Estate of Henrich, Matter of

• Citation: 389 N.W.2d 78
• Decision Date: 12 June 1986
• Docket Number: No. 85-433,85-433
• Parties: In the Matter of the ESTATE OF Martin V. HENRICH, Deceased. Appeal of Leon HENRICH, et al.
• Court: Iowa Court of Appeals

Page 78

389 N.W.2d 78

In the Matter of the ESTATE OF Martin V. HENRICH, Deceased Appeal of Leon HENRICH, et al.

No. 85-433.

Court of Appeals of Iowa.

June 12, 1986.

John R. Mugan and Alice S. Horneber of Margolin, Gildemeister, Willia, Mugan & Keane, Sioux City, for appellants.

Marvin V. Heidman and Daniel D. Dykstra of Eidsmoe, Heidman, Redmond, Fredregill, Patterson & Schatz, Sioux City, for appellees.

Considered by DONIELSON, P.J., and SNELL and SCHLEGEL, JJ.

SNELL, Judge.

Decedent Martin V. Henrich died of cancer on March 28, 1983, at the age of 85, having never married nor had any children. He lived and worked in the Akron, Iowa area throughout his life. He had eleven brothers and sisters, four of whom predeceased him, and approximately fifty nieces and nephews. In 1974, Martin executed a will naming his great-nephew, James Henrich of Akron, Iowa, as executor. This will divided his estate equally among his nieces and nephews. Martin's attorney at this time was Richard Bauerly, and it was he who prepared the will.

James W. Henrich has always lived in the Akron area. James had a good family relationship with Martin. He saw Martin at church, sometimes had coffee with him on Sunday morning, occasionally played cards and went out to dinner with Martin, and helped Martin with some odd jobs, including cleaning out his apartment when he moved into the nursing home. Nursing home records indicated James was named in the nursing home admission agreement as one of the individuals to be contacted in the event of emergency. James sometimes assisted Martin by running errands for him and picking up his mail.

About 1975, Martin was diagnosed as having cancer and over the next few years underwent a variety of cancer treatments as an outpatient. He was eventually admitted into a hospital for radiation therapy in the summer of 1982. In early August of 1982, James Henrich and Martin's brother, Ed Henrich, visited Martin. During the visit, Martin asked Ed if he would contact Richard A. Bauerly of LeMars, Iowa, Martin's attorney, and have him come to the hospital. Ed contacted Bauerly on August 7, 1982, telling him that Martin wanted to see him. Bauerly visited Martin and learned that he wished to change his will. Bauerly prepared the will and had one of his law partners, C.W. Down, deliver the will to Martin. On August 9, 1982, Martin revoked his 1974 will and executed a new will naming James Henrich executor and sole beneficiary. This will provided:

ONE: Subject to the payment of my just debts and the expenses of my last illness and funeral, and the expenses of the administration of my estate, I give, devise and bequeath all of the property of which I die the owner, whether real personal or mixed to my nephew James Henrich, of Akron, Iowa to be his absolute property, with his children taking his share in the event he predeceases me. If my nephew so desires, he may divide up and distribute so much of said property among my other nephew and nieces in such amounts and in such a manner as he in his absolute discretion may deem best.

On August 18, 1982, Martin was admitted into the Akron Nursing Home where he resided until his death on March 28, 1983.

On April 6, 1983, James W. Henrich of Akron, Iowa, filed a petition for probate of Martin's 1982 will. The probate inventory shows estate assets of approximately $50,000. Plaintiffs, all relatives of Martin, filed a petition to set aside probate of will on October 19, 1983, alleging lack of due execution, lack of testamentary capacity, undue influence, fraud, and mistake. James Henrich, as executor and individually, filed a motion for summary judgment which plaintiffs resisted. The trial court sustained the motion finding that "plaintiffs do not show more than a scintilla of evidence indicating that there is a material fact question."

On appeal, plaintiffs assert that a genuine issue of material fact exists with respect to the following matters:

(1) whether Martin's 1982 will was duly executed in compliance with Iowa Code sections 633.279-633.281;

(2) whether Martin lacked testamentary capacity, including his ability to identify the natural objects of his bounty, to know the desired distribution and the extent of his property, and to understand the nature of the instrument executed;

(3) whether James W. Henrich unduly influenced or deceived Martin into executing the 1982 will; and

(4) whether there was a mistake in the execution of the 1982 will because it referred solely to James Henrich as Martin's nephew when in actuality he is a great-nephew.

The general principles governing our review of the trial court's grant of a motion for summary judgment are well established.

Summary judgment is proper when there is no genuine issue of fact and the moving party is entitled to judgment as a matter of law. Iowa R.Civ.P. 237(c). In reviewing the grant of a summary judgment motion, we must determine whether a genuine issue of material fact exists and whether the law was correctly applied. Adam v. Mt. Pleasant Bank & Trust Co., 355 N.W.2d 868, 872 (Iowa 1984). In Daboll v. Hoden, 222 N.W.2d 727 (Iowa 1974), the Iowa Supreme Court said:

The purpose of the rule is to avoid useless trials. Where there is no genuine issue of fact to be decided, the party with a just cause should be able to obtain a judgment promptly and without the expense and delay of a trial. [citations] In ruling on a motion for summary judgment, the court's function is to determine whether such a genuine issue exists, not to decide the merits of one which does.

Id. at 731.

In order to rule upon such motion, the court must examine the entire record before it, including the pleadings, admissions, depositions, answers to interrogatories, and affidavits, if any. Drainage Dist. No. 119 v. Incorporated City of Spencer, 268 N.W.2d 493, 499 (Iowa 1978). The burden to show the absence of any genuine issue of material fact is upon the moving party. The record is viewed in the light most favorable to the opposing party. Swets Motor Sales, Inc. v. Pruisner, 236 N.W.2d 299, 304 (Iowa 1975). However, to successfully resist a motion for summary judgment, the resisting party must set forth specific evidentiary facts showing the existence of a genuine issue of material fact. Liska v. First Natl. Bank, 310 N.W.2d 531, 534 (Iowa Ct.App.1981). He cannot rest on the mere allegations or denials of the pleadings. Id.; Iowa R.Civ.P. 237(c).

Becker v. Star Auto, Inc., 376 N.W.2d 645, 646-47 (Iowa Ct.App.1985). A fact question is generated if reasonable minds can differ on how the issue should be resolved. Knapp v. Simmons, 345 N.W.2d 118, 121 (Iowa 1984). More than a "scintilla" of evidence is required to generate a genuine issue of material fact on the grounds of lack of due execution, lack of testamentary capacity, undue influence, fraud, and mistake. In re Estate of Davenport, 346 N.W.2d 530, 531-32 (Iowa 1984).

Due Execution. A will to be valid in Iowa must be executed in accordance with the requirements set forth in Iowa Code section 633.279(1) (1985). A will must be:

1. In writing;

2. Signed by the testator;

3. Declared by the testator to be his will;

4. Witnessed by two competent witnesses who:

a. Signed at the request of the testator,

b. Signed in the presence of the testator, and

c. Signed in the presence of each other.

Plaintiffs allege no violation of these statutory requirements in the execution of Martin's 1982 will. The facts surrounding the execution of the will are undisputed and come from the deposition of Attorney C.W. Down. The will was in writing, signed by Martin in the presence of two witnesses over the age of sixteen, and signed by the two witnesses in Martin's presence and in the presence of each other.

Furthermore, Down read the will and the attestation clause to Martin and asked him if it was what he desired before the formal execution occurred. Martin answered affirmatively. This client-lawyer colloquy ensured that Martin realized the testamentary significance of his actions. See In re Estate of Graham, 295 N.W.2d 414, 417 (Iowa 1980).

Because Martin's 1982 will was duly executed, we conclude that plaintiffs failed to raise a material issue on this ground.

Testamentary Capacity. In order for a decedent to have general mental capacity to make a will, he must know and understand 1) the nature of the instrument then being executed; 2) the nature and extent of his property; 3) the natural objects of his bounty; and 4) the distribution he desires to make of his property. In re Estate of Adams, 234 N.W.2d 125, 127 (Iowa 1975). All of the above four elements must exist coextensively at the time the will is executed. In re Estate of Gruis, 207 N.W.2d 571, 573 (Iowa 1973). The will is invalidated if any one of such tests is not met. In re Estate of Springer, 252 Iowa 1220, 1224, 110 N.W.2d 380, 383 (1961). The proof of a mental deficiency must be applicable to the time of making the will. In re Estate of Roberts, 258 Iowa 880, 889, 140 N.W.2d 725, 730 (1966). However, "[w]hile it is true that evidence of mental capacity must refer to the exact time of the making of the will, evidence of the condition of the mind of the testator at other times may be received if there is a reasonable basis for the conclusion that it throws some light on his mental competence at the time the will was made." Gruis, 207 N.W.2d at 573.

James Henrich provided affidavits in support of the motion for summary judgment from Martin's treating physicians, the nursing home administrator, the activities director of the nursing home, a nurse at the nursing home, a close friend of Martin's, and one of Martin's nieces, Christa Henrich, who visited Martin in late July and early August of 1982. These affidavits consistently described Martin as alert, strong-willed, capable of speaking his mind, and having a good sense of humor. The nursing home administrator and activities director stated that at the first of every month they discussed...