Opinion
No. 5-763 / 05-0147
Filed November 23, 2005
Appeal from the Iowa District Court for Marshall County, Carl D. Baker, Judge.
Defendant-beneficiaries appeal from a district court order, following a jury verdict, that set aside decedent's will. AFFIRMED.
Mark W. Thomas and Amy E.H. Miller of Grefe Sidney, P.L.C., Des Moines, for appellants.
James C. Ellefson and Sean K. Heitmann of Moore, McKibben, Goodman, Lorenz Ellefson, LLP, Marshalltown, for appellee.
Heard by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
Brenda Edmunds and Bryan Schoppe appeal from a district court order, following a jury verdict, that set aside the will of their father, Clair Schoppe. They contend the jury's verdict, which found the will was the result of undue influence, is not supported by substantial evidence. We affirm.
I. Background Facts and Proceedings.
Clair and Kay Schoppe were the parents of three children: Bryan Schoppe, Brenda Edmunds, and Berwin Schoppe. In 1997 Clair and Kay executed "mirror wills." Each will named the other spouse as the primary beneficiary and, in the event the beneficiary spouse predeceased the testator, the property left to the beneficiary spouse was to be divided equally between Brenda and Berwin, after a specific bequest of $1,000 to Bryan. Kay was nominated as executor, and Brenda and Berwin were nominated as contingent co-executors.
At or about the time the wills were executed, both Bryan and Brenda had moved out of the family home. Berwin continued to live with his parents until his mother's death in 2000. After Kay's death Berwin continued to live in the family home, taking care of the home and assisting Clair. Clair had various health problems, and had always been disinclined to take care of his own health and hygiene needs. Following his wife's death Clair became even more reluctant to address these issues.
Clair's mental acuity also appeared to decline after Kay's death. Once highly adept at math, Clair now had problems performing mental calculations. In addition, he occasionally seemed confused and unfocused, and repeated statements and questions multiple times. However, he was still able to conduct his own financial affairs, drive, and work as a dirt excavator.
In 2001 Clair Schoppe executed a new will. In it he made a specific bequest to Bryan of $10,000, and provided Berwin a first option to purchase the acreage upon which they were living, including the house and outbuildings, for $100,000. The remainder of Clair's estate was to be divided equally between Brenda and Berwin. Brenda was nominated as executor, and a bank as contingent executor.
In March 2002 Clair suffered a stroke. Following the stroke Clair appeared to suffer an even greater decline in his mental acuity. He also became even less attentive to his hygiene. As his health concerns increased, so too did his dependence on family members.
In the months following the stroke Berwin and Clair's relationship became increasingly strained. Berwin found it more and more difficult to get his father to address his health and hygiene needs. In addition, in August 2002 Brenda accused Berwin of abusing Clair. Berwin denied the abuse, but Clair remained silent. This disturbed Berwin, and he began to make plans to move from the home. According to Berwin, Clair indicated he did not want Berwin to move. Berwin suggested that Clair sell him the acreage. The men reached a tentative agreement, but Clair backed away from the deal after Brenda expressed a concern to her father that if Clair sold Berwin the acreage Berwin might force Clair to leave the house.
On October 4 Berwin was in the process of removing his property from the family home when he was served with a temporary protective order that restrained him from contacting his father or entering the family home. The order was entered pursuant to a petition for relief from domestic abuse that Clair had filed on October 3.
According to Brenda, Clair arrived at her home the evening of October 2, upset and crying. The following day Brenda took Clair to see attorney Chris Clausen, and then to the courthouse, where Brenda filled out the petition on Clair's behalf. The petition alleged Berwin had yelled at his father, grabbed him by the front of the shirt, pushed him up against the counter, then let him go. It further alleged Clair had locked himself in the bathroom because Berwin was yelling at him, and that Berwin had picked the lock on the door, entered the bathroom, continued to yell at Clair, and said he was going to continue harassing Clair and "make it a living hell for" him. Clair initialed the acknowledgment section and signed the petition.
Berwin denied the allegations in the petition, but agreed to the entry of a protective order that did not contain a finding of domestic abuse. According to Berwin, he agreed to entry of the order because he felt he could no longer live with his father in any event, and he hoped that after the order expired he and Clair would be able to work out their differences.
On December 27, 2002, Clair executed his final will. Brenda drove Clair to the office of his attorney, Gail Boliver. Brenda waited in the reception area while Clair met privately with Boliver. Clair had provided Boliver with a hand-altered version of the 2001 will. Boliver made the noted changes, and the will was duly executed. The 2002 will now made a specific bequest to Berwin of $10.00, provided Bryan the opportunity to purchase the acreage for one-half of its appraised value, and divided the remainder of Clair's estate equally between Bryan and Brenda. Brenda continued to be nominated as executor, with the bank as contingent executor.
Clair died less than two months later, on February 12, 2003. After the 2002 will was admitted to probate, Berwin filed a petition to set the will aside. Berwin asserted Clair lacked the testamentary capacity to make the will, and that the will was the result of undue influence. The matter proceeded to trial in December 2004. The jury returned a verdict finding that Clair had the mental ability to make a will on December 27, 2002, but that the 2002 will was the result of undue influence. Brenda and Bryan filed a motion for a judgment notwithstanding the verdict, which was denied by the district court.
The petition also asserted the will was procured by fraud or affected by mistake, but these theories were not submitted to the jury.
Brenda and Bryan had moved for summary judgment prior to trial, and had moved for a directed verdict both at the close of the plaintiff's case and at the close of the evidence. All three motions were denied by the district court.
Brenda and Bryan appeal. They contend the record does not contain sufficient evidence to support a finding of undue influence.
II. Scope and Standards of Review.
A will contest is an ordinary action, tried at law. Iowa Code § 633.33 (2003). Accordingly, our review is for the correction of errors at law. Iowa R. App. P. 6.4. We will uphold the district court's denial of the motion for a judgment notwithstanding the verdict if the record contains substantial evidence to support the jury's verdict. See In re Estate of Bayer, 574 N.W.2d 667, 670 (Iowa 1998). We view the evidence in the light most favorable to upholding the verdict. Id.
Evidence is substantial when a reasonable mind would accept it as adequate to reach a conclusion. Falczynski v. Amoco Oil Co., 533 N.W.2d 226, 230 (Iowa 1995). Evidence is not insubstantial simply because it supports different inferences, and a court cannot set aside a verdict merely because it would have reached a different result. Bayer, 574 N.W.2d at 670. Weighing the evidence and assessing credibility are matters left to the jury. Id.
III. Discussion.
Undue influence is that which
substitute[s] 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. It must operate at the very time the will is executed and must be the dominating factor.
In re Estate of Davenport, 346 N.W.2d 530, 531-32 (Iowa 1984) (citation omitted). The four essential elements of such a claim are
(1) the testator's 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) a result clearly the effect of undue influence.
In re Estate of Todd, 585 N.W.2d 273, 277 n. 4 (Iowa 1998).
Berwin bore the burden of proving undue influence by a preponderance of the evidence. Id. at 277. While his claim can rest on circumstantial evidence alone, more than a "scintilla" of evidence is required. Bayer, 574 N.W.2d at 671. "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 Will of Pritchard, 443 N.W.2d 95, 98 (Iowa Ct.App. 1989).
Brenda and Bryan assert that none of the four elements of undue influence are supported by substantial evidence. Upon a review of the record we conclude, as did the district court, that the jury's verdict is sufficiently supported.
A. Clair's Susceptibility to Undue Influence.
During trial the parties vigorously disputed Clair's mental state. Berwin points to evidence that Clair's physical health and mental acuity gradually declined and his dependence on others gradually increased, beginning with Kay's death in 2000, and accelerating following Clair's stroke in 2002. Brenda and Bryan assert that this evidence demonstrates no more than the natural processes of aging and grieving. They point to evidence that Clair was always a stubborn man who knew his own mind, and testimony from attorneys Clausen and Boliver that the petition for relief from domestic abuse and the 2002 will appeared to be products of Clair's own wishes.
As previously noted, the weight and credibility to be assigned to the various items of evidence is a matter for the jury. Bayer, 574 N.W.2d at 670. If the jury found Berwin's evidence on the question to be more credible, and placed greater weight on that evidence than it did on the evidence presented by Brenda and Bryan, there is sufficient evidence in the record to demonstrate a physical and mental vulnerability that could render Clair susceptible to undue influence. See Davenport, 346 N.W.2d at 532 (noting that both physical and mental weaknesses are relevant to show a tendency towards susceptibility).
B. Brenda's and Bryan's Opportunity to Exercise Undue Influence.
It is undisputed that Brenda and Bryan had significant contact with Clair in the weeks and months leading up to the execution of the 2002 will. This contact only increased following the petition for relief from domestic abuse and resulting consent order, as Brenda supplanted Berwin as Clair's primary caretaker. Brenda took Clair to nearly all of his doctor's appointments, Clair spent holidays at Bryan's home, and both Brenda and Bryan regularly spent additional time with their father. Brenda and Bryan contend, however, that these occasions were no more than the performance of "familial duties," and do not rise to an opportunity to exercise undue influence. They cite to the case of In re Estate of Davenport, 346 N.W.2d 530, 532 (Iowa 1984), in support of their position.
However, the language they rely on in Davenport relates only to the level of influence inherently exerted in the performance of "friendship or familial duties," and explains that such influence is not in and of itself the type of undue, "tainted," or dominating influence necessary to set aside a will. Davenport, 346 N.W.2d at 532. The time Brenda and Bryan spent with their father was sufficient to create an opportunity to exert undue influence over Clair. See id. at 531 (concluding a four day visit, occurring a few weeks prior to will execution, was sufficient to establish an opportunity to exercise undue influence).
C. Brenda's and Bryan's Disposition to Unduly Influence Clair.
Brenda and Bryan point out there is no direct evidence they unduly influenced Clair's testamentary dispositions, and they both denied even attempting to do so. However, Brenda's and Bryan's denials need not be believed by the jury. Moreover, as we have previously noted, the elements of undue influence may be proved through circumstantial evidence, Bayer, 574 N.W.2d at 671, so long as that evidence creates "a solid foundation of established facts upon which to rest an inference of its existence," Pritchard, 443 N.W.2d at 98.
Viewing the record in the light most favorable to upholding the verdict, it contains substantial circumstantial evidence that, if believed, indicates Brenda had a strong dislike for Berwin and attempted to undermine his relationship with their father. In light of the fact that no evidence of abuse was ever produced, the record also substantially supports a determination that Brenda went so far as to prompt Clair to falsely accuse Berwin of abuse in an effort to eject Berwin from Clair's life. In light of the foregoing, it was reasonable for the jury to infer that Brenda was disposed to assert a dominating influence over Clair in order to all but eliminate Berwin from Clair's will. The record contains substantial evidence to support a finding that Brenda was disposed to unduly influence Clair in order to procure an improper favor.
Brenda and Bryan claim that, in considering whether they had the disposition to exercise undue influence, it is improper to look to events occurring prior to execution of the 2002 will. While the undue influence must be in operation at the time the will was executed, see Bayer, 574 N.W.2d at 675, there is no temporal limit on analyzing either a party's disposition to exercise such influence, or when steps were taken to exercise such influence.
As the jury was instructed, there need only be proof that undue influence was exercised by either Bryan or Brenda.
D. Dispositions in 2002 Will Resulted from Undue Influence.
Clearly, the disposition in the 2002 will was a marked change from both the 1997 and 2001 wills, and also provided for a patently unequal distribution of Clair's estate. Brenda and Bryan point out that while inequality in distribution is evidence of undue influence, generally such a distribution is not in and of itself sufficient to establish undue influence. See Davenport, 346 N.W.2d at 532. They contend the record is bereft of any additional evidence to support a finding of undue influence, and that in fact the 2002 will simply reflects the natural decline in Berwin and Clair's relationship. While the record is susceptible to the interpretation Brenda and Bryan suggest, it is also susceptible to a contrary interpretation. See Bayer, 574 N.W.2d at 670 (noting evidence is not insubstantial simply because it supports different inferences).
Once again, if the jury found Berwin's evidence more credible, and placed greater weight on it than the evidence offered by Brenda and Bryan, the jury could conclude Berwin was a loving and dutiful son who spent years caring for his father, that Clair did not in fact want Berwin to move from the family home, that even though Berwin never abused his father Brenda was able to convince Clair to file the petition for relief from domestic abuse, and that she did so in order to sever Berwin's ties with their father. Moreover, the 2002 will was not executed until after entry of the no contact order, an order that prevented Berwin from contacting his father and resulted in Brenda becoming the central caretaking figure in Clair's life. Under those circumstances it was reasonable for the jury to infer that the inequality in distribution was a product, not of Clair's intent, but of Brenda's undue influence.
While Brenda notes her testamentary bequest did not increase in the 2002 will, the case law does not require that the individual exercising undue influence directly benefit from the improper favor.
IV. Conclusion.
The parties have presented differing versions of events. Which of these versions is more credible, and entitled to more weight, is a matter for the jury. Viewing the evidence in the light most favorable to upholding the jury's verdict, we conclude the record contains evidence that would allow a reasonable fact finder to determine Clair's 2002 will was the product of undue influence. We accordingly uphold the district court order setting aside the 2002 will.