Eckstein v. Estate of Dunn

Eckstein v. Estate of Dunn (2001-514); 174 Vt. 575; 816 A.2d 494

[Filed 04-Nov-2002]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2001-514

                            SEPTEMBER TERM, 2002


  George Eckstein, Oma Jane Lidell      }	APPEALED FROM:
  Smith, and George H. Lidell, Jr.	}
                                        }
       v.	                        }	Bennington Superior Court
                                        }	
                                        }
  Estate of Mildred Lidell Dunn	        }	DOCKET NO. 80-3-01 Bncv

                                                Trial Judge: John P. Wesley
  	
             In the above-entitled cause, the Clerk will enter:


       George Eckstein, Oma L. Smith, and George L. Lidell, Jr., testator's
  heirs at law, appeal from a superior court decision to admit into probate
  the will of their aunt Mildred L. Dunn, in which Joan Teaford Gunterman,
  the testator's grand-niece, was named the sole beneficiary.  They raise two
  issues for our review: first, whether alterations made to the text of the
  will are so ambiguous as to render the will facially invalid, and second,
  whether the superior court erred in failing to find "suspicious
  circumstances," so as to shift the burden of proof on the issue of undue
  influence to the proponent of the will.  Because we find that the will was
  facially valid and that the superior court acted within its discretion in
  deciding that the will was not made under suspicious circumstances, we
  affirm.

       Mildred Dunn died on August 25, 2000, while a resident at the Equinox
  Terrace Home in Manchester, Vermont.  Dunn was ninety-six and a widow at
  the time of her death, leaving an estate estimated to be worth two million
  dollars.    

       Dating from the 1980s, Dunn sought legal advice from Thomas P. Whalen,
  Esq. of Manchester.  On December 19, 1988, Dunn executed a Last Will &
  Testament prepared by Whalen.  Subsequently, Dunn executed a First Codicil
  to her will on March 1, 1989, and a Second Codicil on July 16, 1997. 
  According to the estate plan established by the will and the two codicils,
  Dunn designated a large charitable gift to the Salvation Army and directed
  that the remainder of her estate be divided among two nieces and two
  nephews, three of whom are appellants in this action.
     
       In early August 1997, Whalen prepared a "draft" will, at Dunn's
  request, which incorporated the 1988 will and the two subsequent codicils
  into one document.  He met with Dunn, who requested that he leave the
  document with her.  Whalen then wrote "Draft Copy" at the top, blackened
  out the date, and left it with Dunn.  Whalen again met with Dunn on August
  27, at which time he discussed the contents of the "draft" will with her. 
  He concluded that Dunn was of sound mind and memory and able to recognize
  the objects of her bounty.  Dunn stated that she desired more time to
  review 

 

  the document before signing it.  An appointment for the execution of the
  will was scheduled for the following week on September 4, 1997.  In the
  meantime, Joan Teaford Gunterman ("Teaford"), Dunn's grand-niece, visited
  her grand-aunt at the Equinox Terrace sometime during that Labor Day
  weekend.
    
       Testimony at trial established that Teaford enjoyed a close
  relationship with Dunn from the time she was six-months old.  Their
  activities together included family holidays and frequent visits during
  summer vacations.  In the summer of 1980, Dunn and Teaford went on a trip
  to Sweden to explore their family heritage. The trip included visits to the
  family farm and meetings with relatives living there.  After her graduation
  from college, Teaford lived with Dunn for several months.  In 1987, Dunn
  decided to move from New York City to Dorset, Vermont, and Teaford assisted
  Dunn with packing and agreed to care for numerous items of personal
  property for storage and safekeeping.  Dunn and Teaford continued to
  maintain a close relationship, as Dunn frequently visited Teaford in New
  York.  When Teaford got married, Dunn was the matron of honor.  This close
  relationship continued throughout the remainder of Dunn's life.  

       On September 4, Whalen met with Dunn to execute the will.  Phyllis
  Binkley, who assisted Dunn with her financial affairs, and Teaford were
  present, although Whalen did not request their attendance at the meeting. 
  Teaford initiated discussion relating Dunn's concerns regarding a bequest
  of land to the Salvation Army and a bequest of spring rights to Dunn's
  nephew, George Eckstein.  Whalen then requested to meet privately with
  Dunn.  In this private meeting, Dunn stated her desire to make Teaford the
  sole beneficiary of her will.  Despite his opinion of a week earlier that
  she was of sound mind and memory, Whalen maintained that he became
  concerned about Dunn's competency.  His concern also arose because Dunn
  appeared rehearsed.  As a result, he was unwilling to prepare a revised
  will to fulfill Dunn's request and concluded the meeting by advising Dunn
  to give additional thought to the will.  Whalen acknowledged that some of
  the changes discussed at this meeting were consistent with the
  modifications which were made to the "draft" will.  He also recalled that
  Dunn had a red pen in her hand during his meeting with her, but that they
  did not make any changes to the "draft" will at that time.    
   
       Dunn retained possession of the "draft" will after the September 4
  meeting, and Whalen did not see her again until August 27, 1998, at which
  time he assisted her in deeding her house in Dorset, and its contents, to
  Teaford.  In the interim, Ann White, Dunn's care-giver, recalled trying to
  contact Whalen at Dunn's request, for the purpose of getting him to amend
  the will.  Whalen, however, did not recall those attempts.  At the August
  1998 meeting, according to Whalen, Dunn was alert and decisive in her
  actions.  While they discussed the effect of the deed transfer on her
  estate plan, they did not review the provisions of the "draft" will. 
  Following the execution of the deed from Dunn to Teaford, Whalen had no
  further contact with Dunn. 
          
       In February 2000, Dunn executed the "draft" will in the presence of
  three witnesses.  Between the time she deeded her house to Teaford in
  August 1998 and the time she executed her will, Dunn expressed her desire
  that Teaford, a tennis instructor, be left with sufficient means to
  maintain the home.  Teaford was not present when the will was executed nor
  did she visit Dunn on that day.  Two witnesses at trial testified that
  during this interim period Dunn frequently reviewed the "draft" will with a
  red inked pen nearby.  With the exception of two annotations made in
  pencil, all the revisions 

 

  were in red ink.  Mary Ellen Csizmesia, one of the witnesses to the
  execution of the will, testified that she saw Dunn make numerous changes to
  the "draft" will prior to its execution and that its text was altered in
  red ink.  At Dunn's instruction, Teaford later delivered the will to a
  lawyer, Orland Campbell.   

                       I. Facial Validity of the Will

       The first issue raised on appeal is whether the will is invalid on its
  face.  Because the will is undated and includes numerous handwritten
  alterations, the immediate heirs allege it to be so riddled with
  ambiguities as to render interpretation unworkable.  Consequently, based on
  the alterations and alleged ambiguities, they maintain that the will is
  invalid.

       This Court views the factual findings of a trial court in the light
  most favorable to the prevailing party and will refrain from setting them
  aside unless they are clearly erroneous.  See V.R.C.P. 52(a)(2);  Jarvis v.
  Gillespie, 155 Vt. 633, 637, 587 A.2d 981, 984 (1991).  According to
  statute, a will does not need to be dated or satisfy any particular form;
  the law requires that it be in writing, that it be signed by the testator,
  and that it be attested to by three or more witnesses.  14 V.S.A. § 5.  In
  this case, the record indicates that the will was clearly signed by the
  testator and properly witnessed by three competent, non-beneficiary
  witnesses.  The heirs argue that Dunn could not have intended such an
  informal document to be her will.  However, the superior court noted in its
  decision that Dunn worked on the alterations over a long period of time,
  under the continued expectation that her attorney would ultimately
  formalize the draft.  The superior court also noted that despite the
  uncertainty as to whether Ann White attempted to contact Whalen on Dunn's
  behalf in the period between the September 1997 meeting and the August 1998
  meeting, Dunn's desire to change her estate plan was unequivocally
  expressed, both to Ann White during that interim period and to Whalen at
  the conclusion of their September meeting.  Further, Mary Ellen Csizmesia,
  one of the three witnesses to the execution of the will, testified that she
  saw Dunn make numerous changes to the will prior to its execution and that
  the text of the will was altered by red ink.  A handwriting expert
  testified that the red-ink writing on the will was consistent with Dunn's
  handwriting.  Whalen also testified that a number of the alterations were
  in Dunn's handwriting.  Furthermore, he acknowledged that the some of the
  changes discussed at the September 4 meeting were consistent with the
  modifications which were made to the will. 
        
       The court's primary objective in a case such as this is to discern the
  testator's intent.  See Tuttle v. Tuttle, 112 Vt. 271, 278, 23 A.2d 523,
  525 (1942).  "To determine such intention, the court is to take the
  instrument by its four corners, consider it in all its parts, and give
  effect to its language read in the light of the relation of the parties
  concerned and the circumstances attending its execution."  In re Trust
  Estate of Harris, 120 Vt. 399, 404-05, 141 A.2d 653, 657 (1958).  If
  provisions of a will are ambiguous, the court may consider extrinsic
  evidence, but ambiguity does not render a will invalid. See In re Estate of
  McCoy, 126 Vt. 28, 30, 220 A.2d 469, 471 (1966) (relying on external
  matters in enforcing a will with ambiguous instructions).  The document in
  question consists of ten typewritten pages, featuring handwritten red ink
  deletions, revisions and notations.  The top of the first page of the
  document is entitled "Draft Copy," and the date on the last page is
  blackened out.  There are two printed pencil alterations initialed "M.L.D."
  in red ink.  Many of these alterations are without explanation and leave
  the dispositive provisions of the will 

 

  ambiguous.  These changes created some uncertainty, but as the superior
  court noted, they were not sufficient to render the will invalid. 

       The heirs also contend that, even if the will is not facially invalid,
  the construction given to the will by the probate court was in error. 
  Specifically, they claim it is impossible to reconcile the validation of
  the residuary clause with the cancellation of Article Seventh because both
  provisions are similarly "struck through" and therefore deleted.  Article
  Eighth is the residuary clause, and its lead-in paragraph is diagonally
  lined through.  The four sub-sections of the residuary clause have red
  lines through each provision except for sub-section b) which appears: "to
  my niece Jacqueline W. Teaford" with a line through "Jacqueline W." and
  "Joan" written above it.  Despite these ambiguities, and in light of the
  circumstances surrounding the execution, the probate court gave effect to
  the clause and determined that Teaford was the sole residuary legatee.  

       In maintaining that the superior court erred in adopting the probate
  court's construction of the will as the "law of the case," the heirs
  contend that the superior court was required under 14 V.S.A. § 117 to
  address the proper construction of the will.  Section 117 states that a
  party "may bring a complaint before the superior court to have the will
  construed."  14 V.S.A. § 117 (emphasis added).  To properly "preserve an
  issue for appeal a party must present the issue with specificity and
  clarity in a manner which gives the trial court a fair opportunity to rule
  on it."  State v. Ben-Mont Corp., 163 Vt. 53, 61, 652 A.2d 1004, 1009
  (1994).  The only reference the heirs made to the superior court regarding
  this issue was in a cryptic footnote in their memorandum of law claiming
  that construction of Article Eighth will "undoubtedly be the subject of a
  further proceeding to construe its intent and meaning." 

       The superior court recognized that construction of the will was
  properly the subject of review but noted that "[t]he parties have provided
  no additional briefing with regard to this argument, or the suggestion that
  it remains to be resolved through further proceedings."  Therefore, the
  superior court addressed the issue "only in passing" and found that there
  was no basis for disturbing the probate court's construction of the will. 
  This Court will not reverse the trial court when a party's failure to
  address an issue below denied the court an opportunity to fairly rule upon
  the issue.  Agency of Natural Res. v. U.S. Fire Ins. Co., ___ Vt. ___, ___,
  796 A.2d 476, 482 (2001) (issue waived when not briefed at the trial court
  level and no evidence was found in the record).  The superior court made no
  error in determining that the will was facially valid and that the heirs'
  footnote was insufficient to present the issue of construction.      

                 II. Existence of "Suspicious Circumstances"
   
       The heirs also contend that the nature of Teaford's interaction with
  Dunn over the course of the year encompassing the preparation of the will
  suggests that she exercised undue influence over Dunn.  Further, they
  maintain that Teaford's role requires us to apply the doctrine of
  suspicious circumstances and transfer the burden of proving an absence of
  undue influence onto the beneficiary.  The superior court left that burden
  on those contesting the will, stating that "Teaford played but a minimal
  role in the procurement or preparation of the will."  Courts must enforce
  the testator's intent as expressed in a valid will; however, a will that is
  shown to be the product of undue influence should not be enforced.  In re
  Estate of Raedel, 152 Vt. 478, 481, 568 A.2d 331, 332 (1989).  A will 

 

  is the product of undue influence "when a testator's free will is destroyed
  and, as a result, the testator does something contrary to his 'true'
  desires."  In re Estate of Rotax, 139 Vt. 390, 392, 429 A.2d 1304, 1305
  (1981). 
    
       Generally, the party contesting a will has the burden of proving undue
  influence.  See In re Will of Collins, 114 Vt. 523, 533, 49 A.2d 111, 117
  (1946).  However, the burden shifts to the proponent of the will "when the
  circumstances connected with the execution of the will are such as the law
  regards with suspicion."  Id.  Suspicious circumstances can be found when
  there is a fiduciary relationship between the testator and the beneficiary. 
  Raedel, 152 Vt. at 483, 568 A.2d  at 334.  Suspicious circumstances may also
  be present "where a relationship of trust and confidence obtains between
  the testator and the beneficiary, or where the latter has gained an
  influence or ascendency over the former."  Collins, 114 Vt. at 533, 49 A.2d 
  at 117.  If such a scenario arises, "the will is presumed to be the product
  of undue influence, and it will not be enforced unless the proponent
  persuades the trier of fact that no undue influence attended the execution
  of the will."  Raedel, 152 Vt. at 481-82, 568 A.2d  at 333.  

       This Court has found certain exceptions to that presumption.  We chose
  not to apply the presumption where the beneficiaries were children or
  grandchildren.  See Rotax, 139 Vt. at 393, 429 A.2d  at 1306.  We
  subsequently extended the exception to the presumption to include nephews
  and nieces where the beneficiaries did not assist in preparing the will. 
  See Raedel, 152 Vt. at 484, 568 A.2d  at 334.  Here the beneficiary was a
  grand-niece of the testator who also rendered some assistance in preparing
  the will.  However, testimony also demonstrated that Teaford enjoyed a
  close relationship with Dunn over many years, and that both Dunn and her
  friends commonly referred to Teaford as her niece.  The fact that Teaford
  was her grand-niece is simply a matter of degree of relation and no
  distinction should be made from the rationale of Raedel.  There, the
  "beneficiaries wanted to inherit the farm, helped care for [the testator]
  during her illness, urged her to seek legal advice regarding her estate,
  and discouraged the heirs from contact with their aunt."  Id.  As a matter
  of law, this Court found that the circumstances were not sufficient to
  raise the presumption of undue influence.
          
        "Where the trial court applied its factual findings to the correct
  legal standard, we will not disturb its conclusion if it is supported by
  the findings."  Landmark Trust (USA) Inc. v. Goodhue, 172 Vt. 515, 519, 782 A.2d 1219,1224 (2001).  Thus, we will uphold the court's conclusion on the
  question of suspicious circumstances as long as there is sufficient
  evidence to support it.  Testimony at trial demonstrated that Dunn made
  numerous requests, over a fifteen-year period, for Teaford's advice
  regarding the changes to her estate plan. Dunn and Teaford discussed the
  issues regarding water rights to her house and her bequest of land to the
  Salvation Army.  Teaford also saw the will sometime between August 1997 and
  the Fall of 1998.  Apparently, Teaford's visit over Labor Day weekend in
  1997 and Dunn's sudden departure from the estate plan he had drafted caused
  Whalen to refuse to amend Dunn's will to make Teaford the sole beneficiary. 
  However "[w]hether there is sufficient evidence to raise a presumption of
  undue influence must be decided by the trial court on a case by case
  basis."  In re Estate of Laitinen, 145 Vt. 153, 159, 483 A.2d. 265, 269
  (1984).  In this case, the superior court did not share Whalen's concern. 
  Indeed, it noted that the "[c]ontestants were simply unable to demonstrate
  that Joan Teaford's apparent devotion to Mildred Dunn masked an
  unscrupulous bid to gain control of her wealth."  Further, the record fails
  to demonstrate that such 

 

  attention ultimately interfered with Dunn's ability to execute the will in
  a manner inconsistent with her true desires. 

       Affirmed.



                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice