Opinion
No. 2-235 / 01-0427.
Filed July 3, 2002.
Appeal from the Iowa District Court for Crawford County, RICHARD VIPOND, Judge.
Executor appeals a denial of her post judgment motions, following a jury verdict which found lack of testamentary capacity on the part of decedent. AFFIRMED.
Gregory J. Siemann of Green, Siemann Greteman, Carroll, for appellant.
Russell S. Wunschel and Dee Ann Wunschel of Wunschel Law Firm, P.C., Carroll, for appellee.
Heard by Vogel, P.J., and Miller and Vaitheswaran, JJ.
Janice Schrader, the executor and a beneficiary of the Estate of Martha Schrader, appeals the denial of her new trial motion and a partial denial of her motion for judgment notwithstanding the verdict, following a jury's finding that the decedent lacked testamentary capacity and that the will was a product of undue influence. She argues the district court erred in failing to grant a judgment notwithstanding the verdict on the testamentary capacity issue, as there is insufficient evidence in support of the jury's verdict. She further argues prejudice resulted from the district court's erroneous submission of an undue influence count to the jury. Will contestant and co-beneficiary Kathleen Jackson cross-appeals, contending the district court erred in granting a judgment notwithstanding the verdict on the issue of undue influence. We affirm.
Background Facts and Proceedings . Kathleen Jackson contested the will of her mother, Martha Schrader, claiming a lack of testamentary capacity on the part of Martha and undue influence on the part of Kathleen's sister, Janice Schrader. The will, executed on September 29, 1992, shortly after the death of Martha's husband, Elmer, left $100,000 in trust to Kathleen and the remainder of the substantial estate to Janice. The disposition to Kathleen was a significant increase from that indicated in a 1974 will, which left one dollar to each daughter and the remainder of the estate to Elmer, but which provided that Janice should receive the entirety of Martha's estate in the event Martha and Elmer died in a "common disaster or car accident."
At trial evidence was presented indicating a long history of strained relations between Kathleen and the other members of the Schrader family, which were interspersed with spans of reconciliation. A number of underlying events, including several intra-family legal issues and lawsuits, physical altercations, and differences relating to Kathleen's oldest child, were all recounted by Martha to Bruce Becker, the attorney drafting the 1992 will. Martha also told Becker she would have preferred to leave Kathleen the nominal amount of one dollar, but had decided to increase the bequest to $100,000 in the hopes of avoiding a will contest.
In support of her claims against the validity of the will, Kathleen submitted testimony and records from Martha's treating neurologist, Dr. Bashir, and a neuropsychologist who had performed a cognitive assessment of Martha, Dr. Willcockson. She also presented expert testimony from a non-treating psychiatrist, Dr. Anderson, and a non-treating psychologist with neuropsychology training, Dr. Rosmann. Although none of doctors had treated or witnessed Martha on the day the will was executed, they opined her history of brain cancer and related treatments resulted in fixed or permanent mental impairments that both pre- and post-dated September 1992, and which therefore would have existed at the time the will was executed.
The primary examination relied upon was the cognitive assessment byDr. Willcockson, performed April 7, 1992. Although this examination occurred before Martha had been placed on Dilantin to control a seizure disorder, and apparently within an hour or two after Martha suffered a mild seizure, testimony was presented that neither the seizure nor use of Dilantin at the time of the assessment would have significantly impacted the test results. Dr. Bashir also conducted more limited assessments between March 1992 and March 1993. One of the visits to Dr. Bashir occurred on August 19, 1992, approximately a month prior to the will execution.
Dr. Bashir's observations of Martha indicated, in his opinion and the opinion the other doctors testifying for Kathleen, that Martha's cognitive impairment remained unchanged despite the fact she had successfully controlled her seizures. Although none of the test questions related specifically to testamentary disposition, the doctors opined the questions used did call for the same degree of mental functioning. They also testified Martha's cognitive impairments were due to physical damage to the brain that Dilantin would not, and was in fact not designed to, address or repair.
According to Dr. Bashir, Martha's difficulties related largely to language processing and near-term memory. He stated that while her long-term memory was unaffected and thus she would be able to recall old grievances, she would have great trouble expressing those thoughts and putting them into current perspective. The doctors and psychologists presented by Kathleen all opined, to varying degrees, that Martha's cognitive impairments would have rendered her incapable, at the point of execution, of understanding the nature or extent of her property, of recalling and knowing what distributions she would want to make, or of comprehending and recalling the details of the will or other similar documents.
Janice countered with testimony from Martha's neurosurgeon, Dr. Patil, and a non-treating psychologist with training in neurotherapy, Dr. Joneson. Martha had gone to Dr. Patil ten days after the will was executed for the specific purpose of obtaining a medical opinion that she was capable of handling her own legal affairs. Dr. Patil testified Martha was alert, coherent, and had memory for past and present events. In his opinion, as of the day of his examination, Martha was capable of managing her own affairs. He further opined she would have had the same abilities ten days prior, on the date of execution. Specifically, he stated she could have made her own decisions in regard to her will and would have known and understood the identity of her children, the general extent of her property, and the disposition of it she wished to make. He further testified the seizure Martha was presumed to have had an hour or two prior to the April 7 cognitive assessment could have affected the test results.
Dr. Joneson testified the seizure very likely affected the results and further testified the results of Dr. Willcockson's assessment were unreliable as the use of Dilantin would have significantly improved Martha's performance. He did concede, however, that he had no way of knowing how the Dilantin actually affected Martha's functioning as, in his opinion, that could be measured only by another neuropsychological assessment such as the one performed on April 7. In that regard he viewed all the follow-up testing, including that performed by Dr. Patil, to be less than adequate.
Janice also presented the testimony of Bruce Becker, the attorney who drafted the 1992 will. At his initial one to two hour meeting with Martha on September 23, 1992, both Janice and Martha's brother-in-law, Ray Schrader, were present. Becker clarified, however, that the meeting was conducted with Martha:
Everything came from Martha. There was one time during that meeting that Martha did look over at Janice and just looked at her and Janice says, "Mom, it's your will." That's all Janice said. And Ray didn't say anything other than the initial introductions.
Janice and Ray also accompanied Martha to Becker's office on September 29, 1992, but both waited in the outer lobby area while Becker assisted Martha with the will's execution.
According to Becker, Martha was clear and coherent, verbalizing her intentions and wishes. In addition to recounting Martha's stories regarding the past problems within the Schrader family, he stated Martha had articulated a number of relevant details, such as the fact her husband's estate was currently in probate, the name of the attorney handling that probate, the approximate worth of the estate, and that she wanted the trust for Kathleen to be paid out in increments of $10,000 per year. In Becker's opinion, Martha not only knew and understood the broader issues such as the nature and extent of her estate, but also specific details, such as certain tax consequences.
Kathleen attempted to counter Becker's testimony through Dr. Bashir, who stated that, given the nature of Martha's condition, it was entirely possible a lay person would not recognize the existence or extent of her mental impairments. He opined language processing difficulties such as Martha's could go undetected if a lay person used leading questions or questions calling for a brief or yes/no answer, or gave the impaired individual cues about what the desired answer or responsive action should be.
Denying Janice's motion for directed verdicts on Kathleen's claims, the district court submitted both testamentary capacity and undue influence to the jury, which returned findings that Martha lacked testamentary capacity, and that the will was the product of undue influence. Pursuant to the jury's verdict, the district court set aside Martha's will. Janice then filed motions for a judgment notwithstanding the verdict and for a new trial, arguing both insufficiency of the evidence and legal error in failing to direct verdicts in her favor. Finding there had not been enough evidence of undue influence to submit the issue to the jury, the district court granted Janice a partial judgment notwithstanding the verdict. It nevertheless upheld its ruling to set aside the will, determining the jury's finding as to testamentary capacity was sufficiently supported by the record, and denying the remainder of Janice's motions.
Janice appeals, claiming there was not sufficient evidence to support the jury's verdict as to testamentary capacity. She also now argues the erroneous submission of the undue influence count irreparably prejudiced the outcome of the case, entitling her to a new trial. Kathleen cross-appeals, arguing there was substantial evidence to support the verdict as to undue influence, and that the trial court erred when it granted Janice a partial judgment notwithstanding the verdict.
Scope of Review . As a will contest is tried at law, Iowa Code § 633.33 (1999), our review is correction of errors at law. Iowa R. App. P. 6.4. In reviewing the district court's denial of a motion for a judgment notwithstanding the verdict, we look at the evidence in the light most favorable to the nonmoving party. Channon v. United Parcel Service, Inc., 629 N.W.2d 835, 859 (Iowa 2001). We must determine if the evidence exists in support of the claim, such that it is sufficient to generate a jury question on the issue. Id. The same standard is applied by the district court in determining whether to direct a verdict at the close of evidence. Gabelmann v. NFO, Inc., 571 N.W.2d 476, 480 (Iowa 1997).
Testamentary Capacity . As the person challenging Martha's testamentary capacity, Kathleen had the burden to prove that, at the time the will was made, Martha did not know or understand: 1) the nature of the instrument she was executing; 2) the nature and extent of her property; 3) the natural objects of her bounty; or 4) the distribution she desired to make of her property. Pearson v. Ossian, 420 N.W.2d 493, 495 (Iowa Ct.App. 1988). Proof that Martha did not know and understand of any one of the four elements is sufficient for a finding of lack of testamentary capacity. Matter of Estate of Henrich, 389 N.W.2d 78, 81 (Iowa Ct.App. 1986). The question is not whether we would have found Martha lacked the necessary capacity, but whether the record contained substantial evidence in support of such a conclusion, such that the issue was properly submitted to the jury. Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 391 (Iowa 2001). We find that it does.
Janice correctly points out the only issue is whether Martha had the requisite mental capacity at the time the will was executed. Pearson, 420 N.W.2d at 495. There is no doubt Janice presented persuasive evidence that Martha was alert, coherent, and capable of executing a will on the day in question, and that she was the only party to offer direct evidence of Martha's actions and demeanor on the date of execution. However, evidence of the condition of Martha's mind at other relevant times may be allowed if there is a reasonable basis for concluding that "it throws light on the mental competence at the time the will was made." Id.
To that end Kathleen presented evidence Martha's medical history resulted in preexisting and fixed or permanent mental impairments that rendered her incapable of understanding the extent and nature of her estate and the nature of the instrument she was executing. Kathleen also used medical opinion testimony to cast doubt on the testimony offered by Bruce Becker, implying that some of Martha's responses on September 29 may have been the result of leading or overly-simple questions. Contrary to Janice's assertions that the evidence as to capacity was all but uncontroverted, Kathleen's evidence constituted more than a "scintilla" of proof in support of her claims. See Estate of Davenport, 346 N.W.2d 530, 532 (Iowa 1984).
In a will contest, weighing evidence and assessing credibility are matters for the jury. Matter of Estate of Bayer, 574 N.W.2d 667, 670-71 (Iowa 1998). "If the evidence as to mental capacity of the testator is conflicting, the law is clear that a jury question is engendered." Pearson, 420 N.W.2d at 495. Because reasonable minds could differ as to whether Martha possessed the requisite testamentary capacity to execute her will, it was not error to deny Janice's motions for a directed verdict and for a judgment notwithstanding the verdict on the testamentary capacity count.
Undue Influence . Janice argues, in the alternative, that the erroneous submission of the undue influence count so prejudiced the jury as to deprive her of a fair trial and require that a new trial be granted. However, this issue was neither presented to nor passed upon by the district court. As such, it is waived. Matter of Estate of Crabtree, 550 N.W.2d 168, 171 (Iowa 1996). Because we have found it was proper to set aside the will, based upon the jury finding of lack of testamentary capacity, we do not find it necessary to address Kathleen's contention that it was error for the district court to grant Janice's motion for judgment notwithstanding the verdict on the issue of undue influence.
AFFIRMED.