                                                                                          August 13 2013


                                          DA 12-0498

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2013 MT 227N



MICHAEL S. YEATON, an Individual,
and as Personal Representative of
the Estate of Forrest A. Yeaton,

              Plaintiff and Appellee,

         v.

ERIC D. YEATON,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Nineteenth Judicial District,
                        In and For the County of Lincoln, Cause No. DV 11-193
                        Honorable James B. Wheelis, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Eric D. Yeaton (Self-Represented), Eureka, Montana

                For Appellee:

                        Caleb E. Simpson, Hedman, Hileman & LaCosta, PLLP, Whitefish, Montana



                                                    Submitted on Briefs: July 17, 2013

                                                               Decided: August 13, 2013


Filed:

                        __________________________________________
                                          Clerk


Justice Laurie McKinnon delivered the Opinion of the Court.
¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed as a

public document with the Clerk of the Supreme Court and its case title, Supreme Court cause

number and disposition shall be included in this Court’s quarterly list of noncitable cases

published in the Pacific Reporter and Montana Reports.

¶2     On December 27, 2005, Forrest A. Yeaton (decedent) executed a self-proved will that

appointed his son, Michael Yeaton, as personal representative. Under the provisions of the

will, Michael was the primary beneficiary and decedent’s other son, Eric Yeaton, was given

15% of the residuary estate, to be held in a trust and distributed by the trustee. The decedent

named Michael as the trustee. A copy of the will was delivered to both sons.

¶3     On September 15, 2010, decedent executed a statutory power of attorney appointing

Eric as his attorney in fact. Pursuant to the terms of the document, Eric was authorized to act

on behalf of his father in a fiduciary capacity conditioned upon decedent’s “inability to

function mentally or physically in a competent manner for a significant period of time, as

determined in the sole and absolute discretion of my treating physician.”

¶4     The decedent died on July 23, 2011. Between July 18, 2011, and July 22, 2011, while

his father’s death was imminent, Eric transferred into his own name real property of the

decedent located in Lincoln County, over $125,000.00 in accounts and/or currency. Eric

also removed gold coins kept in decedent’s safety deposit box.

¶5     Michael, acting as personal representative, filed a Complaint and Application for

Preliminary Injunction on August 3, 2011, seeking to have the assets transferred by Eric

returned to the Estate. Eric answered and counterclaimed that the decedent’s testamentary

                                              2
intent was to make Eric the primary beneficiary of the will. The District Court ruled that

evidence concerning the decedent’s testamentary intent contrary to the will in probate was

not admissible. Neither party has challenged this order entered by the District Court.

¶6     Following a hearing, the District Court determined that at the time decedent executed

his power of attorney to Eric on September 15, 2010, decedent lacked sufficient mental

capacity to create the document used by Eric to transfer his assets. The court carefully noted

in its written findings that the testimony of Patrick J. Burns, M.D., a neurologist who

examined the decedent close to the time the power of attorney was created, establishes that

decedent lacked the capacity to execute the document. Dr. Burns performed the examination

upon referral from the decedent’s treating physician. The District Court found that the

neurologist “produced quantifiable evidence of organic brain dysfunctions that would not

have been transient and that would have been present at the time [Eric] and his witnesses

testified that the decedent was not incapacitated.” The District Court considered Eric’s

testimony and the testimony of Eric’s witnesses.

¶7     The District Court further determined that even had the document creating the power

of attorney been executed by one with the mental capacity to do so, Eric breached his

fiduciary duty by transferring property within days of his father’s death knowing of the

existence of the will. Sections 72-31-101 through -238, MCA (2009). The District Court

entered judgment for Michael and ordered that Eric pay attorney fees and costs. Eric

appealed.

¶8     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

Internal Operating Rules, which provides for noncitable memorandum opinions. The

                                              3
District Court’s findings of fact are supported by substantial evidence and the legal issues are

controlled by settled Montana law, which the District Court correctly interpreted. The

District Court was able to observe and hear the witnesses and draw conclusions as to their

credibility, ultimately finding that the testimony of Dr. Burns was both credible and not

rebutted. In addition, the District Court correctly determined that even had the power of

attorney been valid, Eric breached his fiduciary duty to preserve the principal of the

decedent’s estate when he transferred assets to himself prior to his father’s death.

¶9     Affirmed.


                                                     /S/ LAURIE McKINNON

We Concur:

/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
/S/ BETH BAKER
/S/ JIM RICE




                                               4
