Orwick v. Moldawer

SONNER, J. Appellant, Kurt Orwick, is the oldest son from the first marriage of the decedent, Dana B. Orwick. Kurt challenged his father’s "will, arguing that his half-sister, Jacqueline (“Jackie”) A. Orwick, exerted undue influence on their father when he signed the will a few days prior to his death. At the close of Kurt’s case, the personal representative of the estate, Alan Moldawer, moved for judgment, and the Circuit Court for Montgomery County granted the motion. Kurt presents two questions for our review, which we reword as follows: I. Whether the evidence presented at trial by him, together with the inferences that could reasonably be drawn from that evidence, when viewed in the light most ⁵³⁰ favorable to him, established a prima facie case of undue influence on the part of Jacqueline Orwick, thus precluding the grant of a motion- for judgment at the close of his case.

II

Whether hospital records containing a nurse’s notation, stating that on the day Dana Orwick executed his will, he was suffering from “periods of confusion and forgetfulness,” was admissible under Maryland Rule 5-803(6). We find no error and affirm. Factual Background Dana lived in Bethesda, Maryland, with his daughter, Jackie. Jackie’s mother was Dana’s second wife, and the couple had another child, Jackie’s older brother, Michael H. Orwick.

Kurt Orwick is Dana’s son from his first marriage and lives in Florida. On May 15, 2000, the father was admitted to Sibley Memorial Hospital and diagnosed with terminal cancer. He died on May 27, 2000. On May 24, 2000, three days prior to his death, Dana signed a will that referenced his son, Kurt, only once.

The will established Kurt as a trustee for Kurt’s son, Randall B. Orwick, to whom Dana gave his “library and record collection.” Michael and Jackie loosely divided the remainder of Dana’s estate. Bianca Boone and Rosamae McKinnon, housekeepers employed by a Sibley Hospital contractor, Employment Maid Service, witnessed the will. There is no dispute that the will satisfies the formalities of will execution. See Md.Code (1974, 2001 Repl.Vol.), Est. & Trusts, § 4-101, et seq.

Kurt petitioned to caveat the will in the Orphans’ Court for Montgomery County, alleging that Dana was not competent to make a will and that Jackie and Michael had exerted undue influence on their father. These questions were sent to the circuit court for a jury trial. The trial commenced on February 20, 2002, and, at the close of Kurt’s case on the second day, Moldawer moved for judgment, which the court granted, ⁵³¹ after concluding that Kurt had not made out a case of undue influence by Jackie. 1 This appeal followed. Discussion Maryland Rule 2-519 states: (a) Generally.

A party may move for judgment on any or all of the issues in any action at the close of the evidence offered by an opposing party, and in a jury trial at the close of all the evidence. The moving party shall state with particularity all reasons why the motion should be granted. No objection to the motion for judgment shall be necessary. A party does not waive the right to make the motion by introducing evidence during the presentation of an opposing party’s case.

(b) Disposition. When a defendant moves for judgment at the close of the evidence offered by the plaintiff in an action tried by the court, the court may proceed, as the trier of fact, to determine the facts and to render judgment against the plaintiff or may decline to render judgment until the close of all the evidence. When a motion for judgment is made under any other circumstances, the court shall consider all evidence and inferences in the light most favorable to the party against whom the motion is made. We review the grant of a motion for judgment under the same standard as we review grants of motions for judgment notwithstanding the verdict.

Johnson & Higgins of Pa., Inc. v. Hale Shipping Corp., 121 Md.App. 426, 450 , 710 A.2d 318 (1998) (citation omitted). We assume the truth of all credible evidence on the issue, and all fairly deducible inferences therefrom, in the light most favorable to the party against whom the motion is made. Nissan Motor Co. Ltd. v. Nave, 129 Md.App. 90, 116-17 , 740 A.2d 102 (1999) (citations omitted), cert. denied, 357 Md. 482 , 745 A.2d 437 (2000). ⁵³² Consequently, if there is any evidence, no matter how slight, that is legally sufficient to generate a jury question, the case must be submitted to the jury for its consideration. Washington Metro.

Area Transit Auth. v. Reading, 109 Md.App. 89, 99 , 674 A.2d 44 (1996) (citation omitted). The Court of Appeals has stated that “undue influence which will avoid a will must be unlawful on account of the manner and motive of its exertipn, and must be exerted to such a degree as to amount to force or coercion, so that free agency of the testator is destroyed.” Anderson v. Meadowcroft, 339 Md. 218, 228 , 661 A.2d 726 (1995) (citations omitted). The Court has drawn a clear line of distinction between inter vivos gifts and testamentary gifts. Griffith v. Diffenderffer, 50 Md. 466, 484 (1879).

In Griffith , the Court of Appeals stated: In the cases of gifts or other transactions inter vivos, it is considered by courts of equity, that the natural influence which such relations as those in question involve, exerted by those who possess it, to obtain a benefit for themselves, is an undue influence. The law regarding wills is very different from this. The natural influence of the parent or guardian over the child, or the husband over the wife, or the attorney over the client, may lawfully be exerted to obtain a will or legacy, so long as the testator thoroughly understands what he is doing, and is a free agent. Anderson, 339 Md. at 228 , 661 A.2d 726 (quoting Griffith, 50 Md. at 484 ). “Generally, undue influence amounts to physical or moral coercion that forces a testator to follow another’s judgment instead of his own.” See Moore v. Smith, 321 Md. 347, 353 , 582 A.2d 1237 (1990) (citation omitted).

Recognizing that it never “laid down a test to determine the existence of undue influence with mathematical accuracy,” in Moore v. Smith, the Court of Appeals collected a list of seven factors “recognized in many appellate cases” as characteristic of the presence of undue influence. 321 Md. at 353 , 582 A.2d 1237 . ⁵³³ 1. The benefactor and beneficiary are involved in a relationship of confidence and trust; 2. The will contains substantial benefit to the beneficiary; 3. The beneficiary caused or assisted in effecting execution of the will; 4.

There was an opportunity to exert influence; 5. The will contains an unnatural disposition; 6. The bequests constitute a change from a former will; and 7. The testator was highly susceptible to the undue influence.

Anderson, 339 Md. at 229 , 661 A.2d 726 ; Moore, 321 Md. at 353 , 582 A.2d 1237 . Although the Court of Appeals in Moore catalogued evidence supporting each factor, it seemed clear in the Court’s opinion that Moore was not establishing a bright-line test. 321 Md. at 353 , 582 A.2d 1237 (“Although we have not laid down a test to determine the existence of undue influence with mathematical accuracy, we have recognized in many appellate cases several elements characteristic of its presence.”). Subsequent opinions by the Court of Appeals, however, seem to elevate the existence of a confidential relationship and the testator’s high susceptibility to the undue influence to bright-line status. In Anderson , the Court, after noting that the first six characteristics were alleged in the complaint, dismissed the complaint based upon the absence of sufficient facts to establish the testator’s high susceptibility to the undue influence. 339 Md. at 229 , 661 A.2d 726 .

In Upman v. Clarke, the Court of Appeals appears to have reached the same conclusion regarding a confidential relationship. 359 Md. 32, 41-2 , 753 A.2d 4 (2000). There are two possible interpretations of the law that can emerge from this line of cases. The first, and we would guess the approach that Moldawer, the appellee, would argue, is that each enumerated undue influence factor must be present. The second, a position Kurt, the caveator/appellant, would ⁵³⁴ assert is that some factors may be more important than others, but, by no means does the law require the presence of all the factors.

Kurt has conceded that there is no evidence of a prior will; therefore, factor six, a change from a former will, is not present. Consequently, if we accept the stricter interpretation, Kurt’s claim fails. We conclude that the second approach is better reasoned; the Court of Appeals did not intend Anderson and Upman to stand for the proposition that all seven factors must be present for caveators to sustain their burden. We need not speculate on what factors may or may not be required.

We do, however, decide that, whether or not the new will changes or eliminates a prior will is not an indispensable factor, and undue influence may be present absent a will change. In any case, we must now review the evidence at trial and determine whether a reasonable jury could conclude, on the facts presented, that Jackie Orwick exerted undue influence. If factors one and seven are not present, then the circuit court properly dismissed the action. We are, of course, required to read the evidence and the inferences therefrom in favor of Kurt, who lost below.

Our review of the evidence leads us to the conclusion that Kurt presented sufficient evidence to allow a jury to find that the will confers substantial benefit on Jackie, that Jackie caused or assisted the execution of the will, that she had an opportunity to exert influence, and that the will contains an unnatural disposition of Dana’s assets. Evidence at trial indicated that Dana’s estate, after taxes and debt satisfaction, totaled roughly $653,000. Had Dana died intestate, his three surviving children would have divided that sum equally among themselves, each receiving about $217,666. Under the will, Jackie and Michael divided the $653,000, each receiving about $326,000, an increase of $108,834, roughly a fifty percent increase over their intestate share.

A jury could also find that Jackie assisted in the execution of the will. Jackie instructed her father where to sign the ⁵³⁵ document she placed in front of him, she actively sought out the location of the will by contacting her father’s attorney, and she requested that the hospital provide witnesses to sign the will. We note that these activities, by themselves, do not at all even hint of undue influence; however, these facts, taken together with other factors, could support a reasonable jury’s finding that Jackie exerted undue influence. We also believe that there was sufficient evidence for a jury to conclude that Jackie had the opportunity to exert influence.

Jackie began living in the house with her father in 1999, and brought her boyfriend and his children with her. Kurt testified that between May 15 and May 23, Jackie consistently told him not to come to see his father. Again, the inference must be drawn in Kurt’s favor. Although this evidence alone is not indicative of undue influence, this is merely one factor that may support a belief that Jackie could have exerted undue influence.

Finally, the will does contain an unnatural disposition of Dana’s assets by completely