In the Matter of the Estate of Lois B. Erickson

IN THE COURT OF APPEALS OF IOWA
No. 17-0430
Filed July 18, 2018
IN THE MATTER OF THE ESTATE OF LOIS B. ERICKSON, deceased.
WAYNE ERICKSON,
Plaintiff-Appellant,
vs.
ALAN D. ERICKSON, MARY ANN WARD, LEAH ERICKSON, LISAH
ERICKSON, COOPER WARD, LUKE ERICKSON AND LAUREN ERICKSON
and ALL UNKNOWN AND UNBORN BENEFICIARIES,
Respondents-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Boone County, Steven J. Oeth,
Judge.
Wayne Erickson appeals a ruling finding his mother’s 2011 will invalid based
on undue influence and lack of testamentary capacity and finding him liable for
tortious interference with a bequest. AFFIRMED.
Patrick J. Riley and Peter C. Riley of Tom Riley Law Firm, P.L.C., Cedar
Rapids, for appellant.
Amanda L. Green of Nading Law Firm, Ankeny, for appellee Estate of Lois
B. Erickson.
Kevin Cunningham of Cunningham & Kelso, P.L.L.C., Urbandale, for
appellees Unknown and Unborn Beneficiaries.
Matthew G. Sease of Kemp & Sease, Des Moines, for appellees Mary Ann
Ward, Cooper Ward, and Christina Ward.
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Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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VAITHESWARAN, Presiding Judge.
An heir to his mother’s estate contends the district court erred in (1) finding
him liable for intentional tortious interference with a bequest, (2) assessing all the
estate’s attorney fees against his share of the estate, (3) denying his motion to
continue, (4) precluding him from testifying as a discovery sanction, and (5) finding
a 2011 will invalid based on lack of testamentary capacity and undue influence.
I. Background Facts and Proceedings
Lois Erickson executed two wills before she died in 2015—one in 2010 and
another in 2011. Her 2010 will divided her estate equally among her three
children—Wayne Erickson, Alan Erickson, and Mary Ann Ward. Her 2011 will left
the vast majority of the estate to Wayne.
Lois’ home and living conditions deteriorated over time. Alan and Mary Ann
petitioned for the appointment of a guardian and conservator. On learning of the
petition, Wayne had a codicil to the 2011 will drafted. The codicil provided that
anyone who contested the 2011 will “shall reimburse my son, Wayne D. Erickson,
at the rate of $1,500.00 per hour.” Lois signed the codicil two days before a
guardianship/conservatorship hearing and gave Wayne power of attorney one day
before the hearing.
Wayne contested the appointment of a guardian and conservator and
objected to a medical evaluation of Lois. The physician who evaluated her
diagnosed “moderate to severe” Alzheimer’s. The court ordered Alan to serve as
Lois’ guardian and named a bank as conservator.
After Lois died, Alan filed a petition to probate the 2010 will. The court
admitted the 2010 will to probate. Two months later, Wayne filed a “petition to set
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aside probate of [the 2010] will and declaratory judgment to determine last will.”
Wayne asserted, “[T]he [2010 will] is not the most recent Last Will and Testament
of Lois B. Erickson. The [2011 will] is the Last Will and Testament of Lois Erickson
and as such should be the Will being administered and probated.” Mary Ann and
her two children filed a counterclaim against Wayne for tortious interference with
a bequest.
The parties stipulated the issue for trial was the validity of the 2011 will. The
stipulation was memorialized in a court order. Following a bench trial, the district
court found the 2011 will invalid based on undue influence and lack of testamentary
capacity. The court also found Wayne liable to Mary Ann and her children for
tortious interference with a bequest. Finally, the court ordered Wayne to pay all of
the estate’s attorney fees from his share of the estate. Wayne appealed.
II. Tortious Interference with Bequest
“One who by fraud or other tortious means intentionally prevents another
from receiving from a third person an inheritance or gift that he [or she] would
otherwise have received is subject to liability to others for the loss of the inheritance
or gift.” Huffey v. Lea, 491 N.W.2d 518, 520 (Iowa 1992) (quoting Restatement
(Second) of Torts, § 774B (1979)). A plaintiff alleging tortious interference with a
bequest must show the defendant acted with tortious intent. See id. at 521 (“The
necessary proof in an action for intentional interference with a bequest or devise
focuses on the fraud, duress, or other tortious means intentionally used by the
alleged wrongdoer in depriving another from receiving from a third person an
inheritance or gift.”); In re Estate of Boman, No. 16-0110, 2017 WL 512493, at *10
(Iowa Ct. App. Feb. 8, 2017) (requiring a showing defendants acted “intentionally
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and improperly” in interfering with plaintiff’s expected inheritance). We review a
finding of tortious interference with a bequest for substantial evidence. Boman,
2017 WL 512493, at *11.
Wayne contends the district court simply found he exerted undue influence
over Lois and a finding of undue influence was insufficient to support liability for
intentional interference with bequest. We agree undue influence is not coextensive
with tortious interference. As the court explained in Huffey, the former “focuses on
the testator’s mental strength and intent” while the latter “focuses on the fraud,
duress, or other tortious means used by the alleged wrongdoer.” 491 N.W.2d at
521.
Although the district court did not explicitly determine Wayne acted by
“fraud, duress, or other tortious means,” the court’s detailed fact findings were an
effective equivalent. See Hubby v. State, 331 N.W.2d 690, 695 (Iowa 1983)
(stating “[f]indings of fact are given a liberal construction favorable to the judgment”
and “we assume as fact an unstated finding that is necessary to support the
judgment”). The court found that, four days before the drafting of the 2011 will,
Wayne and Lois called Lois’ lawyer, told him Alan was guilty “of breaking into Lois’
safe and stealing several items,” and told him to draft a new will divesting Alan of
any share of the estate. The court further found the lawyer “primarily spoke with
Wayne” and directed him to report the theft matter to law enforcement authorities.
The court found “[t]he Boone County Sheriff’s office investigated the matter, but
did not find any evidence of a theft.” Meanwhile, the lawyer “drafted a completely
new will,” which “left all of the farm ground to Wayne and the residue to Wayne
and Mary Ann.” The will was signed a month after the phone call. The court found
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“Wayne continued his control over Lois” following the signing. Specifically, he
called the police to investigate Mary Ann and prohibited her from taking Lois to two
events. On our review of the record, we discern the following evidentiary support
for the district court’s findings.
The attorney who drafted the 2011 will testified Wayne called and said “oh,
somebody stole something from my mom, and she’s really upset about it.” The
attorney elaborated, “[Lois and Wayne] called me. They both were pretty rattled.
They said Alan broke into Lois and Arlo’s home and stole some stuff out of the safe
that was downstairs.” According to the attorney’s notes, Wayne and Lois informed
him the titles to cars and trucks, deeds, and other documents were missing,
together with a large diamond ring “worth thousands of dollars.” Although the
attorney testified both Lois and Wayne were on the phone call, he admitted Wayne
did all the talking. In his words, “Lois was very quiet. She probably didn’t do any
talking.”
The lawyer testified, “In the meantime Lois wants to do a new will and cut
out Alan entirely.” The attorney stated he drafted the changes to the will in short
order and Lois executed the will.
The attorney’s testimony about Wayne’s accusation against Alan was
corroborated by Alan. Alan testified to Wayne’s overall controlling behavior when
it came to his mother. As an example, he said he had phone conversations with
Lois in which he overheard Wayne “coaching her what to say.” He stated, Wayne
was “very aggressive” and “very outspoken” in directing his mother’s
communications.
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A law enforcement officer confirmed Wayne’s accusation of theft. He
testified he went to Lois’ home and “tried to” talk with her, but every time he “would
ask her a question, Wayne would interrupt.” He stated it seemed as if Wayne was
trying to prevent Lois from communicating with him. The officer called Alan to
obtain additional information. He ultimately concluded there was no evidence to
“proceed further.”
Mary Ann testified to Wayne’s controlling behavior after the 2011 will was
signed. She cited Wayne’s refusal to let her take Lois for a manicure, his
accusation she was “stealing items from [her] mother,” his assertion that his mother
did not trust her, and his call to 911 accusing her of theft. When an officer arrived
at Lois’ home to investigate the assertion, Mary Ann told him she was simply there
to take her mother out. She encouraged the officer to check her trunk for allegedly
stolen items. She testified “that was that.” Like Alan, she said Wayne’s presence
when she telephoned her mother resulted in a change in her mother’s “tone of
voice” and shorter answers. In Mary Ann’s words, Lois “just kind of wanted to end
the call.”
Substantial evidence supports the district court’s findings and the court’s
implicit determination of Wayne’s tortious intent to interfere with the bequest to his
siblings. Accordingly, we conclude the district court did not err in finding in favor
of the Wards on their tortious-interference-with-a-bequest claim. We affirm the
court’s award of consequential damages to the Wards in the form of attorney fees
incurred in defending the action filed by Wayne. See Huffey, 491 N.W.2d at 522
(“We are strongly committed to the rule that attorney fees are proper consequential
damages when a person, through the tort of another, was required to act in
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protection of his or her interest by bringing or defending an action against a third
party.”).
III. Attorney Fees to Executor
Iowa Code section 633.315 (2015) authorizes an executor to recoup
reasonable attorney fees:
When any person is designated as executor in a will, or has been
appointed as executor, and defends or prosecutes any proceedings
in good faith and with just cause, whether successful or not, that
person shall be allowed out of the estate necessary expenses and
disbursements, including reasonable attorney fees in such
proceedings.
A probate court is granted considerable discretion in taxing fees. In re Estate of
Wulf, 526 N.W.2d 154, 158 (Iowa 1994). Where the fees are assigned to the
objector’s share of the estate, the question is whether the objector acted in bad
faith. Id.; cf. Swartzendruber v. Lamb, 582 N.W.2d 171, 176-77 (Iowa 1998)
(applying “good faith and just cause” test in section 633.315 to executor proponent
of a will who was also a real party in interest and was unsuccessful in upholding
the validity of the will, and affirming conclusion that executor could not charge costs
to estate because he exerted undue influence over decedent).
The district court assessed all of the estate’s attorney fees—$47,880.93—
against “Wayne’s share of the estate.” In doing so, the court reasoned,
The fees were necessary and reasonable based upon Wayne’s
action in challenging the 2010 will. The court considered reducing
the Estate’s fees based on the use of two attorneys at trial. The
Court decided that it would assess both attorneys’ fees to Wayne.
There was significant money involved in this case which would justify
the use of two attorneys. Additionally, Wayne had two attorneys at
trial representing his interest.
In the court’s view, Wayne’s conduct in attempting to probate
the 2011 will justifies the assessment of the attorney fees as
indicated herein. Wayne clearly was just trying to get a significantly
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bigger share of the estate. His conduct in exerting undue influence
and then trying to get the 2011 will probated is based on nothing but
greed.
....
Wayne has been domineering and controlling of his mother for years.
His conduct justifies the assessment of attorney fees as indicated
appropriate in this ruling.
Wayne appeals the assessment of the estate’s fees solely against his share
of the estate. He argues the court’s assessment was unduly harsh because “[his]
claim cannot be said to be frivolous nor made in bad faith.”
To the contrary, the record is replete with evidence of bad faith, some of
which we have recounted above. Although the court did not use the term “bad
faith,” the court cited Wayne’s “greed” and his “domineering and controlling”
behavior. These characterizations are indicative of bad faith. We conclude the
district court did not abuse its discretion in assessing the executor’s attorney-fee
obligation against Wayne’s share of the estate.
IV. Wayne’s Motion to Continue
Twenty-two days before trial, Wayne moved to continue trial, arguing the
2010 will was invalid because of undue influence and lack of testamentary
capacity. Wayne asserted he needed more time “to fully develop the evidence
showing the invalidity of the 2010 will.” The district court denied the motion. The
court reasoned (1) Wayne’s petition did not assert the 2010 will was invalid, (2)
“the parties agreed the issue to be decided at trial [was] whether the 2011 Will
[was] invalid due, in part, to undue influence,” (3) “the deadline for pleadings of
that nature [had] passed,” and (4) the “trial date should not be continued this close
to the trial date that was set one year in advance.”
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On appeal, Wayne contends the defendants had “adequate notice” of his
intent to challenge the 2010 will on the stated grounds and he should have been
afforded additional time to develop this challenge. Our review of the court’s denial
of the continuance motion is for abuse of discretion. In re Estate of Lovell, 344
N.W.2d 576, 578 (Iowa Ct. App. 1983).
We discern no abuse. Wayne’s petition made no mention of a challenge to
the 2010 will based on undue influence or lack of testamentary capacity. The
petition simply stated, “[T]he [2010 will] is not the most recent Last Will and
Testament of Lois B. Erickson. The [2011 will] is the Last Will and Testament of
Lois Erickson and as such should be the Will being administered and probated.”
Additionally, in interrogatories, Wayne was asked “whether or not [he was] claiming
that any person unduly influenced Lois B. Erickson.” He responded “none.”
Wayne was also asked “whether or not [he believed] Lois B. Erickson was
susceptible to being influenced regarding his Last Will and Testament.” He
responded, “No.” And, as noted, the district court clarified that the issue for trial
was whether the 2011 will—not the 2010 will—was “invalid due, in part, to undue
influence.” Finally, Wayne’s belated attempt to inject a new issue so close to the
trial date was unfair to the other parties, particularly where Wayne was aware of
the potential claim from the outset. See Scott v. Grinnell Mut. Reins. Co., 653
N.W.2d 556, 561 (Iowa 2002) (“Principles of fairness . . . dictate notice of the claims
asserted in order to give the opposing party opportunity to make an adequate
response.”); see also In re Estate of Workman, 903 N.W.2d 170, 178-79 (Iowa
2017) (affirming denial of an amendment “to add the prior wills and codicil to [the]
undue influence claim” because the movant “knew of the prior wills long before”
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and also knew about any evidence of undue influence long before he proposed the
amendment). We affirm the district court’s denial of the continuance motion.
V. Discovery Sanction
Wayne failed to appear for a deposition on two separate occasions. As a
sanction for his nonappearance, the defendants moved to dismiss his action. The
district court found Wayne’s failure to appear following ten mailed notices was
willful. Nonetheless, the court found dismissal to be too harsh a sanction and opted
for two lesser sanctions. First, the court stated Wayne would “not be permitted to
testify on his own behalf at trial.” Second, the court ordered Wayne “to pay all
attorney fees and court reporter costs incurred based on his failure to appear for
depositions.”
On appeal, Wayne contends the court’s refusal to allow him to testify
amounted to an abuse of discretion. See Haumersen v. Ford Motor Co., 257
N.W.2d 7, 14 (Iowa 1977) (setting forth standard of review). We disagree.
Iowa Rule of Civil Procedure 1.517(4) authorizes the imposition of sanctions
for failure to appear at a deposition. One of the possible sanctions is “[a]n order
refusing to allow the disobedient party to support or oppose designated claims or
defenses, or prohibiting such party from introducing designated matters in
evidence.” Iowa R. Civ. P. 1.517(2)(b)(2).
The sanction of excluding Wayne’s testimony was entirely appropriate, for
the reasons stated by the district court. See id.; see also Farley v. Ginther, 450
N.W.2d 853, 856 (Iowa 1990) (upholding district court’s exclusion of expert
testimony because of party’s failure to abide by discovery order); Sullivan v.
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Chicago & N.W. Transp. Co., 326 N.W.2d 320, 324 (Iowa 1982) (same). We affirm
the district court’s ruling.
VI. Invalidity of 2011 Will
The district court determined Lois lacked testamentary capacity when she
executed the 2011 will and the will was the product of undue influence. Wayne
argues these determinations are not supported by substantial evidence. See In re
Estate of Lachmich, 541 N.W.2d 543, 545 (Iowa Ct. App. 1995) (setting forth
standard of review). We begin with the district court’s detailed fact findings on
each issue.
On the question of Lois’ testamentary capacity, the court cited the
physician’s diagnosis of severe Alzheimer’s disease, the physician’s view that Lois
could not make any major decisions on her own, and his ability to “very confident[ly]
opine as to Lois’ mental capabilities” at the time she executed the 2011 will. The
court quoted the physician’s testimony, pointed out that “[n]o other medical
person[nel] testified,” and stated other individuals were not called “to rebut [the
physician’s] medical diagnosis.” The court stated, “Based upon [the physician’s]
undisputed testimony, it is clear that Lois was medically and legally incapable of
knowing a will was being made, knowing ‘the natural objects of [her] bounty,’ or
the true ‘distribution [she] desires to make of [her] property.’” (quoting Pearson v.
Ossain, 420 N.W.2d 493, 495 (Iowa Ct. App. 1988)). The court concluded the
2011 will was invalid.
As to undue influence, the court found “[w]ithout question” that Lois “was
susceptible to undue influence.” The court cited her medical diagnosis “that
extended into the relevant time periods of the April 2011 Will formation,” the effect
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of the diagnosis on “her executive functioning,” her age, her dependence on others
“for her general basic necessities and travelling,” and her other medical conditions
that made ambulation difficult. The court next turned to Wayne’s opportunity to
exercise undue influence and found “this element is really not in dispute.” The
court also found the record “replete” with evidence Wayne was inclined to influence
Lois unduly to gain an improper favor. The court cited his attempt to force Alan
out of a meeting with an attorney, his placement of signs around Lois’ home
“establishing visiting hours and precluding other family members from visiting
Lois,” and his possession of one of two keys to the house. Next the court
summarized the evidence indicating Lois “acted like a completely different person
when away from Wayne,” evidence showing Wayne “controlled the conversations
and did most of the talking” with Lois’ attorney, and evidence of his continued
control over Lois after the 2011 will was executed. Addressing the final element
of an undue influence claim—whether the will was “clearly brought about by undue
influence”—the court cited “the dramatic difference between” the two wills and the
attorney’s testimony that the 2011 will was the product of Wayne’s influence.
No useful purpose would be served by summarizing the extensive evidence
supporting the district court’s findings. Suffice it to say the findings and
determinations of lack of testamentary capacity and undue influence are supported
by substantial evidence and the court’s legal analysis was correct. See Burkhalter
v. Burkhalter, 841 N.W.2d 93, 99-105 (Iowa 2013) (discussing elements of undue
influence claim and declining to abandon the “clearly” requirement of causation).
We affirm the court’s conclusion that the 2011 will was invalid.
AFFIRMED.