COURT OF APPEALS DECISION DATED AND RELEASED September 26, 1996 |
NOTICE |
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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2996
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
In the Matter of the
Estate of
Bernice M. Houtakker,
Deceased:
GERALD F. HOUTAKKER,
Appellant,
v.
CAROL CAREW, SISTER
CATHERINE HOUTAKKER and
ESTATE OF BERNICE M.
HOUTAKKER,
Respondents.
APPEAL from an order of
the circuit court for LaFayette County:
WILLIAM D. JOHNSTON, Judge. Affirmed.
Before Eich, C.J.,
Dykman, P.J., and Paul C. Gartzke, Reserve Judge.
PER
CURIAM. Gerald Houtakker appeals from an order admitting the
will of his mother, Bernice Houtakker, to probate. Gerald challenged the will as a product of Bernice's unsound mind
and the undue influence of his sister Carol Carew. The trial court rejected his challenge. The issue on appeal is whether the trial court's findings of fact
on that issue are clearly erroneous.
Because we conclude that they are not, we affirm.
On January 25, 1991,
Bernice, then age 79, met with Attorney Norman Kvalheim to discuss a will. She was accompanied by Carol. Bernice returned to his office on January
30, again accompanied by Carol, and signed a will leaving her property in equal
shares to her four children, Gerald, Carol, John Houtakker and Sister Catherine
Houtakker. After signing the will,
Carol and Bernice discussed whether Carol should receive an option to buy the
family farm from Bernice. Two days
later, Bernice returned to Kvalheim's office with Carol and asked him to
prepare a revised will containing an option agreement. After interviewing Bernice privately,
Kvalheim prepared a revised will granting Carol an option to buy the farm for
$5000 within six months of Bernice's death.
In all other respects the will remained the same as the one executed on
January 30. Witnessing both wills were
Kvalheim and his wife, Gretchen Kvalheim.
Carol's option allowed her to buy property worth approximately
$100,000. Bernice died in 1994.
At the hearing on the
will, Bernice's family treating physician testified that he did not believe she
possessed the necessary mental capacity in February 1991 to execute a valid
will. Attorney Kvalheim testified
otherwise and Carol, Sister Catherine and John also testified that their mother
was mentally capable at that time. Both
sides fully developed the facts surrounding the will signings, and asked the
court to draw opposite inferences from them as to Bernice's mental capacity and
Carol's alleged undue influence. This
appeal results from the court's decision that Gerald failed to prove either
mental incapacity or undue influence.
UNDUE INFLUENCE
The basic question in
undue influence cases is whether the testator's free agency was destroyed. Estate of Hamm, 67 Wis.2d 279,
294-95, 227 N.W.2d 34, 41 (1975). The
four-step method of proving undue influence requires evidence of the testator's
susceptibility, the beneficiary's opportunity to influence the testator, the
beneficiary's disposition to influence and a coveted result. In re Estate of Dejmal, 95
Wis.2d 141, 155, 289 N.W.2d 813, 819 (1980).
If the challenger to the will establishes three of those elements by
clear, satisfactory and convincing evidence, only slight evidence of the fourth
element is necessary. Id.
A second two-step method
of proving undue influence requires evidence that the beneficiary had a
confidential and financial relationship with the testator and that suspicious
circumstances surrounded the making and execution of the will. In re Estate of Becker, 76
Wis.2d 336, 350-51, 251 N.W.2d 431, 437 (1977). Under either method, proof of undue influence may rest on
circumstantial evidence because acts of undue influence are usually performed
in secrecy. Hamm, 67
Wis.2d at 288, 227 N.W.2d at 38.
The trial court's findings
of fact in a probate proceeding were formerly reviewed under the great weight
and clear preponderance of the evidence standard. Dejmal, 95 Wis.2d at 154, 289 N.W.2d at 819. We now apply the clearly erroneous standard
to the trial court's findings of fact, § 805.17(2), Stats., although the methodology of
review remains the same. Noll v.
Dimiceli's, Inc., 115 Wis.2d 641, 643, 340 N.W.2d 575, 577 (Ct. App.
1983). In reviewing whether the trial
court clearly erred, we must examine the record "`not for facts to support
a finding the trial court did not make or could have made, but for facts that
support the finding the trial court did make.'" Dejmal, 95 Wis.2d at 154, 289 N.W.2d at 819 (quoted
source omitted).
There is sufficient
evidence to support the trial court's finding that Gerald did not prove undue
influence under the four-step method.
It is undisputed that Carol had the opportunity to influence Bernice and
that the will provided her with a coveted result. However, the evidence conflicted as to whether Bernice was
susceptible to undue influence. While
one could reasonably infer from her age and various infirmities, including
Alzheimer's disease, that she was susceptible, the trial court chose the opposite
inference based on the observations of Attorney Kvalheim, Sister Catherine and
John. The court's decision to accept
the testimony of those witnesses concerning Bernice's state of mind is one of
weight and credibility that is not subject to review. Noll, 115 Wis.2d at 644, 340 N.W.2d at 577. Additionally, as the trial court noted,
there was no evidence presented that Carol was disposed to unduly influence her
mother. Although the court might have
reasonably inferred that disposition from Carol's close attendance to her
mother during the will conferences, the inference that her attendance showed
innocent concern for her mother is also reasonable. When more than one reasonable inference can be drawn from the
credible evidence, we must accept the inference chosen by the trial court. Id.
The evidence also
supports the trial court's determination that Gerald did not prove undue
influence using the two-step method.
Gerald proved a confidential relationship as a matter of law by showing
that Bernice conveyed a power of attorney to Carol before the will
signings. In re Estate of Friedli,
164 Wis.2d 178, 187, 473 N.W.2d 604, 607 (Ct. App. 1991). Gerald contends that he also proved
suspicious circumstances surrounding the planning and execution of the
will. Primarily, he cites Carol's
attendance at the three conferences with Attorney Kvalheim, her negotiations
with Bernice during those conferences, and the fact that Bernice appeared to
abruptly change her mind, and grant the option, just two days after signing the
January 30 will. However, the trial
court accepted as credible and gave due weight to testimony that explained away
those circumstances. Bernice needed
help with transportation and it was natural and understandable for her daughter
to accompany her on errands. Attorney
Kvalheim testified that he did not observe Carol pressure Bernice regarding the
option, and that the decision to grant one on very beneficial terms was
Bernice's alone, based on rational considerations. When Attorney Kvalheim wished to speak privately with Bernice,
Carol excused herself without objection.
It was Attorney Kvalheim's opinion, which the trial court accepted, that
Bernice intended to grant Carol an option even when she signed the January 30
will. The only change of mind that
occurred in the ensuing two days was Bernice's decision to make the option a
part of the will as opposed to a separate agreement. The court also heard testimony from Sister Catherine and John
that Bernice did not appear to be unduly agitated during this period of time,
as she would have if she was being pressured or coerced in some way. Given this evidence, the trial court could
reasonably infer that the will was not executed under suspicious circumstances,
even though the opposite inference may have been available.
MENTAL CAPACITY
The
testator must be of sound mind. Section
853.01, Stats. To satisfy this requirement the testator
must have the mental capacity to comprehend the nature, extent and state of
affairs of her property, an understanding of her relationship to potential beneficiaries,
and the ability to understand the scope and general effect of the will. In re Estate of Sorenson, 87
Wis.2d 339, 344, 274 N.W.2d 694, 696 (1979).
Because Gerald is again challenging the trial court's findings of fact
in support of its conclusion, we again use the clearly erroneous standard on
review.
The facts of record
support the trial court's finding that Bernice was mentally capable. Attorney Kvalheim testified that Bernice
fully understood the nature of the option and its effect on Carol and her other
children, and reasonably explained why she was favoring Carol at the others'
expense. The trial court expressly
found that testimony credible, as well as the testimony of Sister Catherine and
John that supported it. Gerald argues
that the trial court erred in doing so because that testimony conflicted with
the opinion of her physician, Dr. Ruf.
He contrasts Dr. Ruf's thorough examinations of Bernice over a period of
time with what he describes as Attorney Kvalheim's cursory and nonmedical
examination of Bernice's capacity.
However, as the trial court noted, Dr. Ruf had no direct knowledge of
Bernice's condition on the days she conferred with Attorney Kvalheim, nor had
he ever examined her specifically for the purpose of determining her mental
status. Furthermore, he conceded that
Bernice's mental state was not a constant and her ability to comprehend may
have been significantly enhanced at various times. On comparable facts, the supreme court in Becker
declared that the trial court did not err by accepting the testimony of the
attorney who drafted the will as to the testator's mental capacity, although it
directly contradicted the generalized opinion of a treating physician. Becker, 76 Wis.2d at 345, 251
N.W.2d at 434.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.