William L. Burkhalter v. Steven P. Burkhalter

IN THE SUPREME COURT OF IOWA
No. 12–0222
Filed December 20, 2013
WILLIAM L. BURKHALTER,
Appellant,
vs.
STEVEN P. BURKHALTER,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Linn County, James H.
Carter, Senior Judge.
The plaintiff in an action to contest a modification to the terms of a
revocable trust appeals. DECISION OF COURT OF APPEALS
VACATED; DISTRICT COURT JUDGMENT AFFIRMED.
Martin A. Diaz and Elizabeth Jenadija Craig of Martin Diaz Law
Firm, Iowa City, for appellant.
William G. Nicholson and Robert R. Rush of Rush & Nicholson,
P.L.C., Cedar Rapids, for appellee.
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APPEL, Justice.
William Burkhalter challenged an unfavorable modification of his
father’s revocable trust that occurred just prior to his father’s death.
William claimed his brother, Steven Burkhalter, unduly influenced their
father and tortiously interfered with the trust. William also alleged his
father lacked the necessary testamentary intent when he made the
modification. At trial, the district court directed a verdict for Steven on
the tortious interference claim, and the jury returned a verdict for Steven
on the testamentary capacity and undue influence claims. William
appealed, claiming the district court gave the jury an erroneous
instruction on undue influence that improperly heightened his burden of
proof and prejudicially repeated the causation element. Steven cross-
appealed, claiming the district court should have directed a verdict in his
favor on all claims. On direct appeal, the court of appeals held the
challenged instruction prejudiced William and remanded the case for a
new trial on the undue influence claim. The court of appeals denied
Steven’s cross-appeal.
On further review, we conclude the district court’s instruction
accurately reflected the law of undue influence and did not unduly
emphasize the causation element of the undue influence claim. As a
result, we vacate the decision of the court of appeals and reinstate the
jury verdict and the district court’s judgment thereon.
I. Factual and Procedural Background.
Louis D. Burkhalter Jr. created the Louis D. Burkhalter Jr.
Revocable Trust on January 14, 1980. Under the original terms of the
trust, William was the primary beneficiary following the deaths of Louis
and his wife, Margaret. Upon William’s death, the trust directed the
trustee to distribute the remaining assets to Louis’s heirs. The trust
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designated the United States Bank, n/k/a U.S. Bank, N.A., of Cedar
Rapids as trustee.
In 1995, Louis amended the trust to name William’s wife, Cynthia,
and his son, Matthew, as beneficiaries. Under the amended terms,
Cynthia and Matthew would continue as beneficiaries following the
deaths of Louis, Margaret, and William. Upon the deaths of Cynthia and
Matthew, the remaining assets would be distributed to Louis’s heirs.
In 2003, Louis amended the trust to allow the trustee, at its
discretion, to distribute trust assets for the support of Louis’s sister,
Patricia. In 2004, Louis placed his home into the trust. At the time,
William was living in the home with his family. Louis directed that
William and his family have complete control of the residence as long as
their decisions were reasonable and approved by the trustee.
By early July 2007, Louis, who was then ninety-eight years old,
experienced a decline in health. He was moved from an independent-
living wing at an assisted living community, where he had lived for
several years, to a wing that provided twenty-four-hour care. Steven
became aware of the change and, on July 9, traveled from his home in
California to Iowa to visit his father. According to Steven, Louis and he
had a conversation about the trust on July 11. During the conversation,
Steven claimed, Louis indicated his desire to modify the trust to make
Steven and William equal beneficiaries and instructed Steven to call the
trustee to arrange the modification.
A few hours after the conversation with Louis, Steven met with a
trust officer of the bank, who in turn called Louis’s attorney. The trust
officer, a longtime advisor of Louis, met with Louis later that day without
Steven being present. Louis’s attorney met with Louis the following day,
July 12, again without Steven being present. The trust was modified
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July 13 to divide the trust assets equally between William and Steven.1
Louis died six days later.
On January 25, 2008, William filed a petition claiming that the
modification was the result of undue influence, that Louis lacked the
testamentary capacity to make the change, and that Steven intentionally
and improperly interfered with the distribution plan of the trust. Trial
was held from October 31, 2011, to November 4. Following the close of
evidence, Steven moved for a directed verdict on all claims. The district
court directed a verdict on the tortious interference claim, but refused to
direct a verdict on the undue influence and lack of testamentary capacity
claims.
The parties then proceeded to haggle on jury instructions. With
regard to undue influence, William generally modeled his requested jury
instructions on the Iowa Civil Jury Instructions of the Iowa State Bar
Association. The Iowa Civil Jury Instructions provide one instruction
setting forth the elements of undue influence and another defining
undue influence. Iowa Civil Jury Instruction 2700.4 sets forth the
elements of undue influence:
The law presumes a person is free from undue influence. To
overcome this presumption, plaintiff must prove each of the
four following propositions:
1. At the time the will was made (testator) was
susceptible to undue influence.
2. [Defendant] had the opportunity to exercise such
influence and carry out the wrongful purpose.
3. [Defendant] was inclined to influence (testator)
unduly for the purpose of getting an improper favor.
1Louis’s wife, Margaret, and sister, Patricia, were removed as beneficiaries of the
trust at this time because they had predeceased Louis. William’s son, Matthew, and
wife, Cynthia, remained as future beneficiaries of William’s fifty-percent share.
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4. The result was clearly brought about by undue
influence.
If the plaintiff has failed to prove one or more of these
propositions, your verdict will be for the defendant. If
plaintiff has proved all of these propositions, your verdict will
be for plaintiff.
Iowa State Bar Ass’n, Iowa Civil Jury Instructions 2700.4 (2011). Iowa
Civil Jury Instruction 2700.5 provides a definition of “undue influence”:
Undue influence means a person substitutes his or her
intentions for those of the person making the will. The will
then expresses the purpose and intent of the person
exercising the influence, not those of the maker of the will.
Undue influence must be present at the very time the will is
signed and must be the controlling factor. The person
charged with exercising undue influence need not be
personally present when the will was being made or signed
but the person’s influence must have been actively working
at the time the will was being made and signed.
Id. 2700.5.
The district court’s proposed instruction merged these two model
instructions. The district court’s proposed Instruction No. 2 stated:
In order for William to prevail on his claim of undue
influence, he must prove by a preponderance of the evidence
that at or about the time the trust provisions were changed
all of the following circumstances existed:
1. Louis was susceptible to the type of influence
described in Paragraph 4 of this instruction.
2. Steven had the opportunity to exercise such
influence over Louis.
3. Steven was inclined to influence Louis for purposes
of gaining favor.
4. Steven assumed a position of dominance over
Louis’s decision to the extent that the decision to
change the trust provisions was Steven’s decision
rather than Louis’s decision.
5. The changes made to the trust provisions were
clearly the result of the foregoing circumstances.
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As is apparent, subparagraphs 1, 2, 3, and 5 of Instruction No. 2
stated the substance of the elements of undue influence contained in
Iowa Civil Jury Instruction 2700.4. Subparagraph 4, however, contained
language related to the definition of undue influence contained in Iowa
Civil Jury Instruction No. 2700.5.
William objected to the court’s proposed Instruction No. 2, but the
district court declined to modify the instruction. The jury returned a
verdict in favor of Steven on the remaining claims. William filed a motion
for a new trial, which was denied, and this appeal followed.
We transferred the case to the court of appeals. The court of
appeals reversed the district court and remanded for a new trial after
concluding the district court’s addition of subparagraph 4 prejudiced
William. According to the court of appeals, the addition of subparagraph
4 “added another step the plaintiff had to prove, thereby rendering the
instruction faulty either through repetition, or by giving undue emphasis
to otherwise correct statements of law.” Finally, the court of appeals
noted it found sufficient evidence to deny Steven’s directed verdict and
send the undue influence issue to the jury.
Steven sought further review, which we granted.
II. Standard of Review.
Challenges to jury instructions are reviewed for correction of errors
at law. Koenig v. Koenig, 766 N.W.2d 635, 637 (Iowa 2009). Error in
giving a jury instruction “does not merit reversal unless it results in
prejudice.” Wells v. Enter. Rent-A-Car Midwest, 690 N.W.2d 33, 36 (Iowa
2004). When the challenged instruction is “ ‘conflicting and confusing,’ ”
error is presumed prejudicial and reversal is required. Koenig, 766
N.W.2d at 637 (quoting Waits v. United Fire & Cas. Co., 572 N.W.2d 565,
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575 (Iowa 1997)). Reversal is also required when the instruction
contains a material misstatement of law. Waits, 572 N.W.2d at 575.
III. Discussion.
A. Introduction. As noted by one modern treatise, the notion of
undue influence upon a testator is “a slippery concept at best.” Eunice
L. Ross & Thomas J. Reed, Will Contests § 7:1 (2d ed.), available at
http://www.westlaw.com (updated June 2013) [hereinafter Ross &
Reed]. The treatise further notes that “[t]he courts have never been
consistent in their definitions of the term, nor in the judicial tests used to
evaluate proof of undue influence.” Id. § 7:1.
The difficulty with the notion of undue influence in the context of a
will is illustrated by the question of the appropriate standard of proof
required to prevail on a claim. On the one hand, undue influence seems
like a relative of fraud, which generally requires a heightened standard of
proof. See, e.g., Joseph Traub Arenson, The Doctrine of Undue Influence
in Anglo American Law 4 (1953) [hereinafter Arenson] (noting that fraud
and undue influence are similar in that someone has been unfairly
enriched at the expense of another, but that “[u]ndue influence is a more
restricted and more indefinite concept”). On the other hand, undue
influence can occur without a material misrepresentation or omission,
see In re Estate of Raedel, 568 A.2d 331, 335 (Vt. 1989), which makes it
analogous to ordinary civil causes of action at law where a
preponderance-of-the-evidence standard prevails.
This case requires us to consider the proper elements of an undue
influence claim. In particular, the question arises whether an element of
an undue influence claim is that the result is “clearly” the effect of undue
influence. This “clearly” requirement sounds like clear-and-convincing-
evidence-light, at least as to causation.
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These important legal questions arise against a backdrop of some
judicial discomfort with the claim. The occasional but potentially very
sharp unfairness that will result if undue influence claims are
abandoned altogether seems like too much for courts to bear. See
Arenson at 68 (declaring the evolution of undue influence doctrine a
fortunate jurisprudential gain that extends social justice for “the aged
and infirm, the weak, the dependent, the subservient and the
inexperienced”). Yet, opportunistic strike litigation where the testator is
not available to defend what may very well have been a choice of free will
is not very attractive either. See John H. Langbein, Will Contests, 103
Yale L.J. 2039, 2045 (1994) [hereinafter Langbein] (suggesting the will
contest involving the Johnson & Johnson fortune revealed “deeply
deficient institutions and procedures” in the United States that “would
have been suppressed in short order” in any other Western country).
Further, fact finders may be tempted not to focus on the free will of the
testator, but rather on their own values or senses of propriety.
Melanie B. Leslie, The Myth of Testamentary Freedom, 38 Ariz. L. Rev.
235, 245 (1996) [hereinafter Leslie] (arguing that even though the
contestant bears the burden of establishing undue influence,
“determinations often are more dependent on courts’ normative views of
the relationships between the testator, beneficiary and contestant than
the actual presence or absence of factors often deemed indicative of
undue influence”).
So, courts have struggled with the concept of undue influence.
Today, it is our turn.
B. Positions of the Parties. William focuses his fire on
Instruction No. 2’s portrayal of the elements of undue influence in two
ways. First, William argues the addition of subparagraph 4 coupled with
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the “clearly” language of subparagraph 5 heightened his burden of proof
to something higher than a preponderance of the evidence, which
rendered the instruction conflicting, confusing, and prejudicial.
According to William, the instruction allowed the jury to find the required
elements of undue influence described in subparagraphs 1 through 4,
but then conclude he could not prevail because subparagraph 5 required
him to show the modifications to the trust “were clearly the result” of the
circumstances described in the previous subparagraphs. He also points
to Instruction No. 2’s introductory paragraph, which instructed the jury
to apply a preponderance-of-the-evidence standard. Second, William
asserts Instruction No. 2 was unduly repetitive. William notes that
subparagraphs 4 and 5 both address causation and that, if he proved
subparagraph 4, he should have prevailed on his claim. Accordingly,
William requests a new trial.
Steven responds that Instruction No. 2 was a correct statement of
law. He claims the requirement of subparagraph 5 that the action
complained of must clearly be the result of undue influence is well
supported by our caselaw. See, e.g., In re Estate of Dankbar, 430 N.W.2d
124, 128 (Iowa 1988); In re Estate of Davenport, 346 N.W.2d 530, 532
(Iowa 1984). He notes the rationale of the substantive standard is to
prevent weak circumstantial evidence from supporting a finding of undue
influence. See 1 Sheldon F. Kurtz, Kurtz on Iowa Estates § 4.45, at 175
(1981) [hereinafter Kurtz]. Steven also claims subparagraph 4 is a
correct statement of law taken from the definition of undue influence
contained in Iowa Civil Jury Instruction 2700.5 and supported by
caselaw. See, e.g., In re Estate of Cory, 169 N.W.2d 837, 842 (Iowa
1969); In re Estate of Roberts, 258 Iowa 880, 888, 140 N.W.2d 725, 730
(1966). Under the circumstances, Steven sees no undue repetition of a
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claim or defense favorable to him. He argues it was not error to combine
subparagraphs 4 and 5 because jury instructions must be read together
and considered in their entirety. See Anderson v. Webster City Cmty.
Sch. Dist., 620 N.W.2d 263, 265 (Iowa 2000); Leaf v. Goodyear Tire &
Rubber Co., 590 N.W.2d 525, 536 (Iowa 1999).
Steven further claims nothing in Instruction No. 2 altered the
standard of proof. Steven argues subparagraph 5 dealt solely with the
preponderance-of-the-evidence standard and provided an accurate
statement of law. He further notes, the preponderance-of-the-evidence
standard was repeated in Instruction No. 2’s first paragraph. Steven
argues that because instructions must be read as a whole, if some part
of Instruction No. 2 should not have been given, error was nonetheless
cured because another part of the instruction properly advised the jury
of the legal principles involved. See Moser v. Stallings, 387 N.W.2d 599,
605 (Iowa 1986). When the instructions are read as a whole, Steven
argues, any error was not prejudicial.
Steven further responds by noting that there was nothing unduly
prejudicial about subparagraphs 4 and 5. He notes that in order to be
unduly prejudicial, an instruction must repeat a defense or claim
favorable to one party in such a fashion as to be unfair. Steven asserts
subparagraph 5 amounts to clarification of what must be shown to
prevail on an undue influence claim.
In addition, Steven claims William’s objection was not specific
enough to alert the district court to the issues raised on appeal. Steven
also cross-appeals, contending he was entitled to a directed verdict on
the undue influence claim. Because of our disposition, we need not
address these issues.
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C. Iowa Caselaw on Undue Influence.
1. Standard of proof. The earliest Iowa undue influence cases
embraced a preponderance-of-the-evidence standard. See Webber v.
Sullivan, 58 Iowa 260, 267, 12 N.W. 319, 323 (1882) (approving undue
influence instruction using a preponderance-of-the-evidence standard);
McIntire v. McConn, 28 Iowa 480, 485–86 (1870) (noting the
preponderance of evidence was against a finding of undue influence); see
also Jamison v. Jamison, 113 Iowa 720, 723, 84 N.W. 705, 706 (1900)
(rejecting “clear, satisfactory, and convincing” standard in law action
against estate to enforce promises under will). In In re Townsend’s
Estate, 128 Iowa 621, 624, 105 N.W. 110, 110–11 (1905), however, the
court applied a heightened standard of proof, holding that, at least where
the testator was of sound mind and not an easily influenced individual,
the required showing was one of clear and convincing evidence of undue
influence.
After Townsend’s Estate, however, we generally applied a
preponderance-of-the-evidence standard for claims of undue influence.
See, e.g., In re Behrend’s Will, 233 Iowa 812, 817, 10 N.W.2d 651, 654–
55 (1943); In re Busick’s Will, 191 Iowa 524, 530, 182 N.W. 815, 818
(1921); Zinkula v. Zinkula, 171 Iowa 287, 299, 154 N.W. 158, 162 (1915);
Ross v. Ross, 140 Iowa 51, 57, 117 N.W. 1105, 1107–08 (1908). Yet,
there were at least two outliers. See Arndt v. Lapel, 214 Iowa 594, 606–
07, 243 N.W. 605, 610 (1932) (applying a “clear, satisfactory, and
convincing” standard to a claim that a grantee secured the transfer of a
deed by undue influence); McNeer v. Beck, 205 Iowa 196, 198, 217 N.W.
825, 826 (1928) (same).
Finally, in In re Estate of Todd, 585 N.W.2d 273, 275–77 & n.2
(Iowa 1998), we explicitly disavowed the heightened standard of proof for
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undue influence claims in will contests. We canvassed the law of other
jurisdictions and recognized that some states applied a heightened
standard in undue influence cases in probate, but noted the majority of
states followed the preponderance standard. Id. at 275–76. We noted
that challenges to testamentary dispositions on the grounds of undue
influence in probate in Iowa were, by statute, triable as an action at law.
Id. at 275. We cited the longstanding rule in Iowa that “ ‘in law cases
questions of fact are to be determined from the preponderance of the
evidence.’ ” Id. at 276 (quoting Jamison, 113 Iowa at 723, 84 N.W. at
706). We reasoned that because will contests in Iowa were actions at law
where the preponderance-of-the-evidence standard ordinarily applied, we
would follow the majority rule. Id. We also expressly disavowed
Townsend’s Estate to the extent it stood for a different standard. Id. at
276 n.2. We reaffirmed, however, that if a confidential relationship
existed between the testator and the putative beneficiary, the burden
shifted “to the recipient ‘to establish by clear and convincing proof that
the advantage was procured without undue influence.’ ” Id. at 276
(quoting In re Estate of Herm, 284 N.W.2d 191, 200 (Iowa 1979)).
2. Elements of undue influence. While most Iowa cases reject a
clear and convincing standard of proof generally for undue influence
claims, Iowa law has employed a heightened substantive standard for
finding undue influence. In In re Ankeny’s Estate, 238 Iowa 754, 760, 28
N.W.2d 414, 417 (1947), we cited with favor a note in the Iowa Law
Review as “set[ting] out clearly the rules which should govern” undue
influence claims. The note stated:
“The four elements necessary to be proved in order to
establish undue influence are as follows: (1) a person
unquestionably subject to undue influence, (2) opportunity to
exercise such influence and effect the wrongful purpose, (3) a
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disposition to influence unduly for the purposes of procuring
an improper favor, and (4) a result clearly appearing to be
the effect of the supposed influence.”
Comments on Recent Cases, Wills—When Undue Influence Becomes a
Jury Question, 30 Iowa L. Rev. 321, 322 (1945) (emphasis added)
(quoting In re Leisch’s Will, 267 N.W. 268, 271 (Wis. 1936)). Thus,
although most Iowa cases employed a preponderance-of-the-evidence
standard as the burden of proof, the substantive requirements of the
claim demanded proof that a person was “unquestionably” subject to
influence and that the result clearly appeared to be the effect of undue
influence.
The requirement that a testator must be “unquestionably” subject
to undue influence was abandoned in Johnstone v. Johnstone, 190
N.W.2d 421, 426 (Iowa 1971), for a requirement that a testator be
“susceptible to undue influence.” (Internal quotation marks omitted.)
The Johnstone court noted the former phrase had been imported from
Leisch’s Will, a 1936 Wisconsin Supreme Court case, but that the
Wisconsin court did not repeat the qualification in later cases.
Johnstone, 190 N.W.2d at 425. The Johnstone court reasoned the
language, if literally applied, would make it almost impossible to prove an
undue influence claim. Id.
While we have abandoned the requirement that a testator be
“unquestionably” subject to undue influence, we have not departed from
the requirement that the result in a will contest clearly show the effects
of undue influence. Prior to Estate of Todd, our caselaw repeated the
“clearly” requirement numerous times. See, e.g., In re Estate of Bayer,
574 N.W.2d 667, 671 (Iowa 1998); Estate of Dankbar, 430 N.W.2d at 128;
Estate of Davenport, 346 N.W.2d at 532; Estate of Herm, 284 N.W.2d at
201; Frazier v. State Cent. Sav. Bank, 217 N.W.2d 238, 244 (Iowa 1974).
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In Estate of Todd, even though we rejected the higher standard of proof
for will contests, we nonetheless continued to recognize as valid our
caselaw that declared an element of undue influence was a result that
was “clearly the effect of undue influence.” 585 N.W.2d at 277 & n.4.
Following these cases, Iowa Civil Jury Instruction No. 2700.4 requires
that the result be “clearly brought about by undue influence.”
3. Summary of Iowa caselaw. In sum, while recognizing the split
in caselaw across the country, we have held that in a will contest where
no fiduciary relationship is involved, undue influence must be proved by
a preponderance of the evidence. Id. at 275–77. Though we have
rejected the clear, satisfactory, and convincing standard of proof, we have
nonetheless held an element of undue influence is a “result clearly the
effect of undue influence.” Id. at 277 & n.4; see also, e.g., Ankeny’s
Estate, 238 Iowa at 760, 28 N.W.2d at 417. We have not regarded
rejection of a clear, satisfactory, and convincing standard of proof as
inconsistent with this heightened “clearly” causation requirement in
undue influence cases. See Estate of Todd, 585 N.W.2d at 277.
D. Caselaw on Undue Influence from Other States.
1. Standard of proof. As indicated in Estate of Todd, most states
apply a preponderance-of-the-evidence standard to undue influence
claims. See, e.g., Rose v. Dunn, 679 S.W.2d 180, 182 (Ark. 1984);
Lamborn v. Kirkpatrick, 50 P.2d 542, 544 (Colo. 1935); In re Estate of
West, 522 A.2d 1256, 1264 (Del. 1987); Caranci v. Howard, 708 A.2d
1321, 1324 (R.I. 1998); In re Estate of Duebendorfer, 721 N.W.2d 438,
446 (S.D. 2006); In re Estate of Waters, 629 P.2d 470, 473 (Wyo. 1981);
see also In re Estate of Cooch, 116 N.W.2d 740, 743 (Mich. 1962)
(requiring “evidence of probative force beyond mere suspicion”); Ross &
Reed § 7:11 n.3 (citing cases holding a will contestant must prove undue
15
influence by a preponderance of the evidence). The preponderance-of-
the-evidence standard is defended on the ground it is the same standard
generally applied in civil actions. See In re Estate of Otto, 494 N.W.2d
169, 173 (N.D. 1992) (“The governing standard for undue influence
challenges, as with most civil matters, is a preponderance of the
evidence.”); see also Hack v. Janes, 878 So. 2d 440, 444 (Fla. Dist. Ct.
App. 1997) (“Absent clear direction from the Legislature, we find no
reason to deviate from that standard here.”).
There is a contrary minority view. Some states heighten the
standard and require contestants to prove their claim by clear and
convincing evidence. See, e.g., Estate of Langley, 586 A.2d 1270, 1271
(Me. 1991); In re Davis’ Will, 101 A.2d 521, 522 (N.J. 1953); Chapman v.
Varela, 213 P.3d 1109, 1114 (N.M. 2009); In re Estate of Hamm, 227
N.W.2d 34, 35 (Wis. 1975); see also Ross & Reed § 7:11 n.4 (citing cases
holding a will contestant must prove undue influence by clear and
convincing evidence). In In re Estate of Bennett, 865 P.2d 1062, 1068
(Kan. Ct. App. 1993), the court explained the rationale underlying the
application of a clear-and-convincing-evidence standard to an undue
influence claim is that a will is presumed valid and should be overcome
only upon a substantial showing. The court also characterized undue
influence as a species of fraud, which ordinarily requires a higher
standard of proof. Id. at 1069.
A somewhat different rationale for a heightened standard was
expressed in Taylor v. Commissioner of Mental Health & Mental
Retardation, 481 A.2d 139, 141 (Me. 1984), a case involving the question
of the appropriate standard for release of a defendant found not guilty by
reason of insanity. The court emphasized the purpose of a standard of
proof is to “ ‘instruct the factfinder concerning the degree of confidence
16
our society thinks he should have in the correctness of factual
conclusions for a particular type of adjudication.’ ” Id. at 150 (quoting In
re Winship, 397 U.S. 358, 370, 90 S. Ct. 1068, 1076, 25 L. Ed. 2d 368,
379 (1970) (Harlan, J., concurring)). Thus, the standard of proof results
“from a reasoned balancing of all the interests, public and private, that
are implicated in the particular factual determination.” Id.
Hawaii employs a mixed approach. Generally, the standard of
proof in an undue influence case is a preponderance of the evidence. In
re Estate of Herbert, 979 P.2d 39, 51 (Haw. 1999). If, however, the undue
influence is shown by circumstantial evidence, “the indirect evidence
must be of a clear and convincing character.” Id. at 53 (citation and
internal quotation marks omitted).
Finally, in as many as thirteen jurisdictions, there appears to be
no caselaw articulating the standard of proof in undue influence cases
involving wills. See Ross & Reed § 7:11 n.5. In some jurisdictions,
courts have adopted language other than a preponderance of the
evidence or clear and convincing evidence to describe the necessary
standard of proof. For instance, one appellate court has stated the
evidence must be “of sufficient character, substance, and weight to
furnish a firm foundation for a jury’s verdict.” Fischer v. Heckerman, 772
S.W.2d 642, 646 (Ky. Ct. App. 1989). What such a vague phrase means
is unclear, but such phrases are designed to weed out cases appellate
courts regard as simply too speculative to support relief.
2. Elements of undue influence. Many states have tried to identify
elements or factors supporting a claim of undue influence to set aside a
will, with variations from state to state. See Ross & Reed § 7:2. Some
states have approached the problem with a flexible factor test
reminiscent of the equitable origins of undue influence rather than a
17
more structured approach involving mandatory legal elements. See, e.g.,
Crittell v. Bingo, 36 P.3d 634, 639 (Alaska 2001) (listing various factors to
consider); Mullin v. Brown, 115 P.3d 139, 144 (Ariz. Ct. App. 2005)
(listing eight factors); Bye v. Mattingly, 975 S.W.2d 451, 457 (Ky. 1998)
(establishing seven “badges” of undue influence); Ruestman v. Ruestman,
111 S.W.3d 464, 479 (Mo. Ct. App. 2003) (identifying factors to be taken
into account); In re Estate of Eggebrecht, 967 P.2d 388, 391 (Mont. 1998)
(indicating court should take into account all surrounding
circumstances).
In those states that establish elements of undue influence, a
majority does not contain a requirement that the will clearly be the result
of undue influence and instead simply require that the will was the
result of undue influence. See, e.g., Dinan v. Marchand, 903 A.2d 201,
204 n.1 (Conn. 2006); Gmeiner v. Yacte, 592 P.2d 57, 63 (Idaho 1979); In
re Estate of Bacon, 645 N.Y.S.2d 1016, 1019 (Sur. Ct. 1996); In re Will of
Campbell, 573 S.E.2d 550, 560 (N.C. Ct. App. 2002); In re Estate of Dion,
623 N.W.2d 720, 728 (N.D. 2001); West v. Henry, 184 N.E.2d 200, 202
(Ohio 1962); Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963).
There are, however, other Midwestern states that adopt the same
approach as Iowa. In a long line of cases, the South Dakota Supreme
Court, citing established precedent, found undue influence in a will
contest required “a result clearly showing the effects of undue influence.”
See, e.g., Stockwell v. Stockwell, 790 N.W.2d 52, 64 (S.D. 2010); In re
Estate of Pringle, 751 N.W.2d 277, 291 (S.D. 2008); Estate of
Duebendorfer, 721 N.W.2d at 446; In re Estate of Schnell, 683 N.W.2d
415, 421 (S.D. 2004); In re Estate of Holan, 621 N.W.2d 588, 592 (S.D.
2001); In re Estate of Dokken, 604 N.W.2d 487, 495 (S.D. 2000); In re
Estate of Elliott, 537 N.W.2d 660, 663 (S.D. 1995); In re Estate of Smith,
18
520 N.W.2d 80, 85 n.2 (S.D. 1994); In re Estate of Till, 458 N.W.2d 521,
525 (S.D. 1990); In re Estate of Zech, 285 N.W.2d 236, 240 (S.D. 1979);
In re Estate of Landeen, 264 N.W.2d 521, 523 (S.D. 1978); In re Estate of
Anders, 226 N.W.2d 170, 174 (S.D. 1975); In re Estate of Metz, 100
N.W.2d 393, 394 (S.D. 1960).
The Supreme Court of Nebraska has taken a similar approach.
See, e.g., In re Estate of Hedke, 775 N.W.2d 13, 28 (Neb. 2009); In re
Estate of Novak, 458 N.W.2d 221, 224 (Neb. 1990); In re Estate of
Peterson, 439 N.W.2d 516, 520 (Neb. 1989); In re Estate of Villwok, 413
N.W.2d 921, 924 (Neb. 1987); In re Estate of Price, 388 N.W.2d 72, 79
(Neb. 1986); In re Estate of Gloe, 215 N.W.2d 98, 101 (Neb. 1974); In re
Estate of Gorthy, 100 N.W.2d 857, 864 (Neb. 1960); In re Bainbridge’s
Estate, 36 N.W.2d 625, 626 (Neb. 1949); In re Bowman’s Estate, 9
N.W.2d 801, 806 (Neb. 1943). Notably, both Nebraska and South
Dakota, like Iowa, employ a preponderance-of-the-evidence standard to
undue influence claims in will contests when no fiduciary relationship is
present. See, e.g., Estate of Price, 388 N.W.2d at 76–77; Estate of Holan,
621 N.W.2d at 591.
Older Wisconsin cases also require a result clearly appearing to be
the effect of the supposed influence. See, e.g., In re Estate of Komarr,
175 N.W.2d 473, 477–78 (Wis. 1970); In re Will & Estate of Freitag, 101
N.W.2d 108, 109 (Wis. 1960); In re Beyer’s Estate, 55 N.W.2d 401, 403
(Wis. 1952); In re Feeley’s Estate, 33 N.W.2d 139, 142 (Wis. 1948); In re
King’s Will, 29 N.W.2d 69, 72 (Wis. 1947); In re Faulks’ Will, 17 N.W.2d
423, 440 (Wis. 1945); In re Scherrer’s Estate, 7 N.W.2d 848, 853 (Wis.
1943); In re Raasch’s Will, 284 N.W. 571, 575 (Wis. 1939); Leisch’s Will,
267 N.W. at 271; In re Schaefer’s Estate, 241 N.W. 382, 385 (Wis. 1932).
Later cases, however, seem to abandon the requirement, see, e.g., In re
19
Estate of Dejmal, 289 N.W.2d 813, 819 (Wis. 1980) (requiring “a result
caused by, or the effect of such undue influence”), perhaps because
Wisconsin has adopted a clear-and-convincing-evidence standard for
undue influence claims, see, e.g., In re Estate of Sensenbrenner, 278
N.W.2d 887, 890 (Wis. 1979) (requiring the presumption of a valid will to
be overcome by clear, satisfactory, and convincing evidence of undue
influence).
E. Secondary Authority on Undue Influence.
1. Burden of proof. The Restatement (Third) of Property provides
that the burden of establishing undue influence rests on the party
contesting the validity of the donative transfer. Restatement (Third) of
Property: Wills and Other Donative Transfers § 8.3 cmt. b, at 144 (2003)
[hereinafter Restatement (Third)]. The comment does not, however,
address the appropriate standard of proof for that burden. Similarly, the
Uniform Probate Code provides that contestants of a will have the burden
of establishing undue influence, but does not indicate the appropriate
standard. Unif. Probate Code § 3-407 (amended 2010), 8 (II) U.L.A. 95
(2013). A leading treatise declares that “[i]t is usually said” that the
burden of proof is on the party alleging the undue influence by a
preponderance of the evidence. 3 William J. Bowe & Douglas H. Parker,
Page on the Law of Wills § 29.79, at 696 (2004). Another treatise simply
declares the burden of proving undue influence is on the contestant.
William M. McGovern, Sheldon F. Kurtz, & David M. English, Principles
of Wills, Trusts & Estates § 7.3, at 359 (2d ed. 2012) [hereinafter
Principles of Wills, Trusts & Estates].
2. Elements of undue influence. We begin our review of secondary
authority of elements of undue influence by considering the Restatement
(Third). Section 8.3 of the Restatement (Third) considers claims of undue
20
influence, duress, or fraud. See Restatement (Third) § 8.3, at 143–44.
Section 8.3 generally provides that a donative transfer can be found to
have been procured by undue influence where it is shown that “such
influence . . . overcame the donor’s free will and caused the donor to
make a donative transfer that the donor would not otherwise have
made.” Id. § 8.3, at 143.
Comment e addresses cases where, as is often true, there is no
direct evidence of undue influence and the claim must be proven through
circumstantial evidence. See id. § 8.3 cmt. e, at 145. Comment e recites
traditional elements of undue influence, including a causation element
that “there was a result appearing to be the effect of the undue
influence.” Id. The term “clearly” does not appear in the comment.
However, there is authority applying an approach similar to that in
Ankeny’s Estate. For instance, the annotation appearing at 79 Am. Jur.
2d Wills § 359, at 576–77 (2013) states the elements of undue influence
include:
(1) the decedent’s susceptibility to undue influence; (2)
opportunity to exert such influence; (3) a disposition to do so
for an improper purpose; and (4) a result clearly showing the
effects of undue influence.
(Emphasis added.) Similarly, 95 C.J.S. Wills § 375, at 335 (2011) states
the fourth element of undue influence is that “the result—reflected in the
will—was clearly the effect of undue influence.” (Emphasis added.) One
treatise also declares a contestant must prove that “the will reflects a
disposition clearly appearing to be the product of the undue influence.”
Principles of Wills, Trusts, and Estates § 7.3, at 354–55 (emphasis added).
3. The case for abandonment. While conventional legal authorities
debate the nuances, critics of undue influence in wills have recently been
energized. At least one has called for abandonment of the doctrine
21
altogether. See generally Carla Spivack, Why The Testamentary Doctrine
of Undue Influence Should Be Abolished, 58 U. Kan. L. Rev. 245 (2010)
[hereinafter Spivack]. While no one in this litigation is calling for such a
radical step, the underlying critique of the doctrine may shed some light
on the less draconian choices presented in this case.
The case for abandonment notes, as a general matter, that courts
have failed to provide any standard of clarity, fairness, or predictability
that a legal doctrine should provide. E.g., id. at 246. According to one
commentator, the undue influence doctrine “ostensibly safeguards
testamentary freedom” yet determinations “often are more dependent on
courts’ normative views of the relationships between the testator,
beneficiary and contestant than by the actual presence or absence of
factors often deemed indicative of undue influence.” Leslie, 38 Ariz. L.
Rev. at 244–45. In short, because of its spongy character, it has been
argued the law of undue influence may undermine testamentary freedom
in order to promote social goals thought to be desirable. Id. at 236–37;
see also Spivack at 248, 298.
F. Resolution of Issues in this Case.
1. Burden of proof to be employed. We first consider the
substantive question of whether the court’s instruction that causation
must be clearly proved is consistent with Iowa law. Pursuant to Iowa
Rule of Civil Procedure 1.924, the district court must “instruct the jury
as to the law applicable to all material issues in the case.” The
instructions “ ‘must convey the applicable law in such a way that the
jury has a clear understanding of the issues it must decide.’ ” Boyle v.
Alum-Line, Inc., 710 N.W.2d 741, 748–49 (Iowa 2006) (quoting Thompson
v. City of Des Moines, 564 N.W.2d 839, 846 (Iowa 1997)). William
challenges the “clearly” requirement in Instruction No. 2 as inconsistent
22
with the established Iowa law that a preponderance of the evidence is the
appropriate standard to prove undue influence.
Certainly William is correct in asserting that we have repeatedly
held the standard of proof in undue influence cases is a preponderance
of the evidence. See, e.g., Estate of Todd, 585 N.W.2d at 275–76.
However, we have also repeatedly held the fourth element of an undue
influence claim, causation, must be clearly proved. See, e.g., id. at 277
n.4; Ankeny’s Estate, 238 Iowa at 760, 28 N.W.2d at 417.
The question arises whether these two concepts can coexist. In
Estate of Todd, we found no inconsistency in generally applying a
preponderance-of-the-evidence standard to the elements of undue
influence, but at the same time requiring that causation be clearly
established. 585 N.W.2d at 277 & n.4. The cases since Estate of Todd
have applied our established undue influence law. The courts of
Nebraska and South Dakota have adopted a similar approach. See, e.g.,
Estate of Price, 388 N.W.2d at 76–77; Estate of Holan, 621 N.W.2d at
591–92. There is at least some support for the approach in secondary
commentary. In light of Estate of Todd, the authorities in South Dakota
and Nebraska, and the supportive authorities, we conclude a
requirement that causation be clearly established is not inconsistent
with the preponderance-of-the-evidence standard generally applying to
the other elements of undue influence.
The question remains, however, whether we should abandon the
“clearly” requirement in causation. We decline to do so. A heightened
causation element in undue influence cases makes sense. In cases
involving challenges to wills based upon undue influence, the central
issue is whether the acts of the testator were a product of free will or
coercion. The testator, however, is not available to testify and, as a
23
result, a speculative element is necessarily introduced into the claim. As
colorfully noted in the commentary, will contests necessarily apply a
“worst evidence” rule. Langbein, 103 Yale L.J. at 2044.
Further, it is not always easy to distinguish ordinary permissible
influences on a testator from improper coercion. The injection of the
word “clearly” into the fourth element of undue influence is designed to
add a measure of protection to the free will of a testator, filter out claims
that are unduly speculative, and to prevent the doctrine from expanding
beyond its limited scope. All of the other elements of undue influence
might be present—susceptibility, opportunity, and disposition—and, still,
the will provisions might be the result of the testator’s free will.
The heightened causation requirement of “clearly” ensures the
other factors really mattered to the end result. As we noted in Estate of
Davenport, weak circumstantial evidence that at most raises the
possibility of influence is not sufficient. 346 N.W.2d at 532. We quoted
at length from a leading Iowa probate treatise, which stated:
“It is not sufficient that persuasion alone was asserted
against the testator. The courts have rightly recognized that
most persons assert some influence over others, through
friendship or familial duties, which may have some
tangential effect on their receiving a testamentary benefit.
This influence is not tainted. Rather, undue influence must
dominate the motives of the testator in executing his will. It
must be equivalent to ‘moral coercion.’ ”
Id. (quoting 1 Kurtz § 4.45, at 175). The “clearly” requirement in our law
helps prevent our undue influence doctrine from being over inclusive, as
it will tend to deter juries from finding undue influence merely because
they disagree with the terms of a will.
We recognize that many other jurisdictions reach this result by
applying a clear and convincing evidentiary standard with respect to all
elements of undue influence. We rejected that approach in Estate of
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Todd. 585 N.W.2d at 277. Neither party asks us to revisit the issue. In
any event, we think it permissible to heighten the plaintiff’s burden
through the substance of an elements-based instruction. Our caselaw
recognizes that will contests, by statute, are actions at law, which means
jury trials are available and the applicable standard of review is a
preponderance of the evidence. Yet, by judicially establishing a
somewhat higher causation standard, we increase the likelihood that
specious undue influence claims are weeded out.
We do not think the instruction is so confusing as to require
reversal. The instruction required that in order to succeed, William had
to prove his undue influence claim by a preponderance of the evidence.
One of the elements—causation—requires clear proof. We think a
reasonable jury would understand that it must find by a preponderance
of the evidence that the changes were clearly the result of undue
influence.
2. Repetition. We now turn to the issue of whether the instruction
was unduly repetitive. Instructions may not give undue prominence to
certain evidence involved in the case. E.g., State v. Marsh, 392 N.W.2d
132, 133 (Iowa 1986); see also 75A Am. Jur. 2d Trial § 981, at 618–19
(2007). Further, instructions may not repeat even correct statements of
law to the point of undue emphasis. E.g., Andrews v. Struble, 178
N.W.2d 391, 400 (Iowa 1970). In sum, the bottom line is that the
instructions must not “give undue prominence to any particular aspect of
a case,” Vachon v. Broadlawns, 490 N.W.2d 820, 822 (Iowa 1992), which
may include a “particular theory, defense, stipulation, burden of proof, or
piece of evidence,” Olson v. Prosoco, Inc., 522 N.W.2d 284, 287 (Iowa
1994). William asserts that by instructing the jury regarding the
causation element of undue influence in both subparagraphs 4 and 5,
25
the instruction was flawed as unduly emphasizing certain evidence in the
case.
We have on a number of occasions found instructions that unduly
emphasized certain evidence were flawed and required reversal. For
example, in Clarke v. Hubbell, 249 Iowa 306, 315–16, 86 N.W.2d 905,
910–11 (1957), we found that the district court, by repeating time and
again the principle that a city was not an insurer for all injuries that
occurred on its premises, committed reversible error. By its frequent
repetition of a limiting concept in the law, the court gave undue
emphasis to a potential defense in the case.
In Andrews, however, we found instructions were not repetitious
where one instruction informed the jury that if it found the negligence of
the defendant and other persons proximately caused the plaintiff’s
injury, the concurring negligence would not affect the plaintiff’s right to
recover solely from the defendant, and a second instruction informed the
jury that if it found the defendant’s negligence was the sole proximate
cause of the injury, the plaintiff was entitled to recover. 178 N.W.2d at
400. We noted that while the latter statement may have been
repetitious, the statement “was of some aid in clarifying the requirement
of proximate cause.” Id.
This case is more like Andrews than Clarke. Subparagraphs 4 and
5 did not contain the type of pointless repetition found in Clarke.
Subparagraph 4 provided instructions related to the definition of undue
influence not contained in subparagraph 5, and subparagraph 5
provided an additional legal requirement not contained in subparagraph
4—namely, that the evidence must show that changes in the trust
document were “clearly the result of the foregoing circumstances.” While
the instructions overlap to some degree, that is often the case in jury
26
instructions that build upon concepts of law. Further, a single repetition
coupled with a clarification of the law does not amount to error. Id.
IV. Conclusion.
For the above reasons, we vacate the decision of the court of
appeals and affirm the judgment of the district court. Further, because
of our resolution of this case, we need not address Steven’s cross-appeal.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED.