No. 5-146 / 04-0992Court of Appeals of Iowa.
Filed July 13, 2005
Appeal from the Iowa District Court for Kossuth County, John P. Duffy, Judge.
Appellants appeal, contending the district court erred in finding decedent’s 1984 will was the result of undue influence and setting it aside. AFFIRMED.
Mark Brownlee of Kersten, Brownlee, Hendricks, L.L.P., Fort Dodge, for appellant.
Eldon Winkel, Algona, for appellee.
Heard by Sackett, C.J., and Huitink, Vogel and Hecht, JJ., and Nelson, S.J. Hecht,[*] J., takes no part.
SACKETT, C.J.
This case comes to us from a district court decision declaring invalid the June 21, 1984 will of decedent, Wilhelmina Geerdes. Appellees, five of the six children of Marlin, a deceased son of Wilhelmina and her husband John, contested Wilhelmina’s will. The will made no provision for Marlin, stating the omission was the result of Wilhelmina’s deeding him a farm in 1965. Appellees contended the will was executed as a result of the influence of their father’s brother, Maurice Geerdes. Maurice and his sister Violet Rees, as heirs under the June 21, 1984 will and as executors of the estate of Wilhelmina, appeal. Peggy Hatfield, the sixth child of Marlin, also appeals. Appellants contend the evidence does not support the district court’s finding of undue influence. We affirm.
By statute, an action to set aside a will is tried in probate as a law action. Iowa Code § 633.33 (2003); In re Estate of Todd, 585 N.W.2d 273, 275 (Iowa 1998); In re Estate of Bayer, 574 N.W.2d 667, 671 (Iowa 1998); In re Estate of Dankbar, 430 N.W.2d 124, 126 (Iowa 1988); In re Estate of Herm, 284 N.W.2d 191, 200 (Iowa 1979). Our review on appeal from a will contest is on assigned error, not de novo. Todd, 585 N.W.2d at 275. Contestants seeking to set aside a will based on undue influence carry the burden of proving the essential elements of the action by a preponderance of the evidence. Id. This is in contrast to the situation where a confidential relationship is found to exist, and inter vivos conveyances are challenged. Id. There the burden of proof shifts to the parties who receive the benefit to prove — by clear, satisfactory, and convincing evidence — their freedom from undue influence. See id. No such presumption of undue influence exists in the case of a will contest, even where the testator and beneficiary stand in a confidential relationship. Id.; Bayer, 574 N.W.2d at 675. But a suspicion of overreaching may arise where the dominant party has participated in the actual preparation or execution of the will Id.
While we are not bound by the district court’s legal conclusions, we are bound by its findings of fact if such findings are supported by substantial evidence in the record Walsh v. Nelson, 622 N.W.2d 499, 502 (Iowa 2001); Iowa Fuel Minerals, Inc. v. Board. of Regents, 471 N.W.2d 859, 862 (Iowa 1991). An appellate court is not free to substitute its own findings of fact for those of the district court simply because the evidence supports different inferences. Hendricks v. Great Plains Supply Co., 609 N.W.2d 486, 490 (Iowa 2000).
Background.
Wilhelmina and her husband John had five children, Marlin, Maurice, Violet, Wilbur[1] and Lee.[2] John, who was born in 1901, died in 1996. Wilhelmina was born in 1902 and died on December 29, 2001. John and Wilhelmina signed similar wills in the office of attorneys Doster and Lynch in Algona, Iowa, on June 21, 1984. The relevant terms of Wilhelmina’s will gave her estate to Maurice and Violet equally.[3] She indicated she was not giving anything to Marlin because she had deeded him a 160-acre farm, known as the home place, in 1965. Wilhelmina’s prior will executed on May 4, 1979 provided, in the event John predeceased her, first $10,000 was to be paid to Maurice and Violet to offset advances made to Marlin and then her estate was to be divided equally between Maurice, Violet and Marlin.[4]
Wilhelmina and John were farmers. Marlin was the son who remained in the area to farm and he and his father worked together. In 1965 a farm referred to as the “home place” was deeded by John and Wilhelmina to Marlin and his wife. At the same time, John and Wilhelmina as tenants in common bought another farm on contract, referred to as the “Tillie Smith” farm. It appears that Wilhelmina’s undivided one-half interest in the “Tillie Smith” farm was her major asset at the time she executed the challenged will. We, as did the district court, find the 1965 transaction is of relevance because Wilhelmina’s will indicates the transaction was the reason she made no provision for Marlin and, as will be addressed later, the deeding of the “home place” to Marlin in 1965 was discussed in the conference that led up to the execution of the challenged will.
The district court made certain findings concerning these 1965 transactions and most particularly found the testimony of Marlin’s wife, Janice, more believable than the testimony of other witnesses. Janice testified she and Marlin paid substantial consideration when they acquired the home place. There also was evidence that Janice and Marlin assumed debt as a part of the transaction. Therefore, despite appellees’ argument to the contrary, there was evidence to show Marlin and Janice, through the assumption of debt or otherwise, paid consideration when the “home place” was deeded to them.
The particular, basically undisputed facts that led to the execution of the questioned will are recited below. Maurice and his wife Faye came to Iowa from their home in California in June of 1984. They stayed with Wilhelmina and John in their home. John and Wilhelmina were showing signs of old age.
Wilhelmina and John signed petitions for voluntary conservatorships on June 18, 1984, at the office of an attorney in Fort Dodge, Iowa. The petitions named Maurice, Marlin, and Violet as conservators. On the same day Maurice and Violet signed oaths of office, which were notarized in Webster County. Also on that day, Maurice and Violet had a twenty-minute meeting in Algona with Ryan Lynch about the conservatorships.
On June 21, 1984, Wilhelmina and John went to the law offices of Doster and Lynch in Algona, Iowa. They were accompanied by Maurice and his wife Faye. The consultation was apparently represented as being for the purpose of discussing the conservatorships. It did not appear Wilhelmina and John had consulted with this particular law firm before the June 21 visit. Doster had received copies of John and Wilhelmina’s earlier wills from attorneys in town. He had John’s wills from May 4, 1979 and 1965[5] and Wilhelmina’s will dated May 4, 1979. There followed a conference with John, Wilhelmina, Maurice and Faye, and Doster and Lynch about wills for John and Wilhelmina. The conference began at about ten o’clock in the morning, lasted until early afternoon, resumed again about three thirty, and continued until six-thirty in the evening. Portions of the conferences were recorded and parts of the tapes were transcribed and admitted at trial. Not all parts of the tapes were audible.
Wilhelmina and John returned to the Doster and Lynch office to sign their wills. Apparently at that time Maurice and Violet were not present and the attorneys reviewed the wills with John and Wilhelmina.
On June 22, 1984 an order was entered appointing the three children conservators.[6] Family problems and litigation followed that need not be discussed. The 1984 will was the last will that Wilhelmina executed. When Wilhelmina died, the executors sought to probate this will and the will contest which led to this appeal was filed. The matter was ultimately tried to the court.
The district court made certain findings and determined the group including John and Wilhelmina and Maurice and Faye originally came to the Doster Lynch office to discuss opening the conservatorships, but when the conversation changed to John and Wilhelmina’s wills, the recorder was turned on. The court further found when the discussion turned to the execution of wills, the attorneys did not visit with John and Wilhelmina either alone or together out of the presence of Maurice and Faye, nor was an attempt made by the attorneys to determine Wilhelmina’s testamentary intent or to talk with her concerning her existing will prior to conducting the conference in the presence of Maurice and Faye. The court found the recording showed it was Maurice and Faye who were concerned about Wilhelmina’s will and knew Marlin was a beneficiary under Wilhelmina’s prior will, the 1979 will. The court also found it was Maurice and Faye who did most of the talking.
The court noted that the transcript showed Wilhelmina did not remember signing a deed conveying property to Marlin in 1965. The court further found Wilhelmina was never asked what she wanted to do with her one-half interest in the farm.[7]
Appellants, in addition to claiming the will was executed under undue influence, claimed that Wilhelmina did not have the legal capacity to execute the will. The district court rejected this claim finding the evidence insufficient to establish that Wilhelmina did not have the legal capacity to execute the will, but went on to say:
This failure to know how the property was disposed of (obviously referring to the farm deeded to Marlin) results in her being influenced into making a will on June 21, 1984, excluding her son Marlin. In June of 1984 Maurice was in a position of dominance over Wilhelmina. He and Faye came to Iowa for the purpose of looking into John and Wilhelmina’s financial affairs. They were staying with John and Wilhelmina. Maurice selected the attorney to execute new wills. He paid the attorneys a fee to prepare the wills. Maurice was present at all time when the June 21, 1984 wills were discussed, except when the wills were actually signed. Maurice knew what the 1979 will provided, and he also knew before the June 1984 wills were signed what Wilhelmina’s said. Maurice and Faye dominated the conversation in the attorneys’ office. Maurice was able to convince both Lynch and Doster that Marlin did not pay any consideration for the home place. This information was false. Because of this false information, Wilhelmina was persuaded to execute her will on June 21, 1984, excluding Marlin as a beneficiary.
“Undue influence must be such as to substitute the will of the person exercising the influence for that of the testator, thereby making the writing express, not the purpose and intent of the testator, but that of the person exercising the influence.” In re Estate of Davenport, 346 N.W.2d 530, 531-32 (Iowa 1984). “It must operate at the very time the will is executed and must be the dominating factor.” Id. at 532; In re Estate of Roberts, 258 Iowa 880, 888, 140 N.W.2d 725, 730 (1966).
For influence to be considered undue, it must be the “equivalent to moral coercion.” In re Hollis’ Estate, 234 Iowa 761, 769, 12 N.W.2d 576, 581 (1944). Direct proof of undue influence is not required and circumstantial evidence may be sufficient. Roberts, 258 Iowa at 889, 140 N.W.2d at 730. However, more than a “scintilla” of evidence is required. In re Estate of Cory, 169 N.W.2d 837, 842 (Iowa 1969). “An unnatural disposition of property will not of itself carry the issue of undue influence to the jury.” In re Grahlman’s Will, 248 Iowa 535, 554, 81 N.W.2d 673, 684 (1957). “Mere suspicion, surmise, conjecture, or speculation is not enough to warrant a finding of undue influence, but there must be a solid foundation of established facts upon which to rest an inference of its existence.” In re Estate of Bayer, 574 N.W.2d 667, 671 (Iowa 1998).
The elements necessary to establish a finding of undue influence are:
(1) Susceptibility to undue influence,
(2) Opportunity to exercise such influence and effect the wrongful purpose,
(3) Disposition to influence unduly for the purpose of procuring an improper favor, and
(4) Result clearly the effect of undue influence.
Davenport, 346 N.W.2d at 532 (Iowa 1984) (citing Matter of Estate of Herm, 284 N.W.2d 191, 200-201 (Iowa 1979)).
Contrary to the appellants’ argument there was substantial evidence to support the district court’s finding that Wilhelmina Geerdes was unduly influenced to execute the June 1984 will. Maurice and Faye were in a position to influence the couple. They were staying in their home. Wilhelmina and John recognized they needed assistance to manage their affairs, as evidenced by their execution of petitions for voluntary conservatorships. Thus it is clear that at this time in their lives they were susceptible to influence. Maurice met earlier with attorney Lynch. Then Maurice and Faye accompanied John and Wilhelmina to the office of Doster and Lynch, attorneys the couple had never used. Maurice and Faye were present and took a major part in the conversations that led to the drafting of the wills. See Bayer, 574 N.W.2d at 675. The conversation surrounding excluding Marlin from the will focused on the fact he had been deeded the home place apparently as a gift, even though Marlin assumed financial responsibility for a mortgage on the farm, and Marlin’s wife Janice testified they paid substantial consideration, which testimony the district court found credible.
We conclude the district court correctly invalidated the 1984 will because it was the result of undue influence.
AFFIRMED.