Ellsworth v. Huffstatler , 824 Utah Adv. Rep. 17 ( 2016 )

2016 UT App 211THE UTAH COURT OF APPEALS
ANDREW L. ELLSWORTH, MARK L. ELLSWORTH, MICHELLE THOMAS,
KEN L. ELLSWORTH, TAMI JASPER, TIM ELLSWORTH, AND THE
ELLSWORTH FAMILY TRUST,
Appellants,
v.
TERRY HUFFSTATLER, JIM HUFFSTATLER, KARL V. BAKER,
KEITH A. BAKER, THE ESTATE OF BARBARA MAY ELLSWORTH, THE
ELLSWORTH FAMILY TRUST, AND THE BARBARA MAY
ELLSWORTH TRUST,
Appellees.
Opinion
No. 20150478-CA
Filed October 20, 2016
Fourth District Court, Provo Department
The Honorable David N. Mortensen
No. 130400498
Brett D. Cragun, Attorney for Appellants
Douglas B. Thayer and Aaron R. Harris, Attorneys
for Appellees
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES KATE A. TOOMEY and JILL M. POHLMAN concurred.
VOROS, Judge:
¶1 This is a will dispute between the biological children of
one spouse—Elmer Ellsworth—and the biological children of the
other—Barbara May Ellsworth. We refer to the former as the
Ellsworths and the latter as the Huffstatlers. The first question
on appeal concerns certain gold, silver, and platinum coins (the
Coins) Elmer owned at his death; the district court ruled on
summary judgment that these Coins passed to Barbara under
Elmer’s will. The second question on appeal concerns whether
Ellsworth v. Huffstatler
one of Barbara’s children, Terry Huffstatler, exerted undue
influence over Barbara when Barbara altered her estate plan
shortly before she died. The district court ruled, after a bench
trial, that Terry did not. The Ellsworths challenge both rulings.
We affirm. 1
BACKGROUND
¶2 Spouses Elmer Ellsworth and Barbara May Ellsworth
executed a trust agreement in 1991 (the 1991 Trust). The 1991
Trust named Elmer and Barbara as primary beneficiaries, and it
named Elmer’s seven biological children and Barbara’s three
biological children as contingent beneficiaries. Elmer also
executed a will.
¶3 Elmer, the owner of the Coins, died in 2003. His will
devised to Barbara all of his personal property “as hereinafter
defined”:
FOURTH: Personal Property
If my spouse survives me, I give to her all items of
Personal Property (as hereinafter defined).
The will also defined and disposed of Elmer’s “residuary estate”:
FIFTH: Disposition of Residuary Estate
“My residuary estate” means all my interest in real
and personal property, whether community or
separate and wherever situated, which I may own
at my death (excluding property over which I may
have a power of appointment) and which I have
1. In this decision, because many family members “share a last
name, we refer to them by their first names for clarity, with no
disrespect intended by the apparent informality.” Earhart v.
Earhart, 2015 UT App 308, ¶ 2 n.1, 365 P.3d 719.
20150478-CA 2 2016 UT App 211Ellsworth v. Huffstatler
not disposed of by the preceding provisions of this
Will.
Elmer’s will was never probated. The Coins remained in a safe in
Barbara’s home until 2012, when Terry Huffstatler and Mark
Ellsworth placed them in a bank safety deposit box.
¶4 In the years before her death, Barbara’s physical and
mental health waned. As a result, she increasingly relied on her
daughter, Terry, for her care. In November 2012, Barbara
suffered a fall that required her to undergo surgery and begin
taking prescription medication. Medical records show that after
the fall Barbara was often “forgetful,” was “disoriented as to
time and place,” was “unable to manage her money,” and
“suffered from dementia and memory loss”; but she was “alert
and pleasant” and “otherwise doing well” during the months
following her fall. Due to Barbara’s declining health, she and
Terry visited Barbara’s estate planning attorney, who had
drafted Elmer’s will. The attorney suggested that Barbara sign an
updated general power of attorney authorizing Terry to act for
Barbara in her personal affairs.
¶5 Shortly after Barbara signed the power of attorney, Terry
and Mark Ellsworth set up a meeting to review their probable
future roles as co-trustees of the 1991 Trust. During the meeting,
Terry told Mark that Barbara wanted to sell her home. Terry also
told Mark about the power of attorney. Mark explained that he
wanted to talk to his siblings about both matters.
¶6 After speaking with his siblings, Mark sent Terry an email
on behalf of the Ellsworths. The email suggested that Barbara
resign as the trustee of the 1991 Trust:
We as a family all believe caring for [Barbara’s]
needs is the top priority. In reviewing [Barbara’s]
health condition, we feel that given her ongoing
declining medical condition and memory as well as
[other health conditions], that she is not in a
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condition to manage any fiscal matters. We believe
this is supported in action by you, by the fact that
you had Barbara sign over to you a power of
attorney and are handling her fiscal affairs.
In considering this we believe that the best way to
proceed is to have Barbara officially resign from
the trust (she has already defaulted by signing
power of attorney over to you). This will place the
fiscal aspects of the estate/trust into the manner it
was planned for originally when the survivor of
our parents was no longer able, and put
responsibility legally into a joint partnership
between you and me.
After completing [Barbara’s] resignation you and I
can get together and work out a joint relationship
in managing the remaining assets of the estate/trust
and [Barbara’s] ongoing care needs. If you do not
have any objections to this direction, I would
suggest we both meet with Barbara to discuss this
and have her sign a resignation.
After receiving the email, Terry told Barbara about the email and
explained that the Ellsworths wanted her to resign as trustee of
the 1991 Trust. Terry did not show Barbara the email itself,
however. Terry testified that Barbara “was very hurt that Mark
would ask her to resign because . . . she liked to be able to make
choices for herself.” Barbara suggested they talk to her lawyer,
and Terry set up a meeting. Terry and the lawyer both testified
that Barbara asked for the meeting because she took offense at
Mark’s assertion that she should resign as trustee. Barbara was
also offended by the Ellsworths’ alleged efforts to block the sale
of her home.
¶7 Before meeting with the lawyer, Barbara and Terry visited
Barbara’s doctor. Terry testified that the purpose of the visit was
20150478-CA 4 2016 UT App 211Ellsworth v. Huffstatler
to follow up on Barbara’s recovery from her fall and to see if
Barbara was “able to make self-care directives, and participate in
an overall understanding of surroundings, and ability to
participate in the decision making process.” The doctor
confirmed that Barbara suffered from confusion but concluded
that “at this point she should be able to still manage her legal
affairs but would have family available if needed should there
be any changes.” Her doctor also conducted a “Mini Mental
Status Exam.” Barbara scored mild or moderate cognitive
impairment. The doctor noted, however, that Barbara was
“overall still able to understand conversations” and be “an active
participant in her care.”
¶8 At the lawyer’s office, Barbara stated that “she wanted
different distribution provisions upon her death . . . because she
felt she was being treated unfairly by the Ellsworth children”;
she also “wanted to know what she could do to make sure more
of the assets went to her children rather than the Ellsworth
children.” The lawyer read Mark’s email. Following the
consultation, the lawyer drafted—and Barbara signed—a new
set of estate planning documents. These included a will, a new
power of attorney, and a new trust—the Barbara May Ellsworth
Trust (the 2013 Trust). These documents transferred the Coins
and half the property from the 1991 Trust into the 2013 Trust.
The 2013 Trust documents named the Huffstatlers as the only
beneficiaries. Under these documents, the Ellsworths were no
longer in line to receive half of the property—including the
Coins—they had expected to receive as secondary beneficiaries
under the 1991 Trust.
¶9 A few days after Barbara executed the 2013 Trust, Mark
and his sister, Tami Jasper, visited Barbara in her home to gauge
whether she was open to the idea of resigning as trustee of the
1991 Trust. They took with them a resignation document. The
parties dispute whether the visit was cordial or confrontational.
Tami described Barbara as undecided until Tami appealed to
Barbara’s religious sensibilities. Barbara signed the resignation
20150478-CA 5 2016 UT App 211Ellsworth v. Huffstatler
document. Barbara later revoked the resignation. But two
months later, Barbara again resigned as the trustee of the 1991
Trust. Six months after that, Barbara died; at that time she
suffered from advanced dementia.
¶10 The Ellsworths sued the Huffstatlers, seeking to recover
the assets that Barbara had moved from the 1991 Trust to the
2013 Trust. The district court ruled on partial summary judgment
that the Coins passed to Barbara under Elmer’s will. As the
owner of the Coins, the court ruled, Barbara was free to place
them into the 2013 Trust for the sole benefit of her own children.
The court conducted a bench trial on a number of remaining
issues, including the issue of undue influence. After the bench
trial, the court ruled that Barbara did not create her 2013 estate
plan under Terry’s undue influence. The Ellsworths appeal.
ISSUES
¶11 The Ellsworths assert two issues on appeal. First, they
contend that the district court erred when it read Elmer’s will to
say “that Barbara is to receive Elmer’s personal property which
was not transferred to someone else or to the family trust.”
¶12 Second, the Ellsworths contend that “the trial court erred
when it determined that the creation of the 2013 Trust was fair
and therefore the presumption of undue influence did not
apply.”
ANALYSIS
I. The Coins
¶13 The Ellsworths challenge the district court’s summary
judgment ruling that the Coins passed to Barbara under Elmer’s
will. They argue that the court misapplied the Uniform Probate
Code because it misread Elmer’s will.
20150478-CA 6 2016 UT App 211Ellsworth v. Huffstatler
¶14 “An appellate court reviews a trial court’s legal
conclusions and ultimate grant or denial of summary judgment
for correctness, and views the facts and all reasonable inferences
drawn therefrom in the light most favorable to the nonmoving
party.” Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citations
and internal quotation marks omitted).
¶15 Elmer’s will was never probated. Under the Utah
Uniform Probate Code, if a decedent’s will is not probated
within three years, the decedent is presumed to have died
intestate, and the decedent’s property passes to their heirs under
the laws of intestacy:
If no will is probated within three years from
death, the presumption of intestacy is final and the
court shall upon filing a proper petition enter an
order to that effect.
Utah Code Ann. § 75-3-107(3) (LexisNexis Supp. 2016). However,
this rule is subject to an exception. An unprobated but otherwise
valid will may prove a devise if the property recipient
designated in the will “possessed the devised property in
accordance with . . . the will”:
[A] duly executed and unrevoked will which has
not been probated may be admitted as evidence of
a devise if both:
(1) no court proceeding concerning the
succession or administration of the estate was
commenced during the time period for testacy
proceedings; and
(2) either the devisee or the devisee’s
successors and assigns possessed the property
devised in accordance with the provisions of the
will, or the property devised was not possessed or
claimed by anyone by virtue of the decedent’s title
during the time period for testacy proceedings.
20150478-CA 7 2016 UT App 211Ellsworth v. Huffstatler
Id. § 75-3-102. Relying on this provision, the district court
rejected the presumption that Elmer died intestate and ruled
that, after his death, Barbara possessed the Coins in accordance
with the provisions of his will.
¶16 The Ellsworths contend that, because Elmer’s will was
never probated, the law presumes that he died intestate, and
thus that the Coins passed to them as his heirs. The Huffstatlers
contend—and the district court ruled—that the exception to the
intestate presumption applies because, after Elmer’s death,
Barbara possessed the Coins in accordance with Elmer’s will.
Barbara indisputably possessed the Coins after Elmer’s death;
we must determine whether she did so in accordance with
Elmer’s will.
¶17 “The intention of a testator as expressed in his will
controls the legal effect of his disposition.” Id. § 75–2–603. “A
will is construed to pass all property the testator owns at death
and all property acquired by the estate after the testator’s death.”
Id. § 75-2-602. Accordingly, “we construe a will according to the
intention of the testator” and prefer the interpretation that
“prevents intestacy.” In re Estate of Hunt, 842 P.2d 872, 874 (Utah
1992). “Moreover, if the will is ambiguous, any rule of
construction normally used in other writings must yield to the
intention of the testator as revealed in the instrument.” In re
Estate of Hamilton, 869 P.2d 971, 975 (Utah Ct. App. 1994).
¶18 Paragraph four of Elmer’s will left to Barbara all of Elmer’s
“Personal Property (as hereinafter defined).” The parties agree
that the Coins were personal property. However, the Ellsworths
argue that the Coins were not “Personal Property (as hereinafter
defined)” because the will never defined “Personal Property.” In
their view, absent a definition of “Personal Property,” the term
“Personal Property (as hereinafter defined)” describes an empty
category. Thus, they reason, Elmer left Barbara no personal
property. And they, as his heirs, inherit the Coins.
20150478-CA 8 2016 UT App 211Ellsworth v. Huffstatler
¶19 On summary judgment, the district court ruled that
“[e]ven though Elmer[‘s] [will] does not define the words
“Personal Property,” “[a] plain reading of the Will explains that
Barbara is to receive Elmer’s personal property which was not
transferred to someone else or to the family trust.” And because
Elmer did not transfer the Coins to either the trust or to any
individual, the district court ruled that the Coins passed to
Barbara in accordance with the “plain reading” of Elmer’s will.
We affirm the district court because we conclude that the
Ellsworths’ reading of the will lacks plausibility.
¶20 The parties offer competing explanations for why Elmer’s
will lacks an explicit definition of “personal property.” The
Huffstatlers argue—and the district court concluded—that the
will indicates Elmer’s intent to devise to Barbara all of his
personal property, but due to a drafting oversight, the will
neglected to fulfill its promise to define the term “personal
property.” The Ellsworths argue that the will indicates an intent
to devise Barbara nothing. In this scenario, Elmer intended to
give Barbara nothing by devising to her “all items of Personal
Property (as hereinafter defined),” but then, by not defining “all
items of Personal Property,” ensured that nothing would pass to
her under the provision.
¶21 Bearing in mind that “we construe a will according to the
intention of the testator” and prefer the interpretation that
“prevents intestacy,” Hunt, 842 P.2d at 874, we, like the district
court, accept the Huffstatlers’ reading. “Personal property” is a
well-understood term of art that normally requires no definition.
Common experience suggests that the drafter’s omission of a
definition for “personal property” more likely resulted from the
drafter’s oversight than Elmer’s intent to disinherit his wife.
Indeed, the Ellsworths offer no explanation for why a husband
intending to disinherit a wife would employ so subtle, indirect,
and circuitous a method as omitting the definition of a common
legal term. Moreover, their reading of paragraph four would
reduce it to a nullity. This reading thus lacks plausibility.
20150478-CA 9 2016 UT App 211Ellsworth v. Huffstatler
¶22 In sum, only the Huffstatlers’ reading achieves the goal of
construing the provisions of Elmer’s will with an eye to “giving
effect to all and ignoring none.” See Hull v. Wilcock, 2012 UT App
223, ¶ 28, 285 P.3d 815 (citation and internal quotations marks
omitted). We therefore affirm the district court on this issue. 2
II. Undue Influence
¶23 Next, the Ellsworths contend that the district court “erred
when it determined that the creation of the 2013 Trust was fair
and therefore the presumption of undue influence did not apply.”
¶24 The Ellsworths contend that “the trial court erred when it
determined [the Huffstatlers] rebutted the presumption that
Barbara’s creation of the 2013 Trust was unfair.” They stress that
Barbara did not personally read the email Mark sent to Terry but
acted on Terry’s summary of its contents. And they seize on the
2. Even if we were disinclined to affirm the district court’s ruling
based on the court’s rationale, we would affirm its ruling on the
alternative ground that the will does define “personal property.”
Paragraph four leaves to Barbara “all items of Personal Property
(as hereinafter defined).” Paragraph five defines both “residuary
estate” and Elmer’s “personal property”:
“My residuary estate” means all my interest in real
and personal property, whether community or
separate and wherever situated, which I may own
at my death (excluding property over which I may
have a power of appointment) and which I have
not disposed of by the preceding provisions of this
Will.”
This paragraph defines Elmer’s “personal property” to include
community or separate property wherever situated that Elmer
owned at his death, but not to include property over which he
had only a power of appointment. This appears to be the
definition promised in paragraph four.
20150478-CA 10 2016 UT App 211Ellsworth v. Huffstatler
district court’s finding that “Terry overreacted to Mark’s initial
suggestion that Barbara step down as trustee.” Consequently,
they argue that “to rebut the presumption of unfairness, there
must be some showing that Barbara was not acting on Terry’s
overreaction to the email.” 3
¶25 Undue influence is proven by evidence that the “testator’s
volition” was “overpowered”:
[T]here must be an exhibition of more than
influence or suggestion, there must be substantial
proof of an overpowering of the testator’s volition
at the time the will was made, to the extent he is
impelled to do that which he would not have done
had he been free from such controlling influence,
so that the will represents the desire of the person
exercising the influence rather than that of the
testator.
In re Estate of Ioupe, 878 P.2d 1168, 1174 (Utah Ct. App. 1994)
(quoting In re Lavelle’s Estate, 248 P.2d 372, 375–76 (Utah 1952)).
“Undue influence is presumed where a confidential relationship
exists between the testator and the beneficiary of the will.” Id.A “confidential relationship arises when one party, after
having gained the trust and confidence of another, exercises
extraordinary influence over the other party.” Id. (citation and
internal quotation marks omitted). “If a confidential relationship
is found, any transaction that benefits the party in whom trust is
reposed is presumed to have been unfair and to have resulted
from undue influence and fraud.” Webster v. Lehmer, 742 P.2d
1203, 1206 (Utah 1987) (citation and internal quotation marks
omitted).
3. The Ellsworths do not challenge the district court’s ruling that
Barbara had testamentary capacity to create the 2013 Trust and
other documents.
20150478-CA 11 2016 UT App 211Ellsworth v. Huffstatler
¶26 Whether a confidential relationship exists is generally a
question of fact. Id. If a confidential relationship is found, “the
defendant ha[s] the burden of proving absence of undue
influence.” Robertson v. Campbell, 674 P.2d 1226, 1233 (Utah 1983).
“We review the trial court’s ultimate legal conclusion[] of . . .
lack of undue influence for correctness,” but “we defer to the
trial court’s specific findings of fact underlying its determination
that the deceased was competent to make a will and that the will
was not made under undue influence, reviewing the factual
findings only for clear error.” Ioupe, 878 P.2d at 1171 (citing In re
Estate of Bartell, 776 P.2d 885, 886 (Utah 1989)). A finding is
clearly erroneous if it is “against the clear weight of evidence, or
if the appellate court otherwise reaches a definite and firm
conviction that a mistake has been made.” State v. Walker, 743
P.2d 191, 193 (Utah 1987).
¶27 Here, the district court ruled that although Terry and
Barbara had a confidential relationship, “the trial testimony and
evidence has dispelled the presumption of undue influence.”
Specifically, the district court found that the new estate plan
“reflected Barbara’s wishes.” Barbara’s estate planning
documents were drafted with the help of Barbara’s long-time
attorney. Barbara—not Terry—proposed the meeting with the
attorney to amend her estate plan. In the words of the district
court, Barbara had “her own personal motivation[]” to create the
2013 estate plan—she was upset by the Ellsworths’ perceived
attempts to block the sale of her home and their request that she
step down as trustee of the 1991 Trust. And Barbara conveyed
this motivation to her attorney directly, not through Terry. The
attorney read the email himself and testified that Barbara came
to him “to know what she could do to make sure more of the
assets went to her children rather than the Ellsworth children.”
¶28 The Ellsworths’ argument rests heavily on the district
court’s finding that “Terry overreacted to Mark’s initial
suggestion that Barbara step down as trustee.” But, as the
Huffstatlers point out, no evidence suggests that Terry
20150478-CA 12 2016 UT App 211Ellsworth v. Huffstatler
misrepresented the contents of the email. Terry explained to
Barbara that the email indicated that the Ellsworths wanted
Barbara to step down as trustee of the 1991 Trust. And as
explained above, the lawyer himself also read the email and
explained that Barbara’s motivation was to “know what she
could do to make sure more of [her] assets went to her children
rather than the Ellsworth children.”
¶29 Our review of the record does not indicate that the district
court’s findings are “against the clear weight of evidence,” or
“that a mistake has been made.” Walker, 743 P.2d at 193. On the
contrary, we agree with the district court’s finding and agree
that the Huffstatlers rebutted the presumption of undue
influence. See Robertson, 674 P.2d at 1233. The record lacks
“substantial proof of an overpowering of [Barbara’s] volition at
the time the will was made, to the extent [she] was impelled to
do that which [she] would not have done had [she] been free
from such controlling influence, so that the will represents the
desire of [Terry] rather than that of [Barbara].” See Ioupe, 878
P.2d at 1174 (citing Lavelle’s Estate, 248 P.2d at 375–76).
Accordingly, because the district court’s ruling is not “against
the clear weight of the evidence,” we reject the Ellsworths’
undue-influence challenge.
CONCLUSION
¶30 For the foregoing reasons, the judgment of the district
court is affirmed.
20150478-CA 13 2016 UT App 211