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HEADNOTE Melvin Conrad et ux v. Otis Gamble, Individually et al., No. 1908, September Term, 2007 Testamentary Gifts, Inter Vivos Gifts; Confidential Relationship: Moore, 321 Md. 347 (1990); Upman v. Clarke, 359 Md. 32, 42 (2000) (quoting Green v. Michael, 183 Md. 76, 84 (1944)). The existence of a confidential relationship between the donor and donee is simply one suspicious circumstance to be considered in the case of testamentary as opposed to inter vivos gifts; it does not, of itself, give rise to a presumption of invalidity, and the burden remains with the person challenging the gift to prove a substantially overbearing undue influence. Upman, 359 Md. at 35. Undue influence which will avoid a will must be unlawful on account of the manner and motive of its exertion, and must be exerted to such a degree as to amount to force or coercion, so that free agency of the testator is destroyed. The proof must be satisfactory that the will was obtained by this coercion . . . or by importunities which could not be resisted, so that the motive for the execution was tantamount to force or fear. Mere suspicion that a will has been procured by undue influence, or that a person had the "power unduly to overbear the will of the testator" is not enough. It must appear that the power was actually exercised, and that its exercise produced the will. Id. The "elements characteristic of the presence of [undue influence]" are: (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 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. Moore, 321 Md. at 353-54. Decedent's will, executed on July 10, 1995 and filed with the Register of Wills on July 11, 1995, appointed appellee to serve as the personal representative and bequeathed the decedent's home located in Suitland, Maryland, along with the adjoining unimproved lot and all tangible personal property within the home and the remainder of the decedent's estate to her "goddaughter," Donna Bowser, her brothers-in-law, Nicholas Thomas and Francis Thomas and her sisters-in-law, Mary Belle Thomas and Margaret Crawford. On April 27, 2005, Decedent executed a general power of attorney to appellant, Melvin Conrad and a specific power of attorney as to Decedent's bank account. On May 13, 2005, the decedent executed a deed conveying her real property, "in consideration of LOVE AND AFFECTION," to appellants as tenants by the entirety and, on August 1, 2005, the decedent executed a last will and testament (1) appointing appellant Delores Conrad as the executrix of the Will, (2) bequeathing Decedent's real property located at 2023 Spaulding

Avenue and the adjoining lots to "my loyal cousin," Melvin Conrad and (3) bequeathing the remainder of her estate to Melvin Conrad; appellee was not mentioned in any of these documents. Decedent died on December 8, 2005 at the age of eighty-eight. On January 11, 2006, appellee was appointed Personal Representative of the decedent's estate by the Orphan's Court for Prince George's County and thereafter filed a complaint against appellants in the Circuit Court for Prince George's County, alleging fraud and undue influence over the decedent as to her 2005 deed and will. Applying the elements characteristic of the presence of undue influence articulated in Moore, supra, the Circuit Court properly considered that (1) appellants had no relationship with the decedent prior to her March 2005 hospitalization at which time they immediately took charge, determining where the decedent would live, secured powers of attorney and exercised comprehensive control of the decedent's life and affairs; (2) The 2005 Will made appellants the sole beneficiaries of decedent's estate, also providing that Delores Conrad will be the sole beneficiary if she survived her husband; (3) the 2005 Will was personally prepared by Delores Conrad and Melvin Conrad presented it to the decedent to execute; (4) In contrast to the execution of the 1995 Will which was drafted by counsel and filed with the Register of Wills, no attorney was retained or consulted in drafting the 2005 Will, nor was any effort made to provide the decedent an opportunity to speak with an attorney or to secure independent legal, financial or other advice prior to execution; immediately after securing a general power of attorney, appellants transferred all of the decedent's assets to themselves, depositing $200,000 from the decedent's bank accounts into their daughter's account, thereafter transferring all of the decedent's real property to themselves. (5) notwithstanding that the beneficiaries named in the 1995 Will, "my godson, Otis Gamble," [the decedent's] "goddaughter," Donna Bowser (Sanders), her brothers-in-law and sisters-in-law, had a close relationship with the decedent and the decedent's sister-in-law, Mary Thomas, had tended to her during her hospitalization at the Prince George's Hospital, appellants, who had been in the decedent's life for less than five months, were made the beneficiaries of the entirety of the decedent's estate pursuant to the 1995 Will; (6) the decedent's medical records reflected a history of Alzheimer's disease, dementia, confusion, disorientation and inability to make safe decisions were repeatedly documented; she was also deemed unable to consent to medical treatment due to disorientation and cognitive impairment; her treating physician released her to a nursing home for a guardianship to be established.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1908 September Term, 2007 __________________________

MELVIN CONRAD ET UX.

v.

OTIS GAMBLE, INDIVIDUALLY ET AL. _________________________ Davis, Matricciani, Rodowsky, Lawrence F. (retired, specially assigned), JJ. _________________________

Opinion by Davis, J. _________________________ Filed: December 30, 2008

On February 16, 2007, Otis Gamble, appellee, filed an Amended Complaint, individually and as Personal Representative of the Estate of Stella Thomas, the decedent, alleging fraud and undue influence on the part of Melvin and Delores Conrad, appellants, and requesting, inter alia, that the Circuit Court for Prince George's County (1) invalidate a deed and will, transferring the decedent's property to appellants; (2) order appellants to render a full accounting as to all personal property misappropriated from the Estate; and (3) assess compensatory and punitive damages against appellants. A trial on the matter was held in the Circuit Court for Prince George's County (Serrette, J.) on July 17 and 18, 2007. On August 8, 2007, a judgment was entered against appellants (1) declaring the deed and will to be invalid; (2) ordering a transfer of real property to the decedent's estate; (3) imposing a constructive trust on real property identified in the decedent's deed and will; and (4) rendering a judgment against appellants in the amount of $200,000, not precluding further judgment, following an accounting, "for other such monies or property misappropriated" from the Estate. Appellants filed a "Motion to Amend Judgment, or in the Alternative, for a New Trial," which was denied on September 12, 2007. Appellants appealed the judgment of the trial court, raising four issues for our review, which we have rephrased and reorganized as follows:1
1

The issues, as presented by appellants, are as follows: Whether the trial court erred in finding that [appellants] exerted undue influence as a matter of law based on a confidential relationship without finding that [appellants] undertook to exercise actual undue influence. Whether [the] trial court erred in ruling that the existence of a

I.

II.

I.

Did the trial court err by ruling that appellants failed to rebut the presumption that the decedent's inter vivos gift of real property resulted from appellants' undue influence? Did the trial court err by invalidating the decedent's will on the grounds that appellants exerted undue influence over the decedent? Did the trial court err by excluding certain witness testimony on the grounds that it did not fall within the "state of mind" exception to the rule against hearsay? Did the trial court err by assessing a monetary award to appellee that did not credit appellants for expenses paid on behalf of the decedent?

II.

III.

IV.

For reasons we shall explain infra, we answer the first three questions in the negative and hold that the fourth question has been waived by appellants. Accordingly, we shall affirm the judgment of the Circuit Court for Prince George's County.

FACTUAL BACKGROUND
This case involves a challenge by appellee to a deed and will executed in 2005 by the decedent, Stella Thomas.

confidential relationship shifted the burden to [appellants] when undisputed testimony showed that decedent knew what she was doing at the time the Deed and Will were executed. III. Whether [the] trial court erred in excluding testimony as to the state of mind of the testator. Whether the trial court erred in assessing a monetary award subject to escalation without hearing evidence as to credit due [appellants] for expenses paid on behalf of the decedent. -2-

IV.

On July 10, 1995, the decedent executed a will bequeathing to appellee the decedent's home located at 2023 Spaulding Avenue in Suitland, Maryland, along with the adjoining unimproved lot and all tangible personal property within the home. The decedent's 1995 will further bequeathed the remainder of the decedent's estate to her "goddaughter," Donna Bowser, to her brothers-in-law, Nicholas Thomas and Francis Thomas and to her sisters-inlaw, Mary Belle Thomas and Margaret Crawford. The Will also indicated that appellee was to serve as the personal representative of the decedent's estate. The parties stipulated at trial that the Will was prepared by Arnold Popkin, attorney at law, and filed with the Register of Wills on July 11, 1995. The parties further stipulated to the testimony of Popkin that the terms "godson" and "goddaughter" would not have been words used by Popkin but, rather, reflected the decedent's choice of words. Approximately ten years later, on April 27, 2005, the decedent signed two documents granting a general power of attorney to Melvin Conrad, along with a specific power of attorney as to the decedent's bank account. On May 13, 2005, the decedent executed a deed conveying her real property, "in consideration of LOVE AND AFFECTION," to appellants as tenants by the entirety. On August 1, 2005, the decedent executed a last will and testament (1) appointing Delores Conrad as the executrix of the Will, (2) bequeathing the decedent's real property located at 2023 Spaulding Avenue and the adjoining lots to "my loyal cousin," Melvin Conrad and (3) bequeathing the remainder of her estate to Melvin Conrad. Appellee was not mentioned in any of these documents. The decedent died on December 8, 2005, at the age of eighty-eight.

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On January 11, 2006, appellee was appointed Personal Representative of the decedent's estate by the Orphan's Court for Prince George's County. Appellee ultimately filed a complaint against appellants in the Circuit Court for Prince George's County, alleging fraud and undue influence over the decedent as to her 2005 deed and will. Circumstances Surrounding the 2005 Deed and Will At trial, appellee testified that he had been a close friend of the decedent and her husband, Joseph Thomas, since the 1960s. According to appellee, the decedent, who had no children, treated him like a son and appellee referred to her as "mom." Prior to Joseph Thomas' death in 1995, appellee told Thomas that he would look after the decedent. Appellee testified that he visited the decedent three to five times per week to perform housework and provide the decedent with other assistance. Appellee also had a joint safe deposit box with the decedent. The decedent identified appellee as her emergency contact on her identification card and provided appellee with keys to her home and her car. Appellee testified that, during the entire time that he knew the decedent, he had never heard of Melvin Conrad. Donna Marie Bauser Sanders2 testified that she was the decedent's god-daughter and had never heard of Melvin Conrad until the decedent's funeral. On March 6, 2005, the decedent was admitted to Prince George's Hospital Center and treated for congestive heart failure. Medical records from this March 2005 hospital visit, which described the decedent as confused, forgetful, agitated and uncooperative, were

Although Sanders was referred to as "Donna Bowser" in the 1995 last will and testament, the trial transcript refers to her as "Donna Marie Bauser Sanders" -4-

2

admitted into evidence at trial. A psychiatric consultation conducted on March 10, 2005, indicated that the decedent was "alert and oriented to place and person; not to time" and that her "concentration" and "abstraction" was fair. A medical entry on March 11, 2005, noted that the decedent stated she has no relatives whom she trusts. At one point, decedent apparently stated that she believed that the year was 1925. A March 14, 2005 entry stated that the decedent followed commands "when it suits her." A March 15, 2005 discharge summary signed by Dr. Chalak Berzingi, the treating physician, indicated that the decedent "seems to be having dementia with moderate cognitive impairment," such that "next-of-kin or guardianship has to be established for the patient." At his deposition, Dr. Berzingi testified that he recommended the decedent's discharge to a nursing facility for her own safety and that she was indeed diagnosed with cognitive functioning impairment. Dr. Berzingi further testified that, while the decedent's mental alertness may have fluctuated from one day to the next, she largely lacked good judgment and was disoriented. During the decedent's March 2005 hospitalization, Dr. Berzingi felt it was not appropriate to obtain her consent for certain medical procedures due to her state of disorientation and confusion. Appellee testified that, after her discharge from the hospital, the decedent was placed in the Millennium nursing home,3 which appellee selected because it was close to the decedent's home. Appellee further testified that, after signing the decedent into the nursing

The trial court's opinion and trial testimony refer to this nursing home as the "Millennium" nursing home. Appellants' brief refers to it as the "Forestville Rehabilitation Center." -5-

3

home, he called the decedent's friend, Edith Murray, and asked her to meet him at the decedent's house to help him collect some of her clothes. Murray did not respond to the call. Appellee went to the decedent's home and found Murray and appellants in the decedent's room, "going through her drawers." According to appellee, this was the first time he ever met appellants. Later, at the nursing home, Melvin Conrad told appellee that he appreciated his past assistance to the decedent, but that he was "taking over." Appellee challenged appellants' decision to "take over" and brought a copy of the decedent's 1995 will to the nursing home to demonstrate his relationship with the decedent. However, according to appellee, the nursing home allowed Melvin Conrad to "be in charge." Approximately one week later, appellee attempted to visit the decedent at the nursing home. He learned that she had been transferred to another location. In fact, appellants had moved the decedent to Washington House, a private residential care home for senior citizens. After two visits with the decedent at Washington House, appellee was informed by Mary El Amin, the owner of Washington House, that the only way he could continue to see the decedent was "to come through Melvin." Melvin Conrad testified that he was the decedent's second cousin. According to Melvin Conrad, he moved the decedent out of the Millennium nursing home because the conditions there were "deplorable." In September 2005, appellants moved the decedent out of Washington House and into their home. Melvin Conrad denied ever telling appellee that he was "taking over" the care of the decedent, but admitted that he immediately began to make decisions regarding the decedent's care.

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Melvin Conrad conceded that appellants neither sought legal advice nor advised the decedent to obtain legal advice prior to the drafting or signing of the power of attorney, the deed or the Will. In addition, the decedent did not accompany Melvin Conrad when he took the power of attorney to be notarized. According to Melvin Conrad, the decedent kept "badgering" him about drafting a will and deed for her. Delores Conrad, Melvin's wife, drafted the Will at his direction, using his father's will as a template. The decedent executed the deed in May 2005 and the Will in August 2005. However, appellants did not record the deed until September 2005. Melvin Conrad's testimony established that he was responsible for checks or withdrawals from the decedent's bank accounts once he received powers of attorney from the decedent. He conceded that over $200,000 of the decedent's funds were transferred out of her bank account and into a bank account belonging to his daughter, Bonita Thompson. He further testified that several personal and cashier's checks were issued transferring funds to his wife and daughter. Many of these checks were for several thousand dollars. It was clear from appellant's testimony that he failed to volunteer relevant information regarding transferring the decedent's funds to his daughter during the discovery phase of the instant proceedings. Moreover, at trial, it frequently appeared difficult to elicit concrete testimony from appellant regarding the status of the decedent's funds once placed in his daughter's bank account. Edith Murray testified that she was a friend of the decedent and had known her since June 1959. She also "knew of" appellee. According to Murray, she and the decedent would

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talk almost every day. Murray testified that she became acquainted with appellants in March 2005. Murray did not approve of the conditions at the Millennium nursing home and appeared to fault appellee for placing the decedent in that environment. Murray contacted Melvin Conrad to intervene in the situation. Shortly thereafter, appellants moved the decedent to Washington House, which Murray believed to be a nicer location. Melvin Conrad testified that he had never met Murray prior to when she contacted him in March 2005. Mary El Amin, the owner of Washington House, testified that the decedent did not appear to enjoy her visits with appellee. According to El Amin, after these visits, the decedent would stay up all night crying and repeating that she did not have a son. For this reason, El Amin instructed appellee that he could not visit the decedent without Melvin Conrad accompanying him. Melvin Conrad testified that the decedent's health deteriorated approximately one week after the Thanksgiving holiday in 2005. The decedent had been living with appellants since September 2005. However, when asked if he believed that the decedent was generally "in poor health" from the time she left Millennium House until the moment of her death, appellant stated, "She was not in poor health as far as Melvin Conrad is concerned." Medical records from St. Mary's Hospital, admitted into evidence at trial, painted a different picture. Those records indicate that the decedent was admitted to the hospital on November 19, 2005. According to these records, the decedent's health had been "declining in the previous months" and she was, at the time of her admission to the hospital, weak and

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emaciated, having not eaten for three days. It was also noted that the decedent had a past history of Alzheimer's dementia and was anxious, crying, confused and unresponsive to questions. A speech/language evaluation indicated that the decedent had advanced dementia. Although she was discharged from the hospital, the decedent was later readmitted on December 3, 2005. The medical records produced from this December 2005 hospitalization indicated, again, that the decedent was disoriented, verbally uncommunicative and confused. They also noted that, "[a]ccording to [the decedent's] friend, the patient began developing symptoms of dementia about two years ago." A medical document issued on December 7, 2005, stated the following: The cousin, who had no previous contact with the patient was dissatisfied with the patient's nursing home care and arranged for her to be transferred to another nursing home. When the patient did poorly at this nursing home, he arranged for the patient to come to his home "so that she could die among family". However, he and his wife feel overwhelmed in trying to care for the patient who is now unable to eat or drink. The decedent passed away on December 8, 2005. Appellants alleged that they spent over $29,000 in providing for the health, welfare and maintenance of the decedent. An itemized statement of their alleged expenses was admitted at trial. Additional facts will be discussed infra as warranted.

STANDARD OF REVIEW

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Maryland Rule 8-131(c) establishes that an appellate court shall review an action tried without a jury on both the law and the evidence. We will not set aside the trial court's judgment on the evidence unless it is clearly erroneous and we give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Id. "If any competent material evidence exists in support of the trial court's factual findings, those findings cannot be held to be clearly erroneous." Figgins v. Cochrane, 403 Md. 392, 409 (2008) (internal citations omitted). With regard to mixed questions of law and fact, "we will affirm the trial court's judgment when we cannot say that its evidentiary findings were clearly erroneous, and we find no error in that court's application of the law." Storetrax.com, Inc. v. Gurland, 168 Md. App. 50, 81 (2006), aff'd, 397 Md. 37 (2007) (internal citations omitted). As for pure questions of law, "the trial court `enjoys no deferential appellate review,' and the appellate court `must apply the law as it discerns it to be.'" Id. (internal citations omitted).

ANALYSIS I
In its opinion and order, the trial court declared that the decedent's May 13, 2005 deed was invalid. Specifically, the trial court found that a confidential relationship existed between appellants and the decedent, giving rise to a rebuttable presumption that the decedent's inter vivos gift of real property conveyed by the May 2005 deed was a result of undue influence on the part of appellants. The trial court further found that appellants failed -10-

to rebut this presumption of undue influence, rendering the gift invalid. We shall address each of appellants' challenges to these rulings in turn. A. Existence of a Confidential Relationship In Maryland, the existence of a confidential relationship gives rise to a presumption that an inter vivos gift to the dominant party in the relationship is the product of undue influence. Figgins, 403 Md. at 411. When such a presumption arises, the "heavy" burden of demonstrating the fairness and reasonableness of the transaction shifts to the benefitting party, who must then rebut the presumption of undue influence by establishing that "the transfer was `the free and uninfluenced act of the grantor, upon full knowledge of the circumstances connected with it and of its contents.'" Id. (internal citations omitted). Appellants challenge the trial court's ruling that a confidential relationship existed between appellants and the decedent. Citing to Henkel v. Alexander, 198 Md. 311 (1951), appellants argue that there is no presumption of undue influence where the donor of an inter vivos gift is a competent person making a voluntary gift to a favorite relative. According to appellants, appellee failed to present "strong and conclusive proof" that the decedent was incompetent and the trial court erred by invalidating the deed. Appellee argues that substantial evidence supported the court's finding that a confidential relationship existed, such that the burden shifted to appellants to rebut the presumption of undue influence. "Absent a presumption arising out of certain relationships (e.g., attorney-client, trustee-beneficiary, principal-agent), the existence vel non of a confidential relationship is

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a question of fact, not of law." Midler v. Shapiro, 33 Md. App. 264, 268 (1976) (internal citations omitted). Accordingly, "[i]f any competent material evidence exists in support of the trial court's factual findings, those findings cannot be held to be clearly erroneous." Figgins, 403 Md. at 409 (internal citations omitted). In this case, competent material evidence supported the trial court's finding that the decedent and appellants shared a confidential relationship. We have previously explained: A confidential relationship exists whenever confidence is placed by one person in another and accepted by that other person. Such a relationship may arise where a party is, under the existing circumstances, justified in believing that the other party will not act in a manner adverse or inconsistent with the reposing party's interest or welfare. It `. . . extends to all relations in which confidence is reposed, and in which dominion and influence resulting from such confidence may be exercised by one person over another.' Midler, 33 Md. App. at 268 (internal citations omitted). The Court of Appeals has recently reiterated that "[t]o establish such a relationship there must appear at least a condition from which dependence of the grantor may be found." Upman v. Clarke, 359 Md. 32, 42 (2000) (quoting Green v. Michael, 183 Md. 76, 84 (1944) (internal citations omitted)). In Figgins, 403 Md. at 410-11, the Court of Appeals explored whether a confidential relationship existed between a parent and a child. In that context, the Court reviewed various factors set forth in Treffinger v. Sterling, 269 Md. 356, 361 (1973): Among the factors to be examined in determining whether this [confidential] relationship has come into being are the parent's advanced age, his physical debility, his mental feebleness, and his dependence on his child. None of these factors is necessarily conclusive and each should be given that weight which is warranted by the circumstances then present. Normally it is the minor child who relies heavily upon his parent for care and protection or for guidance in -12-

business affairs so that a confidential relationship exists between them with the duties running from the adult to the minor. It is only when, as a result of debility or feebleness, a parent becomes dependent on his child for aid and counsel, that a confidential relationship is re-established. . . . While Treffinger and Figgins dealt specifically with the existence of a confidential relationship between a parent and a child, the factors set forth in these two cases provide an instructive analytical framework in which to determine that a confidential relationship existed under the circumstances of this case. The trial court considered the foregoing factors in its confidential relationship analysis, finding as follows: Melvin Conrad handled all of [the decedent's] finances pursuant to the powers of attorney prepared by him. Delores Conrad served as her husband's partner in the interactions with [the decedent], including drafting the will which named her husband as the primary beneficiary and designated [Delores] Conrad as the contingent beneficiary and executrix. Several large checks were written to Delores Conrad from [the decedent's] account, and Delores Conrad signed the "consent to blood products" when [the decedent] was in the hospital. [Appellants] stepped into [the decedent's] life because of [the decedent's] physical debility and mental feebleness, having had no relationship with her prior to the March 2003 [sic] hospitalization. [The decedent's] condition rendered her thoroughly dependent on [appellants] for all her needs. These findings were supported by competent material evidence in the record. There was more than sufficient evidence to establish that, as of March 2005, the decedent was struggling with dementia and had impaired cognitive functioning, enough so that her treating physician recommended establishing guardianship over her. It was also sufficiently

established that the decedent was completely reliant on appellants to provide for her well

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