In re George Milas, 98-2511

Decision Date19 August 1999
Docket Number98-2511
PartiesThis opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See 808.10 and Rule 809.62, Stats. In re the Estate of George Milas, Deceased: Judith Fischer and Raymond Milas, Appellants, v. Vanessa Henningfield,Respondent.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV
CourtWisconsin Court of Appeals

APPEAL from an order of the circuit court for Rock County: JAMES E. WELKER, Judge. Reversed.

Before Dykman, P.J., Vergeront and Roggensack, JJ.


Judith Fischer and Raymond Milas (Judith and Raymond) appeal from an order of the circuit court which: (1) concluded that their father, George Milas (Milas), was not unduly influenced by Vanessa Henningfeld (Henningfeld) on October 14, 1988 when he made his will; and (2) admitted the will into probate. We conclude that the circuit court applied an incorrect legal standard when it analyzed whether Henningfeld unduly influenced Milas because the court did not consider whether slight evidence of susceptibility existed at the time the will was executed. We also conclude that the facts found by the circuit court are sufficient to establish slight evidence of susceptibility, as a matter of law. Accordingly, we reverse.


Henningfeld met Milas in June of 1988, when she came to his house to sell him a nursing home insurance policy. Milas was then seventy-one years old and Henningfeld was thirty-five. The two became friends. Milas had difficulty communicating due to his heavy Lithuanian accent; he had some memory problems; and he needed assistance with his finances.

Approximately four months after they met, at Henningfeld's suggestion, Milas and Henningfeld went to Attorney Frank Kinast's office to make a new will for Milas. The will he executed on October14, 1988 left his entire estate to Henningfeld, rather than to Judith and Raymond, Milas's two children, who had been the beneficiaries under his previous will. On the same day, Milas also gave Henningfeld his power of attorney, thereby giving her significant control over his financial matters.

Henningfeld attended most subsequent meetings between Milas and Kinast, who was representing Milas in his divorce from his second wife. She attempted to control the litigation, to exclude the attorneys from the process, and to interfere with the court proceedings. In 1989, as part of a complaint against Kinast for the representation he provided to Milas during the divorce, Henningfeld wrote a letter to the Board of Attorneys Professional Responsibility. In it, she contended that Milas had difficulty communicating and acting in his own best interest during June 1988.

On June 2, 1989, Milas went to Kinast's office without Henningfeld and attempted to revoke the October 14, 1988 will by drawing a line through it and writing at the bottom of the will that he revoked it. However, on August 23, 1993, shortly after suffering a stroke, Milas executed another will again leaving his entire estate to Henningfeld.

Milas died in November 1996. Thereafter, Henningfeld offered the August23, 1993 will for probate, and Judith and Raymond objected. Following a trial, the circuit court concluded that the 1993 will was the product of undue influence because Henningfeld had the opportunity and the disposition to influence Milas; had achieved the coveted result; and that Milas was susceptible to undue influence. The court found that from the inception of their relationship in June or July 1988 through the signing of the 1993 will, Henningfeld unduly influenced Milas.

Thereafter, Henningfeld offered the October 14, 1988 will for probate, and Judith and Raymond again objected. The circuit court concluded that Milas had not validly revoked the 1988 will; however, the court concluded that Milas died intestate because the 1988 will was not revived by the doctrine of dependent relative revocation. Henningfeld appealed. We concluded that the circuit court erred in finding that Milas died intestate, and we remanded to the circuit court for further proceedings.

On remand, the circuit court held a hearing to determine whether the October14, 1988 will was affected by the undue influence of Henningfeld. After a trial, the circuit court concluded that Judith and Raymond had not met their burden of proving undue influence because they had not proved that when he executed the will, Milas "was so susceptible to undue influence that he could not have made another choice." The circuit court made no specific ruling regarding testamentary capacity.1 This appeal followed.


Standard of Review.

Where a circuit court has made factual findings that underlie the issue of undue influence, we will not upset those findings unless they are clearly erroneous. See Section 805.17(2), Stats.; Odegard v. Birkeland, 85 Wis.2d 126, 134, 270 N.W.2d 386, 390 (1978). Whether a circuit court used the proper legal standard to apply to the facts of record in determining whether undue influence existed is a question of law which we review de novo. See Arnold v. Robbins, 209 Wis.2d 428, 432, 563 N.W.2d 178, 179 (Ct. App. 1997). Additionally, whether the facts found by the circuit court fulfill that legal standard is a question of law. See Nottleson v. DILHR, 94 Wis.2d 106, 115-16, 287 N.W.2d 763, 768 (1980).

Undue Influence.

A will procured by undue influence is void. See Estate of Von Ruden, 55 Wis.2d 365, 373, 198 N.W.2d 583, 586 (1972). Undue influence sufficient to invalidate a will may be proven by two methods. The first method is a four-element test that requires the challenger of the will to prove that: (1) the decedent was susceptible to undue influence; (2) there existed the opportunity to influence the decedent; (3) there was a disposition to influence the decedent; and (4) the coveted result was achieved. See Odegard, 85 Wis.2d at 135, 270 N.W.2d at 391. When the challenger of a will establishes three of the four elements by clear, satisfactory and convincing evidence, only slight evidence of the fourth element is required. See id.

The second method by which to prove undue influence has two components: (1) a confidential relationship between the testator and the favored beneficiary and (2) suspicious circumstances surrounding the making of the will. See id. If the challenger proves both elements by clear, satisfactory and convincing evidence, a rebuttable presumption of undue influence is raised and the burden of rebutting the presumption shifts to the proponent. See Johnson v. Merta, 95 Wis.2d 141, 160-61, 289 N.W.2d 813, 822 (1980).

Although only one test need be met for the objector to prevail, see Hoeft v. Friedli, 164 Wis.2d 178, 185, 473 N.W.2d 604, 606 (Ct. App. 1991), Judith and Raymond offered both theories. We do not disturb the circuit court's conclusion with regard to the two-component method because the court applied the proper legal standard, and the court's finding that Judith and Raymond failed to meet their burden of proving a confidential relationship and suspicious circumstances was not clearly erroneous.

With regard to the four-element test, the circuit court found that although Henningfeld received the coveted result and had the disposition and the opportunity to influence Milas, Milas was not susceptible to undue influence because he tried to revoke the 1988 will several months later. The court reasoned: [T]he only question before this Court is whether Mr. Milas, on the date of the execution of the will, was so susceptible to undue influence that he could not have made another choice, and I conclude he could have made another choice as evidenced by what he actually did a few months later.

Thus, the court concluded that Judith and Raymond had met their burden of proving, by clear and convincing evidence, three of the four necessary elements but that they had not sufficiently proved susceptibility. We do not disturb the circuit court's findings with regard to the elements of disposition, opportunity and coveted result, as they are amply supported by the record. Rather, the legal standard that the court applied in determining whether slight evidence of susceptibility existed, is the focus of our review.

Slight Evidence of Susceptibility.

Susceptibility has been defined as "capable of submitting to an action, process, or operation," "open, subject, or unresistant to some stimulus, influence, or agency," or "impressionable, responsive." Webster's New Collegiate Dictionary 1174 (1977); see Odegard, 85 Wis.2d at 140, 270 N.W.2d at 393. It has also been defined as "receptiveness to other's suggestions." Estate of McGonigal, 46 Wis.2d 205, 213, 174 N.W.2d...

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