47 YEARS OF TREATMENT BY THE SAME PSYCHIATRIST

Just how much did a psychiatrist influence his patient over the 47 years that he treated her?  Is it O.K. for her to leave her estate to the institute of which he was the president? 


1.  STATEMENT OF FACTS. 

    The decedent was in psychotherapy for 47 years with the same psychiatrist. Her will and trust left her entire estate to the Meeting House and Treatment Center of which the psychiatrist had been a president, vice-president, treasurer, board member and committee chairman.

    Dr. Applesworth began treating the decedent in 1957, when she was 29 years old.  That was a year after her father’s death.  She had lived with her parents all her life.  She continued to live with her mother until the mother died in 1982.  Then she lived alone the rest of her life.  Dr. Applesworth continued to treat her - sometimes three times a week and, on at least one occasion, twice a day, until June 15, 2004.  His records describe her condition as a “generalized anxiety disorder & anxiety state, moderately severe.”

    Clementine Hulsey’s declaration shows how she met the decedent in 1981 and how she heard the decedent’s end of more than a dozen telephone counseling sessions with Dr. Applesworth.  She heard the decedent talk with him to get and follow his advice about disputes with neighbors, problems with the City of Cretannia where the decedent lived, problems at her condo in Las Pulgas, her land portfolio, her mother’s death, whether she would have enough money to live on, her medical issues, whether she should continue to live in Cretannia, and whether she should run for political office in Cretannia.  In 1982 or 1983, the decedent told Clementine, who had been trained as a Social Worker, that she could not make a decision without first consulting Dr. Applesworth.  She felt everyone should have a therapist.  She always told Clementine that Dr. Applesworth had said to her over the years that people were jealous of her.  Clementine says that the decedent always referred to Dr. Applesworth as her “advisor” when in the presence of other people. 

    Steven Smith, who is the Mayor of Cretannia, states in his declaration that he saw and heard the decedent address the city council dozens of times between 1986 and 2006 and that she often referred to her “advisor” from whom she indicated that she needed approval for whatever item was at issue.

    Dr. Applesworth was also the decedent’s mother’s psychotherapist.  Dr. Applesworth had in his files a copy of the mother’s 1970 holographic will and a 1975 draft trust provision that mentioned him by name but not as a beneficiary.  

    Dr. Applesworth had been a member of the Orange County Meeting House, the Orange County Treatment Center and their predecessor organizations since 1959.   He served as  president, vice-president, treasurer, committee chairman and board member at various times before 1975. 

    In 1975, Attorney Hal Williams prepared wills and trusts for the decedent and the decedent’s mother.  Mr. Williams produced from his files a 1974 letter from the decedent’s mother to another lawyer, which states that Dr. Applesworth was correcting the mother’s trust before she signed it. 
     
    The decedent’s 1975 pour-over will and trust give the decedent’s entire estate to the Orange County Meeting House and the Treatment Center. It revokes the decedent’s 1961 will, which had given her estate to her niece Mary Martinez and her nephew Robert, conditioned upon them surviving the decedent’s mother and receiving psychotherapy as one Dr. Jones was to determine.

    Mary Martinez is contesting the decedent’s 1975 will and trust on the grounds of undue influence and lack of proper witnessing.  Mary’s brother Robert died before the decedent in 2001, leaving two sons. The estate is valued at $2,200,000.00, according to the inventories and appraisals.
 
    The Meeting House’s 990 forms that it filed with the IRS for the past three years show that its reported contributions were under $19,000 in each year.    In contrast is weighed the entitlement of Mary Martinez and her deceased brother under the 1961 will, the relationship that Mary describes in her declaration, and Dr. Applesworth’s concurrent insinuations in both the Meeting House and in the decedent’s reasoning process.

    Saul J. Vanderschmeer, M. D. is a forensic psychiatrist who currently serves on two ethics committees.    He is of the opinion that Dr. Applesworth’s 47-year relationship with the decedent empowered him to substitute his wishes, needs and choices for the decedent’s, and because of the decedent’s isolation and extreme dependency on him and her insecurity about her own judgment, there were no checks on Dr. Applesworth substituting his own choices and decisions for hers. Dr. Vanderschmeer levels other criticisms:

1.  Dr. Applesworth treated the decedent and her mother, which is frowned upon in the psychiatric community because treating two parties who have a significant and intense emotional relationship clouds the objectivity of the therapist, blurs the lines of confidentiality, and creates a conflict in which the therapist is in the middle of two competing psychological views of the world. 

2.  He reviewed the mother’s trust before she signed it, which is improper because the direct involvement of a party in the preparation of a will is one of the hallmarks of undue influence; it is improper and outside the scope of expertise or responsibility of a psychotherapist to make corrections to a legal document.  

4.  Dr. Applesworth made only three pages of notes, did not prescribe any anti-anxiety medication and left no record of why he did not, even though the decedent had “moderately severe anxiety.”

5.  He exceeded the scope of the professional relationship with the decedent by becoming directive in his therapy, giving direct advice, making decisions for the decedent and becoming her “advisor,” thereby interposing his wishes and needs for hers, his decisions became her decisions. 

6.  Dr. Applesworth was in a “dominant uncontested role, dominating (the decedent’s) life and making (the decedent’s) decisions.”

7.  It is reasonable to believe that Dr. Applesworth knew of the decedent’s gift to the Meeting House and Treatment Center because of the length, depth and breadth of the relationship.

8.  Assuming that Dr. Applesworth knew of the decedent’s gift to the Orange County Meeting House and Treatment Center, it was not ethical for him to knowingly permit it, and the gift was also a gift to Dr. Applesworth who was a significant part of the Orange County Meeting House and Treatment Center.   He also says that for the Meeting House to pursue the gift, knowing its history, would also violate psychiatric rules of ethics.

9.  The gift to the Orange County Meeting House and Treatment Center should be deemed inconsistent with the standards and ethics of the profession of psychiatry, because, among other things, the gift appears to be the product of a “unique and unorthodox analytic relationship over 47 years” in which an intense emotional relationship apparently developed and in which Dr. Applesworth abandoned his neutral and analytic stance for an intrusive and directive role in which he made or approved major and minor decisions in his patient’s life.

    A psychotherapist necessarily functions within his patient’s reasoning process and thereby comes to a position of unique influence.  The Legislature recognized this phenomenon in 1989 when it enacted Business & Professions Code § 729.  That statute made it a crime for only a psychotherapist to have sex with his patient - no such penalty applied to other physicians - and eliminated the patient’s consent as a defense. (Business and Professions Code § 729 was later expanded to include all physicians and some other health care professionals.)  There is no suggestion that Dr. Applesworth had sex with any patient; his influence was otherwise.

2.  WHAT IS UNDUE INFLUENCE? 

    “Undue influence consists of conduct which subjugates the will of the testator to the will of another and causes the testator to make a disposition of his property contrary to and different from that which he would have done had he been permitted to follow his own inclination or judgment.”  Estate of Baker (1982) 131 Cal.App.3d 471, 480, 182 Cal.Rptr. 550, 556.
 
3.  UNDUE INFLUENCE REQUIRES NO PLEADING OR PROOF OF DIRECT BENEFIT TO THE PERSON CHARGED.

    It matters not that the will and trust benefit the Meeting House and Treatment Center and not  Dr. Applesworth individually.  Lack of profit to the person charged does not negate undue influence; it only tends to refute the charge.  Estate of Ventura (1963) 217 Cal.App.2d 50, 59, 30 Cal.Rptr. 490, 495.  In Ventura, the decedent left his estate to an orphans’ home to the exclusion of his half-brother.  The half-brother claimed that the will was the product of undue influence by one Marion, who had no connection to the orphans’ home.  The court rejected the claim because, among other things, there was no benefit which flowed even indirectly to Marion.  (217 Cal.App.2d at 59).  In contrast, Dr. Applesworth was intimately connected to the beneficiary Treatment Center and Meeting House; he had been a member of both organizations and their predecessor entities since 1959 and had served them as president, vice-president, treasurer, committee chairman and board member for many years before the decedent’s 1975 will.  He had been the decedent’s psychiatrist since 1957 and was as insinuated in her reasoning process as he was in the Meeting House and Treatment Center.

    In Estate of Bixler (1924) 194 Cal. 585, 595, 229 P. 704, 708, the court of appeal reversed the trial court’s judgment on the pleadings which did not allege such personal benefit; see also Estate of Trefren (1924) 86 Cal.App.2d 139, 148, 194 P.2d 574, 579, in which influence by a wife was imputed to her husband, who was the beneficiary of the challenged will.   In Estate of Gelonese (1974) 36 Cal.App.3d 854, 867, 111 Cal.Rptr.833, 841, undue influence by two of three  beneficiaries invalidated the whole will - even as to the gift to the third beneficiary who had not unduly influenced the testatrix.

4.  CIRCUMSTANTIAL EVIDENCE TYPICALLY PROVES UNDUE INFLUENCE.

    “‘Undue influence,’ obviously, is not something that can be seen, heard, smelt or felt; its presence can only be established by proof of circumstances from which it may be adduced.”  Estate of Peters (1970) 9 Cal.App.3d 916, 923, 88 Cal.Rptr. 576.  Because psychotherapy generally occurs behind closed doors and admits no one besides the psychotherapist and the patient, proof can rarely be other than by circumstantial evidence.

      “Direct evidence, however, is not indispensable. As stated in  Estate of Ramey (1923) 62 Cal. App. 413, 426 [217 P. 135], undue influence can hardly ever be shown in any way other than by circumstantial evidence.”  Olson v. Washington (1936) 18 Cal.App.2d 85, 86-88, 63 P.2d 304, 305-306

     “That the alleged wrongdoer had power or ability to control the testamentary act may be established by a variety of circumstances, -- such as control over the decedent's business affairs, dependency of the decedent upon the beneficiary for care and attention, or domination on the part of the beneficiary and subserviency on the part of the deceased.” Estate of Baker (1982) 131 Cal.App.3d 471, 481, 182 Cal.Rptr. 550, 557.

5.  THE MEETING HOUSE HAS PRODUCED INSUFFICIENT ADMISSIBLE EVIDENCE THAT THE WILL WAS DULY WITNESSED.

    Probate Code §§ 8250-8272 govern will contests.  Section 8252 requires the proponent to prove due execution.  For a formal will, this means proof of signature by the testatrix and two persons who were present at the same time and (1) witnessed either her signing the will or her acknowledging her signature on it, and (2) understood that it was her will:

    “(a) Except as provided in this part, a will shall be in writing and satisfy the requirements of this section.
   . (b) The will shall be signed by one of the following:
         (1) By the testator.
         (2) In the testator's name by some other person in the testator's presence and by the testator's direction.
         (3) By a conservator pursuant to a court order to make a will under Section 2580.
    ..(c) The will shall be witnessed by being signed by at least two persons each of whom (1) being present at the same time, witnessed either the signing of the will or the testator's acknowledgment of the signature or of the will and (2) understand that the instrument they sign is the testator's will.”  (Probate Code § 6110,)

    Probate Code § 8253 on its face requires the production of each subscribing witness at trial.  The Meeting House’s evidence falls short in five particulars. 

    First, the attestation clause on the will is inadmissible because it is hearsay, i.e., “a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.”  Evidence Code § 1200.  

    Second, even if the attestation clause were not hearsay, it does not meet the summary judgment standard of Code of Civil Procedure § 437c(d), which mandates a showing of personal knowledge and competency to testify. 

    Third, the deposition of Hal Williams did not produce the necessary evidence of witnessing.  Mr. Williams is the attorney who authored the will.  No one asked him if he witnessed the decedent sign it or if another person witnessed her sign it at the same time. 

    Fourth, The Meeting House has produced no other witness and has not suggested that any other witness is unavailable.  Such a showing is essential in a will contest:

        “At the trial, each subscribing witness shall be produced and examined. If no subscribing witness is available as a witness within the meaning of Section 240 of the Evidence Code, the court may admit the evidence of other witnesses to prove the due execution of the will.”   Probate Code § 8253.

    Fifth, whether a contestant presents evidence that a will was not executed matters not; the burden is immutably that of the proponent:

        “If the contestant who has raised an issue as to the execution of the will offers no evidence upon that subject, this would not authorize the court to admit the will to probate, as upon default, without proof of its execution.  The preliminary proof must be made to the court in such a case the same as if the contest had been withdrawn, or had never been filed.”  Estate of Latour (1903) 140 Cal. 414, 74 P. 1070, cited in C.E.B. California Decedents Estates Practice § 22.167.

6.  THE COURT PROPERLY CONSIDERS LEARNED TREATISES AND BUSINESS & PROFESSIONS CODE § 729.   

    Mary Martinez submits that the court is to consider the materials that Dr. Vanderschmeer reviewed.  The statute is of course a matter of judicial notice under Evidence Code §§ 453 and 452(a).  Textbooks and other materials are admissible under  Evidence Code § 1341, which provides for the admission of learned treatises and other writings:

    “Historical works, books of science or art, and published maps or charts, made by persons indifferent between the parties, are not made inadmissible by the hearsay rule when offered to prove facts of general notoriety and interest.”

    In Salgo v. Leland Stanford Board of Trustees (1957) 154 Cal.App.2d 560, 576-577, 312 P.2d 170, 180, the court ruled that a drug manufacturer's brochure is admissible in evidence, although it cannot establish as a matter of law the standard of care required of a physician in the use of the drug.   In Grudt v. City of Las Pulgas (1970) 2 Cal.3d 575, 587-588, 86 Cal.Rptr. 465, 471, the Supreme Court ruled that a police tactical manual, prescribing rules for the use of firearms, should have been admitted as evidence that due care requires compliance with those rules.

    Although there is no independent cause of action for violations of professional rules, such rules can be considered in determining whether there has been a breach of fiduciary duty. In Day v. Rosenthal (1985)170 Cal.App.3d 1125, 1147, 217 Cal.Rptr. 89, 102, Rosenthal served as Doris Day’s attorney, accountant financial advisor and investor for 12 years.  His misconduct in those capacities resulted in a $26,000,000 judgment against him for malpractice and breach of fiduciary duty.  The Court of Appeal discussed the effect of his violation of his ethical duties as follows:

    “An attorney's duty, the breach of which amounts to negligence, is not limited to his failure to use the skill required of lawyers. Rather, it is a wider obligation to exercise due care to protect a client's best interests in all ethical ways and in all circumstances." 

7.  LEARNED TREATISES AND OTHER WRITINGS PROPERLY SUPPORT EXPERT OPINION TESTIMONY.

    Even if all of the materials that Dr. Vanderschmeer considered were inadmissible in their own right, a physician’s expert testimony may be based on a study of medical texts.  B. Witkin, 1 California Evidence (4th Ed., 2000) Opinion Evidence § 34, Reliance on Medical Works, citing Healy v. Visalia & Tulare R. Co. (1894) 101 C. 585, 591, 36 P. 125.  Evidence Code § 801(b), moreover specifically provides that expert testimony may be based upon matters that are “of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates . . .”  Dr. Vanderschmeer’s declaration at ¶ 2, page 1 lines 26 & 27 states that the materials listed therein “ . . . are authorities upon which psychiatrists and psychoanalysts routinely rely in their work.”

8.  CONCLUSION

    Mary Martinez’s points and authorities show that The Meeting House has not cleared its evidentiary hurdles as to the witnessing of the will.   The Estate of Latour rule requires affirmative evidence of execution - not a mere dearth of a contestant’s evidence.  Were the test otherwise, the legislature’s requirements for the witnessing of formal wills would mean nothing.

    Even if the will were duly witnessed, the undisputed evidence of Dr. Applesworth’s 47-year paid service as psychiatrist and advisor to the decedent, his status as the mother’s psychotherapist, his review of the mother’s will, his links to the Meeting House and Treatment Center and his myriad boundary violations as described by Dr. Vanderschmeer combine to create an inference of undue influence.  Code of Civil Procedure § 437c  sub. (c) commands the trial court to consider all inferences reasonably deducible from the evidence and not to grant summary judgment when there are contradicting inferences or evidence.  Mary Martinez submits that undue influence generally can be established only by inferences, that the inferences are inescapable, and that they support judgment in only her favor.

                    ___________________________________
                    Robert A. Foster, II
....................Attorney for Mary Martinez

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