Estate of Brodbeck, Matter of, 72990

• Decision Date: 19 April 1996
• Docket Number: No. 72990,72990
• Citation: 915 P.2d 145,22 Kan.App.2d 229
• Parties: In the Matter of the ESTATE OF Esther BRODBECK, Deceased. Shirley HALL, Appellant, v. Ruth O. JAMES and Dwight Hart, Appellees.
• Court: Kansas Court of Appeals

Page 145

915 P.2d 145

22 Kan.App.2d 229

In the Matter of the ESTATE OF Esther BRODBECK, Deceased.

Shirley HALL, Appellant, v. Ruth O. JAMES and Dwight Hart, Appellees.

No. 72990.

Court of Appeals of Kansas.

April 19, 1996.

Review Denied June 12, 1996.

Syllabus by the Court

The procedures for the granting of summary judgment under K.S.A. 60-256 are applicable to the question of undue influence in a will contest.

Appeal from Johnson District Court; Sam K. Bruner, Judge.

Keith Martin of Payne & Jones, Chartered, Overland Park, for appellant.

Fred J. Logan, Jr. of Logan & Logan, Prairie Village, for appellees.

Before PIERRON, P.J., KNUDSON, J., and CAROL BACON, District Judge, Assigned.

PIERRON, Judge:

Shirley Hall appeals the district court's grant of summary judgment in favor of Ruth O. James and Dwight Hart (collectively referred to as proponents). Hall argues the will and codicil admitted to probate by proponents were the product of undue influence. We affirm the granting of summary judgment.

Esther Brodbeck executed a will on May 18, 1988. She executed a second will, revoking all previous wills, on January 15, 1992, and enacted a first codicil on October 15, 1993. Brodbeck died on December 28, 1993. She had survived her husband and they had never had children. On January 6, 1994, James, executor of the 1992 will, filed a petition for probate of Brodbeck's 1992 will and first codicil.

Brodbeck had resided in the Pines apartment complex where James was manager. James and Brodbeck became close friends after Brodbeck's husband died, and James had helped Brodbeck over the years. James knew she was the executor of Brodbeck's 1992 will and that she had been given power of attorney by Brodbeck, but contended she had no knowledge that she was a beneficiary under the will. James had accompanied Brodbeck, at Brodbeck's expense, to Houston for oncological treatment. Brodbeck had loaned James $500 in 1991, and James' handwriting appears on this entry in Brodbeck's check registry. Hart had been Brodbeck's hairdresser for many years and had frequently driven her on errands. James and Hart had accompanied Brodbeck to various medical appointments.

Hall, Brodbeck's niece, stated that Brodbeck suffered from extensive health problems during the period surrounding the execution of the 1992 will. Hall submitted medical records demonstrating that Brodbeck was diagnosed with ocular melanoma, eye cancer, about the time she had executed the 1992 will. The appellate record indicates that Hall had other health problems as well and had been taking Halcion for approximately a month prior to the execution of the 1992 will.

Hall contested the 1992 will because she had been disinherited. Under the 1988 will, Hall was to receive half of Brodbeck's tangible personal property, unless a list existed to dispose of all or part of it, and half of the residue of Brodbeck's estate. James Zoss, Brodbeck's great-nephew, was to receive the remaining half of Brodbeck's tangible personal property and residue. Hart was to receive any car owned by Brodbeck at the time of her death. Beverly Lindsey, Brodbeck's lifetime friend, was nominated as the executor for Brodbeck's estate.

Under the 1992 will, the executor was changed to James. James and Hart were the only beneficiaries and were to take equal shares of Brodbeck's personal and household effects and residue of the estate. Hart also received any car owned by Brodbeck at the time of her death. The codicil provided that any beneficiary who contested the probate of Brodbeck's will would forfeit all interest to her property.

Hall filed a defense to the petition filed by James in which she alleged that Brodbeck was under the control and undue influence of James and Hart during the execution of the 1992 will and codicil. Hall also alleged that Brodbeck was under the insane delusion that Hall and Lindsey no longer loved her and that the delusions were brought about because of Brodbeck's advancing age, health problems, medication, and the undue influence of James and/or Hart. Hall cross-petitioned to admit Brodbeck's 1988 will to probate.

At the close of the discovery period, proponents filed a petition for summary judgment. At Hall's request, the district court granted an extended discovery deadline and additional time to file a response to the motion. Hall filed a 317-page response in opposition to the motion for summary judgment. After a hearing, the district court took the motion under advisement.

By letter dated September 13, 1994, the district court entered summary judgment on behalf of James and Hart. In a two-page letter, the district court stated that although summary disposition would result in significant economy to the estate, it should be taken with caution in probate matters, and it was the district court's determination whether material facts still remained at issue in the case. The district court then granted the motion for summary judgment, admitted the 1992 will and codicil into probate, and requested that proponents prepare a journal entry and present it for filing within 10 days.

Additionally, the district court's letter stated: (1) The court had found analogous to these circumstances the case of Crooks v. Greene, 12 Kan.App.2d 62, Syl. pp 2-3, 736 P.2d 78 (1987); (2) Hall had the burden of proving Brodbeck's improper testamentary capacity or undue influence by the legatees and devisees; (3) Hall's failure to comply with Supreme Court Rule 141 (1995 Kan.Ct.R.Annot. 160) had made the district court's job difficult; (4) Hall had failed to make a sufficient showing on any essential element to which she had the burden of proof; and (5) the in terrorem clause in the codicil was not material to the summary judgment motion.

Counsel for proponents prepared a summary judgment journal entry. The district court signed the journal entry, and it was filed on October 11, 1994. The certificate of service stated that counsel for proponents hand-delivered a copy of the journal entry to Hall's attorney, but it does not indicate the date when service occurred.

We first address the issue of whether summary judgment should be a remedy available to the parties where a case presents probate matters similar to those currently before the court. Both parties agree that the Kansas appellate courts have not addressed the issue of whether summary judgment can be granted when a will is attacked on grounds of undue influence.

Hall interprets the absence of a Kansas decision to mean that it is obvious Kansas trial courts have found it inappropriate to grant summary judgment in will contests involving undue influence. Hall supports this theory through a characterization of undue influence: "As a rule undue influence is not proclaimed from the housetop, but is hidden like a candle beneath a bushel and concealed like fraud and deception, only appearing through carelessness and unguarded openings, but ever present and potential." Coldwell v. Coldwell, 228 S.W. 95, 102 (Mo.1920). Hall explains that cross-examination has long been an important tool in removing or exposing openings in the bushels that hide the flames of undue influence and that by granting summary judgment, the opportunity for cross-examination is denied. Lastly, Hall argues that summary judgment results in a "trial by affidavits" and is inappropriate for a will contest involving undue influence. See Richards v. Bryan, 19 Kan.App.2d 950, Syl. p 1, 879 P.2d 638 (1994).

We agree with proponents and find it is a well-established principle that summary judgment is available to plaintiffs and defendants in all forms and kinds of civil matters. K.S.A. 60-256 does not state any type of civil matter that is precluded from summary judgment. However, the district court is still required to make the proper findings in order to grant summary judgment and is subject to the well-founded principles for entering it. We look with favor upon the numerous cases from other states cited by proponents holding that summary judgment can be granted when a will is attacked on the ground of the testator's lack of mental capacity or the presence of undue influence if the will contestants fail to support their opposition to the summary judgment motion with sufficient facts showing there was a genuine issue for trial. See In re Estate of Sherer, 10 Ariz.App. 31, 455 P.2d 480 (1969); Estate of Niquette, 264 Cal.App.2d 976, 71 Cal.Rptr. 83 (1968); Glenn v. Mann, 234 Ga. 194, 214 S.E.2d 911 (1975); Boone v. Estate of Nelson, 264 N.W.2d 881 (N.D.1978); In re Wilson's Estate, 399 P.2d 1008 (Wyo.1965).

We make specific mention of In re Wilson's Estate. In Wilson, the court affirmed the trial court's granting of summary judgment, thus denying probate of an instrument offered as a holographic will and allowing the probate of an attested will and codicil. On appeal, the petitioner argued that since there was a dispute as to undue influence, the trial court was precluded from entering summary judgment. The court extensively discussed the granting of a summary judgment in this situation:

"Considerations of the trial court, on a motion for summary judgment, go beyond the pleadings, and the mere assertion of a claim such as undue influence is not sufficient to prevent entry of summary judgment. We have consistently held that allegations of a complaint are not sufficient to show the existence of a genuine issue of fact, where the alleged basis for relief is challenged by statements of fact in affidavits and other forms of evidence in support of a motion for summary judgment. Lieuallen v. Northern Utilities Company, Wyo., 368 P.2d 949, 951; Hinkle v. Siltamaki, Wyo., 361 P.2d 37, 37-38, 41.

"As pointed out in Lieuallen, if allegations of the complaints are controverted by affidavits and other evidence tending to show the allegations are not true, it thereupon becomes incumbent upon plaintiff to set forth 'specific facts' in opposition, if plaintiff's contention (or...