Burneske v. Estate of Kramer, No. 2006AP1170 (Wis. App. 8/30/2007), 2006AP1170.

• Decision Date: 30 August 2007
• Docket Number: No. 2006AP1170.,2006AP1170.
• Court: Wisconsin Court of Appeals
• Parties: Nancy BURNESKE, Plaintiff-Appellant, v. ESTATE OF Esther V. KRAMER, Defendant-Respondent.

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Nancy BURNESKE, Plaintiff-Appellant, v. ESTATE OF Esther V. KRAMER, Defendant-Respondent.

No. 2006AP1170.

Court of Appeals of Wisconsin, District IV.

Opinion Filed: August 30, 2007.

APPEAL from a judgment of the circuit court for Portage County: FREDERIC FLEISHAUER, Judge. Affirmed.

Before Higginbotham, P.J., Dykman and Lundsten, JJ.

¶ 1 PER CURIAM.

Nancy Burneske appeals from a judgment voiding the deed transferring ownership of Esther V. Kramer's home to Burneske but not reserving a life estate for Kramer. The trial court found that Burneske unduly influenced Kramer and breached her fiduciary duty as power of attorney for Kramer. Burneske claims that the record does not support the trial court's conclusion that Burneske breached her fiduciary duty to Kramer and exercised undue influence over her. We disagree and therefore affirm.

¶ 2 Kramer was the owner of a home in Rosholt, Wisconsin. She lived at the home until 2004 when she moved to an assisted living facility shortly before her death. She had two children, Burneske and Eugene Cartwright. Kramer died in December 2004.

¶ 3 The facts relevant to the contested deed are as follows. In November 2001, Kramer was hospitalized with pneumonia. During Kramer's hospitalization, Burneske discussed Kramer's mental health status and concerns for Kramer's "potential for confusion" with a nurse at the hospital. Kramer's doctor advised Burneske to obtain a health care power of attorney for Kramer. After Kramer left the hospital, Burneske stayed with her at Kramer's home in Rosholt for a week. After that week, Burneske brought Kramer to Burneske's home in Milwaukee for continued care and supervision for another week.

¶ 4 While staying at Burneske's home, Kramer met with an attorney, Timothy Witkowiak. Burneske had contacted Witkowiak because he was the attorney who had helped with Burneske and her husband's estate plan. Witkowiak met privately with Kramer at Burneske's home to discuss the terms of the estate plan, including a new will and power of attorney. They discussed the possibility of transferring her home to Burneske but reserving a life estate for Kramer. On November 19, 2001, Kramer signed the new will and durable power of attorney in the presence of Witkowiak and his assistant. The will gave Kramer's real and personal property, including the Rosholt home, to Burneske, stock investment accounts to Cartwright, and divided all remaining assets equally. The power of attorney named Burneske as Kramer's attorney-in-fact.

¶ 5 After Kramer returned to Rosholt, Burneske continued to visit her every other weekend. Sometime after the meeting at Burneske's and before March 2002, Witkowiak received a message requesting that he prepare a quitclaim deed transferring Kramer's residence to Burneske. Witkowiak did not have a record of who left the message. The message did not contain instructions to include a life estate for Kramer. Witkowiak did not include a life estate in the deed he prepared. He mailed it to Burneske and she took it to Kramer. Kramer signed the deed with Burneske and her husband present. Burneske mailed the deed to Witkowiak, who authenticated it.

¶ 6 In December 2002, Burneske and Kramer discussed the expenses regarding the home and Kramer made a verbal commitment to pay rent. This discussion led to a disagreement and breakdown of the relationship between Burneske and Kramer. Kramer revoked Burneske's power of attorney in 2003, and executed a new will in 2004. Under the new will, one-half of her estate went to Cartwright and the remaining one half went to Faith Firkus, her neighbor.

¶ 7 In 2004, Burneske brought a small claims action to evict Kramer from her home. Kramer counterclaimed seeking to void the deed. Kramer's estate was substituted as a defendant after Kramer died. The circuit court concluded that Burneske exercised undue influence over Kramer and breached her fiduciary duty by obtaining the deed. The court voided the deed. Burneske appeals.

¶ 8 We will not upset a trial court's findings of fact unless they are clearly erroneous. Estate of Taylor v. Keepman, 81 Wis. 2d 687, 696, 260 N.W.2d 803 (1978). Whether the established facts satisfy a legal standard is a question of law we review without deference to the trial court. Arnold v. Robbins, 209 Wis. 2d 428, 432, 563 N.W.2d 178 (Ct. App. 1997).

¶ 9 Undue influence may be proven under a four-element or a two-element test. Estate of Hamm v. Jenkins, 67 Wis. 2d 279, 283, 227 N.W.2d 34 (1975). The two-element test is based upon a confidential or fiduciary relationship between the testator and the beneficiary and the existence of suspicious circumstances, which leads to a rebuttable presumption of undue influence. Estate of Dejmal v. Merta, 95 Wis. 2d 141, 155-56, 289 N.W.2d 813 (1980). The trial court used the two-element test.

¶ 10 Under the two-element test, when deciding if a confidential relationship existed between the testator and the beneficiary, the test is:

[T]he ease in which a confidant can dictate the contents and control or influence the drafting of such a will either as the draftsman or in procuring the drafting. If one is not the actual draftsman or the procurer of the drafting, the relationship must be such that the testator depends upon the advice of the confidant in relation to the subject matter of the will.

Estate of Kamesar v. Kamesar, 81 Wis. 2d 151, 164, 259 N.W.2d 733 (1977) (citation omitted). A fiduciary relationship is created when a power of attorney is granted. Estate of Friedli v. Friedli, 164 Wis. 2d 178, 186-87, 473...