UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EMILY R. SAMPLE; KEVIN B. SAMPLE,
Plaintiffs-Appellees,

and

OCCIDENTAL LIFE INSURANCE
COMPANY OF NORTH AMERICA;
METROPOLITAN LIFE INSURANCE                                         No. 96-1547
COMPANY,
Plaintiffs,

v.

OLA J. FLEMING,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge; Jillyn K. Schulze,
Magistrate Judge.
(CA-95-304-DKC)

Argued: January 31, 1997

Decided: September 15, 1997

Before HALL and ERVIN, Circuit Judges, and CLARKE,
Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: David A. Branch, Washington, D.C., for Appellant. Grif-
fin Vann Canada, Jr., MILES & STOCKBRIDGE, Rockville, Mary-
land, for Appellees. ON BRIEF: Michael S. Rosier, ROSIER &
WRIGHT, Oxon Hill, Maryland, for Appellant. J. Stephen McAuliffe,
MILES & STOCKBRIDGE, Rockville, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

This is an interpleader action originally brought in district court by
Occidental Life Insurance Company of North Carolina (OLIC)
against Emily and Kevin Sample and Ola J. Fleming. Metropolitan
Life Insurance Company (MLIC) of New York was permitted to
intervene as a co-plaintiff and file a Complaint for Interpleader. The
actions were initiated by both insurance companies in order to avoid
multiple liability for life insurance policies issued to Brenda Handy.
The Samples and Fleming both claim to be the sole beneficiaries of
these policies. The companies paid the insurance proceeds into the
registry of the district court pending the resolution of this case.

The district court realigned the parties for purposes of judicial pro-
ceedings, designating the Samples as plaintiffs and Fleming as the
defendant, and allowed discovery. The case was referred to a magis-
trate judge by consent of the parties, and the magistrate judge granted
the Samples' motion for summary judgment. The insurance proceeds
were ordered to be paid to the Samples. Pursuant to 28 U.S.C.
§ 636(c) Fleming appeals to us directly from the judgment of the
magistrate. She claims that the magistrate judge erred by (1) finding
that Handy was not subject to undue influence and (2) finding that
Handy was competent to change the beneficiaries of her life insurance

                    2
policies from Fleming to the Samples. For the reasons hereinafter
explored, we affirm the lower court's grant of summary judgment in
favor of the Samples.

I.

We review grants of summary judgment de novo, applying the
same standard used by the lower court itself. See Conkwright v. Wes-
tinghouse Elec. Corp., 933 F.2d 231, 233 (4th Cir. 1991); Shealy v.
Winston, 929 F.2d 1009 (4th Cir. 1991); Higgins v. E.I. DuPont De
Nemours & Co., 863 F.2d 1162, 1166-67 (4th Cir. 1988). "[T]he non-
moving party is entitled to have his evidence as forecast assumed, his
version of that in dispute accepted, and the benefit of all favorable
inferences." Conkwright, 933 F.2d at 233. See also E.E.O.C. v. Clay
Printing Co., 955 F.2d 936, 940 (4th Cir. 1992). However, "[the
opposing party must demonstrate that a triable issue of fact exists; he
may not rest upon mere allegations or denials. A mere scintilla of evi-
dence supporting the case is insufficient." Shaw v. Stroud, 13 F.3d
791, 798 (4th Cir.), cert. denied, 513 U.S. 813 (1994) (internal cita-
tions omitted).

II.

Handy died in a Towson, Maryland, nursing home on December 4,
1994. At the time of her death, she was insured under two life insur-
ance policies: the OLIC policy paid a benefit of $101,000, and the
MLIC policy had a value of $46,000.

Handy was initially hospitalized in September 1994 due to compli-
cations related to the AIDS virus. While a patient at a Washington,
D.C., area hospital, Handy was advised that she had only 24 to 48
hours to live. Upon learning of this grave prognosis, Fleming,
Handy's sister, traveled to Washington from her home in Florida.

During her stay, Fleming signed the papers necessary to become a
beneficiary under Handy's will and to exercise power of attorney over
Handy. Fleming also became acquainted with the Samples, who had
maintained a cordial relationship with Handy for some period.

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During a search of Handy's apartment, Fleming discovered the
OLIC policy, paid the back premiums on that policy, collected some
of Handy's clothes and jewelry, and visited Handy while wearing
Handy's sweater. Handy did not die as quickly as the doctors had pre-
dicted and, after six days, Fleming returned to Florida with the clothes
and jewelry. Subsequent to Fleming's departure, Ms. Sample
informed Handy that Fleming had taken the clothes and jewelry.
Fleming contends that Emily Sample urged her to take the belongings
in order to prepare for Handy's funeral. According to Fleming, she
did not tell her dying sister the real reason for taking the items for fear
of upsetting her. Handy became angry with Fleming because Handy
believed that she had been treated badly by her sister, because Flem-
ing had taken the clothes and jewelry from Handy's home, and
because Fleming had worn Handy's sweater.

Prior to October 1994, Fleming had been designated as the primary
beneficiary under both the OLIC and the MLIC policies. By an
undated Designation of Beneficiary filed with Handy's employer on
October 3, 1994, Handy changed her beneficiary under the MLIC pol-
icy, naming the Samples as the parties eligible to collect. Handy also
instructed her attorney, Sheryl Fletcher, to prepare a Change of Bene-
ficiary form to effectuate Handy's wish to change the primary benefi-
ciary under her OLIC policy from Fleming to the Samples.

Fletcher states in her affidavit that she and Handy always met in
private, that Handy "was alert; responded intelligently to my ques-
tions; and, had very little difficulty in conveying her thoughts to me,"
and that Handy "appeared to fully understand the consequences of her
act in changing the beneficiary." Suppl. App. at 21. Further, Fletcher
noted that "Ms. Handy's instructions to me were clear, concise and
definite." Id. at 22. Because Handy expressed her fear that Fleming
might challenge her competency, Fletcher suggested that Handy
obtain a psychiatric evaluation. Dr. Lex Smith, a psychiatrist, inter-
viewed Handy and concluded the following: "I can not make a diag-
nosis of mental disease on this patient. She is capable of making a
will and says that she is satisfied with the recent will she made which
removes the sister as one to inherit from her." J.A. at 30.

In addition to Fletcher's statement, the following people submitted
affidavits in support of the Samples' motion for summary judgment:

                     4
Leslie Hammond, Handy's nurse at the nursing home; Charles Boone,
Handy's last love interest; Sarita Harris, Handy's close friend; and
Catherine Knustgraichen, a secretary at the nursing home. The state-
ments of Hammond, Boone, and Harris reveal Handy's frustration
with Fleming for taking Handy's belongings to Florida and for wear-
ing Handy's sweater. These three affidavits also included statements
attesting to Handy's mental competence to make changes to her life
insurance policies. Hammond and Boone noted the Samples' frequent
visits with Handy and Handy's fondness for the Samples. Knust-
graichen was the notary who witnessed Handy's signature on the
Request for Change of Beneficiary that was sent to OLIC.

Kevin Sample exercised power of attorney over Handy in her final
days, assisted her in obtaining the services of Fletcher, and aided and
witnessed Handy's change of beneficiary for the MLIC policy.

III.

A.

The determination of whether undue influence was present in the
instant case is governed by Maryland law. Maryland courts recognize
seven elements characteristic of undue influence in the making or
changing of wills and related documents:

          1. The benefactor and beneficiary are involved in a rela-
          tionship of confidence and trust;

          2. The will contains substantial benefit to the beneficiary;

          3. The beneficiary caused or assisted in effecting execu-
          tion 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

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          7. The testator was highly susceptible to the undue influ-
          ence.

Moore v. Smith, 582 A.2d 1237, 1239 (Md. 1990) (emphasis added).
The magistrate judge properly applied these factors in her analysis of
undue influence over one listing a life insurance beneficiary. In con-
cluding that Fleming did not raise a genuine issue of fact regarding
undue influence, the lower court also pointed out, and we reiterate,
that the burden of showing undue influence is on the party seeking to
set aside a testamentary transaction. Leimbach v. Allen, 976 F.2d 912,
917 (4th Cir. 1992) (applying Maryland law), cert. denied, 507 U.S.
935 (1993).

Fleming focuses her attention only on two of the seven characteris-
tics enunciated in Moore: (1) whether the policy "contains an unnatu-
ral disposition"; and (2) whether the insured"was highly susceptible
to undue influence." Moore, 582 A.2d at 1239.

With regard to Handy's disposition being "unnatural," Fleming
implies that she is the only natural beneficiary of the policy because
she is Handy's sister. This assertion is not supported by Maryland
law: "If a testator is competent and is exercising his own free agency,
he may leave his property to whom he pleases, and the fact that the
disposition is not to a member of the family does not make it an
unjust disposition." Stocklager v. Hartle, 92 A.2d 363, 366 (Md.
1952). The court below concluded that Handy's decision to name the
Samples as beneficiaries was not unnatural when one considers the
following facts: the Samples visited Handy regularly; the three had a
relationship of confidence and trust; the Samples treated Handy like
family; Handy, while fully competent in the opinion of a psychiatrist,
stated that she was angry with Fleming and wanted to disinherit her;
and Handy had little other family, both parents being dead and her
brother being in prison. See Sample v. Fleming , No. DKC-95-304,
slip op. at 21 (D. Md. Mar. 15, 1996). As the court concluded, "[o]nce
she decided to remove Ms. Fleming as beneficiary, it was quite natu-
ral for her to designate her close friends and caregivers," the Samples.
Id.

Fleming next attempts to convince us that Handy meets the Moore
criterion of being "highly susceptible to undue influence." However,

                    6
mere suspicion of susceptibility to undue influence is not enough to
overcome summary judgment; rather, some evidence must indicate
that one has been coerced and thereby forced to follow the judgment
of another. See Moore, 582 A.2d at 1240; Anderson v. Meadowcroft,
661 A.2d 726, 731-32 (Md. 1995); Stockslager, 92 A.2d at 363-64.

Fleming offers no evidence of undue influence other than her own
statements. She claims that Emily Sample made false statements to
Handy about Fleming taking some of Handy's clothes and jewelry to
Florida.1 In fact, Fleming admits in her affidavit that she did take
Handy's clothes in preparation for the impending funeral, and
Handy's jewelry "for sentimental reasons and at Mrs. Sample's sug-
gestion." J.A. at 59. Further, after taking the items to Florida, Fleming
talked on the telephone with Handy and had full opportunity to
explain her reasons for taking them and her claim that she had done
so at Emily Sample's urging. Handy, nevertheless, remained angry
over her sister's behavior.

Fleming's evidence of Emily Sample's false statements is even less
likely to prove that Handy was "highly susceptible to undue influ-
ence" when viewed in light of the observations of those who were
around Handy in her final days. Handy's attorney, psychiatrist, nurse,
friend, and love interest all believed she acted of her own will when
she changed the beneficiaries of her policies. Also, Smith, Fletcher,
and Hammond all recall Handy's statements about Fleming treating
her poorly.

Maryland courts recognize a high susceptibility to undue influence
where one's mental state has deteriorated or where one is highly
dependent on the beneficiary to meet vital physical needs. Cf.
Anderson, 661 A.2d at 731-32 (concluding that plaintiff did not allege
"facts sufficient to establish the decedent's high susceptibility to
undue influence" because she did not allege that the decedent's men-
tal ability had deteriorated, that force or fear had been used to coerce
_________________________________________________________________
1 Fleming does not contend that undue influence was exerted when
Kevin Sample contacted Fletcher on Handy's behalf (Handy and Fletcher
met alone to discuss changing the OLIC policy), or when Kevin Sample
aided Handy in changing the MLIC policy. Rather, Fleming focuses on
Emily Sample's alleged false statements as creating the undue influence.

                     7
the decedent, or that the decedent had been "especially dependent on
[the defendant] to meet his physical needs.").

In the instant case, Fleming has failed to allege facts necessary to
raise an issue as to Handy's mental state or any dependency on the
Samples for her "vital physical needs."2 Consequently, Fleming fails
to reveal circumstances sufficient to have made Handy highly suscep-
tible to undue influence. Cf. Leimbach v. Allen , 976 F.2d at 914-15,
919 (finding undue influence where the testator was totally isolated
from the "outside world" by his mistress and the mistress assisted the
testator in removing his former wife as beneficiary under two life
insurance policies and inserting herself as sole beneficiary); Mills v.
Glenn, 136 A. 831 (Md. 1927) (finding undue influence where the
Mills couple moved in with an elderly, illiterate, and crippled woman,
who became dependent on the couple for her physical needs, and who
executed a deed conveying her house to the Mills); and Grove v.
Spiker, 20 A. 144 (Md. 1890) (finding undue influence where an
attorney moved into the home of an eighty-seven-year-old illiterate
and feeble-minded woman, and the attorney secretly drafted and had
executed a completely new will for the testatrix, naming himself as
a primary beneficiary).

In contrast to the facts of Leimbach, Mills, and Grove, the record
in the instant case does not indicate that Handy was mentally infirm,
that she was physically dependent on the Samples, that she was iso-
lated by the Samples, or that the policy beneficiaries were changed
without her knowledge.3

We have previously concluded that the burden of showing undue
_________________________________________________________________
2 Handy spent the months of her declining health either in a hospital or
in a nursing home. She was dependent on the services of those institu-
tions, not the Samples, to meet her physical needs.
3 The Maryland Court of Appeals has listed as a factor in its determina-
tion of undue influence "the absence of independent advice from disin-
terested sources or a reasonable opportunity to secure it." Tracey v.
Tracey, 153 A. 80, 84-86 (Md. 1931). Handy discussed with her attorney
in private her decision to change her policies. Further, Handy was not
isolated; rather, she discussed freely with her friends, a psychiatrist, and
an attorney, the reasons for changing the policies' beneficiaries.

                    8
influence rests with the party seeking to set a transaction aside.
Leimbach, 976 F.2d at 917. The lower court found that Fleming only
made "conclusory allegations," without sufficient supporting facts to
state a cause of action for undue influence. Sample, slip op. at 20.
Fleming simply did not produce evidence sufficient to sustain her bur-
den of showing that Emily Handy's actions were the product of undue
influence.

B.

Maryland law establishes that "the degree of mental capacity nec-
essary to change the beneficiary in a life insurance policy is the same
as that necessary to execute a will or a valid deed or contract." Lynn
v. Magness, 62 A.2d 604, 608 (Md. 1948) (citations omitted). Every
person is initially presumed to have sufficient mental capacity to
make a valid will or contract, and one challenging a person's capacity
must overcome this presumption by showing that the person was of
unsound mind at the time the will or contract was made. Id. at 607;
Wall v. Heller, 486 A.2d 764, 770 (Md. Ct. Spec. App.), cert. denied,
493 A.2d 350 (Md. 1985).

In addition to the affidavits of Handy's attorney, nurse, close
friend, and love interest, an affidavit by Smith, the psychiatrist, indi-
cates his belief in Handy's competence after having conducting a psy-
chiatric consultation with Handy. Smith observed that Handy was
"oriented to time, place, and person . . . [and] capable of making a
will." Fleming implies that Handy's mental state deteriorated during
her period of declining health; therefore, it is significant that Smith
conducted this consultation approximately one month after Handy
delivered the change of beneficiary form to OLIC's agent.4

Fleming points out several of Handy's incorrect answers from the
psychiatric consultation that appear to Fleming to reveal Handy's
deteriorated mental state. These mistakes about certain details, such
as Fleming's state of residence, their father's age at death, Handy's
_________________________________________________________________
4 As indicated above, OLIC was dismissed from the action and dis-
charged of any liability under its policy. Fleming, however, makes the
same arguments as to Handy's incompetence regarding her change of
beneficiaries under both the OLIC and MLIC policies.

                     9
grade level when she dropped out of school, and even Handy's state-
ment that she had an older sister when she had none, do not raise a
genuine issue as to Handy's competence when viewed in light of
Handy's overall performance during the consultation. In the opinion
of Smith, as a result of numerous other tests of Handy's mental com-
petence, Handy was of sound enough mind to make a will and thereby
of sound enough mind to change the beneficiaries of her policies.

Fleming contends that she was "denied an opportunity to question
the doctor at trial on an issue of material fact, the doctor's credibil-
ity." The Samples properly point out that the court below offered the
parties ample opportunity for discovery in this case. Further, Fleming
offered no evidence to contradict Smith's conclusion as to Handy's
competence other than Handy's answers given during the consultation
and Fleming's own belief in her sister's incompetence.

Fleming also argues that Handy's actions were the result of an "in-
sane delusion." She cites Benjamin v. Woodring, 303 A.2d 779, 784
(Md. 1973), as defining an insane delusion as "a belief in things
impossible . . . [or] so improbable under the surrounding circum-
stances that no man of sound mind could give them credence[,] . . .
[or] a false belief, for which there is no reasonable foundation." While
Fleming may think her sister overreacted to the taking of the clothes
and jewelry and the wearing of the sweater, Handy was not operating
under a false belief; Fleming did take the items and wear, perhaps
even stretch--as was Handy's concern--Handy's sweater. Also, even
if Fleming took the items at Emily Sample's urging, this does not
make Handy's understanding of the act false. As noted above, Flem-
ing could have explained any misunderstandings which Emily Sample
may have created when Fleming spoke to her sister by phone shortly
after Fleming returned to Florida with the clothes and jewelry. Flem-
ing's mere speculation as to her sister's incompetence is not sufficient
to overcome the law's presumption of sanity, and therefore does not
allow Fleming to survive summary judgment on the issue of compe-
tence.

Finally, in addition to the several statements specifically attesting
to Handy's mental competence, we note that Handy told her friends,
her attorney, and her psychiatrist exactly why she was removing
Fleming as policy beneficiary, and that Handy went to considerable

                    10
trouble in planning just how she would defeat the foreseen attack on
her competence by Fleming. Handy's explanation for changing her
policies never varied and her actions were deliberate.

When Fleming's assertions are considered along with the affidavits
of those attesting to Handy's mental competency, Fleming has failed
to rebut the presumption that Handy possessed sufficient mental
capacity to change her policies.

IV.

Fleming has not alleged facts sufficient to raise a genuine issue of
material fact regarding whether the Samples exercised undue influ-
ence over Handy or whether Handy was mentally competent to
change the beneficiaries of her insurance policies. Therefore, the deci-
sion of the court below should be

AFFIRMED.

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