Estate of Kesler, Matter of

• Decision Date: 16 May 1985
• Docket Number: No. 18434,18540,18434
• Citation: 702 P.2d 86
• Parties: In the Matter of the ESTATE OF Alice KESLER, Deceased. FIRST INTERSTATE BANK OF UTAH, Special Administrator of the Estate of Alice Kesler and Trustee of the Alice Kesler Trust; and Intermountain Health Care, Inc., American Cancer Society, Utah Division, Church of Jesus Christ of Latter-Day Saints, and University of Utah Medical Center, beneficiaries of the Alice Kesler Trust, Plaintiffs and Appellants, v. David O. KESLER, Calvin Kesler, Joseph Kesler, and Mary Kesler Davies, Defendants and Respondents. In the Matter of the ESTATE OF Alice KESLER, Deceased. FIRST INTERSTATE BANK OF UTAH, Trustee of the Alice Kesler Trust; and Intermountain Health Care, Inc., American Cancer Society, Utah Division, Church of Jesus Christ of Latter-Day Saints, and University of Utah Medical Center, beneficiaries of the Alice Kesler Trust, Plaintiffs and Appellants, v. David O. KESLER, Calvin Kesler, Joseph Kesler, and Mary Kesler Davies, Defendants and Respondents.
• Court: Utah Supreme Court

Page 86

702 P.2d 86

In the Matter of the ESTATE OF Alice KESLER, Deceased.

FIRST INTERSTATE BANK OF UTAH, Special Administrator of the

Estate of Alice Kesler and Trustee of the Alice Kesler

Trust; and Intermountain Health Care, Inc., American Cancer

Society, Utah Division, Church of Jesus Christ of Latter-Day

Saints, and University of Utah Medical Center, beneficiaries of the Alice Kesler Trust, Plaintiffs and Appellants, v. David O. KESLER, Calvin Kesler, Joseph Kesler, and Mary

Kesler Davies, Defendants and Respondents.

In the Matter of the ESTATE OF Alice KESLER, Deceased.

FIRST INTERSTATE BANK OF UTAH, Trustee of the Alice Kesler

Trust; and Intermountain Health Care, Inc., American Cancer

Society, Utah Division, Church of Jesus Christ of Latter-Day

Saints, and University of Utah Medical Center, beneficiaries of the Alice Kesler Trust, Plaintiffs and Appellants, v. David O. KESLER, Calvin Kesler, Joseph Kesler, and Mary

Kesler Davies, Defendants and Respondents.

No. 18434, 18540.

Supreme Court of Utah.

May 16, 1985.

Rehearing Denied June 11, 1985.

J. Wendall Bayles, Salt Lake City, for 1st Interstate Bank of Utah.

Richard M. Hymas, Richard H. Johnson, II, Patricia Leigh, Phillip V. Christensen, David L. Wilkinson, William R. Evans, John McAllister, Salt Lake City, for other plaintiffs.

Alan Syllivan, Salt Lake City, for Intermountain Health Care, Inc.

Eldon Eliason, Delta, for David Kesler.

R. Clayton Huntsman, Fillmore, for other Keslers.

HALL, Chief Justice:

Alice Kesler died on January 25, 1980, at the age of eighty-eight years, leaving a will and trust by which she devised only one percent of her estate to each of her five adult children, and the remainder to her grandchildren, great-grandchildren, and several charitable and religious organizations. The trustee of the trust petitioned the court for probate of the will, and four of the children contested the validity of the will and trust. After a seven day trial, judgment was entered in contestants' favor based on a jury verdict that Mrs. Kesler was mentally incompetent and unduly influenced when she made the will and trust. The trustee and beneficiaries of the will and trust appeal, contending there was insufficient evidence to support the jury verdict.

A testator is presumed competent to make a will ¹ and the burden of proof of testamentary incapacity is on the contestants of a will. ² Thus, to prevail in this case, the Kesler children were required to show by a preponderance of the evidence that Mrs. Kesler was incompetent to make the contested will and trust.

The classic test of general testamentary capacity has three elements: to make a will, one must be able to (1) identify the natural objects of one's bounty and recognize one's relationship to them, (2) recall the nature and extent of one's property, and (3) dispose of one's property understandingly, according to a plan formed in one's mind. ³ If any of these three elements is lacking at the time the will is made, the will is invalid. ⁴ Further, an insane delusion that affects one's understanding of the natural objects of one's bounty, the nature and extent of one's property, or the nature of the testamentary act, and that materially affects one's disposition of one's property, may invalidate a will. ⁵

On appeal from a judgment based on a jury verdict, we may reverse only if, viewing the evidence in the light most favorable to the verdict, there is no substantial evidence to support it. ⁶ Viewed in this light, there was substantial evidence adduced at trial in this case to support the jury verdict that Mrs. Kesler suffered from insane delusions that materially affected the contested will and trust, and thus was mentally incompetent at the time she made the will and trust. Viewed in the light most favorable to the jury verdict, the evidence adduced at trial established the following facts which support the jury verdict.

Alice Kesler was the widow of Otto Kesler, who died in 1966. They had five children: Mary Kesler Davies, David Kesler, Joseph Kesler, Marion Kesler, and Calvin Kesler. For over twenty years before Otto's death, the family operated a ranch and farm in Cove Fort, Utah. This ultimately constituted the bulk of Mrs. Kesler's estate, in addition to other farm land in Beaver and Millard counties, and substantial cash savings.

In 1956, David Kesler moved to Montana, but continued to have frequent contact with the family through regular correspondence and occasional visits. After their father's death, Joseph and Calvin Kesler and their immediate families continued to live on and operate the Cove Fort ranch and farm. Mrs. Kesler's relationship with her children was harmonious, as it had been in the past.

Mrs. Kesler was particularly close to her eldest son David. In 1971, she executed a revocable trust agreement, appointing David trustee of all her real property, including Cove Fort, for the benefit of herself for life and, after her death, for the benefit of her children equally, with a sixth share to be divided among her stepson and some of her grandchildren.

From the time he married her daughter in 1939 until about 1971, Mrs. Kesler also maintained a close relationship with her son-in-law, LeGrande Davies. Davies would often perform errands for Mrs. Kesler, such as shopping, mowing her lawn, repairing appliances and taking her to visit people on Memorial Day. Beginning in 1952, Davies also assisted Mrs. Kesler in handling her money. He would pick up her mail and make deposits and withdrawals at her request at the local bank, where he was a manager. Mrs. Kesler kept funds in a joint savings account and safety deposit box with Davies.

Around the early 1970's, however, a series of events began which culminated in the estrangement of Mrs. Kesler from all five of her children, and the making of the contested will and trust. First, Mrs. Kesler abruptly accused Davies of misappropriating her savings at the bank. At Mrs. Kesler's request, David Kesler investigated her charges. Davies denied any wrongdoing and fully cooperated in the ensuing investigation. A bank audit was performed, which cleared Davies of any wrongdoing. Still unsatisfied, Mrs. Kesler hired an independent certified public accountant, Ellsworth Brunson, to conduct an audit. The independent audit also cleared Davies of the charges. When Brunson reported his findings to Mrs. Kesler, however, she persisted in her belief that Davies had stolen from her and accused Brunson of having been "bought."

Then, in about 1972, Mrs. Kesler accused Joseph and Calvin Kesler of misappropriating wool, feed, sheep, cattle and other proceeds from the Cove Fort operation, and demanded that they vacate the property. She and David Kesler, as trustee, brought suit to eject them and to obtain an accounting. Mrs. Kesler again hired Brunson to audit the Cove Fort records. Because of inadequate records, the audit was inconclusive. Numerous attempts were made by Brunson, David, Joseph, Calvin and others to dissuade Mrs. Kesler from her belief that her sons had "stolen her blind." Ultimately, the lawsuit was settled, Mrs. Kesler being granted possession of the property, Joseph and Calvin leaving Cove Fort, each taking one third of the sheep and cattle, and the parties agreeing that Mrs. Kesler was not entitled to additional income or damages. No evidence supporting Mrs. Kesler's accusations was ever produced. Thereafter, however, Mrs. Kesler adamantly maintained her belief that her sons had stolen from her.

Shortly after having established the trust, Mrs. Kesler had written David, stating she wished to take her property in Fillmore, Utah, which consisted of her home and other residential property, out of the trust and give it to David upon her death. She then executed a withdrawal statement, removing her Fillmore property from the trust. In 1972, Mrs. Kesler made a will in which she devised most of her estate to David and only $100 each to Joseph and Calvin Kesler. The will specifically mentioned the failure of Joseph and Calvin to give her a satisfactory accounting. In 1973, Mrs. Kesler went with David to the Salt Lake City office of Fred L. Finlinson, an attorney, and requested that a deed be prepared to convey her Fillmore property to herself and David in joint tenancy. The deed was prepared and executed and was witnessed and notarized by Finlinson. Mrs. Kesler gave the deed to David with instructions to record it, which he did several days later.

In 1975, however, Mrs. Kesler accused David of having stolen her Fillmore property by bringing the deed to her home and folding it under to reveal only a signature line. She claimed she signed the deed at his request, thinking it was a will, and not knowing it conveyed a present interest in the property to David. Mrs. Kesler sued David to set aside the deed and to revoke her trust. At trial in that case, Mr. Finlinson testified as to the circumstances in which the deed was signed. The trial court upheld the deed, finding that Mrs. Kesler had voluntarily and knowingly signed the deed. ⁷ Nevertheless, Mrs. Kesler continued to believe that David had somehow tricked her into signing the deed.

In 1975, Mrs. Kesler wrote a letter to Mary Kesler Davies in which she accused her children of robbing her of her property, taking advantage of her, and saying that she had lost her mind and other "ugly untruths" about her. She directed her grandson, Greg Kesler, to read the letter aloud at her funeral. After her death, he complied.

In 1977, Mary Kesler Davies, and Joseph and Calvin Kesler petitioned the court to appoint a guardian of the estate of Mrs. Kesler. The trial court appointed a guardian, but this Court reversed that decision on the ground that the trial court had improperly applied a repealed guardianship statute. ⁸

On January 22, 1979, Mrs. Kesler executed the will and trust contested here. Approximately one year later, she died. The physician attending her at her death determined the...