Rotax' Estate, In re, 48-80

• Decision Date: 26 March 1981
• Docket Number: No. 48-80,48-80
• Parties: In re ESTATE OF Bessie Belle ROTAX.
• Court: Vermont Supreme Court

Page 1304

429 A.2d 1304

139 Vt. 390

In re ESTATE OF Bessie Belle ROTAX.

No. 48-80.

Supreme Court of Vermont.

March 26, 1981.

Kelley & Meub, Ltd., Middlebury, for appellants.

Donald Arbitblit of Langrock, Sperry, Parker & Stahl, Middlebury, for appellees.

Before BARNEY, C. J., LARROW, BILLINGS and HILL, JJ., and SHANGRAW, C. J. (Ret.), Specially Assigned.

HILL, Justice.

From a judgment after jury trial upholding the will of Bessie Belle Rotax, contestants appeal. We affirm.

Mrs. Rotax owned, among other possessions, a camp and a 500 acre dairy farm worth $280,732. She bore six sons and three daughters. All but two of the children left the farm. Two of the sons, Edward and Rudolph, remained. They, with the help of Rudolph's daughter Luanne, worked the farm. Edward lived in the main house with his mother; Rudolph and his family had their own home on the premises.

Victor and Gayle Burbo were friends of Edward, Rudolph and Luanne and, as neighbors, had become friendly with Mrs. Rotax. Mrs. Burbo had been a legal secretary for several years.

Mrs. Rotax was suffering from cancer. In July, 1977, she went to the hospital for a blood transfusion. Before going to the hospital, she had visited two lawyers for the purpose of having a will drawn. She told Mrs. Burbo that she did not execute a will because she did not understand the lawyer's language. Mrs. Burbo indicated that a lawyer was not needed to draw a will and that she, Mrs. Burbo, would help her.

Shortly after Mrs. Rotax returned from the hospital, the Burbos visited the farm. On that day Mrs. Rotax prepared her will with some help from Mrs. Burbo. The farm was left to Edward, Rudolph and Luanne. The camp was devised to the six sons. She made other small individual bequests but failed to mention two of the daughters. The will was in her own handwriting. Her competency to make the will and that it was properly executed are not challenged. The will was witnessed by the Burbos and Sandra Ingham, a friend of Luanne's.

Three of the sons who received no part of the farm challenged the will. The daughters not mentioned therein did not join in the challenge.

The contestants raise in this Court only one claim of error: that evidence at the trial constituted "suspicious circumstances" giving rise to a presumption of undue influence on Mrs. Rotax when she prepared the will. They claim that, as a result, the burden of proof on the issue of undue influence should have been shifted to the proponents of the will and that the court should have so charged the jury. The trial court held as a matter of law that the contestants failed to show suspicious circumstances and, in its charge, continued the burden of proof as to undue influence on the contestants.

The contestants allege, in sum, that the will resulted from a concerted, prolonged effort to force a sick woman to dispose of property against her wishes and at the expense of some of her children who had remained close and loyal to her.

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. See In re Everett's Will, 105 Vt. 291, 315, 166 A. 827, 836 (1933). "Any species of coercion, whether physical, mental, or moral, which subverts the sound judgment and genuine desire of the individual, is enough to constitute undue influence." Id. The influence can be exerted either at the time of the act in question or over an indefinite prior period. Id. at 301, 166 A. at 830. As stated in In re Collins Will, 114 Vt. 523, 533, 49 A.2d 111, 117 (1946):

The burden of proving the existence of undue influence is, ordinarily, upon the contestant. But when the circumstances connected with the execution of the will are such as the law regards with suspicion, the burden is shifted to the proponent, who must show affirmatively that the will was not procured by this means. Indeed, it has been held that in such a situation the law raises a presumption of undue influence, which establishes prima facie the existence of it, and is sufficient to...