In re: Estate of Edward J. Reichenberger, a/k/a Edward Reichenberger, Deceased.

In re: Estate of Edward J. Reichenberger, a/k/a Edward Reichenberger, Deceased. A06-653, Court of Appeals Unpublished, April 10, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-653

 

In re: Estate of Edward J. Reichenberger,

a/k/a Edward Reichenberger,

Deceased.

 

Filed ­­­April 10, 2007

Affirmed in part and reversed in part

Dietzen, Judge

 

Carver County District Court

File No. 10-PR-04-13

 

Mary R. Vasaly, Maslon, Edelman, Borman & Brand, LLP, 3300 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402 (for appellant Linda Soukup)

 

Patrick J. Neaton, Neaton & Puklich, PLLP, 601 Carlson Parkway, Suite 620, Minnetonka, MN 55305 (for respondent Dale Hilk)

 

            Considered and decided by Minge, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges the district court order and resulting judgment which, inter alia, admitted a June 2001 will of testator to probate, but voided a competing will executed four months later due to undue influence upon the testator, and awarded attorney fees against appellant and a non-party.  Appellant argues that the district court failed to apply the proper burden of proof to the evidence and that the findings and conclusions of the district court were not supported by the evidence or law.  We affirm in part and reverse in part.

FACTS

            This is a contest involving competing wills executed by Edward Reichenberger (testator) on June 7, 2001 (the June will), in which respondent Dale Hilk is a residuary beneficiary, and a will executed on October 17, 2001 (the October will), in which appellant Linda Soukup and non-party Richard Blanchard, are residuary beneficiaries.  Testator died on November 8, 2003.  Each party filed a petition to probate the will under which that party was a residuary beneficiary.

            Testator, who was born in July 1913, together with his older brother, John Reichenberger, inherited a 152-acre farm which they owned and resided on from April 1945 until their respective deaths.  The Reichenberger farm (farm) is located in Carver County between Waconia and St. Bonifacius.  Soukup and Blanchard lived near the Reichenberger farm, and their relationship with the Reichenbergers dates back to the mid-1980s when Soukup and Blancard sought to purchase boulders from the Reichenbergers for their landscaping business.  Hilk, born out of wedlock in July 1935, is the son of John Reichenberger.  Although Hilk lived in the vicinity of the farm, he did not have any significant contact with either testator or John until the early 1980s.

            The farmhouse, occupied by testator and John, was dilapidated and possessed no electricity, plumbing, running water, or heating system, other than a small wood-burning stove.  Soot and grease covered the floor, walls, and ceiling, and numerous windowpanes were broken, covered only in cardboard.  The state of the farmhouse was not due to poverty, but rather the lifestyle choice of the two bachelor brothers.

            In May 1988, the Reichenbergers signed a purchase agreement/option in favor of William and Suzanne Johnson.  When the Reichenbergers refused to comply with the terms of the agreement, the Johnsons brought a lawsuit.  In January 1994, the parties settled the lawsuit, which was approved by the district court.  Later, the Reichenbergers, with the assistance of Soukup and Blanchard, hired a new attorney to set aside the settlement.  Those efforts were unsuccessful.

            Hilk retired in October 1997 and began a practice of visiting testator and John at the farm three days a week.  Subsequently, Hilk began handling some financial matters for testator and John, who were 84 and 87 years old respectively, and arranging for the purchase of burial plots at the local cemetery.  In April 1998, Hilk consulted with attorney Paul Melchert, who prepared a power of attorney (POA), and assisted testator in the execution of a will.  The 1998 will provided, inter alia, that the residuary of testator's estate would go to his nephewsHilk and Kay Berriganin equal shares and appointed Hilk as his personal representative. 

In January 2000, Soukup and Blanchard convinced testator and John to commence a malpractice claim against their former attorneys arising out of the Johnson litigation.  When Hilk discovered the existence of the malpractice lawsuit, he had Melchert send a letter to Soukup and Blanchard advising them that Hilk was the attorney-in-fact for testator and John, and urged them to stay away from the brothers and terminate the litigation. 

But Soukup and Blanchard arranged a meeting with attorney John Choi to pursue the litigation.  Following a meeting with the Reichenbergers, Choi had them execute revocations of Hilk's POA and name Soukup and Blanchard as their new attorneys-in-fact, but did not notify Hilk. 

            In April 2001, John was admitted to a Waconia hospital.  In June 2001, testator met with Melchert to change his will.  The will (June will) provided, inter alia, that the residue of his estate went to Hilk, and that he was intentionally omitting all other persons except for a relative, Joan Stoltman, who received three thousand dollars.

When Melchert became aware that Soukup was POA for testator and John, he contacted attorney Kerry Olson and, on the basis of a conflict of interest due to his dealings with Hilk, asked Olson to speak with testator.  Attorney Olson met with testator at the farm on September 7, 2001, and observed the "appalling" living conditions.  During the meeting, testator stated that he wanted Hilk to be his attorney-in-fact because Hilk was a relative who lived in Waconia and "looked out" for him.  Testator also expressed his desire that attorney Choi continue to pursue the Johnson litigation. 

Olson then prepared and had testator execute a POA appointing Hilk as attorney-in-fact, and sent a letter to attorney Choi.  In his letter to Choi, Olson observed that testator was "clearly a vulnerable adult," but that he "retains mental alertness" and "expresses himself adequately," but "is 88 years old."  Olson also instructed Choi that Soukup and Blanchard must cease interfering in testator's life decisions, but that Choi could continue to pursue the Johnson litigation.

            Subsequently, a dispute arose in which Hilk accused Soukup and Blanchard of interfering with the lives and affairs of testator and John.  Attorneys Choi and Olson agreed to visit testator at the farm on September 20, 2001, in an attempt to resolve the dispute.  When Olson arrived, he was surprised to see Soukup and Blanchard at the meeting and requested that they leave.  Olson believed testator's demeanor had changed considerably from his previous meetings with him in which testator was lucid, clear, and reasonably animated.  But on this date testator was "like a deer in headlights" and "frozen in his chair."  During the meeting, Blanchard asked testator, "You don't want him as your attorney any more, do you," and testator responded, "No."  At that point Olson left the farmhouse considering himself to have been fired by testator.

            Soukup and Blanchard then made arrangements for testator to meet with attorney William Koenig to execute a new will.  At the meeting, testator requested that a will be completed immediately because he was going into the hospital that same day, which was not true.  Because it was a relatively short will, Koenig prepared it, and contrary to his usual practice had testator execute it that same day.  The October will made no reference to testator's desire to be buried in the local cemetery, and left the residuary of his estate in equal one-third shares to Soukup, Blanchard, and Joan Stoltman.  Soukup and Blanchard then took testator to the Carver County Courthouse where he deposited the will at the probate department.  The two court employees that spoke to testator made the following notation on the will jacket: "[Testator] did not know the day or year when he signed the back.  We had to tell him.  Don't think he was of sound mind."

            At trial, the parties vigorously disputed each other's motivations, the validity of the October will, and whether it was the subject of undue influence by Soukup and Blanchard.  Following a trial, the district court filed extensive findings of fact, conclusions of law, and an order and judgment admitting the June 2001 will to probate, appointing Hilk as personal representative, and concluding that the October will was void and the product of undue influence by Soukup and Blanchard.  In the main, the court credited the testimony of Hilk and discredited the testimony of Soukup and Blanchard.  Also, the district court concluded that the estate is entitled to judgment against Soukup and Blanchard for attorney fees that the estate had incurred.  This appeal follows.

D E C I S I O N

I.

Soukup argues that the district court erred in holding that the October will was invalid because it was the product of undue influence by Soukup and non-party Blanchard.  The district court's findings of fact will not be set aside unless they are clearly erroneous.  Minn. R. Civ. P. 52.01; In re Estate of Anderson, 384 N.W.2d 518, 520 (Minn. App. 1986).  "Findings are ‘clearly erroneous' only if ‘the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'"  Id. (quoting In re Estate of Congdon, 309 N.W.2d 261, 266 n.7 (Minn. 1981)). The existence of undue influence is a question of fact.  In re Estate of Reay, 249 Minn. 123, 124, 81 N.W.2d 277, 279 (1957).  

Initially, Soukup argues that the district court erred by adopting verbatim Hilk's proposed findings of fact and conclusions of law.  The verbatim adoption of a party's proposed findings and conclusions is "hardly commendable" as it raises the question of whether the district court "independently evaluated each party's testimony and evidence."  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002); Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  But, standing alone, it does not constitute grounds for reversal.  Pederson, 649 N.W.2d at 163; Dukes v. State, 621 N.W.2d 246, 259 (Minn. 2001).

When a district court adopts a party's proposed findings of fact and conclusions of law verbatim, a "careful and searching review of the record" is required. Dukes, 621 N.W.2d at 258.  Here, the district court did adopt Hilk's proposed findings of fact and conclusions of law.  Thus, our caselaw requires that we conduct a careful and searching review of the record to determine whether the district court's findings are clearly erroneous.  

Soukup also argues that the district court failed to require that Hilk prove undue influence by "clear and convincing evidence" because the standard of proof is not mentioned in the district court's order.  It is well settled that the will contestant must establish undue influence by clear and convincing proof.  Minn. Stat. § 524.3-407 (2006); In re Estate of Pundt, 280 Minn. 102, 104, 157 N.W.2d 839, 841 (1968).  But the failure of the district court to mention this standard of proof in its order does not, ipso facto, establish that the district court did not require it, particularly when it was briefed and argued by both parties.  Thus, our review necessarily focuses on whether clear and convincing evidence exists in the record to support the district court's finding that the will was the product of undue influence. 

            We will invalidate a will that is the product of undue influence if it is proven that another person exercised influence over the testator so that the will reflects the intent of the other person and not of the testator.  Estate of Reay, 249 Minn. at 126, 81 N.W.2d at 280; In re Estate of Torgersen, 711 N.W.2d 545, 550 (Minn. App. 2006), review denied (Minn. Jun. 20, 2006).  "Undue influence must be such as to substitute the will of the person exercising it for that of the testator, thereby making the written result express the purpose and intent of such person, not those of the testator." In re Estate of Marsden, 217 Minn. 1, 9, 13 N.W.2d 765, 770 (1944).  "It must be equivalent to moral coercion or constraint overpowering the will of the testator," and "must operate at the very time the will is made and dominate and control its making."  Id. Direct evidence of undue influence is generally not available and circumstantial evidence can be sufficient.  In re Estate of Olson, 176 Minn. 360, 365, 223 N.W. 677, 679 (1929). 

            The supreme court has identified six factors to determine whether undue influence has been exerted upon a testator.  In re Estate of Wilson, 223 Minn. 409, 413, 27 N.W.2d 429, 432 (1947); In re Estate of Opsahl, 448 N.W.2d 96, 100 (Minn. App. 1989).  We turn to the six factors.

A.        Opportunity to Exercise Influence

Soukup argues that she did not isolate testator or make him dependent upon her, and thus no "opportunity" existed for her to exercise undue influence.  The district court concluded that Soukup and Blanchard "made [testator] dependent upon them for his continued ability to live at the Reichenberger Farm and Soukup had [testator]'s Power of Attorney."

During the period immediately before and after the execution of the October will, Soukup was testator's attorney-in-fact and frequently visited testator at the farm, at a time when because of John's hospitalization, testator was regularly alone.  And Soukup and Blanchard made the appointment with attorney Koenig to draft the October will, transported testator to the office, and brought him to the county clerk's office to file it.  Thus, clear and convincing evidence exists in the record that Soukup had the opportunity to exercise influence on testator.  

B.        Active Participation in the Preparation of the Will

Soukup argues that the evidence is insufficient to demonstrate Soukup's active participation in the preparation of the will.  The district court found that Soukup and Blanchard "selected the attorney to draft the will, drove [testator] to the attorney's office, waited with him while the will was drafted and executed, then drove him to the Carver County courthouse where the will was deposited with the clerk's office."  The district court also found that "it is a certainty that Blanchard and Soukup told [testator] what provisions to include in his October 17, 2001 will, and that Blanchard and Soukup read the October 17, 2001 will before it was deposited with the Carver County Probate Court."    

Undue influence may be proven by circumstantial evidence.  Estate of Olson, 176 Minn. at 365, 223 N.W. at 679.  Here, Soukup was actively involved in every step of the process of selecting the attorney and arranging the meeting with testator, driving testator to the attorney's office and waiting for him while the will was drafted and executed, and driving testator to the courthouse to deposit the will.  And Soukup was substantially benefited as a beneficiary under the new October will.  Based on its observations of the witness and all of the circumstances, the district court concluded that Soukup was actively involved in the preparation of the will and its provisions.  On this record, the circumstantial evidence supports the district court's finding by clear and convincing evidence. 

C.        Confidential Relationship

Soukup concedes she had a confidential relationship with testator because of her POA. 

 

D.        Disinheritance of Those Who Probably Would Have Been Remembered

Soukup argues that this factor does not militate in any particular direction because testator had a habit of changing his beneficiaries.  "But an entire change from former testamentary intentions is a strong circumstance to support a charge of undue influence."  In re Estate of Olson, 227 Minn. 289, 298, 35 N.W.2d 439, 446 (1948).  "This is especially true where the effect of the change is to give the beneficiary charged with exercising undue influence a "larger" share of testator's estate than she would have received otherwise."  Id. 

Here, the record contains evidence that Hilk maintained, along with his family, a familial relationship with testator; handled his financial affairs; did chores around the farm; "looked out" for testator's well-being; was the main beneficiary in each of testator's two prior wills; and that the October will exhibited an entire change from former testamentary intentions in favor of Hilk to Soukup and Blanchard.    

E.        Singularity of the Will Provisions

Soukup argues the October will was not "singular" because she was only one of three beneficiaries.  Respondent argues that the October will was singular in eliminating him as a beneficiary.  The district court found that "[t]he provisions of the [will] are ‘singular' because Hilk is purportedly disinherited without being mentioned, and there is no mention of [testator]'s previously expressed burial preference."

Singularity of the will provisions focuses on the nature and extent of the changes in the will from the testator's previous will.  Here, the residuary beneficiary designation was the most significant change in the will, and apart from the elimination of where testator desired to be buried, was the "singular" change in the October will.  That provision replaced Hilk as a beneficiary with Soukup, Blanchard and Stoltman.  On this record, it was not clear error for the district court to find that the October will provisions were "singular" in favor of Soukup and Blanchard.

F.        Exercise of Influence or Persuasion to Induce the Testator to Act

            Soukup argues that the district court failed to mention this factor in its "memorandum" and, therefore, that its conclusion regarding undue influence was flawed.  But Soukup fails to provide any authority that such omission is dispositive, particularly when this factor is discussed extensively in the district court's order.  Specifically, the district court found that Soukup and Blanchard "exercised undue influence over [testator]."           

Here, the district court found that prior to the September 20, 2001 meeting, testator had agreed to spend the winter at the nursing home.  Testator stated to Olson that he could not stay at the farmhouse that winter because it was a "hovel."  Soukup and Blanchard were able to exercise undue influence over testator at the meeting by convincing him that Hilk "was holding John as a prisoner" at the nursing home, and that he intended to do the same with him.  Soukup admitted at trial that there was no factual basis to conclude that Hilk was holding John a "prisoner" at the nursing home.  Based on Olson's testimony, the district court found that testator was "not himself" and that Soukup and Blanchard "definitely have him in control." 

            Soukup and Blanchard told testator that they would have gas heat and telephone installed at the farmhouse so that he could continue to live there, and that they would bring him drinking water and food.[1]  The district court found that they did so to make testator "dependent upon them for his ability to continue to live at the Reichenberger farm." 

            Subsequently, Soukup and Blanchard arranged a meeting with Koenig so that testator could execute a new will.  Attorney Koenig met with testator, prepared the will, and had the will executed the same day.  Attorney Choi stated that he was not aware that Soukup and Blanchard had taken testator to a different attorney to prepare the October will.  Two days after testator executed the October will, Soukup and Blanchard had a gas heater and telephone installed at the farm.

            On conflicting testimony, the district court made credibility assessments which this court will not disturb absent an abuse of discretion.  See Tews v. Geo. A. Hormel & Co., 430 N.W.2d 178, 180 (Minn. 1988).  And the district court's finding that the October will was the product of undue influence is supported by the findings and clear and
convincing evidence in the record.

Soukup also argues that the district court erred by finding that the October will was void because it is a self-proved will, the issue was not raised in the district court, and the record contradicts the district court's finding.  Hilk does not contest the argument.  But because we find that the October will was the product of undue influence, the question of whether it is void is moot.

II.

 

            Soukup argues that the district court erred by granting testator's estate a judgment against Soukup and Blanchard for attorney fees under Minn. Stat. § 524.3-720 (2006).  Hilk argues that no fee petition was submitted by attorney Eric Dammeyer,[2] no judgment for a specific amount of attorney fees was entered and, therefore, there is nothing for this court to determine.  The district court's order regarding attorney fees is generally subject to an abuse of discretion standard.  Torgerson, 711 N.W.2d at 550.  The court's findings will be set aside if they are clearly erroneous.  In re Estate of Balafas, 225 N.W.2d 539, 541 (Minn. 1975).  However, where the decision is based on the court's application of a statute to the uncontested facts, the construction and application of the statute is a question of law, and is reviewed de novo.  Torgerson, 711 N.W.2d at 550.

Minn. Stat. § 524.3-720 provides in relevant part:

Any personal representative or person nominated as personal representative who defends or prosecutes any proceeding in good faith, whether successful or not, or any interested person who successfully opposes the allowance of a will, is entitled to receive from the estate necessary expenses and disbursements including reasonable attorneys' fees incurred.

 

Absent a finding of bad faith, a personal representative has a statutory right to recover attorney fees.  Whether a person is acting in bad faith is a question of fact.  In re Estate of Evenson, 505 N.W.2d 90, 91 (Minn. App. 1993) (reviewing district court's finding of good faith under the clearly erroneous standard).   

The only finding made by the district court on the question of attorney fees provided:  "Since Dammeyer's representation was for the benefit of [testator]'s estate, he is entitled to reasonable attorney's fees from the estate and the estate is entitled to judgment against Linda Soukup, and Richard Blanchard in the amount of attorney's fees awarded to Dammeyer." 

But we have no underlying motion for attorney fees outlining the nature and amount of the fees requested, no finding of bad faith by Soukup, and no legal basis for an award of attorney fees against non-party Blanchard.  Thus, we have no support in the record for an award of attorney fees.  Thus, we reverse the finding regarding attorney fees without prejudice to any party. 

            Affirmed in part and reversed in part.  

[1] Testator agreed to stay alone at the farm that winter.

[2] Dammeyer represented Linda Soukup at the district court.