Opinion
Bankruptcy No. 03-30591, Adversary No. 03-7040.
October 19, 2004
ORDER
This adversary proceeding arises by complaint filed July 28, 2003, by Plaintiff Robert Klesalek and Intervening Plaintiffs Darrell Suchy, Connie Thompson and Richard Seeman (collectively "Plaintiffs") seeking a determination that Debtor-Defendant William A. Klesalek ("the Debtor") defrauded Flora Klesalek through self dealing in his handling of her personal and real property in the course of his fiduciary duties, which required him to act in the highest good faith toward Flora Klesalek and obtain no advantage over her, as her attorney in fact. By answer filed August 27, 2003, the Debtor denies the allegations. The matter was heard on August 16-17, 2004.
I
Flora Klesalek died on July 18, 2000, at the age of 106. Her husband, Joseph ("Joe") Klesalek predeceased her, and they had no children. This case involves a family dispute over the disposition of Flora's land and other assets.
The Debtor was raised two and a half miles from Flora and Joe, and the Debtor's father and Joe were brothers. Although Flora and Joe had fifteen nieces and nephews, the Debtor lived closest to them and spent a considerable amount of time with them. Both of the Debtor's parents were deceased by 1974, and Flora and Joe took him "under their wing" when he bought his parents' farm. They helped him finance the purchase of the farm and also helped him with other purchases, including cattle and large pieces of farm equipment, over the years. Flora and Joe loaned him money without charging interest, and they gave him plenty of time to repay the loans. Flora and Joe also rented the Debtor 320 acres of their land for more than twenty years. The Debtor testified that Flora and Joe discussed with him the possibility of him buying their farm land, but Joe died on December 1, 1995, before they ever formalized their discussions.
Connie (Suchy) Thompson is a cousin of the Debtor and a niece of Flora and Joe. Thompson had been Joe's attorney in fact, and on September 27, 1995, Flora executed a durable power of attorney appointing Thompson her attorney in fact. A power of attorney is an instrument in writing authorizing another to act as one's agent. The agent holding the power of attorney is termed an "attorney in fact" as distinguished from an attorney at law.
After Joe's death, Thompson provided live-in care for Flora. Thompson and Flora had a verbal agreement whereby Thompson received room, board and other expenses paid in exchange for cooking, cleaning, helping with Flora's personal care, and taking Flora to doctors' appointments. Flora initially paid Thompson $1,000.00 per month for her duties and later increased the amount to $1,050.00. Thompson testified that she wrote herself a check as Flora's attorney in fact from Flora's account each month.
Flora executed her last will and testament on April 29, 1996, and the parties agree she was mentally competent. In the will, she devised parcels of real property to Darrell Suchy, Connie Thompson, and Richard Seeman. She also devised a parcel of real property to the Debtor and his son, Kerry Klesalek, as tenants in common.
Flora and the Debtor discussed him buying her land again after Joe's death. At Flora's request, the Debtor called Flora's attorney about the matter and drove to the attorney's office to pick him up because the attorney did not have a car that day. The Debtor testified that by the time he reached the attorney's office, Flora had called the attorney and said she changed her mind. The Debtor returned to Flora's house and found Thompson sitting with Flora.
In October 1997, Flora fell and broke her hip and was hospitalized. The day after her fall, Flora asked the Debtor to become her attorney in fact because she no longer wanted Thompson in the position. She told the Debtor she was unhappy with the way Thompson treated her and handled her affairs. The Debtor testified he was reluctant to take on the responsibility, but agreed. He contacted Flora's attorney per her request, and her attorney visited her and discussed the change of attorney in fact with Flora privately.
Flora's doctors and a hospital social worker recommended Flora be moved into a nursing home after her hospitalization. She did not recover well from hip surgery and would be confined to a wheelchair. She needed assistance dressing, bathing and eating. Flora did not want to move into a nursing home and offered Thompson twice what she had been paying her to continue caring for her in her home. Thompson refused because she felt she was both physically and mentally unable to provide the care Flora needed.
On October 23, 1997, Flora was admitted to Prairieview Nursing Home in Underwood, North Dakota. Dr. Kent A. Diehl treated Flora throughout her time in the nursing home. Flora was confined to a wheelchair due to peripheral vascular disease, osteoarthritis and considerable joint pain. She was unable to see well enough to read. Although her hearing was impaired, she was able to hear if spoken to loudly. Dr. Diehl visited with Flora extensively when she was admitted and said she was "clearheaded." She had mild dementia that impaired her memory for recent events, but she could remember past events and "more important types of events adequately." Dr. Diehl testified that Flora was very clear about what she wanted throughout her time in the nursing home.
Dr. Diehl testified that during the first few months Flora was in the nursing home, the combination of dementia and depression would have affected her decision making. However, he also characterized Flora as strong-willed and said she would have stood up to anyone trying to make her do something she did not want to do.
Flora executed a durable power of attorney appointing the Debtor her attorney in fact on November 6, 1997. The notary public who notarized the document, Diane Schell, testified at trial that Flora told her she was changing her attorney in fact because she was unhappy with Thompson. Flora executed a codicil to her April 29, 1996 will on November 27, 1997, substituting the Debtor for Thompson as the personal representative of her estate. Flora told the Debtor she had been paying Thompson $1,050.00 per month for the responsibility, and offered the Debtor the same amount.
Flora had a checking account, an account at American Express, a certificate of deposit, and some investments and common stock. She received monthly income from cash rent, social security benefits, interest and dividends. The cost of Flora's nursing home care was approximately $3,000.00 per month. She had additional expenses for doctor's appointments, prescriptions, clothing and hair styling. The Debtor testified that while he was Flora's attorney in fact, her total monthly expenses were approximately $4,500.00. The Debtor testified he spent between ten and twelve hours per month managing Flora's affairs.
Flora told Thompson she changed her attorney in fact when Thompson took her mother to visit Flora at the nursing home. Thompson did not question Flora's competency to change the appointment of power of attorney, nor was she concerned about the Debtor's ability to handle the responsibility. Thompson never wrote, telephoned, or visited Flora again.
Flora expressed to the Debtor that she also wanted to change the beneficiary on her American Express account. Specifically, she no longer wanted Thompson to be the beneficiary, and she wished to substitute the Debtor in Thompson's place. The Debtor relayed her wishes to an American Express representative who gave the Debtor a document entitled Transfer on Death Account Agreement.
On November 24, 1997, the Debtor visited Flora and brought Karen Gaydos, a notary public. At Flora's request, Gaydos read the entire Transfer on Death Account Agreement to her, stopping periodically to ask Flora if she had any questions. She did not. At the end of the reading, Flora said she understood and knew the document removed Thompson as the beneficiary of her account. She also mentioned that she had talked to the Debtor about changing the designation. Flora signed the document, and Gaydos notarized it. Gaydos was confident Flora understood the document, and she testified she would not have notarized it had she felt otherwise. The Debtor was present during the reading and signing of the document but did not say anything.
In December 1997, Flora was prescribed Zoloft to treat depression. Dr. Diehl testified the medication would have improved Flora's cognitive abilities. The resident progress notes from the nursing home repeatedly document the Debtor's concern and involvement with Flora's care. They also indicate that he visited and telephoned Flora regularly and was very supportive.
The Debtor testified that during one of his visits to Flora, she asked him if he was still interested in buying her farmland, and he said he was. Flora told the Debtor to find out the purchase price of a parcel of land adjacent to hers that her brother sold to another one of her nephews. The Debtor looked into the matter and told Flora the adjacent land was sold for $125 per acre. Flora and the Debtor also knew the tax-assessed value of Flora's farmland. Considering these figures, as well as how much the Debtor could afford to pay for the farmland and how much Flora would need to pay for her future care, Flora and the Debtor arrived at a sales price of $163,400.00 (approximately $145 per acre) for the farmland.
On December 24, 1997, the Debtor visited Flora and brought a contract for deed conveying the majority of Flora's real property to the Debtor for $163,400.00. Gaydos read the entire contract for deed to Flora at her request. Gaydos stopped periodically to ask whether Flora had any questions, and she did not. After the reading, Flora stated to Gaydos, "This is what Bill and I agreed to." Gaydos testified Flora was comfortable and fully understood the terms of the contract for deed. Flora executed the contract for deed as the seller. The Debtor executed the contract for deed as the buyer, but not in his capacity as Flora's power of attorney. Gaydos notarized the contract for deed.
Dr. Diehl testified Flora had the ability to comprehend a transaction involving her farmland until her death, but her comprehension was somewhat limited by her difficulty understanding numbers. Based on his conversations with Flora, Dr. Diehl concluded that her farm was dear to her, she looked out for the best interests of her farm, and she wanted it to remain in the family.
The Debtor made the following payments pursuant to the December 24, 1997, contract for deed:
12/24/97 $20,000.00 01/14/98 40,000.00 03/09/98 3,400.00 03/24/98 15,000.00 04/07/98 20,000.00 06/12/98 65,000.00 06/12/98 2,113.30 ___________ $165,413.30
The Debtor deposited each of farmland payments into Flora's checking account, and later transferred the money into her American Express account.
On March 24, 1998, the Debtor borrowed $15,000.00 from Flora. He testified that he thought he used the money loaned to purchase cattle, but he acknowledged he made a $15,000.00 land payment on that date. He concedes he still owes this money.
The Debtor testified that Flora verbally agreed to pay for improvements, including fencing and a new well, to the farmland he purchased through the December 24, 1997 contract for deed. They agreed that he would provide the labor to put up the fence and she would provide the materials. The Debtor paid for the fencing supplies and the well expenses and then reimbursed himself from Flora's account. The fencing supplies cost $6,209.50, and the new well totaled $6,220.39.
On June 12, 1998, the Debtor, as Flora's power of attorney, executed a warranty deed conveying to the Debtor the real property described in the December 24, 1997, contract for deed. The Debtor testified he borrowed money from a bank to pay the remaining amount owed to Flora on the contract for deed, but the bank required that the warranty deed be filed at the courthouse for them to make the loan to the Debtor. He testified he reviewed the warranty deed with Flora and explained to her that he was borrowing money to pay off the debt to her. The bank calculated the amount of interest owing on the contract for deed. The Debtor paid the remaining $65,000.00 owed on the principal plus the accrued interest through the bank loan.
The Debtor told Flora he was taking a trip to Italy in January 1998 and would be unable to visit her for a while. Flora asked him to go to Switzerland on her behalf while he was in Europe because she was interested in finding out whether her father had sent money to Germany prior to World War I and whether any of it could be recovered. The Debtor traveled to Switzerland and stayed five days in the home of acquaintances in Basel. He traveled to Geneva in search of the information Flora sought but was told there was no record of Flora's father's name. The Debtor testified his airline ticket from Rome to Switzerland was about $900.00. He reimbursed himself $1,000.00, an amount he testified he and Flora agreed upon, from Flora's account.
Flora and the Debtor also discussed the sale of her one-quarter interest in a piece of real property that lies along the Missouri River to the Debtor. Flora determined the selling price based largely on the fact that she and Joe had not received any income from the land in many years because much of the real property was wetlands and could not be farmed. Moreover, the Seeman family held the other three-quarters interest in the land, and Flora and Joe were forever battling the Seemans over the land. Some of the incidents they endured included cut fences and missing cattle. Flora told the Debtor she would sell the land to him for $3,000.00 if he would work out the disputes with the Seemans.
On December 23, 1998, the Debtor visited Flora and brought a warranty deed conveying Flora's one-quarter interest in the river bottom land. Gaydos accompanied the Debtor, and she read the entire warranty deed to Flora and asked whether she had any questions. She did not. At the end of the reading, Flora commented that she hoped the Debtor could straighten out the difficulties she and Joe had for years with the Seemans. Gaydos again was confident in Flora's understanding of the transaction. Flora executed the warranty deed conveying her one-quarter interest in the real property to the Debtor for $3,000.00. Although Flora signed the warranty deed herself, the Debtor also signed it as Flora's power of attorney upon the advise of his attorney. He also executed the warranty deed as the grantee. Gaydos notarized the warranty deed.
The Debtor, as Flora's attorney in fact, executed a corrective warranty deed on May 20, 1999 because of an inadvertent omission in the legal description of the property in the December 23, 1998 warranty deed.
The two land transactions between Flora and the Debtor conveyed the real property that Flora's will devised to Darrell Suchy, Connie Thompson, and Richard Seeman, but not the real property Flora's will devised to the Debtor and his son. The Debtor testified that Flora said he need not buy the real property she devised to him and his son unless and until she needed additional money to cover her nursing home costs and other expenses.
Bill A. Knudson appraised Flora's land in February 2003. He placed a value of $367,869.00 on the farmland purchased by the Debtor through the December 24, 1997 contract for deed. An appraisal conducted by Eugene D. Weekes of the same property in August 1995 valued the farmland at $290,101.00.
Knudson valued the river bottom land conveyed through the December 23, 1998, warranty deed at $104,715.00 He conceded at trial, however, that because of the partial (one-quarter) interest in the real property, it is actually worth something less than that amount. To acquire a fee simple estate in the property would require a partition action, and there is cost associated with such an action. He also said the river land has an urban value or influence because it is close to Mandan, North Dakota, and there is demand for this type of property. It could be sold for recreational purposes such as hunting. Weekes' appraisal on the river bottom land includes only the one-quarter interest in the real property in Section 5, as opposed to Sections 5 and 6. Weekes valued the interest in Section 5 at $13,481.00.
Kerry Klesalek, one of the Debtor's two sons, testified that he visited Flora every couple of months in the nursing home. After graduation from high school in 1992, Kerry had attended the University of West Virginia for six years, part-time, but did not graduate. He returned to North Dakota in 1998. Flora valued education, and she visited with him about his education during one of Kerry's visits. The following week, Flora told the Debtor she wanted to help Kerry with his student loans and told the Debtor how much to give him. The Debtor told Flora that she should either help both his sons or neither of them. Flora decided to give both the Debtor's sons money. Per Flora's instructions, the Debtor issued a check to Kerry for $3,000.00 from Flora's account on December 22, 1998, and another for $10,000.00 on January 4, 1999. On January 30, 1999, he issued $10,000.00 checks to both Kerry and William Klesalek, Jr.
When asked why she would gift substantial amounts of money to the Debtor's sons if she was concerned about money, the Debtor responded that the gifts to his sons were after the land sales that had provided her additional funds, and by then Flora was 105 years old.
On February 2, 1999, the Debtor withdrew $38,600.00 from Flora's American Express account ostensibly for the purpose of paying her state and federal taxes for the year. Her state and federal taxes totaled only $17,627.00, and the Debtor was unable to recall the purpose for the withdrawal of the additional $20,973.00.
Flora received a social security check each month in the approximate amount of $675.00. The Debtor deposited the checks into Flora's checking account from November 1997 until July 1999. After July 1999, with the exception of the check in October 1999, the Debtor cashed the social security checks. He explained that he kept the social security money as half payment of his monthly salary and the remainder of each check as reimbursement for out-of-pocket expenses he incurred for Flora's needs. He then wrote himself a check from Flora's account each month for the remaining $500.00 of his salary.
The checks were $670.00 through December 1998, $678.00 through August or September 1999, and $681.38 thereafter.
Flora died on July 18, 2000. Upon her death, the Debtor, as the beneficiary on the American Express account, received approximately $90,000.00. The Debtor testified the stock market "took" fifty percent of it, and the remaining approximately $50,000.00 is still in the American Express account.
The Debtor was Flora's attorney in fact for 33 months. The parties stipulated that the Debtor received $31,460.00 in salary and $7,458.00 from Flora's social security checks for a total of $38,918.00.
Following Flora's death, letters testamentary were issued to the Debtor as the personal representative of Flora's estate. On October 19, 2002, Darrell Suchy, Connie Thompson, and Richard Seeman petitioned the probate court to remove the Debtor as personal representative of Flora's estate and to replace the Debtor with Robert Klesalek, Flora's brother-in law, as successor personal representative. On September 11, 2002, the probate court issued letters testamentary to Robert Klesalek as the successor personal representative of Flora's estate. On June 27, 2002, Robert Klesalek, in his capacity as successor personal representative of Flora's estate, brought suit in state court against the Debtor alleging he unlawfully acquired Flora's property while serving as her attorney in fact. Darrell Suchy, Connie Thompson, and Richard Seeman intervened in the action. Prior to trial in the state court action, on April 7, 2003, the Debtor filed a petition for relief under Chapter 13 of the United States Bankruptcy Code.
II
Plaintiffs concede Flora was mentally competent at all relevant times. Rather than attacking the validity of the transactions between Flora and the Debtor on the basis of Flora's mental capacity, Plaintiffs assert the Debtor had a relationship of personal confidence with Flora, which gives rise to a presumption of undue influence.
Section 59-01-08, N.D.C.C., provides:
Everyone who voluntarily assumes a relation of personal confidence with another is deemed a trustee within the meaning of this chapter not only as to the person who reposes such confidence, but as to all persons of whose affairs the person thus acquires information which was given to the person in the like confidence, or over whose affairs the person, by such confidence, obtains control.
A party must establish a relationship of personal confidence by a preponderance of the evidence. Gelking v. Boyeff (In re Estate of Dinnetz), 532 N.W.2d 672, 674 (N.D. 1995). "A confidential relationship exists whenever trust and confidence is reposed by one person in the integrity and fidelity of another, and that such relationship is a fact to be established in the same manner and by the same kind of evidence as any other fact is proven."Id. (citations omitted).
Finding a confidential relationship under section 59-01-08 triggers a presumption of undue influence under section 59-01-16, N.D.C.C. Id. Under that section, all transactions between the trustee and the trustee's beneficiary, in which the trustee gains an advantage, are presumed to have been made without sufficient consideration by the trustee's beneficiary and under undue influence. N.D.C.C. § 59-01-16. Once the presumption under section 59-01-16 has been established, the trustee bears the burden of presenting evidence to rebut the presumption. Id. at 675.
Relying on Ambers Heirs v. Nelson (In re Estate of Ambers), 477 N.W.2d (N.D. 1991), the Debtor argues that the mere existence of a relationship of principal and agent by virtue of a validly executed power of attorney document is insufficient alone to give rise to the presumption of undue influence. The Debtor overlooks an important distinction between the instant case and Ambers, in which the court stated, "We conclude that the mere receipt of benefits under a will by one who has been issued a power of attorney by the testator is an insufficient basis for adopting a presumption of undue influence." Id. at 223 (emphasis added). The North Dakota Supreme Court has consistently held that the making of a will is not the type of transaction contemplated by section 59-01-16 and has refused to apply it in will contest cases. See, e.g., Connole v. Anderson (In re Estate of Howser), 2002 ND 33, ¶ 7, 639 N.W.2d. Ambers, unlike the instant case, was a will contest case.
Moreover, the North Dakota Supreme Court has applied the presumption of undue influence under section 59-01-16 in two cases involving persons who assumed relationships of personal confidence by becoming attorneys in fact. See In re Estate of Dinnetz, 532 N.W.2d 672; Mehus v. Mehus (In re Estate of Mehus), 278 N.W.2d 625 (N.D. 1979).
Finally, the court has no doubt that Flora placed her trust and confidence in the integrity and fidelity of the Debtor. The cases cited above and the facts of the instant case lead the court to agree with Plaintiffs that a confidential relationship existed between the Debtor and Flora.
The next issue, therefore, is whether the Debtor rebutted the presumption that all of the transactions in which the Debtor gained an advantage are presumed to have been made without sufficient consideration and under undue influence. See N.D.C.C. § 59-01-16.
Under section 59-01-09, N.D.C.C., a trustee must act with the highest good faith toward the beneficiary and not obtain any advantage over the beneficiary by the slightest misrepresentation, concealment, threat, or adverse pressure of any kind. Neither the Debtor nor Plaintiffs mention section 59-01-11(1), N.D.C.C., which provides:
Neither a trustee nor any of the trustee's agents may take part in any transaction concerning the trust in which the trustee or anyone for whom the trustee acts as agent has an interest, present or contingent, adverse to that of the trust's beneficiary, except as follows:
1. When the beneficiary, having capacity to contract, with a full knowledge of the motives of the trustee and of all other facts concerning the transaction which might affect the beneficiary's own decision and without the use of any influence on the part of the trustee, permits the trustee to do so[.]
Section 59-01-15, N.D.C.C., makes a violation of section 59-01-11 a fraud against the beneficiary of the trust. Thus, a trustee may not participate in a transaction with the trust which is adverse to a beneficiary unless the beneficiary permits him to do so with full knowledge. Meyer v. McCormick, Inc., 445 N.W.2d 21, 23 (N.D. 1989).
A power of attorney is an instrument in writing authorizing another to act as one's agent. Mehus, 278 N.W.2d at 629. Because the power of attorney creates an agency relationship, the principles of the law of agency are applicable in determining the authority and duties of an attorney in fact. Id.
In Burlington N. Santa Fe Ry. Co. v. Burlington Res. Oil Gas Co., the North Dakota Supreme Court quoted Restatement (Second) of Agency § 390, which outlines the duties of an agent to a principle when self-dealing with a principal's property with the principal's knowledge:
An agent who, to the knowledge of the principal, acts on his own account in a transaction in which he is employed has a duty to deal fairly with the principal and to disclose to him all facts which the agent knows or should know would reasonably affect the principal's judgment, unless the principal has manifested that he knows such facts or that he does not care to know them.
1999 ND 39, ¶ 19, 590 N.W.2d 433. One of the comments to that section explains what an agent must disclose to the principal:
Before dealing with the principal on his own account, however, an agent has a duty, not only to make no misstatements of fact, but also to disclose to the principal all relevant facts fully and completely. A fact is relevant if it is one which the agent should realize would be likely to affect the judgment of the principal in giving his consent to the agent to enter into the particular transaction on the specified terms. Hence, the disclosure must include not only the fact that the agent is acting on his own account (see § 389), but also all other facts which he should realize have or are likely to have a bearing upon the desirability of the transaction from the viewpoint of the principal. This includes, in the case of sales to him by the principal, not only the price which can be obtained, but also all facts affecting the desirability of sale, such as the likelihood of a higher price being obtained later, the possibilities of dealing with the property in another way, and all other matters which a disinterested and skillful agent advising the principal would think reasonably relevant.
Id. at ¶ 20.
As regards the real estate transactions in this case, the court finds the Debtor failed to overcome the presumption of undue influence. Although keeping the land in the family was important to Flora, she had other nieces, nephews and other relatives who might have been interested in purchasing the land for a higher price than the Debtor could afford. Moreover, an appraisal of the real property prior to the sale between Flora and the Debtor would have provided information to Flora that the Debtor reasonably should have known might affect Flora's judgment as to the terms of the sale, particularly the fair market value of the property. Flora's doctor testified she had the ability to comprehend the sale of her land, but she had difficulty understanding numbers. Her age, isolation and depression rendered her incredibly susceptible to undue influence, and the Debtor failed to overcome the presumption of the same. Although the result is harsh, a heavy burden is placed upon a fiduciary in overcoming the presumption of section 59-01-16 because of the confidential position fiduciaries occupy and because of the many opportunities for abuse of that position:
A fiduciary is charged with knowledge of the law and must act accordingly. If he is to receive the benefits from a good faith transaction with his principal or beneficiary, he must also assume the burden of developing a record sufficient to satisfy the requirements of law. If he fails to meet that burden, . . . he suffers the risk of losing the benefits of the transaction.
In summary, trust, reliance, confidence, faith and integrity are all essential elements of a successful relationship between a fiduciary, his principal and the public, and if in order to preserve and maintain such relationship it is necessary, in "self-dealings" to impose a burden upon the fiduciary of overcoming the presumption of undue influence and lack of consideration or accept the risk, so be it.
Mehus, 278 N.W.2d at 634. Under section 59-01-15, the Debtor's violation of section 59-01-11 was a fraud against Flora's estate. Title to the real property must be returned to Flora's estate for distribution to the heirs.
Next, Flora instructed the Debtor to give gifts of money to his sons. The Debtor did not gain an advantage in these transactions, and therefore they do not fall within the ambit of the presumption of section 59-01-16.
Flora asked the Debtor to travel from Italy to Switzerland on her behalf. The North Dakota Supreme Court acknowledged that an agent is authorized to do only what the agent reasonably infers the principal desires the agent to do in light of the principal's manifestations, quoting the comments from Restatement (Second) of Agency § 33:
The privileged power which constitutes [an agent's] authority is bounded by the principal's will as manifested to him. Whatever the original agreement or authority may have been, [an agent] is authorized at any given moment to do, and to do only, what he reasonably believes the principal desires him to do, in the light of what he knows or should know of the principal's purpose and the existing circumstances.
Burlington N. Santa Fe Ry. Co., at ¶ 28. The Debtor complied in good faith with Flora's wish, and the court finds the Debtor overcame the presumption of undue influence with regard to this transaction.
As to the salary the Debtor received for acting as Flora's attorney in fact, the court finds the Debtor owes the estate $4,268.00 for overpayment. He received a total of $38,918.00, when he should have received only $34,650.00 (33 months × $1,050.00).
Lastly, the court finds the Debtor overcame the presumption of undue influence with regard to Flora's changing the designation of beneficiary on her American Express account from Thompson to the Debtor. Flora stated clearly that she no longer wanted Thompson to be the beneficiary, and she wished to substitute the Debtor in Thompson's place. The court finds Flora made this change with full knowledge, and finds she was not unduly influenced.
The court has considered the other requests of Plaintiffs and deems them to be without merit.
III
Based on the foregoing, the court concludes that Robert Klesalek, successor personal representative of the Estate of Flora Klesalek, Darrell Suchy, Connie Thompson, f/k/a Connie Suchy, and Richard Seeman are entitled to judgment that title to the real property transferred by Flora Klesalek to William A. Klesalek by warranty deeds dated June 12, 1998 (SE1/4, Section 30, Township 138, Range 81; W1/2 of the SW1/4, Section 25, Township 138, Range 82; All of Section 31, Township 138, Range 81; SE1/4, Section 36, Township 138, Range 82; the East 2/3 of the W1/2 of the W1/2, Section 32, Township 138, Range 81) and May 20, 1999 (see Exhibit A to Warranty Deed pertaining to Grantor's undivided 1/4 interest in that property located in Sections 5 and 6, Township 137, Range 80) must be returned to the estate of Flora Klesalek for distribution to the heirs. They are further entitled to judgment in the total amount of $4,268.00 against William A. Klesalek for overpayment of his salary. All other claims are hereby DISMISSED.
SO ORDERED.
JUDGMENT MAY BE ENTERED ACCORDINGLY.