Estate of Raedel, In re
| Decision Date | 05 May 1989 |
| Docket Number | No. 86-068,86-068 |
| Court | Vermont Supreme Court |
| Parties | In re ESTATE OF Lena A. RAEDEL. |
Motion for Reargument Denied
Sept. 11, 1989.
Stephen L. Saltonstall of Witten, Saltonstall & Woolmington, P.C., Bennington, for appellant.
James J. Cormier, Jr., Bennington, for appellees.
Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.
This is an appeal from a judgment overturning the will of Lena Raedel, late of Stamford, Vermont. The jury found that her last will and testament was the product of undue influence. The effect of the verdict was to distribute the only significant asset of the estate, a 100-acre farm in Stamford, to fifteen nieces and nephews instead of the two nieces named in the will. We reverse and remand for a new trial.
Mrs. Raedel became the sole owner of the Stamford farm upon the death of her husband in late 1982. Shortly thereafter, she conveyed the farm to her grandniece, Linda Larabee, and Linda's husband, retaining a life estate. About three months later, Mrs. Raedel brought suit for return of the farm. That action was settled and a consent judgment voiding the deed was filed on March 4, 1983.
On January 19, 1984, Lena Raedel, ill with lung cancer, executed her will, naming a niece, Carolyn Calnan, and her husband and another niece, Martha Sands, as residuary legatees. These individuals had cared for Mrs. Raedel during her illness. On February 26, 1984, at the age of 87, Mrs. Raedel died. She left no children or surviving siblings, making her nieces and nephews sole heirs at law.
The thirteen nieces and nephews omitted from the will are the contestants in this case. They claim that Carolyn Calnan "orchestrated" a conspiracy to get the farm. Both sides in the dispute called numerous witnesses to testify as to Mrs. Raedel's state of mind during her final weeks.
The main issue on appeal concerns the court's instructions to the jury. Specifically, the will proponents argue that the judge erred in treating the existence of "suspicious circumstances" surrounding the execution of the will as a question for the jury and in invoking the preponderance of the evidence standard as the applicable standard of proof. Proponents also claim that due to lack of evidence, the court should have directed a verdict in their favor. 1
Presence of "Suspicious Circumstances"
A court must not substitute its judgment for that of the testator. Accordingly, courts are bound to enforce the intent of the testator as expressed in a valid will. A will should not be enforced, however, if it is shown to be the product of undue influence. "The doctrine of undue influence is applicable 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). The burden to prove undue influence is normally placed on those contesting the will. Id. That is, the will is presumed proper and enforceable unless its contestants demonstrate sufficient evidence of undue influence.
The burden of proof, however, 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. (quoting In re Collins's Will, 114 Vt. 523, 533, 49 A.2d 111, 117 (1946)); In re Estate of Laitinen, 145 Vt. 153, 159, 483 A.2d 265, 269 (1984). If such circumstances are present, 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. In re Moxley's Will, 103 Vt. 100, 112, 152 A. 713, 717 (1930). See generally Reporter's Notes, V.R.E. 301, at 326-27 (). 2
In his instruction to the jury, the trial judge explained that the burden of proof initially was on the will contestants, but shifted to the proponents to prove there was no undue influence if the jury found "suspicious circumstances" surrounding the execution of the will. The court explicitly left to the jury to determine whether or not there were suspicious circumstances. This was error.
The existence of suspicious circumstances is a preliminary question for determination by the court. "Whether there is sufficient evidence to raise a presumption of undue influence must be decided by the trial court on a case by case basis." Estate of Laitinen, 145 Vt. at 159, 483 A.2d at 269 (emphasis added). "Whether suspicious circumstances exist is to be determined by the trial court only to establish the burden of proof on the ultimate issue of undue influence." Estate of Rotax, 139 Vt. at 394, 429 A.2d at 1306. 3 Here, the court failed to make this determination.
Suspicious circumstances are typically present where a testator's fiduciary benefits in the will. See Kendall's Adm'r v. Roseberry, 120 Vt. 498, 503-04, 144 A.2d 836, 839 (1958). As long ago as 1898, this Court stated that undue influence may be presumed when relations between testator and beneficiary are suspect, such as
those of guardian and ward, attorney and client, spiritual advisers and persons looking to them for advice--in fact, all relations of trust and confidence in which the temptation and opportunity for abuse would be too great if the beneficiary were not required to make affirmative proof that he did not betray the confidence placed in him....
In re Barney's Will, 70 Vt. 352, 369, 40 A. 1027, 1033 (1898). In that case, the Court reversed and remanded the probate of a will where the testator gave his estate to the draftsman of the will, an attorney and not an heir at law, and "omitted from the provisions of his will all the persons who were the natural objects of his bounty." Id. at 370-71, 40 A. at 1033; see In re Moxley's Will, 103 Vt. at 112, 152 A. at 717 (). 4
Use of the presumption is circumscribed. We have held that the presumption does not apply where the beneficiaries are children or grandchildren. Estate of Rotax, 139 Vt. at 393, 429 A.2d at 1306; In re Mason's Will, 82 Vt. 160, 166, 72 A. 329, 331 (1909). In such cases, the burden remains on the will contestants throughout.
We are likewise reluctant to presume undue influence when the relationship between testator and beneficiaries is one between aunt and nieces and nephews, at least where the beneficiaries do not assist in preparing the will. Here, the evidence showed only that the beneficiaries wanted to inherit the farm, helped care for Lena Raedel during her illness, urged her to seek legal advice regarding her estate, and discouraged the other heirs from contact with their aunt. We hold that these actions, by beneficiaries who were not in a fiduciary relationship with the testator, were insufficient as a matter of law to constitute "suspicious circumstances." The trial court ought to have determined that "suspicious circumstances" were not present, leaving the burden to prove undue influence at all times squarely on the contestants, and instructed the jury accordingly. See Estate of Laitinen, 145 Vt. at 159-60, 483 A.2d at 269. The court's instructions impermissibly eased the contestants' burden.
The question remains as to what quantum of proof is applicable. The trial court placed on the contestants the burden to prove undue influence by a preponderance of the evidence. Proponents argue that the burden should be to prove undue influence by the higher standard of clear and convincing evidence on the theory that undue influence is " 'a species of fraud,' " In re Barney's Will, 70 Vt. at 365, 40 A. at 1031 (quoting Smith's Will, 95 N.Y. 517, 522 (1884)), and that fraud must be proved by clear and convincing evidence. See Bardill Land & Lumber, Inc. v. Davis, 135 Vt. 81, 82, 370 A.2d 212, 213 (1977).
Common law fraud does require clear and convincing proof. Poulin v. Ford Motor Co., 147 Vt. 120, 125, 513 A.2d 1168, 1172 (1986). Undue influence, however, does not necessarily include an element of fraud. See Kendall's Adm'r v. Roseberry, 120 Vt. at 502, 144 A.2d at 838 (). Fraud, whether actual or constructive, requires "wrongdoing and the conscious participation of the alleged wrongdoer," id., see also Proctor Trust Co. v. Upper Valley Press, Inc., 137 Vt. 346, 354, 405 A.2d 1221, 1226 (1979); undue influence does not. The elements of undue influence include overcoming by means of coercion the sound judgment and free will of the testator so that she does something contrary to her true wishes. Estate of Rotax, 139 Vt. at 392, 429 A.2d at 1305; see In re Everett's Will, 105 Vt. 291, 315, 166 A. 827, 836 (1933) (). There is no requirement that the persons responsible for undue influence have a fraudulent state of mind, and none was alleged here. 5
We hold that, in the absence of fraud, the burden on the contestants of a will is to prove undue influence by a preponderance of the evidence. See In re Eyman's Estate, 181 Kan. 90, 98, 309 P.2d 664, 670 (1957).
The will's proponents argue that the trial court should have granted their motions for a directed verdict and for a judgment notwithstanding the verdict because there was insufficient evidence of undue influence to make out a prima facie case.
We must review the evidence in the light most favorable to the nonmoving party and exclude the effect of any modifying evidence. Sachse v. Lumley, 147 Vt. 584, 586, 524 A.2d 599, 600 (1987). If there were any evidence "fairly and reasonably supporting the nonmoving party's claim," then denial of the motions was proper. Id. The evidence may be circumstantial. In re Estate of Burt, 122...
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