In the Matter of the Estate of Donald G. Speck ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0467
Filed August 15, 2018
IN THE MATTER OF THE ESTATE OF DONALD G. SPECK, Deceased.
LISA M. SPECK, MATTHEW D. SPECK, TODD M. SPECK, JEREMY J. SPECK,
and NICHOLAS A. SPECK,
Intervenors-Appellants,
vs.
MARK D. FARGO,
Petitioner-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Warren County, Patrick W.
Greenwood, Judge.
Testator’s children appeal a district court order granting a petition to probate
a lost will. AFFIRMED.
Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, PC, West Des
Moines, for appellants.
Matthew D. Gardner of Gardner Law Firm, PC, Urbandale, and John D.
Hartung of Hartung & Schroeder, Des Moines, for appellee.
Heard by Danilson, C.J., and Mullins and McDonald, JJ.
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MULLINS, Judge.
The children of Donald Speck (Don) appeal a district court order granting a
petition to probate a lost will filed by Donald’s ex-son-in-law, Mark Fargo, under
which Mark was a beneficiary and co-executor and the majority of Donald’s
children were disinherited. The children argue the presumption of revocation was
not rebutted by clear, satisfactory, and convincing evidence. They also assert the
court erroneously shifted the burden of proof to them.
I. Background Facts and Proceedings
Don and his ex-wife, Margo, had five children: Matthew, Todd, Jeremy,
Nicholas, and Lisa. The negative nature of the dissolution of Don and Margo’s
marriage, Don’s perception that the children favored Margo, and Margo’s
remarriage to Don’s friend led to varying degrees of hostility and alienation
between Don and his children for many years.
Don executed a will on August 15, 2012 with the assistance of his long-time
attorney Robert Thomson. The will left fifty percent of the residue of Don’s estate
to his son, Jeremy, and fifty percent to his then son-in-law, Mark, and named both
as co-executors of the estate. The will also expressly disinherited Don’s other four
children. Thomson retained a copy of the will, gave the original to Don, and
advised him to keep it in a safe place. Don was known to use a filing cabinet in
his house to keep important documents. On the same day, Don also executed a
durable general power of attorney and a power of attorney for healthcare
decisions, naming Mark and Jeremy as attorneys-in-fact. Soon after, Don met with
Mark and Jeremy to reveal he had written a will and put both of them in charge of
it. He told them the will would anger the rest of the family but did not produce a
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copy or explain the specifics of the will. Don also asked Mark and Jeremy to not
reveal this conversation to anyone, including their spouses.
At the time the will was executed, Mark was married to Don’s daughter,
Lisa, and had known Don and the family since childhood. In September 2014,
Mark petitioned for a dissolution of their marriage.1 During the time of the
dissolution proceedings, Mark continued to talk with Don and met him at a car
show. Mark had keys to and stored a car in Don’s garage. Don and Mark also
worked on a sewer project at Don’s home until Don’s stroke.
On December 3, 2015, Don suffered a catastrophic stroke. He was
hospitalized and ultimately died on December 16. Don’s son Matthew moved into
Don’s home during his hospitalization and remained there after his death based
upon the recommendation that someone be present at the house in order to protect
the house and other assets and handle any issues with Don’s tenant.
On December 28, Don’s son Jeremy met with Thomson alone to discuss
the estate and its assets as well as the process going forward. Thomson showed
Jeremy a copy of the will in his possession and informed Jeremy to look for the
original of that copy. On December 31, Thomson met with Don’s children and
Mark to review the terms of the will. Before this meeting, Jeremy met with his
siblings and informed them that the contents of the will could frustrate them, but
he did not explain the specifics of his siblings’ disinheritance. At the December 31
meeting, after discovering that Mark was to receive fifty percent of the estate, two
of Don’s children asked Mark to decline and waive his rights under the will. Mark
1
Their marriage was dissolved in September 2015.
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refused. When Thomson asked Jeremy if he had found the original will yet, Jeremy
answered he had not looked for it yet.
Jeremy and Matthew subsequently conducted a search of Don’s home.
Lisa was present during the search. All three testified they did not find Don’s
original will. However, they found a life insurance policy worth fifty-thousand
dollars which named Matthew the sole beneficiary.
On January 7, 2016, Mark petitioned the court to probate a lost original will
and asked the court to admit the copy to probate to allow its administration. Don’s
children objected. During a three-day bench trial, the court heard testimony from
all of Don’s children, Thomson, Don’s sister, Don’s friend, Mark, and Mark’s
brother. The court granted Mark’s petition to probate the will. Jeremy, who would
share in Don’s estate under the will or intestacy, and his siblings, who would share
in Don’s estate under intestacy, appeal.
II. Standard of Review
The action was triable in probate as one at law without a jury, so our review
is only upon the errors assigned. In re Estate of Crozier, 232 N.W.2d 554, 556
(Iowa 1975). “The trial court’s decision on the facts has the force and effect of a
jury verdict.” Id. at 558. “The credibility of witnesses and weight of evidence is for
the trial court.” Id. If there is doubt or ambiguity, we construe the findings “to
uphold, rather than defeat, the judgment.” Grinnell Mut. Reins. Co. v. Voeltz, 431
N.W.2d 783, 785 (Iowa 1988). The question we face “is not whether the evidence
might support a different finding, but whether the evidence supports the findings
actually made.” Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467, 468 (Iowa
1990). If substantial evidence supports the trial court’s findings of fact, such
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findings are binding upon this court. In re Estate of Hoxsey, 225 N.W.2d 141, 142
(Iowa 1975). However, this principle is “true only if in reaching the fact findings the
court applied the proper rules of law.” Crozier, 232 N.W.2d at 558.
III. Analysis
“In the absence of any evidence, as to circumstances of destruction, a
presumption arises that a will which was in the custody of a testator, and which
cannot be found at his death, was destroyed by him with the intention of revoking
it.” Goodale v. Murray, 289 N.W. 450, 459 (Iowa 1940). However, this
presumption is not conclusive and is rebuttable. Id. The presumption of revocation
is an “inference of fact drawn from the inability to locate a will which was last known
to have been in the possession of the testator . . . and it is a fact question as to
whether the presumption, or inference, has been overcome.” In re Estate of
Givens, 119 N.W.2d 191, 194 (Iowa 1963).
To establish the existence of a lost will, it is incumbent upon the proponent
to prove by clear, satisfactory, and convincing evidence:
(1) due execution and former existence of the alleged will (2) that it
has been lost and could not be found after diligent search (3) that the
presumption of destruction by decedent with intent to revoke it,
arising from its absence at death, has been rebutted, and
(4) contents of the will. The evidence need not be free from doubt.
Crozier, 232 N.W.2d at 556.
The trial court found Mark proved all elements of a lost will by clear and
convincing evidence. This conclusion is binding on us if supported by substantial
evidence. On appeal, the children do not contest the establishment of elements
one, two, and four. They challenge whether the third element has been
established by clear and convincing evidence, arguing Mark failed to present
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sufficient evidence to rebut the presumption Don destroyed his will with the intent
to revoke it. They contend Don’s relationship with Mark had deteriorated to the
point that Don wanted to remove Mark from the will, due to his divorce from Lisa
along with some of Mark’s business decisions. They also argue the district court
erroneously shifted the burden of proof from Mark to the children and concluded
they failed to prove Don had revoked his will.
The district court found the following acts and declarations of Don were
sufficient to rebut the presumption: (1) the will still existed on or about Thanksgiving
of 2015; (2) there was no direct evidence that Don had destroyed his will or
declared his intention to revoke it; (3) while Don may have wished to revise his will,
there was insufficient evidence of what those contemplated changes would be;
(4) though Don’s relationship with his children likely improved from the time of the
execution of the will to the day of his stroke, the court was not convinced Don’s
relationship with Mark had inversely deteriorated; and (5) after Don’s death,
Jeremy, Matthew, and Lisa had access to Don’s house and his filing cabinet in
which he had previously stored important documents. The court held “on balance
the facts available to the Court are inconsistent with a conclusion that Don intended
to die intestate.”
The presumption of revocation “may be strengthened or overcome by proof
of declarations of the testator, either for or against it, or by proof of the
circumstances of the testator, or of his relations to the persons involved.” Goodale,
289 N.W. at 459. First, the court determined the will was still in existence around
Thanksgiving of 2015 based on comments Don made to his sister at that time
about wanting to make changes to his will. Jeremy also testified to comments Don
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made about his will in late October 2015 which suggest the will was still in
existence at that time. Additionally, the court found there was no evidence that
Don actually destroyed his will at any point before Thanksgiving of 2015 or before
his stroke on December 3. This conclusion was influenced by evidence Don had
destroyed a previous will in 2005 and had notified his attorney when he did so. No
witness testified that Don had expressed any desire to revoke or destroy the 2012
will or informed anyone that he had actually done so. The court did recognize that
because Don’s stroke was unexpected, he would have had no sense of urgency
to contact his attorney or replace his will.
There was also testimony that Don expressed a desire to modify his will but
Don never communicated the exact modifications to anyone. Jeremy repeatedly
testified that his father had stated that he “needed to get him off of there” and
equated this statement to removing Mark from the will. However, Jeremy also
admitted the statement meant nothing to him. The testimony that Don expressed
wanting to take Mark “off there” is vague and ambiguous as to what “there” meant.
As Mark was a co-executor of the will, a beneficiary under the will, and a co-power
of attorney for both health care and financial affairs, any of these could have been
“there.”
Additionally, Don’s sister testified that Don “[had] some changes [he]
need[ed] to make after everything that has happened.” The children argue that
Don’s statements indicated he wanted to remove Mark from the will, citing the
improved relationship between Don and some of his disinherited children and the
deteriorating relationship between Don and Mark. In its ruling, the trial court did
not discount the improved relationship between Don and some of his children. On
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examination of the evidence, it is certainly possible that Don intended to change
his will to include some of those children as beneficiaries. However, as the district
court found, the evidence before the court did not show that the possibility of
adding some of his children as beneficiaries necessarily meant Don wanted to or
was going to remove Mark as an executor or beneficiary. Mark presented
testimony that he still had a relationship with Don, including that Don gave him
keys and allowed him to store a car in his workshop, as well as the fact that they
continued to consult and work together on a sewer project. Further, Don’s
attorney, Thomson, was also aware of the strained relationship between Don and
some of his children. Thomson testified that Don was trying to determine if he
should change the provisions of his will relating to his children. But Don never told
Thomson of any specific changes he was considering. Don also never told
Thomson that he had revoked his will or was contemplating revoking the will, nor
did Don communicate that he was thinking about removing Mark from the will as
an executor or beneficiary or from his powers of attorney.
Finally, the court, though not concluding one or more of Don’s children
destroyed his will, took into consideration the fact that Jeremy, Matthew, and Lisa
had access to Don’s house and filing cabinet—in which Don was known to keep
important documents—after Don’s stroke and subsequent death.2 “Proof a person
who has an adverse interest had access to the testator’s will either before or after
the testator’s death may carry weight in the determination as to whether the will
was revoked by the testator.” In re Estate of Wiarda, 508 N.W.2d 740, 743 (Iowa
2
The court’s ruling included its observations concerning Lisa’s demeanor as a witness but
did not expressly or implicitly tie those facts to any credibility determination.
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Ct. App. 1993). The children do not deny that Jeremy, Matthew, and Lisa all had
access but argue the court placed too much weight on this point and erroneously
placed the burden of proof on them. Matthew and Lisa only share in the estate
under intestacy and so they have an interest that is adverse to the terms of the
will—a lost will presumed revoked benefits them. They argue, however, that
Jeremy, who would receive fifty percent under the will and only twenty percent
under intestacy, would benefit by finding the will. The court reasoned that although
Jeremy would take less if the will were revoked, his feelings of guilt over being the
only child named in Don’s will and the effect that could have on the family going
forward would be assuaged by his joining forces with his siblings. The court’s
consideration of access by some of Don’s disinherited children is a proper
consideration as “the mere fact that the contestant had an opportunity to destroy
the will would not of itself overcome the presumption that it was destroyed by the
testator with the intent to revoke it; still it is a circumstance to be considered with
other proof.” Id. at 744 (citations omitted). The court here did not base its entire
decision on the opportunities some of the children had but was mindful of those
opportunities in context with all of the evidence before it while making its decision.
Throughout its ruling, the court repeatedly identified the burden was on
Mark to rebut the presumption of revocation, and we do not find the trial court
misapplied this burden in its conclusion. In isolation, each of the reasons for the
court’s conclusion would be insufficient to rebut the presumption of revocation.
However, the court’s ruling does not identify that one fact or factor alone was the
basis for its ruling. Instead, after taking into consideration all of the evidence before
it, the court held Don did not intend to die intestate.
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We hold the district court’s conclusion that Mark presented sufficient
evidence to rebut the presumption of revocation is supported by substantial
evidence in the record. The district court applied the appropriate rules of law in its
ruling that the copy of Don’s will which he executed on August 15, 2012 be filed
and admitted into probate. We therefore affirm the decision of the district court.
AFFIRMED.