Estate of Till, Matter of, 16647

• Decision Date: 08 January 1990
• Docket Number: No. 16647,16647
• Citation: 458 N.W.2d 521
• Parties: In the Matter of the Estate of Franklin J. TILL, Deceased. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 521

458 N.W.2d 521

In the Matter of the Estate of Franklin J. TILL, Deceased.

No. 16647.

Supreme Court of South Dakota.

Considered on Briefs Jan. 8, 1990.

Decided July 11, 1990.

Rehearing Denied Aug. 20, 1990.

Kurt E. Solay, Haven L. Stuck of Lynn, Jackson, Shultz & Lebrun, P.C., Rapid City, for appellant.

Michael "Mick" Strain, White River, for appellees.

WUEST, Chief Justice.

This is an appeal from a will contest in which the circuit court held that the Last Will and Testament of the decedent, Frank Till (Frank), was a product of undue influence. As a result, the circuit court held this will to be invalid. We reverse.

Frank was born in July of 1899. He had three brothers and one sister, all of whom had predeceased him. Frank's sister left two children: Frank Matson and Alleyne Schaar. One of his brothers left one child by the name of Robert Till (Robert). Frank's other two brothers had no children. Similarly, Frank never had any children, nor was he ever married.

For most of his life, Frank worked as a ranch hand. At one time, Frank worked as a ranch hand for a man named Claire Smith. Frank became a close family friend of the Smith's and he visited their home on several occasions. On one of these visits in 1984, Frank became acquainted with Julie Smith (Julie), a daughter of Claire Smith. ¹ Julie was sixteen years old at the time. Julie and Frank quickly became friends. In July of 1984, Julie participated in a birthday for Frank. Subsequent to this party, Julie and Frank saw each other on a few occasions in 1985 and 1986, but they did not see each other in 1987. They did, however, exchange several letters during this period.

After Frank retired from active ranch work, he traveled, visited friends, and for certain periods of time he lived with the Robert Till family and then later with the Frank Matson family. In March of 1988, while living with the Matsons', Frank became ill and was later admitted to a hospital in Spearfish, South Dakota. Frank remained in the hospital for approximately two weeks and was treated for a heart condition. During his stay at the hospital, Frank gave Robert a power of attorney so Robert could handle his financial affairs. Upon his release from the hospital, Frank was taken to the White River Nursing Home by Robert because none of Frank's friends or relatives felt that they could handle the burden of having Frank live with them.

In the early part of July, 1988, Julie and her husband Greg Elvestad (Greg) went on a vacation and visited Julie's parents in Prairie City, South Dakota. While visiting her parents, Julie was informed that Frank was very unhappy at the White River Nursing Home, and that Frank very much wanted to live at the Mary House Nursing Home in Pierre, South Dakota. She was also informed that Frank was upset with the way Robert was handling his financial affairs. Shortly after visiting Julie's parents, Julie and Greg then decided to visit Frank at the nursing home in White River, South Dakota. The two arrived in White River on July 9, 1988. They visited with Frank for two hours and during this time Frank informed them that he did not like the White River Nursing Home and that he was upset with the way that Robert was handling his financial affairs. After having visited with Julie and Greg, Frank asked if they would go to Robert's house to pick up some of his personal property and also to get some of his money from Robert. Julie and Greg agreed. They subsequently met Robert at his house later that night and they acquired some of Frank's personal belongings and also $382.00. These things were given to Frank the next day.

On July 11, 1988, after Julie and Greg returned to their home in Mason City, Iowa, Julie phoned the office of C.D. Kell (Kell), an attorney in Murdo, South Dakota, for the purpose of setting up an appointment for Frank so that Frank could change his power of attorney. This was done allegedly at Frank's request because Frank had a hearing problem and did not like to talk on the telephone. An appointment was scheduled for July 14, 1988. Julie and Greg then traveled back to White River on July 14, 1988, where they picked up Frank and then went to Kell's office. Julie, Greg and Frank then participated in a meeting with Kell. During this meeting, Julie indicated to Kell that Frank wanted to cancel his old power of attorney and that he wanted Kell to draft a new one. She also indicated that Frank wanted to change his will. Kell expressed a reluctance to do either of those things at that time. The meeting with Kell then ended. After the meeting, Julie suggested to Frank that he write a note to Kell stating that he wanted a new power of attorney. Frank did so and the next day Julie, Greg and Frank again met with Kell. Frank's note was given to Kell by Julie. At the end of this note there was also a request for Kell to draft a will for Frank. Having read this note, Kell surmised that this portion of the note was not in Frank's handwriting. Kell again refused to draft a will for Frank because he was concerned about Frank's mental capacity.

Kell did, however, draft a new power of attorney for Frank designating a local bank as the party holding this power. A representative of the local bank reviewed this power of attorney and concluded that the language was too broad. As a result, one of the bank's representatives recommended to Frank that attorney Gene Jones (Jones) draw up a different power of attorney. This appeared acceptable to Frank, so Julie and Greg then took Frank to the office of Jones. When they arrived at Jones' office, Frank told Jones that in addition to the new power of attorney he also wanted to make a new will. Jones indicated that he would be willing to draft a will for Frank, but not on that day. Shortly after this meeting with Jones, Julie and Greg returned to their home in Iowa. Four days later, on July 19, 1988, Frank met with Jones and Jones prepared a new will for Frank which revoked all prior wills and which gave the majority of Frank's estate to Julie and Greg.

On August 1, 1988, Julie was informed there was an opening for Frank at the Mary House in Pierre. The next day Julie and Greg traveled to White River so they could take Frank to the Mary House. When they arrived at the nursing home, Julie and Greg were met by a few of Frank's relatives who insisted on taking Frank to the Mary House. Julie and Greg agreed to this and then returned home. On August 4, 1988, Frank died at the Mary House in Pierre. His last will drafted by Jones was offered for probate. Frank's relatives, who were the sole beneficiaries under Frank's prior will executed in 1980, contested this will claiming that it was a product of undue influence by Julie. The circuit court agreed and subsequently held this will to be invalid. The executor named in Frank's last will now appeals from this judgment, alleging the circuit court erred in finding that a confidential relationship existed between Frank and Julie. He further alleges that the circuit court erred in finding a presumption of undue influence had arisen in this case. Finally, the executor alleges the circuit court erred in finding Frank's last will was the product of undue influence.

In addressing the allegations of error raised by the executor, we note this court will not set aside a trial court's findings of fact unless clearly erroneous. SDCL 15-6-52(a); In Re Estate of Hobelsberger, 85 S.D. 282, 289, 181 N.W.2d 455, 458 (1970). A finding is not clearly erroneous unless the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed by the lower court. In Re Estate of Pierce, 299 N.W.2d 816, 818-19 (S.D.1980); In Re Estate of Shabley, 85 S.D. 692, 695, 189 N.W.2d 460, 461 (1971). Additionally, we recognize all conflicts in the evidence must be resolved in favor of the trial court's findings. In Re Metz Estate, 78 S.D. 212, 214, 100 N.W.2d 393, 394 (1960). Having noted our standard of review, we now address the allegations of error as set forth by the executor.

The first allegation of error raised by the executor regards the trial court's finding a confidential relationship existed between Julie and Frank. In addressing this argument, we note the establishment of a confidential relationship in a will contest trial is significant because the burden of going forward with the evidence shifts to the beneficiary (Julie) to show she took no unfair advantage of her dominant position. In Re Metz Estate, supra, 78 S.D. at 222, 100 N.W.2d at 398. Furthermore, a finding of active participation in the preparation and execution of a will, coupled with a confidential relationship between the beneficiary and the decedent, raises a presumption of undue influence on the part of the beneficiary if she unduly profits under the will. In Re Estate of Heer, 316 N.W.2d 806, 810 (S.D.1982).

In the present case, the trial court not only found that Julie and Frank had a confidential relationship, but it also found that Julie actively participated in the preparation and execution of the will and that she unduly profited therefrom. As a result the trial court further found that a presumption of undue influence had arisen in this case. Based upon our review of the entire evidence, we are firmly and definitely convinced that the trial court made a mistake in finding that a confidential relationship existed between Julie and Frank. Hence, Julie should not have been given the burden of going forward with the evidence to show she did not take advantage of her supposed dominant position. ² Also, a presumption of undue influence should not have arisen due to the absence of a confidential relationship between Julie and Frank. ³

It is well settled in this state that a confidential relationship exists whenever a decedent places trust and confidence in the integrity and fidelity of another. In Re Estate of Weickum, 317 N.W.2d 142, 145 (S.D.1982); In Re Estate of...