Keen v. Wolfe (In re Estate of Keen)
| Decision Date | 11 April 2016 |
| Docket Number | SD 33801 |
| Parties | In the Estate of Rosetta F. Keen, deceased. Louie R. Keen, Petitioner–Appellant, v. Amber J. Wolfe, individually and as Personal Representative of the Estate of Rosetta F. Keen, and Cynthia A. Keen, Respondents–Respondents. |
| Court | Missouri Court of Appeals |
Robert M. Sweere, Springfield, MO, for Appellant.
John A. Cowherd, Mt. Vernon, MO, for Respondents.
Louie R. Keen appeals the February 2015 “FINAL SETTLEMENT APPROVED FINDING AND ORDER OF DISTRIBUTION ” (“the final distribution”) entered in the probate estate of his deceased mother, Rosetta F. Keen, pursuant to section 472.160(14).1 Louie presents nine points that collectively assert trial court errors in overruling his objections to the final distribution and denying his motion invoking “no-contest” provisions from both Rosetta's will and a trust she had created. For ease of analysis, we have organized the points around four basic contentions distilled from Louie's points: (1) Louie's sister and personal representative of the Estate, Amber J. Wolfe, and another sister, Cynthia A. Keen, violated no-contest clauses in Rosetta's will and/or trust;2 (2) Amber's inventory of the Estate incorrectly omitted a particular bank account owned or possessed by Rosetta at her death; (3) Amber's claim against the Estate totaling $46,288.72 for various expenses was invalid because the expenses were either not owed by Rosetta at her death or the trial court did not approve them in advance; and (4) attorney fees totaling $22,041.14 incurred by Amber in connection with a previous appeal by Louie in the Estate case should not have been allowed because the fees did not benefit the Estate.3
Finding no merit in Louie's points, we affirm.
“The trial court's final decree of distribution will be upheld unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law.” In re Estate of Ellis, 187 S.W.3d 344, 348 (Mo.App.S.D.2006). The same is true for “review of a trial court's decision to allow a claim against an estate[.]” In re Estate of Miller, 264 S.W.3d 664, 666 (Mo.App.E.D.2008). We presume that the trial court's judgment is correct, and the appellant bears the burden of proving it erroneous. Humphreys v. Wooldridge, 408 S.W.3d 261, 264 (Mo.App.S.D.2013). When no request for specific findings and conclusions was made, we presume that the trial court made findings consistent with the judgment entered, and we will affirm the judgment under any reasonable theory supported by the evidence. In re Estate of Hock, 322 S.W.3d 574, 579 (Mo.App.S.D.2010).
“[W]e defer to the trial court's findings of fact, given the trial court's superior ability to judge the credibility of witnesses.” In re Estate of Moore, 136 S.W.3d 163, 164 (Mo.App.S.D.2004). “The [trial] court is free to believe all, part, or none of the testimony of any witness[,]” and “we accept as true the evidence and permissible inferences, which may be drawn favorable to the prevailing party, and disregard the contradictory testimony.” In re Estate of Markley, 922 S.W.2d 87, 95 (Mo.App.W.D.1996).
Rosetta's husband (the parties' father), Gary Keen, predeceased Rosetta in 2005. After Gary's death, Rosetta operated “4–K Farms” as a sole proprietorship. Louie testified that Rosetta “continue[d] to run the income and expenses of the farm out of her personal account[.]”
In March 2011, Rosetta entered the hospital, and she had Amber retrieve a particular checkbook from Rosetta's home that Amber had not previously possessed. Thereafter, Amber began paying Rosetta's bills using that checkbook. The checking account's “SIGNATURE CARD” (dated in 2006): (1) identified “[Rosetta] DBA 4–K Farms” as the account owner; (2) indicated that the account was a “BUSINESS ACCOUNT” for a “Sole Proprietorship”; (3) listed Amber as “Signer Only”; and (4) designated Amber as the “Payable on Death (POD)” beneficiary (“the POD account”). Amber understood that the money in the POD account belonged to Rosetta and had been generated by Rosetta. There was no indication on the signature card that Amber was identified in anything other than her individual capacity. The POD account had originally been held by Rosetta and Gary, and Amber was added between 2000 and 2004 “[j]ust as a cosigner.” The POD account was the account from which “all of the farm expenses were paid[.]”
On April 4, 2011, Rosetta met with Mr. Cupps in her hospital room to revise her estate plan. The resulting “LAST WILL AND TESTAMENT OF ROSETTA KEEN” (“the Will”) nominated Amber as the personal representative of the Estate. The Will provides that apart from “tangible personal property[,]” the remainder of the Estate is bequeathed “to the Trustee of the Rosetta Keen Revocable Trust Dated August 2, 2006, as restated.” In the absence of another list,4 the tangible personal property was to be divided equally among Louie, Cynthia, and Amber. Article V of the Will (“the Will's no-contest clause”) states: “If any of my children contest any provision of this Last Will and Testament or my Revocable Trust as restated this date, they shall receive nothing.”
The “APRIL 4, 2011 RESTATEMENT OF REVOCABLE TRUST AGREEMENT OF ROSETTA KEEN” (“the Trust”) references the trust Rosetta first created on August 2, 2006, and it names Amber as “Successor Trustees [sic]” to Rosetta. The Trust provides for the conveyance of a tract of particularly described real property to Louie and another to Amber. The Trust directs the trustee “to retain all other real estate, livestock and farm equipment, and to operate the same as a farming operation” for 12 years. Net income, apart from the trustee's fee generated from the farming operation, is to be split equally between Louie, Cynthia, and Amber, along with any property remaining at the end of that 12–year period. Part “EIGHTH” of the Trust provides:
Part “SECOND” of the Trust, paragraph B.2(b) (“the B.2(b) clause”), states: “The Trustee is directed to distribute to [Amber] the 40 acres more or less owned by the Trust and/or owned by [Rosetta] and located in Section 1, Township 22, Range 28, Barry County, Missouri.”
Part “FIFTEENTH” of the Trust (“the Trust's no-contest clause”5 ) states:
If any beneficiary of this trust or any other person contests the validity of this trust or any provision of this trust or files any action or makes any claim seeking distribution to him or her of an amount larger than what is provided for herein, then the Trustees [sic] are directed to distribute nothing to said contesting or claiming beneficiary and that person shall receive nothing from this trust or trusts created herein nor anything from [Rosetta]'s estates.
Rosetta died on May 10, 2011, and the Will was presented to the probate division of the circuit court of Barry County a few days later. The judge or clerk of the probate division examined the Will, “admitted [it] to probate as the Last Will and Testament of [Rosetta],” and issued Letters Testamentary (Supervised Administration) appointing Amber personal representative. No money was added to the POD account after Rosetta's death. Amber used the POD account to pay Rosetta's bills from the date of Rosetta's death until May 22, 2011.
In June 2011, Amber filed a claim against the Estate for “$46,288.72 for reimbursement of personal funds paid by [Amber] for [Rosetta]'s last illness, funeral costs, and household/farm expenses” between May 10–22, 2011 (“the expense reimbursement claim”). The trial court appointed an administrator ad litem, and the trial court approved the expense reimbursement claim on March 21, 2012. We will summarize additional information about the expense reimbursement claim in our discussion of Point VIII, infra. The balance of the POD account remaining after Amber had paid the bills identified in the expense reimbursement claim was $31,268.42 (“the POD balance”). Amber withdrew that remaining balance in her personal capacity in June 2011. Amber eventually established a bank account for the Trust, and she began using that account to pay for expenses involving the cattle and real estate.
In November 2011, Amber, as successor trustee, filed case no. 11BR–PR00133—the first trust case—seeking a judicial declaration “as to whether she is entitled to sell” “a small tract of real estate” (“the small tract”) specifically described in the amended petition. The amended petition alleged that Rosetta had listed the small tract for sale before her death and it was “not economical to farm due to its location, terrain and composition”; that it was “not prudent” to keep it; and that selling it would be in the best interest of the beneficiaries. The amended petition cited the Trust provision requiring the payment of net profits of the farming operation using “ ‘GAAP’ ” principles6 and alleged “[t]hat the accountant for the Estate and Trust recommends that income be calculated according to ‘Other Comprehensive Basis of Accounting’ rather than ‘GAAP’ because it allows income to be calculated on the same basis as taxes.”
Louie's counsel entered an appearance in the first trust case, but the docket entries do not indicate that he filed an answer or other responsive pleading.7 Cynthia appeared pro se, and she “agree[d] to the entry of a Judgment granting the relief sought.” In December 2011, the trial court entered an order8 modifying the Trust such that the trustee was “authorized and empowered to sell real estate which is not economical to the farm due to its location, terrain, and composition.” The...
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