In re Estate of Moore – Gardner – Affirmed – Cowley , 53 Kan. App. 2d 667 ( 2017 )

No. 115,628
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Estate of
ROXIE A. MOORE, Deceased,
HARVEY L. MOORE,
Appellant,
v.
MAUREEN E. MILES, KENNETH L. KOLLENBACH,
BART A. MOORE, LAURIE MOORE, and RYAN C. MOORE,
Appellees.
SYLLABUS BY THE COURT
1.
An "amanuensis" is defined as "one who copies or writes from the dictation of
another." The amanuensis rule provides that a person's signature to an instrument may be
written by the hand of another, at the request of that person. This longstanding rule is not
against Kansas public policy.
2.
Under the amanuensis rule, the person signing the grantor's name at the grantor's
request is not deemed an agent of the grantor but is instead regarded as a mere instrument
of the grantor; thus the signature is deemed to be that of the grantor.
3.
Because of the potential for fraud or self-dealing, when the signing of a grantor's
name is done by an amanuensis who will directly benefit from the transfer of title—that
is, an interested amanuensis—we presume that transfer is invalid. The interested
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amanuensis bears the burden to show that the signing of the grantor's name was a
mechanical act in that the grantor intended to sign the document using the instrumentality
of the amanuensis.
4.
To show undue influence, when a person is in a confidential and fiduciary
relationship with the grantor, and clear and convincing evidence shows suspicious
circumstances surrounding the signing of the instrument, a presumption of undue
influence arises and shifts to that person the burden to prove the absence of undue
influence by a preponderance of the evidence.
5.
Kansas law presumes that every adult is fully competent to enter into a contract
until satisfactory proof to the contrary is presented. The quality of evidence needed to
overcome the presumption of capacity for testators is clear and convincing evidence. That
same burden of proof applies in determining an intestate's capacity to execute a transfer-
on-death deed.
6.
A person is mentally competent to make a will when that person is able to
understand what property he or she has, how he or she wants it to go at his or her death,
and who are the natural objects of his or her bounty. That same legal standard applies in
determining an intestate's mental capacity to execute a transfer-on-death deed.
7.
One requirement for a valid transfer-on-death deed is that the deed be signed by
"the record owner" of the real estate interest being transferred. K.S.A. 59-3501(a). That
requirement is met when one person signs as an amanuensis of the record owner.
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8.
A person who lacks authority to sign an instrument as an attorney-in-fact may
nonetheless have the authority to sign that instrument as an amanuensis.
Appeal from Cowley District Court; JAMES T. PRINGLE, judge. Opinion filed February 17, 2017.
Affirmed.
Jason P. Brewer, of Wilson & Brewer, P.A., of Arkansas City, for appellant.
James D. Oliver, of Foulston Siefkin LLP, of Overland Park, and Sharon E. Rye, of the same
firm, of Wichita, for appellee.
Before GARDNER, P.J., ATCHESON, J., and STUTZMAN, S.J.
GARDNER, J.: In this appeal, Harvey L. Moore asks us to reverse the district
court's ruling which found his mother's transfer-on-death deed valid, although it was
signed not by his mother but by his ex-wife at his mother's direction, as an amanuensis—
one who copies or writes from the dictation of another. That transfer-on-death (TOD)
deed left the real estate in question to Harvey's ex-wife, Maureen, and had the effect of
disinheriting Harvey, who would have inherited the real estate under the laws of intestate
succession absent a valid TOD deed. Finding no reversible error, we affirm.
Factual and procedural background
Roxie Moore married Harvey Moore, Sr. and they had one child, Harvey Moore,
Jr. (Harvey). Roxie and Harvey Sr. made their living primarily by ranching and farming,
and over the years acquired around 900 acres. When Roxie died, only 360 acres located
north and west of Cambridge, Kansas, remained. This property was referred to as "the
homeplace" and is the subject matter of this litigation.
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Harvey married Maureen Miles, and they had two sons: Bart A. Moore and Ryan
C. Moore. In the 1980s, Roxie and Harvey Sr. moved from the homeplace to Burden,
Kansas, to be closer to their grandchildren, Bart and Ryan. Harvey Sr. passed away in
1985.
Roxie suffered a stroke in 1991 which greatly affected her speech, but she
continued to live in her home in Burden for the next 12 years. Several witnesses testified
that although Roxie's speech was impaired, one could communicate with her if one was
patient. However, if Roxie did not like someone or became frustrated, she would not
communicate.
In December 1992, Harvey and Maureen divorced. Harvey moved in with Roxie
and stayed there for the next 11 years. Roxie and Harvey had what was described as a
"strained relationship," but Maureen and her sons maintained a very close relationship
with Roxie.
In August 2003, Roxie fell in her home in Burden and was taken to the hospital
and then to Cumbernauld Village, an assisted living facility in Winfield, Kansas.
Maureen made the arrangements to move Roxie to Cumbernauld. Over the next 6 years,
approximately $265,000 was spent on Roxie's nursing care. Harvey was asked to help
with the expense but paid nothing. Maureen visited Roxie multiple times a week, while
Harvey never visited.
On April 29, 2004, Roxie signed a general durable power of attorney (DPOA)
naming Maureen as her attorney-in-fact. Shortly thereafter, Roxie asked Maureen to
assist in transferring the homeplace to her grandsons. Roxie wanted an attorney to draft a
TOD deed to Maureen, who would hold the property until the grandsons were secure
enough financially to own it themselves. Soon thereafter, an attorney drafted the TOD
deed for Roxie which is the subject of this appeal.
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The facts relating to the execution of the TOD deed are not disputed. On May 10,
2004, a notary public from the attorney's office went to Cumbernauld Village to notarize
the TOD deed prepared by the attorney. The notary signed the document, but she could
not testify at trial as to any particulars because she could not recall the event. Others
present during the execution of the TOD deed were Maureen, Mildred Moore, Deborah
Keely, Bart, and Ryan. Maureen testified that Roxie was in her bed experiencing pain.
Maureen handed the TOD deed to Roxie, who read the document. Maureen asked Roxie
if they could get the staff to help her out of bed, but Roxie refused and told Maureen, "I
want you to sign it." Maureen took the TOD deed and signed Roxie A. Moore's name as
grantor "by Maureen Miles, Power of Atty."
Bart and Ryan testified they were not visiting Roxie that day as witnesses. They
were there only because it was Mother's Day. Both Bart and Ryan recalled the TOD deed
being read out loud. Ryan asked Roxie, "Are you sure this is what you want to do,
Grandma?" Roxie replied, "Yes." Deborah Keely, Maureen's friend, testified that Roxie
told Maureen she was in a lot of pain and asked Maureen to sign the deed. She also saw
Roxie look at the document and testified "something was read to her." The TOD deed
was recorded the same day it was signed, directly after the general DPOA was recorded.
Roxie passed away intestate on September 15, 2009. Upon her death, the
ownership of the homeplace was transferred to Maureen by operation of the TOD deed.
Had the real estate transferred pursuant to the laws of intestate succession and without a
TOD deed, Harvey would have owned the homeplace. In October 2009, Harvey
expressed a desire to build a home on the homeplace and learned from Bart that Maureen
was the record owner of the property. On November 3, 2009, Maureen and her current
husband executed a TOD deed naming Bart and Ryan as the beneficiaries. Three years
later, Maureen and her husband signed a warranty deed conveying the homeplace
outright to Bart and Ryan.
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Harvey later filed a petition for determination of descent of the homeplace. Bart
and Ryan subsequently filed written defenses, claiming they were the legal owners of the
homeplace, and filed a separate petition to quiet title and for declaratory judgment. After
the two cases were consolidated, the parties filed cross-motions for summary judgment.
The argument and the authorities cited in both motions focused almost exclusively on
Maureen's legal authority under the DPOA to sign Roxie's name to the TOD deed.
The district court granted, for the most part, Harvey's motion for summary
judgment, finding Maureen did not have express authority pursuant to the DPOA to sign
the TOD deed as attorney-in-fact for Roxie. Bart and Ryan moved to reconsider based
upon a nonagency theory as to the validity of the TOD deed—the amanuensis theory. The
district court granted the motion and set the matter for trial, limiting the issues to the
nonagency theory because Maureen's authority under the DPOA had previously been
decided.
Following a trial on the amanuensis theory, the district court found that under
Kansas law, a TOD deed may be signed by another. The district court then found that
because Maureen was an interested amanuensis—one who would directly benefit from
the transfer of title—the TOD deed was presumed invalid. Therefore, Maureen, Bart, and
Ryan had the burden of proof to show that "Maureen's signing of Roxie's name was a
mechanical act, in that Roxie intended to sign the TOD deed using the instrumentality of
the amanuensis." The district court then addressed whether Roxie possessed the
necessary mental capacity to execute the TOD deed and found that Harvey failed to meet
his burden to show Roxie's lack of capacity. Next, applying a two-prong test to determine
whether undue influence was exerted over Roxie, the district court found: (1) Maureen
was in a confidential and fiduciary relationship with Roxie; and (2) suspicious
circumstances surrounded the making of the TOD deed. Thus, undue influence was
presumed. But the district court found sufficient evidence had been presented to
overcome this presumption. The district court ultimately concluded that Roxie intended
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to sign the TOD deed, Maureen's signature was a mechanical act, and the presumption of
invalidity of the TOD deed was overcome. Harvey timely appeals.
I. The district court did not err in admitting evidence that Roxie instructed Maureen to
sign the TOD deed
We first address Harvey's contention that the district court erred by admitting parol
evidence and hearsay that Roxie told Maureen to sign the TOD deed for her.
A. Parol Evidence
Harvey contends that the district court erred by "permit[ing] parol evidence to
establish that Maureen signed the transfer-on-death deed not as attorney-in-fact but as the
amanuensis of Roxie." Harvey apparently contends that Maureen's signing Roxie A.
Moore's name as grantor "by Maureen Miles, Power of Atty." is part of the deed and is
contradicted by oral testimony that she signed not as power of attorney, but in another
capacity—as an amanuensis.
The amanuensis rule provides that "[a] signature to an instrument may be attached
by . . . the hand of another, at the request of a party . . . ." Kadota Fig Ass'n. v. Case-
Swayne Co., 73 Cal. App. 2d 815, 819, 167 P.2d 523 (1946). "The Oxford English
Dictionary (2d ed. 1989) defines 'amanuensis' as 'one who copies or writes from the
dictation of another.'" Estate of Stephens, 28 Cal. 4th 665, 671 n.1, 122 Cal. Rptr. 2d 358,
49 P.3d 1093 (2002). Whether the district court erred in admitting this evidence raises a
question of law which we review de novo. State v. Bowen, 299 Kan. 339, 348-49, 323
P.3d 853 (2014).
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Generally, the parol evidence rule provides that oral testimony of a prior
agreement cannot be used to vary the terms of a written instrument. See State v. Hood,
255 Kan. 228, 236, 873 P.2d 1355 (1994).
"'When a contract is complete, unambiguous and free of uncertainty, parol
evidence of a prior or contemporaneous agreement or understanding, tending to vary or
substitute a new and different contract for the one evidenced by the writing is
inadmissible.'" Branstetter v. Cox, 209 Kan. 332, 334, 496 P.2d 1345 (1972) (quoting
Thurman v. Trim, 206 Kan. 118, Syl. 2, 477 P.2d 579 [1970]).
This rule is not a rule of evidence but of substantive law whose applicability is for the
court to determine. Phipps v. Union Stock Yards Nat'l Bank, 140 Kan. 193, 197, 34 P.2d
561 (1934). Thus no contemporaneous objection is required.
The parol evidence rule applies when parties to a contract dispute the terms of the
written agreement. See Waste Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan.
943, Syl. ¶ 3, 298 P.3d 250 (2013) (when a court finds the written contract language is
ambiguous, parol evidence may be introduced to ascertain the intent of the parties). But
Harvey was not a party to the TOD deed, and he has not shown that the parol evidence
rule operates to protect him, a stranger to the transaction. Nor does he dispute the terms
of the TOD deed itself or claim that mutual mistake prevented the formation of that deed.
To the extent Harvey contends that the DPOA itself precludes parol evidence of
subsequent oral authority, he errs, as the parol evidence rule precludes only a "'prior or
contemporaneous oral agreement.'" See Branstetter, 209 Kan. at 334.
"[T]he parol evidence rule prevents a party to a written contract from attempting to vary
its terms by relying on oral representations, be they characterized as negotiations or
promises, made in discussions leading up to the agreement. [Citation omitted.] A written
8
contract, in most instances, subsumes earlier oral discussions or agreements." Bouton v.
Byers, 50 Kan. App. 2d 34, 46, 321 P.3d 780 (2014), rev. denied 301 Kan. 1045 (2015).
Evidence that Maureen signed the TOD deed as an amanuensis is not evidence of an
agreement prior to or contemporaneous with the drafting of the TOD deed.
Further, "there is a wide distinction between an attempt to contradict the terms of a
written instrument and to explain the circumstances and conditions under which it was
executed and delivered." In re Estate of Goff, 191 Kan. 17, 29, 379 P.2d 225 (1963).
"[T]he parol evidence rule is not violated when the evidence tends to show the relation of
the parties and the circumstances under which the contract was executed." Miles
Excavating, Inc. v. Rutledge Backhoe & Septic Tank Services, Inc., 23 Kan. App. 2d 82,
84, 927 P.2d 517 (1996) (citing In re Estate of Goff, 191 Kan. at 29.
Such is the case here. Maureen's signature as "DPOA" reflects her subjective
belief that she was authorized to sign the deed pursuant to her DPOA. Yet even assuming
that the Kansas Power of Attorney Act would not have authorized Maureen's signature on
this TOD deed, we find nothing in that Act, in the TOD deed itself, or in the parties' prior
agreements to contradict or preclude Maureen's signing as an amanuensis. In short,
Harvey fails to show that the challenged evidence is inadmissible parol evidence.
B. Hearsay
Harvey also mentions hearsay in his brief, but we are uncertain whether he intends
to raise this argument on appeal. Harvey contends that he "asserted that the statements of
Roxie sought to be admitted by Maureen were hearsay pursuant to K.S.A. 60-460." Those
statements were apparently that Roxie was in a lot of pain and therefore asked Maureen
to sign the TOD deed for her. To the extent Harvey intends to raise hearsay as a separate
issue on appeal, we find no error for three reasons, which follow.
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First, Harvey has not shown that he properly preserved this issue at trial, as is
necessary. The record shows that Harvey raised a hearsay objection to this evidence
during the initial summary judgment motion related to the DPOA, and the district court
found a hearsay exception applied. But Harvey did not make a contemporaneous
objection to this evidence at the subsequent trial on the issue of amanuensis, as is
necessary. See State v. Kelly, 295 Kan. 587, 590, 285 P.3d 1026 (2012) (explaining the
contemporaneous objection rule and finding that a pretrial ruling is not sufficient because
the materiality of the proposed evidence may not become apparent until other evidence
has been admitted); State v. Bogguess, 293 Kan. 743, Syl. ¶ 1, 268 P.3d 481 (2012)
(finding the exception to the contemporaneous objection rule is explicitly limited to a
bench trial on stipulated facts). By not renewing his hearsay objection at trial, Harvey
waived it.
Second, to the extent Harvey argues on appeal that this evidence was inadmissible
hearsay, this argument is raised only incidentally in his brief and is neither argued nor
supported with pertinent authority. See Friedman v. Kansas State Bd. of Healing Arts,
296 Kan. 636, 645, 294 P.3d 287 (2013).
Third, even if we had addressed the hearsay issue on its merits, Harvey would not
have succeeded. Hearsay is an out-of-court statement offered to prove the truth of the
matter asserted. K.S.A. 2016 Supp. 60-460. The trial court admitted the challenged
testimony (that Roxie told Maureen she was in a lot of pain and asked Maureen to sign
the TOD deed for her) under the following exception to the hearsay rule: "a statement of
the declarant's [] then existing state of mind, emotion or physical sensation, including
statements of . . . bodily health . . . when such a . . . physical condition is in issue or is
relevant to prove or explain acts or conduct of the declarant." K.S.A. 2016 Supp. 60-
460(l). The court cited Laterra v. Treaster, 17 Kan. App. 2d 714, 720-21, 844 P.2d 724(1992), which affirmed the admission of decedent's statements regarding his intent and
plans for his son's future as expressions of his then-existing state of mind. Harvey's sole
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challenge to the district court's ruling is to state that Laterra is "not on point as there was
no writing by which the statements of Laterra were being sought to interpret." Harvey's
argument appears to relate more to parol evidence than to hearsay and fails to show error
in the district court's analysis.
We believe Roxie's direction for Maureen to sign the deed for her is not hearsay,
but is instead a verbal act.
"'A second kind of situation in which utterances are not offered testimonially
arises when the utterance accompanies conduct to which it is desired to attach some legal
effect. The conduct or act has intrinsically no definite significance, or only an ambiguous
one, and its whole legal purport or tenor is to be more precisely ascertained by
considering the words accompanying it. The utterance thus enters merely as a verbal part
of the act, or, in the common phrase, a "verbal act."'" Campbell v. Brown, 81 Kan. 480,
483-84, 106 P. 37 (1910).
An out-of-court statement is hearsay only if it is offered for its truth. "An order or
instruction is, by its nature, neither true nor false and thus cannot be offered for its truth."
United States v. Shepherd, 739 F.2d 510, 514 (10th Cir. 1984). As such, Roxie's
statements are part of the res gestae of the act of signing and are not treated as hearsay.
See Campbell v. Brown, 81 Kan. at 484.
But whether Roxie's statements were verbal acts that are nonhearsay in nature, or
whether they instead fall within an exception to the hearsay rule, as the district court
found, the result is the same: the evidence was not excludable as hearsay. No other
objection to admission of this evidence was raised. Accordingly, the fact was established,
and was not disputed, that on May 10, 2004, Roxie A. Moore instructed Maureen E.
Miles to sign the TOD deed for her, and Maureen did so.
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II. The amanuensis rule is valid and applicable
We next examine whether the district court properly found the amanuensis rule
valid in Kansas and applicable here.
"The 'amanuensis rule' provides that where the signing of a grantor's name to a deed is
done with the grantor's express authority, the person signing the grantor's name is not
deemed an agent but is instead regarded as a mere instrument or amanuensis of the
grantor, and that signature is deemed to be that of the grantor. The amanuensis rule may
apply when an agent, acting with merely mechanical and no discretionary authority, signs
the principal's name outside the principal's presence." 2A C.J.S., Agency § 257.
A. Kansas cases recognize the use of an amanuensis
Time-honored Kansas cases mention the use of an "amanuensis" without
questioning the validity of one's signature for another, tacitly recognizing the amanuensis
rule stated above. See State v. Uhls, 121 Kan. 587, 249 P. 597 (1926) (crediting the
testimony of the defendant's amanuensis); Filley v. Insurance Co., 93 Kan. 193, 205, 144
P. 257 (1914) ("In Goldsmith v. Union Mutual Life Ins. Co., 18 Abb. N. C. 325, 2 N. Y.
St. Rep. 610, 41 Hun, 641, . . . it was held that the agent who acted as scrivener or
amanuensis for the insured did not word the policy so as to express the intention of the
latter that his wife should have the insurance of his wife at his death.); Insurance Co. v.
Bank, 60 Kan. 630, 637, 57 P. 524 (1899) ("The agent, however, acted as an amanuensis
for Rammelsberg in writing down answers to the questions in the [insurance] application,
and the latter had the right to presume that his statements would be set down as they were
made, and was not negligent in failing to read them over."); Treadway v. Ryan and
others, 3 Kan. 437, 444 (1866) (noting calculations made by and testimony given by an
amanuensis).
12
Other Kansas cases essentially apply the amanuensis rule, without addressing it by
that title. For example, in Stanhope v. Rural High-school District, 110 Kan. 739, 205 P.
648 (1922), a taxpayer brought an action to enjoin the district board of a rural high school
from issuing bonds, claiming that some of the notices had not been personally signed by
the members of the school board because one person had signed the names for others
who had sanctioned the signatures. Our Supreme Court held: "It is familiar law that
where a person's name is signed for him at his direction and in his presence by another,
the signature becomes his own, and has precisely the same validity as if he had written it
himself." 110 Kan. at 742. This is the amanuensis rule that Harvey claims has no place in
our law.
Similarly, the Kansas Supreme Court upheld a will although the name of one of
the subscribing witnesses had been written by another person. Schnee v. Schnee, 61 Kan.
643, 60 P. 738 (1900). There, a witness was unable to write so asked another person to
sign his name. In upholding the validity of the will, our Supreme Court noted we should
not give undue importance to the physical act of signing:
"Some of the courts have given what we deem to be undue importance to the
physical participation in the act of signing, and have ruled that witnesses must do some
manual act towards making the signature. The more satisfactory authorities, as well as
reasons, sustain the view that the name of an attesting witness who is unable to write may
be written by another at his request, in his presence and in the presence of the testator. As
stated in Lord v. Lord, 58 N. H. 7, 'to require a person, whose name is to be written in a
testamentary transaction, to hold or to touch the pen, or to do anything which the law
does not require him to do in other cases of attestation, seems to establish a distinction
without a difference.' [Citations omitted.]" 61 Kan. at 648-49.
The cases noted above demonstrate that Kansas has long recognized the
amanuensis rule. As summarized in Pierce v. Dekle, 61 Fla. 390, 391-92, 54 So. 389(1911):
13
"The rule is well settled both in England and in the United States that an act done by a
person in the presence of another, and by his direction or with his consent, as the signing
or execution of a sealed or written instrument, for example, is not regarded as the act of
an agent, but is the direct act of the person by whose direction it is done."
Accordingly, we find no error in the district court's ruling that our law recognizes
the legal doctrine of amanuensis.
B. Application of the amanuensis rule does not violate Kansas public policy
Harvey next contends that the amanuensis rule violates Kansas public policy
because it opens the door for people to come forward alleging oral directives made by
decedents. He alleges this theory could be used both as a shield and as a sword to alter
deeds of conveyance, wills, trusts, and beneficiary designations.
Harvey fails to show that recognizing the validity of a signature by an interested
amanuensis would injure public interest or contravene some established interest of
society.
"'Public policy forbids enforcement of an illegal or immoral contract, but it
equally insists that those contracts which are lawful and which contravene none of its
rules shall be enforced, and that they shall not be set aside or held to be invalid on a
suspicion of illegality. A contract is not void as against public policy unless injurious to
the interests of the public or contravenes some established interest of society (17 C.J.S.,
Contracts, § 211d, p. 570). Illegality from the standpoint of public policy depends upon
the facts and circumstances of a particular case (Stewart v. Fourth Nat'l Bank, 141 Kan.
175, 39 P.2d 918 [1935]), and it is the duty of courts to sustain the legality of contracts
where possible (Foltz v. Struxness, 168 Kan. 714, 215 P.2d 133 [1950]). There is no
presumption that a contract is illegal, and the burden of showing the wrong is upon him
who seeks to deny his obligation thereunder. The presumption is in favor of innocence
and the taint of wrong is a matter of defense (Mosher v. Kansas Coop. Wheat Mkt. Ass'n,
136 Kan. 269, 15 P.2d 421 [1932]; Okerberg v. Crable, 185 Kan. 211, 341 P.2d 96614
[1959]).'" Frazier v. Goudschaal, 296 Kan. 730, 749, 295 P.3d 542 (2013) (quoting In re
Estate of Shirk, 186 Kan. 311, 326, 350 P.2d 1 [1960]).
While signatures by other hands have not been addressed often in our caselaw,
they are nonetheless addressed, as noted above. This theory has been recognized in
Kansas law since 1866 without reporting the problems Harvey envisions. And if such
problems emerge in the future, the legislature is free to address them by amending the
relevant statutes by, for example, requiring some of the same procedural safeguards for
TOD deeds that are required for wills.
We recognize the potential for abuse by an interested amanuensis. But power,
motive, and opportunity to exercise undue influence do not alone authorize the inference
that such influence was in fact exercised. In re Estate of Crawford, 176 Kan. 537, 542,
271 P.2d 240 (1954). We believe the potential for fraud or other self-dealing is properly
addressed not by precluding the use of an amanuensis but by shifting the burden of proof
to an interested amanuensis, as we address below.
III. The district court applied the proper standard to determine the validity of a signature
by an interested amanuensis
Maureen, the amanuensis here, is also the sole beneficiary of the TOD deed which
she signed. Because the amanuensis will directly benefit from the transfer of title, the
validity of the transfer may need to be examined under a heightened level of judicial
scrutiny. No Kansas decision has addressed the issue of an interested amanuensis.
The district court adopted the analysis provided in Estate of Stephens, 28 Cal. 4th
665, 122 Cal. Rptr. 2d 358, 49 P.3d 1093 (2002). In that case, Austin Stephens had
executed a DPOA naming his daughter attorney-in-fact. The DPOA contained general
language that his daughter had the power to sell, convey, and transfer Stephens' real
15
property, but it did not expressly authorize her to make a gift of his property in trust or
otherwise. Two years later, Stephens orally instructed his daughter to sign his name on a
deed that vested title to his residence in himself and his daughter, as joint tenants. When
Stephens died, his son challenged the validity of the joint tenancy deed, seeking to have
the property transferred to the estate.
Stephens held that because of the potential for fraud or self-dealing, the signing of
a grantor's name by an interested amanuensis must be presumed invalid. Estate of
Stephens, 28 Cal. 4th at 677-78.
"The amanuensis rule is an exception to Civil Code sections 2309 and 2310 and
also operates as an exception to Probate Code section 4264, subdivision (c), which
prohibits attorneys-in-fact from making gifts of property to themselves. Because
unscrupulous parties could attempt to use the amanuensis rule to sidestep the protections
contained in these code sections, we hold that the signing of a grantor's name by an
interested amanuensis must be presumed invalid. In such a case, the interested
amanuensis bears the burden to show that his or her signing of the grantor's name was a
mechanical act in that the grantor intended to sign the document using the instrumentality
of the amanuensis." Estate of Stephens, 28 Cal. 4th at 677-78.
Stephens then found the presumption of invalidity successfully rebutted by
"overwhelming evidence" that the daughter had acted as a mere amanuensis, signing the
deed at Austin's direct request, albeit not in his immediate presence. Because her
signature was a mere mechanical act and not an exercise of judgment or discretion,
Austin's oral instruction to Shirley was sufficient and the deed was valid as having been
executed by him. Estate of Stephens, 28 Cal. 4th at 678.
Similarly, the district court in our case held that because Maureen was an
interested amanuensis, her signing of Roxie's name was presumed to be invalid. Maureen
thus bore the burden to show by a preponderance of the evidence that her signing the
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TOD deed was merely a mechanical act. We believe that the district court's adoption of
the Stephens standard and its resulting burden of proof was correct. Thus the amanuensis
rule did not automatically render the TOD deed valid. Instead, the court had to examine
the circumstances surrounding the execution of the TOD deed to determine whether the
transaction was in fact free from fraud and undue influence.
The district court did so here, detailing at length how Maureen had met that
burden. Six persons other than Roxie were present at the time Maureen signed the TOD
deed, but one had died before the litigation began and one, the notary, had no memory of
the event. As to the remaining four, the district court concluded:
"The Court heard the testimony of these four witnesses and found them to be
educated, well-spoken, credible and lacking any hint of greed. The particulars of what
occurred the date of the signing are set forth in the findings of fact. It is the Court's
finding that the Respondents proved by a preponderance of the evidence that Roxie
intended to sign the TOD deed and Maureen's doing so was a mechanical act. Therefore,
the presumption of invalidity of the TOD deed was overcome."
Harvey does not challenge this finding or argue that the court should have required
Maureen to prove by clear and convincing evidence that Roxie intended to sign the TOD
deed and that Maureen's doing so was a mechanical act. Accordingly, we find no error in
the district court's determination that Maureen signed the TOD deed as an amanuensis.
In reaching that result, the district court examined two relevant factors: Roxie's
mental capacity and undue influence. It found that Harvey had the burden to prove by
clear, satisfactory, and convincing evidence that Roxie lacked the necessary mental
capacity to execute the TOD deed; that conflicting evidence had been presented on that
topic; that Roxie had to have only the mental capacity to understand in a reasonable
manner that she was giving her real estate to Maureen upon her death; and that Harvey
17
failed to prove by clear, satisfactory, and convincing evidence that Roxie lacked that
mental capacity.
Regarding undue influence, the district court found that because of arguably
"suspicious circumstances," Maureen had the burden to prove the absence of undue
influence; and that although Maureen was in a confidential and fiduciary relationship
with Roxie, the evidence met that burden. We address Harvey's challenges to the mental
capacity and undue influence findings below.
IV. The district court properly found the presumption of undue influence was overcome
Harvey claims the district court applied the incorrect burden of proof in analyzing
the issue of undue influence. He contends it was error to require him to prove undue
influence by clear and convincing evidence while permitting respondents to rebut the
presumption of undue influence by a mere preponderance of the evidence.
We first set forth our standard of review. By statute, "'[b]urden of proof' means the
obligation of a party to meet the requirements of a rule of law that the fact be proven
either by a preponderance of the evidence or by clear and convincing evidence or beyond
a reasonable doubt, as the case may be. Burden of proof is synonymous with 'burden of
persuasion.'" K.S.A. 60-401(d). The assignment of the burden of proof involves a
question of law subject to this court's unlimited review. In re G.M.A., 30 Kan. App. 2d
587, 593, 43 P.3d 881 (2002).
A. The district court applied the correct burden of proof
To determine whether undue influence was exerted over Roxie, the district court
applied a two-prong test set forth in In re Estate of Bennett, 19 Kan. App. 2d 154, 865
P.2d 1062 (1993). The district court held:
18
"Under the first prong of the Bennett test, it must be shown that the person who is alleged
to have exerted the undue influence was in a confidential and fiduciary relationship with
the decedent. Under the second prong, it must be shown that there were 'suspicious
circumstances' which surrounded the making of the will. If a will contestant can show
that there are suspicious circumstances by clear, satisfactory, and convincing evidence, a
presumption that the undue influence was exerted on the testator will arise. The burden of
proof will shift to the will proponent if a will contestant can prove that there were
suspicious circumstances surrounding the making of the will."
"Legitimate influence is not improper; that is, influence obtained by kindness and
affection will not be regarded as undue." In re Estate of Ziegelmeier, 224 Kan. 617, 622,
585 P.2d 974 (1978). The district court found that Maureen was in a confidential and
fiduciary relationship with Roxie. The district court then found, by clear and convincing
evidence, that suspicious circumstances surrounded the signing of the TOD deed,
creating a presumption of undue influence and shifting to the respondents the burden to
prove the absence of undue influence.
In Cresto v. Cresto, 302 Kan. 820, 832-34, 358 P.3d 831 (2015), our Supreme
Court established the analysis in an undue influence claim, holding:
"This court has defined undue influence as '"such coercion, compulsion or constraint that
the testator's free agency is destroyed, and by overcoming his power of resistance, the
testator is obliged to adopt the will of another rather than exercise his own."' [Citations
omitted.] In other words, the testator becomes 'the tutored instrument of a dominating
mind, which dictates to him what he shall do, compels him to adopt its will instead of
exercising his own, and by overcoming his power of resistance impels him to do what he
would not have done had he been free from its control.' [Citation omitted.]
....
"Therefore, a person contesting a testamentary document without direct evidence
that it was the product of undue influence can nevertheless establish a presumption of
19
undue influence by showing that (1) 'the person who is alleged to have exerted undue
influence was in a confidential and fiduciary relationship with the [person executing the
testamentary document]'; and (2) 'there were "suspicious circumstances" surrounding the
making of the [testamentary document].' [Citation omitted.]
"As noted above, after the proponent has proffered a prima facie case for validity,
the burden has shifted to the contestant to show the requisite relationship and suspicious
circumstances to create the presumption of undue influence. But then, upon the
successful creation of the presumption of undue influence, the burden shifts back to the
proponent of the testamentary document to rebut the presumption. [Citations omitted.]"
The standard of proof generally needed to rebut a presumption is a preponderance
of the evidence, as the American Jurisprudence states:
"With regard to a typical presumption, therefore, to avoid a directed verdict as to the
presumed fact, the party adversely affected by the presumption must offer sufficient
evidence to permit a rational factfinder to find the nonexistence of the presumed fact by a
preponderance of the evidence." 29 Am. Jur. 2d, Evidence § 216.
Harvey cites no authority for his proposition that the respondents should have borne a
higher burden of proof. Absent some indication the Supreme Court is departing from its
position so recently stated, we are duty bound to follow Cresto. See Farley v. Above Par
Transportation, 50 Kan. App. 2d 866, 877, 334 P.3d 883 (2014), rev. denied 302 Kan.
1009 (2015). Accordingly, we find the district court properly applied the correct order
and quality of proof as established in Cresto. See Belt v. Poon, No. 113,153, 2016 WL
3365769, at *4 (Kan. App. 2016) (unpublished opinion) (rejecting claim that once
suspicious circumstances were shown, the burden was on the other party to disprove
undue influence by clear and convincing evidence).
20
B. Any error is harmless
But even had Harvey shown error in not requiring respondents to rebut the
presumption of undue influence by clear and convincing evidence, Harvey gives us no
reason to believe that respondents may not have met that higher burden. The district court
noted the following factors in finding respondents had shown the absence of undue
influence:
 No evidence showed any previous legal document had made a different
disposition of the homeplace (the only land transferred in the TOD deed);
 No evidence showed Roxie had ever expressed a desire for the homeplace to go to
anyone other than her grandsons (the persons who ultimately received the land
transferred in the TOD deed);
 No evidence showed Maureen's actions were motivated by greed;
 Evidence showed "a myriad of reasons why Roxie would choose to disinherit
Harvey";
 Evidence showed Roxie was a strong-willed woman who was not easily
influenced.
Harvey does not raise any challenge to any of these findings of fact, nor does he contend
the district court overlooked contrary evidence.
The record shows that if the respondents had borne the higher burden of
disproving undue influence by clear and convincing evidence, the district court would
have been justified in finding they had met that burden and in concluding that any
influence exerted over Roxie did not amount to such coercion, compulsion, or restraint as
to destroy her free agency, to overcome her power of resistance, or to cause her to adopt
Maureen's will rather than exercise her own. Compare In re Estate of Domio, No.
B225870, 2011 WL 6062017, at *7 (Cal. App. 2011) (unpublished opinion) (finding
substantial evidence that an interested amanuensis exerted undue influence where he kept
his siblings away from the grantor by physical intimidation, called the police to have
them removed from the property if they questioned his actions, changed the lock so that
21
they could not get into the grantor's house, made decisions contrary to the grantor's
wishes, and refused to show the grantor the deed to her house). Thus any error relating to
the burden of proof on this issue was harmless.
V. The district court correctly determined that Roxie had the necessary mental capacity
to execute a TOD deed
Harvey next argues the district court erred by applying an improper test of mental
capacity and by placing on Harvey the burden to prove by clear and convincing evidence
that Roxie lacked capacity to execute a deed.
As previously stated, this court applies a de novo standard of review to questions
pertaining to the assignment of the burden of proof. In re G.M.A., 30 Kan. App. 2d at
593. Although Harvey frames this as a burden of proof issue, Harvey ultimately
complains that the district court erred in finding Roxie had the requisite mental capacity
to execute a deed.
A. The district court applied the proper legal test of mental capacity
Harvey argues that the district court erred in accepting proof of testamentary
capacity, rather than the higher standard of contractual capacity. Harvey contends that a
TOD deed "shall not be considered a testamentary disposition," K.S.A. 59-3507;
therefore, testamentary capacity is insufficient and contractual capacity is necessary.
Harvey asserts that his evidence showed Roxie was unable to transact any type of
business, so she lacked capacity to contract or deed.
The district court found that Roxie did not need to have the mental capacity to
enter into a complex contract:
22
"As to the mental capacity to contract as previously discussed, Roxie only had to
have the mental capacity to understand, in a reasonable manner, that she was giving her
real estate to Maureen upon her death. She didn't have to have the capacity to enter into a
complex contract or to engage in an intricate business transaction or have absolute
soundness of mind."
We find no error in the district court's application of the same legal standard that
applies in determining whether a testator is competent.
"The rule is well established in this state that one who is able to understand what
property he has, and how he wants it to go at his death, is competent to make a will even
though he may be feeble in mind and decrepit in body. The value of property consists
largely in the right to dispose of it as the owner desires, and this power of disposal, either
by deed or by will, is not to be interfered with so long as the mental capacity indicated
remains. The rule is found clearly set forth in numerous decisions of ours." Cole v. Drum,
109 Kan. 148, 159, 197 P. 1105 (1921).
See Curry v. Stewart, 189 Kan. 153, 157, 368 P.2d 297 (1962) (same). Cf. Funk v. Fish,
122 Kan. 294, 299, 252 P. 256 (1927) (finding that the grantor lacked capacity to transact
ordinary business, and that "further evidence" permitted the conclusion that she was not
capable of making an effective deed); In re Estate of. Crawford, 176 Kan. at 541 (finding
"'[t]he test of mental capacity to contract or to convey property is whether the person
possesses sufficient mind to understand, in a reasonable manner, the nature and effect of
the act in which he is engaged'"; applying that test to grantor's execution of a deed).
"The test of a testamentary capacity is not whether a person has capacity to enter
into a complex contract or to engage in intricate business transactions nor is absolute
soundness of mind the real test of such capacity. The established rule is that one who is
able to understand what property he has, how he wants it to go at his death and who are
the natural objects of his bounty is competent to make a will even though he may be
feeble in mind and decrepit in body." In re Estate of Perkins, 210 Kan. 619, 626, 504
P.2d 564 (1972).
23
See In re Estate of Raney, 247 Kan. 359, 367, 799 P.2d 986 (1990); In re Estate of
Ziegelmeier, 224 Kan. at 621.
B. The district court applied the proper burden of proof
The district court required Harvey to prove by clear, satisfactory, and convincing
evidence that Roxie lacked the mental capacity to execute the TOD deed. That
requirement is the same as that applied to persons opposing a will.
"[O]pponents to the will must prove lack of testamentary capacity by clear, satisfactory,
and convincing evidence. Where a trial court's finding as to a testator's mental capacity is
challenged on appeal, the appellate court is only concerned with whether there is
substantial competent evidence to support the trial court's finding and does not compare
or weigh the testimony. [Citation omitted.]" In re Estate of Farr, 274 Kan. 51, 64, 49
P.3d 415 (2002).
Harvey contends it makes sense to require this higher degree of proof when challenging
the capacity of a testator because a will is executed pursuant to the strict provisions and
procedural protections of K.S.A. 59-606; but that higher degree of proof makes no sense
for a TOD deed, which lacks those procedural protections.
In support, Harvey cites solely Fish v. Poorman, 85 Kan. 237, 244-45 116 P. 898(1911), which held that the burden to establish mental incapacity of a donor of a deed
was preponderance of the evidence. But that case did not apply a different degree of
proof when examining the mental capacity of a testator of a will than when examining the
mental capacity of a grantor of a deed. More recent Kansas cases appear to require the
same proof of mental capacity for testators and for grantors. See, e.g., Union National
Bank of Wichita v. Mayberry, 216 Kan. 757, 762, 533 P.2d 1303 (1975) (citing 44 Am.
Jur. 2d, Insurance § 1778, p. 692, finding "the mental capacity necessary for a valid
24
change of beneficiary by an insured is the same as that necessary to execute a valid will,
deed or contract").
Our caselaw applies the legal presumption that every adult is fully competent to
enter into a contract until satisfactory proof to the contrary is presented. See In re Estate
of Hendrickson, 248 Kan. 72, 77, 805 P.2d 20 (1991). And our caselaw specifies that the
quality of evidence needed to overcome the presumption of capacity for testators is clear
and convincing evidence. We find no reason why we should apply a different standard in
examining an intestate's mental capacity, so we apply that rule here in reviewing Roxie's
capacity to execute the TOD deed.
C. Sufficient evidence shows Roxie was mentally competent
Substantial evidence is evidence which possesses both relevance and substance
and which provides a substantial basis of fact from which the issues can be reasonably
resolved. Wiles v. American Family Assurance Co., 302 Kan. 66, 73, 350 P.3d 1071(2015). The critical time in determining capacity is when the deed is made and executed.
All other evidence concerning the grantor's mental capacity before or after the time of
execution is only an aid in deciding the issue. In re Estate of Barnes, 218 Kan. 275, 281,
543 P.2d 1004 (1975). The mere fact that a person suffers from senile dementia does not
mean that person lacks testamentary capacity. In re Estate of Brown, 230 Kan. 726, 730,
640 P.2d 1250 (1982). A person may be competent to make a will even though he or she
is feeble in mind and decrepit in body. In re Estate of Perkins, 210 Kan. at 626.
The district court stated its reliance on the following evidence of Roxie's mental
capacity:
 Harvey testified that after Roxie's stroke in 1991, she lacked the mental capacity to
understand basic business transactions, such as signing a check; however, Harvey
25
"never or rarely ever" went to see Roxie after August of 2003, which was 9
months before the TOD deed was executed.
 Dr. Anand Kaul, who saw Roxie in the hospital after she fell, noted that Roxie was
confused, had dementia, and was not oriented to time, place, and month. But after
a fall, Roxie would be in pain and on pain medication, which would add to her
inability to communicate.
 Dr. Kaul opined that Roxie suffered from stage 2 or 3 dementia in 2004, with
stage 3 being the highest, but he did not diagnose her as having Alzheimers until
10 months after the TOD deed was executed.
 Maureen testified that Roxie did not like Dr. Kaul and would shut down when
seeing him.
 Ten witnesses testified about Roxie's ability to communicate and understand both
before and after the execution of the TOD deed. The district court discounted three
of them because they were parties in this proceeding but found the seven
remaining witnesses "had no stake in the proceedings and all seven appeared
educated, well spoken, and credible in what they testified to."
The record shows substantial competent evidence supporting the district court's
finding that at the time Roxie signed the deed by Maureen's hand, Roxie was competent
to understand the nature of the transaction. The facts establish that Roxie knew the
homeplace belonged to her, that she ultimately wanted Bart and Ryan, and not Harvey, to
have that property, that she asked Maureen to have an attorney draft a TOD deed to
Maureen so she could hold the property until the grandsons were secure enough
financially to hold it themselves, and that the attorney did so. We decline Harvey's
invitation to reweigh the evidence, to reassess the credibility of the witnesses, or to
disturb the district court's negative finding, as that is not the role of this court. See In re
Farr, 274 Kan. at 68; Mohr v. State Bank of Stanley, 244 Kan. 555, 567-68, 770 P.2d 466(1989).
The facts establishing what occurred when Roxie directed Maureen to sign the
TOD deed are uncontested. Maureen's signature on the TOD deed was merely a
mechanical act. Maureen did not exercise any judgment, nor did she have any discretion
to do so. Instead, Roxie directed Maureen to sign the TOD deed for her, and she did so in
the presence of five other witnesses. Because Roxie had the mental capacity to deed her
26
property and no undue influence was ultimately shown, the district court properly found
Maureen's signature as an interested amanuensis was valid.
VI. Maureen's signature on the TOD deed complied with the Kansas transfer-on-death
statutes
We next address Harvey's argument that Maureen's signature on the TOD deed
failed to comply with the Kansas transfer-on-death statutes. Harvey contends that a TOD
deed has three requirements: signature by the record owner; acknowledgement of the
record owner's signature; and recording the deed, prior to the grantor's death, in the
county in which the real estate is located. We agree a valid TOD deed requires at least
these three elements. See K.S.A. 59-3501; K.S.A. 59-3502. Harvey concedes the
requirement of recording of the deed is met. We examine below his claims that the TOD
deed was invalid because it was not signed by the record owner, Roxie, and because
Roxie's signature was not acknowledged.
These issues involve matters of statutory interpretation, which are questions of law
subject to de novo review. The most fundamental rule of statutory construction is that the
intent of the legislature governs if that intent can be ascertained. An appellate court must
first attempt to ascertain legislative intent through the statutory language enacted, giving
common words their ordinary meanings. Ullery v. Othick, 304 Kan. 405, 409, 372 P.3d
1135 (2016).
A. Signature was acknowledged
We first address the "acknowledgment" requirement. Harvey contends solely that
Maureen could not sign the deed "with proper authority," as is required for a proper
acknowledgement as that term is defined in the Uniform Law on Notarial Acts, K.J.A.
53-501 et seq. Harvey relies on the following definition: "[I]f the instrument is executed
27
in a representative capacity, that the person signed the instrument with proper authority
and executed it as the act of the person or entity represented and identified therein."
K.S.A. 53-502(b).
But since Maureen signed the TOD deed as an amanuensis, she did not sign it "in
a representative capacity," but as Roxie herself. Thus the above definition is inapplicable.
Harvey raises no other challenge to the acknowledgement, and it is undisputed that the
deed was properly notarized by a notary public who was present at the time Roxie
instructed Maureen to sign the deed for her. See K.S.A. 53-509 (providing that an
acknowledgment in an individual capacity may simply provide as follows: "'This
instrument was acknowledged before me . . . '").
B. Deed was signed by the record owner
Harvey next contends that only Roxie, as the record owner, could sign a TOD
deed.
The relevant statute confirms that a TOD deed must be signed by the record owner
of the interest in real estate.
"An interest in real estate may be titled in transfer-on-death, TOD, form by
recording a deed signed by the record owner of such interest, designating a grantee
beneficiary or beneficiaries of the interest. Such deed shall transfer ownership of such
interest upon the death of the owner. A transfer-on-death deed need not be supported by
consideration." K.S.A. 59-3501(a).
Harvey contrasts this statute to K.S.A. 58-2205, which provides: "Conveyances of
land, or of any other estate or interest therein, may be made by deed, executed by any
person having authority to convey the same, or by that person's agent or attorney, and
may be acknowledged and recorded as herein directed, without any other act or ceremony
28
whatever." (Emphasis added.) Read together, the statutes provide that although most
deeds may be executed by a person's agent, a TOD deed cannot—it must be signed by the
record owner of such interest.
But because the amanuensis rule applies, the record owner signature requirement
is met. As an amanuensis, Maureen did not sign as Roxie's agent but as a mere scrivener
for Roxie, so the signature is considered Roxie's own. Accordingly, we find no merit to
the contention the TOD deed failed to comply with statutory requirements for such deeds.
VII. We do not reach the remaining issues briefed on appeal
We find it unnecessary and improper for us to reach two issues which the parties
briefed on appeal: whether Maureen's signature was invalid for failing to comply with
the Kansas Power of Attorney Act, and whether the TOD deed created a trust. Deciding
these issues would result in advisory opinions. See State v. Hilton, 295 Kan. 845, 849,
286 P.3d 871 (2012) (as a general rule, Kansas appellate courts do not decide moot
questions or render advisory opinions).
Harvey's contention that Maureen's signature was invalid because it failed to
comply with requirements of the Kansas Power of Attorney Act in K.S.A. 2015 Supp. 58-
654(f) is not properly before this court. Harvey prevailed on that issue below, and no one
appealed that ruling. Moreover, whether Maureen's signature was beyond her power as an
attorney-in-fact is immaterial, given our holding that her signature was valid as an
amanuensis.
Harvey does not show that the two theories are mutually exclusive—that since
Maureen had the DPOA, she could sign the TOD deed only in that capacity as an agent
and not as an amanuensis. Nor does Harvey show that the two theories are correlative
such that if Maureen had the power to sign a document as DPOA she necessarily lacked
29
the power to sign the TOD deed as an amanuensis. Accordingly, we need not decide
whether the district court correctly ruled that Maureen lacked express authorization under
the DPOA to sign the TOD deed as Roxie's attorney-in-fact.
Similarly, we find it unnecessary and improper for us to reach Harvey's argument
that the TOD deed did not meet the statutory requirements for creating a trust. Whether a
trust was created by the TOD deed has no effect on the controlling issue appealed in this
case—the application of the theory of amanuensis. Therefore, we do not determine
whether the requirements of K.S.A. 58a-402 were met or whether a resulting trust was
created.
Affirmed.
***
ATCHESON, J., concurring: I join in Judge Gardner's able opinion in all respects
except one—the burden of proof an interested amanuensis must satisfy to validate a deed
he or she has purportedly signed at the behest of the property owner. I believe those
circumstances demand the interested amanuensis prove he or she acted as the robotic
instrument of the owner by clear and convincing evidence. A lesser standard invites fraud
and would too easily co-opt the judicial process in endorsing facially suspect transfers of
property. Because the trial record filtered through the Cowley County District Court's
findings of fact clearly and convincingly shows Maureen Miles signed the transfer-on-
death deed as the amanuensis of Roxie A. Moore, I agree we should affirm the judgment
and, therefore, concur.
30
As the majority explains, an amanuensis is someone who signs a document for
another person at the specific direction of that person. In that capacity, the amanuensis
exercises no discretion or judgment and literally acts as a physical extension of that
person's own hand to mechanically affix a signature. Nobody seems particularly bothered
by the general concept, especially when the person at whose direction the amanuensis
purports to act is around to confirm the circumstances. Things get trickier if the person is
unavailable—particularly if he or she has died. But, again, the law seems content to
accept the circumstances as they appear, since the amanuensis has no obvious incentive
to have acted other than at the direction of the person who apparently wished to sign the
document.
But the picture fundamentally changes when the document transfers property to
the amanuensis and the transferor is no longer available to confirm that's what he or she
intended to do. That's the "interested amanuensis" problem we confront in this case. And
it is a situation dripping with fraudulent possibilities. Most obviously, a person could
draft a wholly false transfer-on-death deed or similar instrument naming himself or
herself as the transferee after the putative transferor has died and then claim to have
executed it as an amanuensis during the transferor's lifetime. The most reliable witness to
confirm or deny that assertion can no longer speak to the point. Confronted with that
scenario, what's a court to do?
The California Supreme Court mulled the issue over in Estate of Stephens, 28 Cal.
4th 665, 122 Cal. Rptr. 2d 358, 49 P.3d 1093 (2002). The majority concluded that a deed
signed by an interested amanuensis should be presumptively invalid. 28 Cal. 4th at 677-
78. The amanuensis may overcome the presumption by marshalling a preponderance of
the evidence showing that he or she really did act in that capacity. 28 Cal. 4th at 677-78
& n.7. A lone dissenter would have imposed a categorical rule, based on the statute of
frauds, finding such a deed void. 28 Cal. 4th at 679-80 (Kennard, J., dissenting). The
31
dissenter reasoned that the risk of fraud was too great and the price of error too high in
transfers of real property. 28 Cal. 4th at 678-81.
In the absence of any authority from the Kansas Supreme Court, the majority opts
for the California rule. As the majority intimates, there doesn't seem to be much caselaw
on interested amanuenses. The issue has never come before the Kansas appellate courts,
and I have found no reported authority outside California. I am disinclined to go the way
of the dissenter in Estate of Stephens. Absolute rules do have a certain sheen emanating
from their very absoluteness: If the rule applies, the result requires no debate and brooks
no deviation. Simple as that. But eventually some unanticipated set of facts will rear up to
demonstrate the rule to be less than entirely fair in its unforgiving rigidity. The facts in
Estate of Stephens were of that sort, as the dissenting justice acknowledged. 28 Cal. 4th at
681.
I readily agree with a rule that presumptively invalidates a transfer-on-death deed
or similar instrument signed by a self-declared interested amanuensis. On its face, the
deed suggests something fast and loose to be afoot. But there might be more to the story
than the document itself and the necessarily self-serving explanation of the interested
amanuensis. So the presumption of invalidity should be rebuttable. Requiring a
preponderance of evidence, however, seems too lax, especially when ownership of real
property or other interests in land, such as mineral rights or life estates, are at stake.
Under that standard, a factfinder would have to come down on the side of the interested
amanuensis so long as a smidgen of evidence tilted the balance against fraud. I think that
too thin a margin.
The facts of Estate of Stephens and those here do not really test a preponderance-
of-the-evidence standard. There was overwhelming corroborating evidence that Stephens
truly intended the interested amanuensis—his daughter—to have his house after he died.
Here, too, there is considerable evidence that Moore directed Miles to act as an
32
amanuensis in signing the disputed transfer-on-death deed. And Miles later transferred
the real property to her sons (who were Moore's grandsons), thereby carrying out what
appears to have been Moore's ultimate intent. These, then, are easy cases in which the
legal outcomes conform to what most everyone would say is fair—except, of course, for
the particular relatives who would have benefited had the deeds been invalid. In this case,
that would be Moore's son. But the California Supreme Court and the majority here fail
to look beyond the immediate cases to consider fully the outcomes the rule they fashion
would foster in tougher cases where little evidence tends to corroborate the interested
amanuensis. A putative amanuensis ought to have to do more than sneak past evidentiary
equipoise to dispel the fraudulent appearance of a transfer-on-death deed in which he or
she is the recipient of the real property.
Requiring an interested amanuensis to rebut the presumption of invalidity by clear
and convincing evidence creates a strong safeguard against fraud. At the same time, the
standard affords sufficient latitude for judicial recognition and enforcement of documents
amply shown to be unlikely instruments of fraud. The Kansas Supreme Court has defined
clear and convincing evidence to be that which establishes the truth of the facts asserted
to be "highly probable," imposing a materially heavier burden than a preponderance but
not as heavy as beyond a reasonable doubt. In re B.D.-Y., 286 Kan. 686, Syl. ¶¶ 2-3, 187
P.3d 594 (2008). I would require an interested amanuensis to prove to a high degree of
probability that he or she acted in that capacity in signing a deed or other document
benefitting him or her. Such proof could entail statements from witnesses present when
the document was signed, as happened here. It could include statements of the transferor
to third parties that he or she intended to transfer the property at issue to the interested
amanuensis, as was true in Estate of Stephens. Relevant, too, would be more general
circumstances establishing reasons why the transferor might choose to bestow a
substantial gift of real property on the amanuensis in preference to other persons. For
example, Stephens repeatedly expressed warm feelings for his daughter who attended to
33
him in his final years and spoke ill of his son for having abandoned him. 28 Cal. 4th at
670.
The law, of course, goes to considerable lengths to insure the integrity of transfers
of real property, in part because of the unique character of land. See Bouton v. Byers, 50
Kan. App. 2d 34, 56-57, 321 P.3d 780 (2014). That's a principal reason for the statute of
frauds. See K.S.A. 33-105; K.S.A. 33-106; Mildfelt v. Lair, 221 Kan. 557, 566-67, 561
P.2d 805 (1977). That favors a heightened standard of proof in this case, since Moore's
home and the surrounding land was at issue. But I would not limit the clear-and-
convincing standard to transactions involving real property or other estates in land. The
danger of fraud is equally present in other transfers effected through interested
amanuenses. And many of those could involve substantial financial interests—titles for
expensive or collectable motor vehicles, pay-on-death bank accounts, and instruments
that become negotiable upon the endorsement of the holder are just some examples.
Moreover, sound public policy ought to discourage the use of interested amanuenses,
since sorting the genuine from the fraudulent imposes multiple burdens on the judicial
process and rarely would circumstances truly compel the use of an interested amanuensis
rather than a disinterested one. A heightened burden of proof would, at least theoretically,
tend to discourage the practice.
Even under a preponderance standard, however, the uncorroborated testimony of
an interested amanuensis typically would not be sufficient to overcome the presumption.
Estate of Stephens, 28 Cal. 4th at 678 n.7. As with other interested witnesses, a factfinder
should take account of the benefit accruing to the amanuensis in assessing his or her
credibility. See State v. Scott, 39 Kan. App. 2d 49, 56, 177 P.3d 972 (2008) ("One of the
methods or techniques for attacking the credibility of a witness is to show partiality,
including bias, motive, and interest in the outcome."); Dalton v. Battaglia, 402 F.3d 729,
735 (7th Cir. 2005) ("[A] witness's potential self-interest in testifying about matters for
which he or she has direct knowledge goes to the weight and credibility of the
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testimony[.]"); Wilson v. McDaniel, No. 109,898, 2014 WL 3019946, at *12 (Kan. App.
2014) (unpublished opinion) (Atcheson, J., concurring in part and dissenting in part)
(credibility of interested witness should be left for factfinders where witness' account of
material events lacks substantial corroboration). A clear and convincing standard,
however, better calibrates the evidence so that only in an extraordinary case might the
uncorroborated testimony of an interested amanuensis overcome the presumption of
invalidity.
This case does not require us to determine who might be considered an interested
amanuensis. Miles plainly was, since she was the named transferee in the deed she
signed. But she likely should have been considered an interested amanuensis had the deed
named her current husband or a close relative as transferee. I offer no particular definition
of or boundary for an interested amanuensis.[*]
[*]To be clear on another point, an interested amanuensis issue has nothing to do
with the transferor's mental capacity or his or her susceptibility to undue influence. Those
are entirely independent grounds upon which a transaction might be challenged. Here, for
example, had Moore signed the transfer-on-death deed granting the property to Miles, no
one would have acted as an amanuensis. But Moore's testamentary capacity and Miles'
influence over Moore still would have presented bases for disputing the deed. By the
same token, a transfer-on-death deed signed by an interested amanuensis could be
challenged for that reason even if the transferor unquestionably had the requisite mental
capacity and was unquestionably free of any undue influence.
In closing, I briefly explain why I concur in the judgment upholding the transfer
even though I would apply a more stringent evidentiary standard than the district court
did. Ordinarily, if the district court applies a standard inappropriately favoring the
prevailing party, the matter ought to be remanded for redetermination using the proper
standard. But here, the district court rendered detailed findings of fact, including
credibility determinations, following a bench trial. Substantial competent evidence
supports those findings, so they are essentially unassailable on appeal. See K.S.A. 2016
Supp. 60-252(a)(5); Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009) ("In
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evaluating the evidence to support the district court's factual findings, an appellate court
does not weigh conflicting evidence, evaluate witnesses' credibility, or redetermine
questions of fact.").
Whether those facts constitute clear and convincing evidence Miles acted as an
amanuensis at the direction of Moore when she signed the transfer-on-death deed
functionally presents a question of law. State v. Bennett, 51 Kan. App. 2d 356, 361, 347
P.3d 229 (when material facts undisputed, issue presents question of law), rev. denied
303 Kan. 1079 (2015); Estate of Belden v. Brown County, 46 Kan. App. 2d 247, 258-59,
261 P.3d 943 (2011) (legal effect of undisputed facts question of law). An appellate court
owes no particular deference to a district court's determination of legal questions. State v.
Moore, 302 Kan. 685, 696-97, 357 P.3d 275 (2015) (appellate court reviews de novo
legal conclusions based on factual findings). Accordingly, there would be no overriding
reason to remand to the district court to weigh the settled evidence against that standard
to arrive at a new legal conclusion. See State v. Randall, 257 Kan. 482, 486, 894 P.2d 196(1995); State v. Parry, 51 Kan. App. 2d 928, 930, 358 P.3d 101 (2015), rev. granted 304
Kan. 1021 (2016); State v. Jones, 24 Kan. App. 2d 669, 675-76, 951 P.2d 1302 (1998).
Because the facts, as the district court found them, rebut the presumption of invalidity of
the deed under the heightened standard I would apply, I concur in affirming the
judgment.
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