Sensenbrenner's Estate, Matter of, 76-571

• Decision Date: 30 May 1979
• Docket Number: No. 76-571,76-571
• Parties: In the Matter of the ESTATE of Julia Smith SENSENBRENNER, Deceased. F. James SENSENBRENNER, Sr., Appellant, v. John S. SENSENBRENNER, Jr., J. Russell Ward, and First National Bank of Neenah, special administrator of the Estate of Julia Smith Sensenbrenner, Deceased, Respondents.
• Court: Wisconsin Supreme Court

Page 887

278 N.W.2d 887

89 Wis.2d 677

In the Matter of the ESTATE of Julia Smith SENSENBRENNER, Deceased.

F. James SENSENBRENNER, Sr., Appellant, v. John S. SENSENBRENNER, Jr., J. Russell Ward, and First

National Bank of Neenah, special administrator of

the Estate of Julia Smith Sensenbrenner,

Deceased, Respondents.

No. 76-571.

Supreme Court of Wisconsin.

Argued April 30, 1979.

Decided May 30, 1979.

Harrold J. McComas, Wayne R. Lueders, Mark G. Petri and Foley & Lardner, Milwaukee, for appellant.

Laurence C. Hammond, Jr., David L. Kinnamon, Gerald H. Engeleiter and Quarles & Brady, Milwaukee, for respondents.

COFFEY, Justice.

Julia Smith Sensenbrenner (hereinafter Julia) died on April 10, 1974 at the age of 81 years, survived by her natural son, John S. Sensenbrenner, Jr., (hereinafter John) and her three step-children: F. James Sensenbrenner, Sr., (hereinafter James), Gretchen Sensenbrenner Carney and Helen Mary Sensenbrenner McMurtie. Julia Smith married Colonel John S. Sensenbrenner, Sr., (hereinafter the Colonel) in 1923 following his divorce and they lived together until his death on October 8, 1973. John is the only issue of this marriage. A petition for probate of Julia's will and last testament executed on November 1, 1973 was filed in the probate court of Winnebago County on April 15, 1974. In the new will of 1973 she rescinded the provisions in her and her husband's prior wills providing for a percentage distribution of assets to John and her three step-children. Julia's last will, revoking her 1959 will and codicils, left her entire estate to her natural child, John. As a result of this change in the distribution of assets, James filed an objection to the will on May 30, 1974; the testatrix's step-daughters (Gretchen Sensenbrenner Carney and Helen Mary Sensenbrenner McMurtie) have not joined in his objection.

The principal controversy in this will contest centers upon the fact that the 1973 will leaving Julia's entire estate to John abandoned a prior estate (15 years) plan that was identical to her husband's testamentary intentions in the creation of their marital deduction trust. The Colonel's will provided that approximately one-half of his stock holdings in the Kimberly-Clark Corp. were to be placed in a marital deduction trust allowing his wife, Julia, to exercise an unrestricted power of appointment over the assets upon his death. In the event Julia predeceased him, the Colonel's will provided for the following residuary disposition of the marital trust assets: John, Jr., 33 3/4%; F. James, 28 3/4%; Gretchen, 18 3/4% And Helen Mary, 18 3/4%. In Julia's prior will of December 23, 1959 she created separate trusts for the benefit of her son, John, and the three step-children, applying the same percentages for the distribution of the marital trust assets. However, her 1959 will also provided that her solely owned assets consisting of stock in the Menasha Woodenware Co. ¹ were bequeathed to John.

At the hearing on the objection to Julia's final will, James, the appellant-objector, sought to establish that John had exercised undue influence through the alleged procurement of legal and accounting services used in the drafting of the 1973 will. There is no dispute in the record that on October 12, 1973 John personally contacted Robert Regner, an accountant with Arthur Anderson, Inc., and retained him to render tax advice in the preparation of Julia's estate plan. However, there is conflicting evidence as to whether John also procured the scrivener of his mother's last will. The accountant testified that John informed him that he had spoken to Atty. F. Joseph Sensenbrenner concerning the revision of his mother's will.

Atty. Sensenbrenner testified that Julia personally retained him in a telephone call on October 11th requesting him to draft some changes in her will. The attorney met with her the same afternoon and her first request was that John Dempsey, for whom she had a long-standing dislike, be removed as the probating attorney and personal representative for her and her husband's estates. Although Dempsey had prepared Julia's and her husband's prior wills and estate programs, she had never initiated any of the contacts with him. During her husband's life, she relied exclusively on the Colonel for his judgment and advice as to the necessity for any changes in her will or estate plan.

Atty. Sensenbrenner testified that after he had prepared the codicil removing Atty. Dempsey as a fiduciary, on October 16, 1973 Julia requested that he draft a new will for her, leaving everything to John, including any property she would receive from her husband's estate. The appellant-objector contends that Atty. Sensenbrenner and John met and discussed the substance of Julia's new will prior to its execution on November 1, 1973. Atty. Sensenbrenner and John denied the allegation that they were together at Julia's home discussing the will during this time period. However, the attorney testified that after Julia requested that he draft a new will, he contacted John asking him for a copy of his father's will in order that he might review and examine the same concerning the marital trust as it related to the will he was then preparing for Julia.

Atty. Sensenbrenner scheduled the will execution for 11:00 a. m. on November 1, 1973, but was unable to secure the witnesses for that morning. He rescheduled the will signing for 5:00 p. m. on the same day and was accompanied at this meeting by Arthur Remley, his law partner who had rendered advice in the drafting of Julia's will. Julia was presented with a copy of the new will and read the document's provisions with counsel. During the discussion of the will with Julia, Remley intervened and explained the provisions dealing with her exercise of her power of appointment over the marital trust. He explained this provision and pointed out specifically that John would receive the entire trust assets upon Julia's death. The attorney testified that after completing his reading and explanation of the power of appointment bequest, Julia announced her approval stating, "That's what I want." While the meeting was in progress, John arrived at his mother's home and she requested him to enter the room while the will was being discussed and reviewed. Remley further testified that upon completing the explanation and review of the will, Julia indicated her satisfaction and signed the will in the presence of the two attorneys. He also stated that Julia appeared attentive during the signing and that he perceived no noticeable change in her dominant personality on that day, November 1, 1973.

The following day, Julia personally delivered the new will to Agnes Mullen, the Colonel's personal secretary of 27 years. Julia directed Mrs. Mullen to file the new will in a safe place and destroy her 1959 will and all codicils. Shortly after Thanksgiving, 1973, Julia and Mrs. Mullen left for their annual winter vacation. Some two weeks after Julia's return from her winter vacation in Florida without ever further discussing the new will with Mrs. Mullen, she died on April 10, 1974 from congestive heart failure.

While on the witness stand, Mrs. Mullen established the existence of the close relationship between John and his mother and pointed out that John was a devoted and thoughtful son who visited his parents almost daily. Further, the personal secretary stated that John's three children were the "apple of Julia's eye" and that she and the Colonel would frequently visit their grandchildren at John's home. In contrast, Mrs. Mullen testified that Julia often expressed a dislike for her step-son, James. This was amplified with the explanation that when the Colonel visited James and his family in either their Milwaukee or Florida homes, he was not accompanied by his wife, Julia. She also noted in her testimony that Gretchen and Helen Mary, the daughters of the Colonel's first marriage, had little or no contact with their stepmother as they believed that Julia had usurped their mother's position in the family.

The trial court, in its findings of fact and conclusions of law, determined that the objector to the will did not meet the clear, satisfactory and convincing burden of proof required to establish his contentions of undue influence and ordered the will of Julia Smith Sensenbrenner, dated November 1, 1973, admitted to probate.

Issue

Whether pursuant to the "confidential relationship suspicious circumstances test," is there sufficient credible evidence to sustain the trial court's findings of fact and conclusions of law that the deceased, Julia Smith Sensenbrenner's, Last Will and Testament of November 1, 1973 was not the product of undue influence?

The appellant-objector, James, challenges the validity of the will in question alleging that its sole beneficiary, John, exercised undue influence upon the testatrix. A will's validity is presumed with proof that the will has been duly executed. In re Estate of Malnar, 73 Wis.2d 192, 199, 243 N.W.2d 435 (1975). However, the presumption of the will's validity can be overcome if undue influence is proven by clear, satisfactory and convincing evidence. Estate of Hamm, 67 Wis.2d 279, 282, 227 N.W.2d 34 (1975); Estate of Von Ruden, 55 Wis.2d 365, 373, 198 N.W.2d 583 (1972); Estate of Velk, 53 Wis.2d 500, 192 N.W.2d 844 (1972); Will of Cooper, 28 Wis.2d 391, 137 N.W.2d 93 (1965). Will of Faulks, 246 Wis. 319, 17 N.W.2d 423 (1945) recites the reason for the higher burden of proof required to establish an allegation of undue influence:

"In this state undue influence is considered as a species of fraud, and must be established by clear, convincing, and satisfactory evidence. See also Will of Boardman (1922), 178 Wis. 517, 190 N.W. 355; Will of Emerson (1924), 183 Wis. 437, 198 N.W. 441; Will of Grosse (1932), 208 Wis. 473, 243 N.W. 465." Id. at 344, 17 N.W.2d at 433.

In Estate of Steffke, 48 Wis.2d 45, 179 N.W.2d 846 (1970), undue influence...