parents on their North Dakota farm. Fred remembered Roger and described for

him their meeting in great detail. Fred described the farm layout including what

crops were being grown in which fields. Fred also remembered that Roger had left

before Fred that day and that Roger had his horse with him. Fred remembered the

name of Roger’s horse some thirty years later.

[¶12.] Roger and his son took Fred out to dinner that evening. While in

Deadwood, they stopped at a casino because Fred wanted to play Blackjack. Roger

observed that Fred was counting points as he played and was surprised that Fred

was able to do so faster than Roger could. That evening a friendship began between

the two men that lasted until Fred’s death.

[¶13.] After Fred moved to Good Samaritan a few months later, Roger and

Fred would see each other one to two times per year almost every year for the next

sixteen years. Roger would take Fred out for a few days each time. The two

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traveled to the state of Washington to visit Fred’s sister, Anne Hunt, and her

family. 5 Roger also brought Fred to North Dakota for a Berg family reunion where

Fred spent time with his favorite sister, Helen. The two also took trips together in

and around the Black Hills. Roger also regularly telephoned Fred at Good

Samaritan.

[¶14.] During the family reunion, Helen and Norma Miedema, one of Fred’s

nieces and sister to Opdahl and who was then serving as the family contact for Good

Samaritan, asked Roger if he would be willing to serve as Fred’s attorney-in-fact for

health care as well as for financial and business purposes.6 Roger was honored to

do so and on his next visit to see Fred at Good Samaritan, Roger discussed the

matter with Fred who agreed it was a good idea. Roger also discussed the power of

attorney with Diana Tines, Director of Social Services at Good Samaritan, who

would later testify that it was a natural progression of the relationship between the

two men as Roger was the only family member who routinely visited Fred.

[¶15.] In early December 1995, Roger made an appointment for Fred with

attorney Tom Foye of the firm of Bangs, McCullen, Butler, Foye and Simmons LLP

in Rapid City for the preparation and signing of the power of attorney. On

December 21, 1995, during one of Roger’s visits, he took Fred to Attorney Foye’s

5. It was at this time that Roger became aware that Fred had some money at
U.S. Bank, as Roger was able to pay for Fred’s airline ticket and then obtain
reimbursement from the conservatorship account.

6. Fred’s father, Gilbert Berg, originally had served as the contact for medical
providers until Gilbert was confined to a nursing home. A succession of
brothers served until their deaths or disabilities, including Leonard Berg, the
father of Opdahl, the will contestant in this matter.

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office. Attorney Foye explained to Fred the purpose of a durable power of attorney

and a power of attorney for health care purposes. Fred signed the power of attorney

in Roger’s presence. From that time on, Roger received numerous calls from Good

Samaritan staff concerning Fred’s health issues, medication changes, and other

issues for which staff needed Roger’s assistance or approval.

[¶16.] In the spring of 1996, Roger received a copy of an annual

conservatorship report from U.S. Bank in his capacity as Fred’s attorney-in-fact.

He learned for the first time that Fred had a significant amount of money. Up until

that time, Roger and the entire Berg family had been under the impression that

Fred was a pauper. During a family reunion, Fred had mentioned to Roger and

another cousin, Kenny, that he had $100,000 in the bank. Roger remembered he

and Kenny chuckled about Fred’s claim, which ultimately proved to be more than

true. The conservatorship accounting indicated Fred had somewhere around

$500,000 in the bank. 7 Roger decided against sharing the information about Fred’s

finances with the Berg family for two reasons: his position as a fiduciary for Fred

and his concern that despite the few visits family were able to make over the past

twenty years, some family members might begin visiting Fred in order to obtain

access to the money or in an attempt to inherit.

[¶17.] The revelations of Fred’s financial condition in the spring of 1996 also

prompted Roger to discuss with Fred the need for a will. Roger did not tell Fred the

7. The record does not indicate the source of this sum. All the record indicates
is that Fred was receiving benefits from the Veteran’s Administration and
that his brothers deposited some funds from Gilbert Berg’s estate into the
account as a burial fund.

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exact size of his bank account, but left the matter at Fred’s estimation of $100,000.

Roger told Fred that in order to have a say in how his money would be distributed

after death, Fred needed a will or the State of South Dakota would make that

determination for him. Fred appeared to understand the purpose of a will based on

his conversation with Roger and agreed to see an attorney.

[¶18.] Roger scheduled an appointment with Attorney Foye for December 8,

1997, for purposes of drafting Fred’s will. Fred recalled Attorney Foye from the

power of attorney signing in 1995. Roger took Fred to that appointment and waited

in the lobby while Attorney Foye met with Fred.

[¶19.] Roger, a Vietnam veteran, admitted himself into a VA hospital in

Kansas shortly after the December 8, 1997, appointment with Attorney Foye. He

did not return to see Fred until the fall of 1998, several months after Fred signed

the will. Roger continued visiting Fred until his death in 2006.

Attorney Tom Foye

[¶20.] Attorney Foye greeted Roger and Fred at the initial will drafting

meeting on December 8, 1997. He then asked Roger to wait outside as it was

Attorney Foye’s practice to exclude caregivers, family members, and drivers from

will meetings in order to ascertain whether there was undue influence being

exerted. Attorney Foye met with Fred one-on-one for approximately twenty

minutes. During that time, he asked Fred what his assets were. Fred replied he

had bank accounts valued at $100,000. When asked who his family members were,

Fred answered that he had two living sisters, and somewhere around twenty nieces

and nephews including Roger. Fred indicated that he wanted his will to benefit

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Roger and in the alternative Fred’s two sisters, Anne Hunt of Washington and

Helen Manns of North Dakota, if Roger predeceased Fred. Finally, Fred indicated

that he wanted Roger to serve as his personal representative and U.S. Bank to

serve if Roger was unable. After the meeting, Attorney Foye asked Roger to provide

the full names and addresses of Fred’s two sisters.

[¶21.] During that meeting, Fred also indicated that he had difficulty seeing

well enough to read and asked that Attorney Foye send him a draft copy typed in all

capitals. 8 Attorney Foye mailed a copy of the draft will and a letter to Fred dated

January 1, 1998. A follow-up telephone call was made by Attorney Foye in March

1998 to Tines at Good Samaritan asking Fred to return to the office and sign his

will. On March 26, 1998, Alice Richter, Good Samaritan activities director, drove

Fred to Attorney Foye’s office. While Alice waited in the lobby, Fred signed his will,

which was witnessed by Attorney Foye and his secretary Karen Fetzer (now

Wenzlick). The three signatures were witnessed and notarized by Judy

Schlangenhaufer (now Probst). Fetzer, Schlangenhaufer, and Attorney Foye all

testified at trial that Fred understood who he was on the date he signed the will,

knew that he was signing a copy of his last will and testament, and that there did

not appear to be any improper influence exerted upon Fred in this matter.

Good Samaritan Staff

[¶22.] During his eight years at Good Samaritan, Fred had regular contact

with several staff members. Included among those were Tines, director of social

8. Fred was eventually diagnosed with macular degeneration.

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services at Good Samaritan, who had a double major in sociology and psychology

and an associate’s degree in social work. She had almost daily contact with Fred.

Wendy Bruns worked in the office during the time Fred was a resident and also saw

him on almost a daily basis as did Richter, the activities director.

Diana Tines

[¶23.] According to Tines, between the time Roger took Fred to see Attorney

Foye on December 8, 1997, and the time Fred signed his last will and testament on

March 26, 1998, Roger did not have physical contact with Fred. The Good

Samaritan staff made several telephone calls to Roger in Kansas during this time

for various medical issues such as falls and routine appointments. Roger also spoke

with Fred via the telephone sometime around Christmas to wish him a happy

holiday. On February 2, 1997, over a month before Fred signed his will, Roger was

contacted by Tines to update Fred’s file and advanced health care directives. Roger

told Tines that Fred did not want extraordinary measures taken including cardio

pulmonary resuscitation (CPR). Tines noted this in Fred’s file.

[¶24.] After Attorney Foye called Good Samaritan and spoke with Tines

about Fred returning to sign his will, Tines became concerned that Fred might not

have the legal capacity to sign his will. Her concerns were generated by a

declaration of incompetency that Tines believed she had seen in Fred’s VA records.

However, when Tines consulted Fred’s records at Good Samaritan she could find no

such documentation. Tines asked Fred to sign a release of medical records form in

order to obtain any relevant documentation from the VA. Despite a document

request, no such forms or declaration were ever found. Tines also consulted with

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Jeff Denison, the trust officer at U.S. Bank, about her concerns. Denison told Tines

that Attorney Foye would have asked questions to ascertain Fred’s capacity to sign

the will and that Attorney Foye was very experienced and well respected in the

legal community. Tines documented all her inquiries in Fred’s file and she

considered the matter resolved. A few days after the meeting with Attorney Foye,

Fred gave Tines his copy of the signed will for placement in his records.

[¶25.] Tines also testified that Fred declined physically in the last few years

he lived at Good Samaritan progressing from the use of a cane to a walker. Tines

eventually noted Fred used a wheel chair when she visited him at the VA Hospital

at Fort Meade after he returned to that facility. She also noted that he had good

days and bad days, but more good than bad. Tines noted that Fred would “light up”

when Roger was expected for a visit and spoke about Roger’s visits with great

enthusiasm. Tines also testified that Fred would claim that the late actor Fred

MacMurray 9 was his father, but also could and did discuss his natural parents with

her. She considered Fred to be an eloquent speaker; typically oriented to person,

place, and time; and very intelligent. She testified that if she had been Fred she

would have left everything to Roger based on their relationship and the fact that

very few family members other than Roger visited Fred while he was at Good

Samaritan.

9. Fred MacMurray, born August 30, 1908, died on November 5, 1991, after a
career in theater, film, and television. His most memorable television role
was as the father on “My Three Sons,” from 1960 to 1972.
http://www.imdb.com/name/nm0534045/bio (last visited June 8, 2010).

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Alice Richter

[¶26.] Richter was the activities director at Good Samaritan beginning in

1996 and had almost daily contact with Fred until he moved back to the VA

Hospital at Fort Meade in 1999. She described him as oriented to person, place,

and time, and able to participate in recreational activities. Richter noted Fred

played cards, two-card bingo, watched television, and participated in social

gatherings and day trips. She described him as able to participate in discussion

groups on current topics as well as reminiscing groups, and he was able to discuss

television programming he had recently viewed.

Wendy Bruns

[¶27.] Bruns worked in the office at Good Samaritan while Fred was a

resident and was eventually promoted to assistant administrator. As part of her

employment during Fred’s time in residence, Bruns administered Mini-Mental

Status Exams (MMSE) to residents to assess mental functioning and reasoning as

part of care planning. Fred’s MMSE results for December 29, 1997, a few weeks

after his initial appointment with Attorney Foye, indicated a score of twenty-seven

out of thirty. 10 Fred’s result on the MMSE administered by Bruns on March 27,

1998, the day after he signed his will was twenty-eight out of thirty. Bruns

documented both times that Fred was “oriented times three,” meaning oriented to

time, place, and person. Bruns described Fred as being generally in good spirits

10. According to Dr. Stephen Manlove, an expert witness for Opdahl, a score of
twenty-five or better on the MMSE indicated good cognitive function.

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and able to carry a conversation. Bruns also noted Fred would be excited whenever

his nephew Roger was about to visit.

The Will Contest

[¶28.] After Fred passed away on November 5, 2006, Roger received a copy of

Fred’s will and learned that he was the sole heir, but that Fred’s sisters, Anne, now

deceased, and Helen, would have inherited in the event Roger predeceased Fred.

Approximately two days later, Roger visited Helen and her daughter Virginia at

Helen’s home in North Dakota. Roger explained that he did not want any part of

the inheritance and believed it should go to Helen. On March 10, 2007, Roger

executed a disclaimer of any interest in Fred’s will or estate, which he filed with the

clerk of courts on March 30, 2007.

[¶29.] On April 10, 2007, Opdahl, Fred’s niece and daughter of Leonard Berg,

filed a petition for adjudication of intestacy, determination of heirs, and

appointment of a personal representative. Opdahl alleged undue influence by

Roger. She sought an equal distribution of Fred’s estate among all eight branches

of the Berg family.

[¶30.] Trial was held on the will contest on May 20, and July 8-9, 2009.

Opdahl called Dr. Pablo Faustino, one of Fred’s treating physicians at the VA

Hospital at Fort Meade; Dr. Stephen Manlove, a psychiatrist and certified forensic

psychiatrist; Jeff Denison, U.S. Bank trust officer; and Tines. She also offered her

own testimony.

[¶31.] Dr. Manlove testified that he was asked to conduct a forensic

psychiatric evaluation on the issue of Fred’s testamentary capacity by counsel for

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the special representative. He was hired after Fred’s death and never saw him

personally. In rendering his opinion, Dr. Manlove read the deposition transcripts of

Tines, Bruns, Richter, and Attorney Foye. He also interviewed Attorney Foye. In

addition, he reviewed Fred’s medical records. Dr. Manlove testified that it was his

opinion that Fred was more susceptible to undue influence than the general public

due to his schizophrenia. However, Dr. Manlove specifically stated that he was not

testifying that Fred was influenced when he executed his will.

[¶32.] Dr. Manlove also opined that the record contained “evidence . . . [that]

was much more overwhelming that [Fred] was probably thought disordered and

psychotic on the day that the will was made.” He further testified that it was

significant that Fred’s medical records indicated that in 1988 Fred claimed several

relatives such as a non-existent sister Hattie, a non-existent niece Murtle Nash, a

common-law-son Eugene Blackburn, and in 1992 a non-existent brother Charles.

Dr. Manlove considered Fred’s static delusion that Fred MacMurray 11 was his

father a significant factor in rendering his opinion. He also testified that in his

opinion, Attorney Foye’s notes were too sparse on the issue of testamentary capacity

11. Dr. Manlove noted in his testimony an exchange documented between Gilbert
Berg, Fred’s father, and a medical provider at the VA Hospital at Fort Meade
in 1946. When asked by the doctor what Gilbert Berg’s relationship was with
the patient, he replied: “I’m not the father. I’m only Gilbert Berg.” When
asked to explain his remark, Gilbert Berg stated: “Well, that woman over
there says I’m the father.” Dr. Manlove opined that these types of remarks
may have been the origin of Fred’s confusion as to the identity of his father.
It could have provided, according to Dr. Manlove, the impetus for Fred to
declare Fred MacMurray was his father and on another occasion that a
German doctor, who Fred claimed had taken his hand after the lobotomy and
helped him off the operating table, was his father.

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and as such he considered Attorney Foye’s statement that Fred possessed sufficient

testamentary capacity on December 8, 1996, as not a credible statement.

Finally, Dr. Manlove testified that he felt, after a review of the record, that he could

not have defended the will signing under the South Dakota three-part test for

testamentary capacity.

[¶33.] Dr. Faustino, who had worked in the psychiatry department at the VA

Hospital at Fort Meade for twenty-seven years, but who was not board certified in

psychiatry, testified Fred was not capable of independent living. He also opined

that Fred’s statements made at the age of seventy-seven that he wanted to go back

to school, become a physician, and obtain life insurance, as well as the comments

regarding Fred MacMurray, indicated unrealistic thought processes. These

unrealistic thoughts, according to Dr. Faustino, were indicative of a benign

psychosis. He also testified that one of the major side effects of the medication for

schizophrenia, Stelazine, was Fred’s loss of balance and propensity to fall. Dr.

Faustino further testified that he thought it was surprising that Attorney Foye,

Tines, or Denison, did not request that the VA document Fred’s competency before

the will signing given the VA was responsible for Fred’s monies. However, he also

noted that there was no general policy requiring such a request and if one had been

made that Fred would have been referred to a non-VA doctor for the evaluation.

[¶34.] Opdahl, the will contestant, testified that she first visited Fred in 1945

at a mental hospital in North Dakota when she was eleven years old while on a

family trip. She next saw Fred in 1954 when Opdahl was twenty and she

accompanied her father and grandfather to the VA Hospital at Fort Meade. At that

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time, Opdahl had just finished three months of psychiatric nursing course work, but

had yet to receive a nursing degree. She testified she accompanied her father and

uncle at the request of her father because Opdahl was the only family member at

that time with any medical background. According to Opdahl, the VA doctors told

them that after the lobotomy Fred could not think, could not reason, and could not

reach valid conclusions. Opdahl last visited Fred in 1994 when she accompanied

her brother Kenny on a visit. According to Opdahl’s testimony, the Berg family

made decisions regarding Fred as a group and that who ever was serving as the

“family liaison” with the VA Hospital kept everyone informed. Opdahl expected

that Roger would do the same after he was asked by Opdahl’s sister, Norma, and

Helen to take over in that capacity.

[¶35.] Opdahl became suspicious of Roger about five weeks after Fred’s

death when she learned the size of Fred’s estate. Opdahl testified she filed the will

contest because she had known since 1954 that Fred was of “unsound mind” and

was “essentially a human robot” whose every activity had to be actively directed by

someone else. Opdahl also testified that Helen’s daughter, Virginia, and Roger’s

sisters were all in on a conspiracy to hide the size of Fred’s estate from the rest of

the family. She accused Roger of what she deemed to be two “felonies” including

making a fraudulent will for his own benefit and creating the power of attorney.

[¶36.] After trial on the matter, the trial court entered findings of fact and

conclusions of law. The trial court concluded that Fred’s caretakers and

companions over the last several years of his life knew Fred best and were more

credible and persuasive than Opdahl’s witnesses. It further concluded that Tines,

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Bruns, and Richter were the most knowledgeable and best able to testify to Fred’s

competency to execute his will. It also found Roger to be credible because of his

frequent contact with Fred and the consistency of his testimony with that of Tines,

Bruns, and Richter. With regard to Attorney Foye, the trial court found him

credible and that his conversation with Fred was properly focused on the three-

prong South Dakota test for competency to execute a will.

[¶37.] With regard to Dr. Manlove, the trial court gave consideration to his

forensic opinion testimony. Ultimately, however, greater credence was given to the

testimony of Tines, Bruns, and Richter due to their day-to-day contact with Fred

over a period of several years. The trial court also gave due consideration to Dr.

Faustino’s testimony, but gave it less weight for the same reason as Dr. Manlove’s.

Finally, with regard to Opdahl, the trial court found her testimony was entitled to

little credence as it was mainly hearsay-upon-hearsay, conjecture, and speculation.

[¶38.] The trial court concluded that Fred had testamentary capacity at the

time the will was drafted and executed. It also found Fred was aware he had a

sizeable estate, but because he did not spend a significant amount of money Fred

had no reason to know or care about the exact amount. Further, the trial court

found Fred knew to whom he wanted his money to go: his nephew Roger and Fred’s

sisters Anne and Helen.

[¶39.] With regard to the undue influence claim, the trial court concluded

that there was a proper relationship between a loving and caring nephew and uncle.

Next, it concluded that Roger did not take advantage of his relationship with Fred

as a nephew or as Fred’s attorney-in-fact. It also concluded there was no evidence

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that Roger unduly profited from Fred’s will because Roger made a reasonable and

credible decision to formally disclaim before the will contest was filed. The trial

court also concluded there was no evidence that Roger contemplated or designed, or

would benefit from, some conspiracy, subterfuge, fraud, or other machination to

bypass the legal effect of the formal disclaimer as contended by Opdahl.

[¶40.] Finally, the trial court concluded that Helen was the sole surviving

heir and was entitled to the rest, residue, and remainder of Fred’s estate under his

last will and testament. Opdahl’s will contest claim was dismissed on the merits

and with prejudice as to her and all other heirs and heirs-at-law whether claiming

by intestacy or otherwise. Opdahl appeals raising the following issues:

1. Whether the trial court erred in its application of the standard of
testamentary capacity under South Dakota law.

2. Whether the trial court erred when it concluded that Fred had
testamentary capacity to execute his will.

3. Whether the trial court erred when it concluded that Roger did not
exert undue influence over Fred in the execution of the will.

We have combined Opdahl’s issues one and two as they are essentially the same.

STANDARD OF REVIEW

[¶41.] A trial court’s finding on the issue of a testator’s testamentary capacity

is reviewed by this Court under the clearly erroneous standard. In re Estate of

Dokken, 2000 SD 9, ¶10, 604 NW2d 487, 490 (citing In re Estate of Long, 1998 SD

15, ¶9, 575 NW2d 254, 255). The existence of undue influence is a question of fact

for the trial court and is also reviewed by this Court under the clearly erroneous

standard. Id. (citing In re Estate of Unke, 1998 SD 94, ¶11, 583 NW2d 145, 147-48).

Clear error is found when “after reviewing the entire evidence, we are left with the

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definite and firm conviction that a mistake has been made.” Id. (quoting Unke,

1998 SD 94, ¶11, 583 NW2d at 149). We resolve all conflicts in the evidence in

favor of the trial court’s determinations. Id. “The credibility of the witnesses, the

weight to be accorded their testimony, and the weight of the evidence must be

determined by the trial court and we give due regard to the trial court’s opportunity

to observe the witnesses and the evidence.” Id. Documentary and deposition

evidence are also reviewed under the clearly erroneous standard. SDCL 15-6-52(a).

ANALYSIS AND DECISION

[¶42.] 1. Whether the trial court erred when it concluded that
Fred had testamentary capacity to execute his will.

[¶43.] Opdahl argues that because Fred had a static delusion that Fred

MacMurray was his father, Fred did not know the natural objects of his bounty

within the meaning of our case law on testamentary capacity. Helen, as the

proponent, and Great Western Bank, as the special administrator, argue that Fred’s

delusions did not touch his testamentary capacity because he never sought to name

Fred MacMurray, or any other fictitious relatives, in his last will and testament.

[¶44.] “An individual eighteen or more years of age who is of sound mind may

make a will.” SDCL 29A-2-501. We have defined sound mind, for purposes of

testamentary capacity, as someone who “without prompting, . . . is able ‘to

comprehend the nature and extent of his property, the persons who are the natural

objects of his bounty and the disposition that he desires to make of such property.’”

Dokken, 2000 SD 9, ¶13, 604 NW2d at 491-92 (quoting Long, 1998 SD 15, ¶21, 575

NW2d at 257-58 (quoting In re Estate of Podgursky, 271 NW2d 52, 55 (SD 1978))).

For purposes of testamentary capacity, we do not require the soundness of mind

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enjoyed by those in perfect health, or that required to “make contracts and do

business generally nor to engage in complex and intricate business matters.” Id.

(quoting Long, 1998 SD 15, ¶21, 575 NW2d at 257-58 (quoting Petterson v. Imbsen,

46 SD 540, 546, 194 NW 842, 844 (1923))). “Testamentary capacity is not

determined by any single moment in time, but must be considered as to the

condition of the testator’s mind a reasonable length of time before and after the will

is executed.” Id. ¶14, 604 NW2d at 491-92 (citing Long, 1998 SD 15, ¶23, 575

NW2d at 258).

[¶45.] This Court has never been asked to define the natural objects of a

testator’s bounty. Some courts have limited that designation to those who will

inherit unless a will exists. See Norris v. Bristow, 358 Mo 1177, 1187, 219 SW2d

367, 370 (1949) (noting nephews, nieces, brothers, sisters and other collateral heirs,

are not natural or normal objects of a testator’s bounty because of such

relationships alone); In re Colman’s Estate, 179 Neb 270, 273, 137 NW2d 822,

824 (1965). Other courts have noted that

collateral heirs, such as brothers and sisters, are not ‘natural
objects of bounty’ as that term is used in the interpretation of
wills, and therefore, in cases such as this, where the next of kin
are collaterals and one or more are unprovided for in the will,
the pretermitted persons, in order to establish that the
instrument is unnatural, must show affirmatively that they had
peculiar or superior claims to the decedent’s bounty; and, if no
such claim is adduced, the instrument cannot be held to be
unnatural.

Stormon v. Weiss, 65 NW2d 475, 505 (ND 1954) (quoting In re Easton’s Estate, 140

CalApp 367, 35 P2d 614, 619 (1934)).

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[¶46.] We need not settle the matter of who are the natural object’s of a

testator’s bounty today other than to say that an imaginary father, or other

fictitious relative, who is not named in the will qualifies under neither definition.

Fred did not attempt to devise his estate to Fred MacMurray; his claimed German

father; or the non-existent niece, brother, or common-law-son. Fred devised his

estate to Roger, a nephew with whom he had a loving and long-term relationship in

the last sixteen years of his life and, at the time he executed the will, his two living

sisters Helen and Anne.

[¶47.] The trial court’s finding also reconciles with our precedents in the area

of testamentary capacity and insane delusions. See In re Estate of Schnell, 2004 SD

80, ¶17, 683 NW2d 415, 420. “The will of a testator found to suffer from an insane

delusion will not be held invalid, however, unless it is shown that his delusion

materially affected the terms and provisions of his will.” Id. (citing In re Estate of

Breeden, 992 P2d 1167, 1171 (Colo 2000)). See also In re Walther’s Estate, 177 Or

382, 398-99, 163 P2d 285, 292 (1945). 12 The authorities cited by Opdahl also

support this proposition. See In re Estate of Killen, 937 P2d 1368, 1372

(ArizCtApp1996) (holding to invalidate a will “the hallucinations or delusions must

have influenced the creation and terms of the will such that the testator devised his

property in a way that he would not have done except for the delusions.”).

[¶48.] Opdahl next argues that because the trial court did not enter a specific

ruling on the credibility of the contemporaneous medical records offered by Drs.

12. Furthermore, there is an adequate explanation for why Fred may have
developed the delusion regarding who his father was. See supra n9.

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Goff and Corsini, it erred. However, in the argument section of her brief, Opdahl

does not indicate what portions or conclusions in those medical records she urges

this Court to review other than to argue the records should be reviewed under the

de novo standard when this Court is required to use the clearly erroneous standard

under the provisions of SDCL 15-6-52(a). Other than one specific reference in the

fact section to Dr. Corsini of the VA Hospital at Fort Meade who indicated that

Fred’s psychosis was “stable,” or unimproved, it is not possible to ascertain what

weight Opdahl seeks to have this Court place on facts reviewed by its expert

witness Dr. Manlove. The same treatment is given by Opdahl to Dr. Goff’s record

notes on March 25, 1998, the day before Fred signed his will. Dr. Goff indicated

that Fred’s “history was unreliable,” complained of back pain, and was unable to

stay on one subject due to disordered thoughts. Dr. Manlove used these records in

order to arrive at his opinion that Fred was thought disordered and psychotic on the

day he signed the will.

[¶49.] The trial court found the testimony of the live witnesses with whom

Fred interacted on a daily basis in and around the time he executed his will to be of

greatest significance. The trial court had the contemporaneous medical records of

Drs. Goff and Corsini before it, which were reviewed in detail while Dr. Manlove

was on the stand. The trial court found Dr. Manlove to be credible, but less so than

those witnesses who knew and interacted with Fred during his years at Good

Samaritan. Furthermore, Opdahl does not provide any authority to support her

proposition that it was error not to make a specific finding as to the credibility of

the contemporaneous medical records reviewed by Drs. Goff and Corsini. As such,

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that issue is waived. See State v. Fool Bull, 2009 SD 36, ¶46, 766 NW2d 159, 169

(citing State v. Pellegrino,1998 SD 39, ¶22, 577 NW2d 590, 599). Regardless, the

contemporaneous medical records were considered by the trial court and we can find

no error in the manner in which it reviewed and weighed that evidence.

[¶50.] Opdahl next challenges the trial court’s credibility determination

regarding Attorney Foye and his clerical staff who witnessed Fred’s signature on

the will on March 26, 1998, Roger, and the Good Samaritan staff members who

provided his care. We acknowledge there are some minor discrepancies in the

testimony as indicated by Opdahl. We also note that there are some issues

concerning the witnesses’ abilities to recall details that occurred between sixteen

and eleven years prior to the trial. We are not convinced, however, that the trial

court was clearly erroneous when it found that Fred was competent to execute a

will.

[¶51.] We can find no indication that the trial court erred when it found

Attorney Foye to be credible. Attorney Foye’s testimony was based on over fifty

years of experience in assessing and determining the competency of testators and on

his contemporaneous notes and billing records. Attorney Foye testified to events

that happened some eleven years before the trial. His memory and testimony were

not perfect, but were thoroughly cross-examined and remained consistent

throughout.

[¶52.] With regard to Opdahl’s challenge to Roger’s testimony, we can give no

credence to the suggestion that a fiduciary who keeps his principal’s confidential

information from other family members is not credible as a consequence. Whether

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Opdahl believed Roger’s role was to share information with the family is not

controlling in determining Roger’s credibility. Opdahl conceded that other family

members who served as the liaison between Fred’s caregivers and the family did not

provide a steady stream of information, nor did she pursue those individuals when

she did not receive any updates over a period of several years. We also decline to

recognize that the extended members of the Berg family had a right to know

anything about Fred’s health issues, financial affairs, or his last will and testament.

Again, Opdahl provides no authority for her proposition that she had a right to this

information. See id.

[¶53.] Finally, Opdahl’s argument that Tines’ testimony is entitled to less

credibility than the trial court gave it is without support in the record. It is true

that Tines never testified that Fred got better, knew the nature and extent of his

estate, or knew the natural objects of his bounty. However, she was never asked to

do so. We can find no error by the trial court in its credibility determination

regarding Tines, or any of the other witnesses whose testimony Opdahl was able to

test at trial.

[¶54.] 2. Whether the trial court erred when it concluded that
Roger did not exert undue influence over Fred in the
execution of the will.

[¶55.] Opdahl argues that in the event that this Court finds Roger’s

testimony less than credible the door is open to a claim of undue influence. In order

to advance this claim, this Court must accept that Roger and Virginia entered into

an agreement whereby Roger would receive a portion of the inheritance despite

having signed and filed a disclaimer. We would have to do so despite the trial

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court’s finding that such an agreement was never made. Apart from Opdahl’s

claims, there is nothing for this Court to review under Issue 2 as there is no

testimony or documentary evidence showing that Roger entered into such an

agreement.

[¶56.] Affirmed.

[¶57.] ZINTER, MEIERHENRY and SEVERSON, Justices, and MILLER,

Retired Justice, concur.

[¶58.] MILLER, Retired Justice, sitting for KONENKAMP, Justice,

disqualified.

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