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COURT OF APPEALS DECISION DATED AND RELEASED APRIL 9, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2594
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
IN THE MATTER OF THE
ESTATE
OF JUANITA WENDLAND,
DECEASED:
PROPONENT OF THE
ESTATE, ROMAN
FELTES, PERSONAL
REPRESENTATIVE,
Petitioner-Appellant,
v.
VIOLA GROB, NOMINATED
PERSONAL
REPRESENTATIVE OF THE
PRIOR WILL,
Objector-Respondent.
APPEAL from an order of
the circuit court for Trempealeau County:
ROBERT W. WING, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Roman Feltes, proposed personal
representative of the estate of Juanita Wendland, deceased, appeals an order
denying a will to probate. Feltes
argues that the trial court erroneously determined that (1) Juanita lacked
testamentary capacity to execute the February 17, 1989, will, and (2) the will
was a product of undue influence.
Because the record supports the trial court's determination, we reject
these arguments and affirm the order.
Juanita Wendland, born
in 1908, was preceded in death by her husband of forty years, Ed Wendland, in
1977. They had no children. In November
1988, Juanita and her friend Thaddeous Kotlarz visited an attorney, Mark
Franklin, for the purpose of drawing a new will. Kotlarz was her spokesman, and he told Franklin that Juanita
wanted to leave her entire estate to him.
Franklin asked Kotlarz to leave the room and, after talking to Juanita alone,
it was obvious to him that "there were some mental problems, that she
wasn't sure what she was doing, who her heirs were .... [S]he didn't know how much property she
had." Because Franklin questioned
her competency, he decided not to draft her will and advised her by letter.
Guardianship proceedings
were initiated, and Juanita retained Franklin to oppose them, even though he
had determined that she was not sufficiently competent to execute a will. However, in December 1988, Juanita and
Kotlarz visited Franklin's office again, and Franklin felt that she was much
sharper. She was angry with her late
husband's relatives, believing they started the guardianship proceedings and
she wanted to make sure they inherited nothing from her. Franklin testified that after Kotlarz left
the room, Juanita said she wanted to leave one-third of her estate to Kotlarz,
one-third to her friend and attorney Roman Feltes, and one third to her church.
Franklin asked Dr.
Richard Pallazza, a psychologist, to examine her for competency with regard to
the guardianship and will. Pallazza met
with her on December 16, 19 and 30, 1988.
Pallazza concluded that she was a charming lady, but "she really
was gravely, gravely impaired ...."
He concluded that she was mentally incompetent as a result of
Alzheimer's disease and "this is a woman who has suffered a devastating
loss of competence."
Pallazza testified that
this disease is progressive and irreversible.
He concluded that she could not function as a truly independent person,
but "required the presence and support and hand holding and contact with
Mr. Kotlarz." While in his office,
she "began sort of whimpering and half raising herself from the chair
indicating that she wanted to go or fetch him from the waiting room."
Franklin was surprised
by Pallazzo's conclusions and felt that it was possible that Juanita could
execute a will. After drafting a will,
he attempted on two or three occasions to have her execute it, but felt she was
incompetent to do so; "either she had the heirs wrong, or she didn't have
the amount of property even close."
On February 17, 1989,
Kotlarz let Franklin know that Juanita was having a good day. Franklin arrived at her house and taped his
conversation with her. The transcript
of the taped conversation includes the following:
[Franklin]: Do you have a
husband, or do you have a husband still living?
Juanita: I think Ted [Kotlarz]
is my husband, we aren't married officially, but I consider him my husband.
[Franklin]: Were you married
before?
Juanita: No I wasn't.
[Franklin]: Who is Edward
Wendland?
Juanita: Well he was a friend
of mine but I really wasn't married to him.
[Franklin]: You never got
married to him?
Juanita: No,
he lived out in our area, we were neighbors.
Kotlarz
was married to another at the time, although he obtained a divorce in
1990. The taped transcript reveals that
Juanita also told Franklin that she owned some farm land. This was incorrect because the farm land had
been sold to Kotlarz some years before.
Juanita signed the will
in the presence of Franklin and his secretary.
Franklin testified that she later corrected her answers and he made a
note to that effect at the bottom of the transcript. According to his secretary, Juanita did not make the correction
before she signed the will.
Franklin believed that
Juanita was not under undue influence and was able to understand the nature and
extent of her estate and her relationships with relatives whom she might want
to include in her will. He disregarded
Pallazzo's opinion because he received a different opinion from her treating
physician and thought that she may have been having a bad day with Pallazzo, a
stranger.
After Juanita's death,
Viola Grob, the personal representative named in Juanita's will dated February
16, 1988, objected to the probate of the February 17, 1989, will. At trial, Edward's relatives testified that
they were concerned about Juanita's behavior because she acted like she did not
recognize them and she was dressed in a fur coat and boots in August. Joseph Fernholz, Juanita's neighbor, stated
that in approximately 1988, he would find Juanita chasing cats in the
neighborhood, although her own cats were dead in the basement of her home. She asked him to help her find Kotlarz's
telephone number in the Sears Roebuck catalog.
Attorney Bruce Kostner
testified that he was retained to establish Juanita's guardianship and visited
her in November 1988. Although he
thought her hat rather inappropriate, Juanita conversed intelligently for a few
minutes, until she asked him why he had not been bitten by her dog. She did not have a dog.
Kotlarz, age sixty-four,
testified that after her death, he filed a claim against her estate in excess
of $54,000, at the rate of $10 per hour, for services he provided Juanita
between 1985 and 1988, such as driving.
When he took her to restaurants to eat, she paid for the meals and
gas. In February 1989, she gave him a
new Crown Victoria car. Her 1984 Ford
was traded in, and Juanita wrote a large check for the approximately $12,000
balance. Her account, however, did not
have sufficient funds to cover the check.
Juanita also had deeded her house to Kotlarz, but the transaction was
set aside by the court in an earlier proceeding.
The trial court found by clear and convincing
evidence that Juanita lacked testamentary capacity on February 17, 1989, and
that the will executed on that date was the product of undue influence. It denied the will to probate.
Feltes argues that the
trial court's findings are against the great weight and clear preponderance of
the evidence. We disagree. Findings of fact will not be upset on appeal
unless they are clearly erroneous.
Section 805.17(2), Stats. This is essentially the same test as
"great weight and clear preponderance." Noll v. Dimiceli's, Inc., 115 Wis.2d 641, 643-44,
340 N.W.2d 575, 577 (Ct. App. 1983).
The trial court is the arbiter of the credibility of witnesses, and we
do not overturn its credibility assessment except when testimony is patently incredible,
in conflict with the course of nature or with fully established or conceded
facts. Chapman v. State,
69 Wis.2d 581, 583, 230 N.W.2d 824, 825 (1975).
Appellate courts search
the record for evidence to support findings reached by the trial court, not for
evidence to support findings the court did not but could have reached. In re Estate of Dejmal, 95
Wis.2d 141, 154, 289 N.W.2d 813, 819 (1980).
Appellate court deference takes into consideration the fact that the
trial court has the superior opportunity to observe the demeanor of the
witnesses and gauge the persuasiveness of their testimony. Id. at 151-52, 289 N.W.2d at
818. If more than one reasonable
inference can be drawn from the testimony, we must accept the inference drawn
by the trial court. Id.
at 151, 289 N.W.2d at 818.
The record supports the
trial court's determination that Juanita lacked testamentary capacity on
February 17, 1989. A testator must have
mental capacity to comprehend the nature and extent of her property. In
re Estate of Becker, 76 Wis.2d 336, 344, 251 N.W.2d 431, 434
(1977). She need not have a detailed
itemization of every asset or a perfect memory. Id. She
must know and understand her relationship to persons who might naturally be
expected to become objects of her bounty.
Id. She
must understand the scope and general effect of the provisions of her
will. "Finally, the testator must
be able to contemplate these elements together for a sufficient length of time,
without prompting, to form a rational judgment in relation to them, the result
of which is expressed in the will."
Id.
In its memorandum
decision, the trial court assessed credibility of conflicting witness
testimony. Although Feltes attempted to
discredit Pallazza with the testimony of another doctor who challenged
Pallazza's testing, the trial court found that Pallazza's testimony was more
credible because he had actually met with Juanita while the other doctor did
not. Also, the challenged test was just
one of several methods used to assess Juanita's competency. The trial court was entitled to believe
Pallazza.
The taped conversation
made when Juanita executed her February 17, 1989, will also supports the trial
court's finding. Because Juanita did
not recall that she had been married for forty years and thought her late
husband had been a neighbor, the trial court could reasonably infer that
Juanita did not recognize her relationships with persons who might naturally be
expected to be objects of her bounty.
Because she was unaware that she no longer owned farm land, the trial
court could reasonably infer that Juanita did not understand the extent of her
estate. Based upon the clear,
satisfactory and convincing testimony, including Pallazzo's opinion and the
recorded conversation with her attorney, the trial court was entitled to find
that any lucid interval she may have had was not of sufficient duration to
render her competent to execute her will.
Feltes
argues that opposing inferences may be drawn.
For example, he argues that the February 17, 1989, will reflects a
rational selection of beneficiaries. It
is not this court's function to assess weight and credibility, or to resolve
conflicts in the evidence. Dejmal,
95 Wis.2d at 151, 289 N.W.2d at 818.
The trial court could give less weight to Feltes' and Kotlarz's
testimony because they stood to gain under the will.
Feltes argues that
Franklin's testimony that Juanita possessed testamentary capacity should be
given great weight. We must defer to
the trial court's assessment of weight and credibility. Section 805.17(2), Stats. Here the trial
court gave greater weight to Pallazzo's opinion, the tape-recorded conversation
and the testimony of Kostner and Fernholz.
Feltes argues that
letters of a Dr. Heise, Juanita's physician, support his contentions. Because the trial court sustained hearsay
objections to the letters, they are not part of the record we consider on
appeal. Feltes' reply brief contention
that the evidentiary ruling is erroneous is not sufficiently developed to be
considered. See State v.
Gulrud, 140 Wis.2d 721, 730, 412 N.W.2d 139, 142 (Ct. App. 1987).
Next, Feltes argues that
the trial court erroneously determined that the will was a product of Kotlarz's
undue influence. Because the trial
court's finding that Juanita lacked testamentary capacity is sufficient to
sustain the order denying the will to probate, it is unnecessary to address
this second basis for its order. See
Sweet v. Berge, 113 Wis.2d 61, 67, 334 N.W.2d 559, 562 (Ct. App.
1983). Nonetheless, we conclude that
the record abundantly supports the trial court's finding of undue
influence.
There are two tests to
prove undue influence. We discuss the
traditional test that has four elements:
(1) susceptibility to influence; (2) opportunity to influence; (3)
disposition to influence and (4) coveted result. In re Estate of Vorel, 105 Wis.2d 112, 116, 312
N.W.2d 850, 852 (Ct. App. 1981). The
elements must be proved by clear, satisfactory and convincing evidence. Becker, 76 Wis.2d at 347, 251
N.W.2d at 435. First, Juanita's age,
inability to handle her own affairs and Alzheimer's disease demonstrates her
susceptibility. Second, the record, as
well as Feltes' brief, characterize Kotlarz as "Juanita's only true
companion who took some time out to take her out to eat, to church every Sunday
and on Sunday drives," demonstrating his opportunity to influence.
Third, Kotlarz took
Juanita to Franklin, acting as her spokesperson, and advising Franklin that she
desired to leave her entire estate to him, at a time when even the attorney
questioned her competence. Kotlarz
accepted free meals, a new Crown Victoria car and a house from Juanita when she
was suffering from Alzheimer's. This record
shows more than a desire to obtain a share of the estate, "it implies grasping
and overreaching, a willingness to do something wrong or unfair," Dejmal,
95 Wis.2d at 159, 289 N.W.2d at 821, demonstrating Kotlarz' disposition to
influence her. Finally, as a result of
his pursuit of undue influence, he stands to inherit under her will,
demonstrating a coveted result. The
record clearly and convincingly supports the trial court's finding of undue
influence.
Finally, we address
Grob's motion to declare the appeal frivolous and to strike portions of Feltes'
brief.[1] The appeal essentially challenged factual
findings, arguing that the great weight and preponderance of the evidence
required reversal. Although this
argument is weak in light of the factual underpinnings of the trial court's
rulings, we are unprepared to hold that the appeal was entirely frivolous.
We agree, however, that
Feltes' brief blatantly mischaracterizes a portion of the record. On pages 20 to 21 of appellant's brief,
Feltes represents that during the taped conversation, "Juanita answered
the heir questions correctly; she knew the extent of her property; she stated
that she did not want her in-laws to obtain anything; she reflected that Mr.
Feltes had been a very good friend over the years and had earned and deserved
what was coming to him; she related that Mr. Feltes was a better friend than
any of her in-laws had ever been ...."
This summary
misrepresents the contents of the transcript of the taped conversation.[2] It is unprofessional conduct to misrepresent
facts. "Misleading
representations, whether deliberate or careless, misdirect the attention of
other lawyers and the district judge."
Skycom Corp. v. Telstar Corp., 813 F.2d 810, 819 (7th Cir.
1987). The court's time is scarce and
must not be frittered away trying to ascertain misrepresented facts. Pursuant to our discretionary powers under
§ 809.83(2), Stats., we
strike the above quoted section from the appellant's brief, award motion costs,
and order attorney Skemp to pay a $200 penalty as additional costs to be
awarded the respondent.
By the Court.—Order
affirmed. Costs to respondent.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.