Stroup v. Leipard
| Decision Date | 06 October 1998 |
| Docket Number | No. WD,WD |
| Citation | 981 S.W.2d 600 |
| Parties | Jeanne STROUP and Robert Stroup, Plaintiffs/Respondents, v. McGee LEIPARD and Helen Leipard, Defendants/Appellants, Marguerite Stevens and M.C. Leipard, Defendants/Respondents. 54439. |
| Court | Missouri Court of Appeals |
Terry L. Williams, Kansas City, for appellants.
John B. Neher, Lexington, for respondents.
Before HOWARD, P.J., and BRECKENRIDGE and SPINDEN, JJ.
McGee Leipard and Helen Leipard (the Leipards) appeal from the trial court's order amending its judgment and admitting the 1989 will of McGee Leipard's brother, Albert Leipard (the decedent), into probate after a jury rejected a later instrument as the decedent's last will and testament. On appeal, the Leipards contend that the trial court erred by amending its judgment to admit the 1989 will because a jury verdict was required to establish it as the will of the decedent since the 1989 will had previously been rejected from probate. The Leipards contend that the proponents of the 1989 will, Jeanne Stroup and Robert Stroup, abandoned their claim to establish the rejected 1989 instrument as the decedent's will by failing to offer jury instructions and a verdict form regarding that document. 1 The Leipards also contend that the trial court erred by finding that the Leipards admitted the due execution of the 1989 will because they were not authorized by Missouri law to challenge the validity of the 1989 will, since it had not been admitted to probate.
The judgment of the trial court is affirmed.
The present appeal arises out of a will contest proceeding. The decedent died on March 24, 1996 when he was 96 years old. On March 26, 1996, an instrument in writing purported to be the decedent's last will and testament and dated January 11, 1995, was presented for probate in the Probate Division of the Circuit Court of Jackson County. Shortly thereafter, the probate division issued a certificate of probate, admitting this instrument to probate as the decedent's last will and testament. Subsequently, around April 19, 1996, a prior instrument in writing dated January 19, 1989, was presented for probate in the same probate division. At that time, the judge of the probate division issued a certificate and judgment rejecting the 1989 instrument as not being the decedent's last will and testament because of the existence of the subsequent 1995 instrument which revoked all previous wills and codicils of the decedent.
On June 12, 1996, the Stroups filed a document entitled "Petition to Contest Will and to Probate Rejected Will" in the Circuit Court of Jackson County, Missouri. In this petition, the Stroups requested the trial court reject the 1995 instrument as the decedent's last will and testament because he executed this document "while he was not of sound mind and lacked the mental or testamentary capacity to make a Will...." In the alternative, the Stroups claimed that the decedent was under the undue influence of McGee and Helen Leipard at the time he signed the 1995 instrument in which he left his entire estate to them. The Stroups made numerous allegations concerning the decedent's increasing infirmity and his mental state in 1995. The Stroups also alleged that the decedent had very little contact with the Leipards until after the decedent's wife died in 1992 and they began assisting the decedent with numerous tasks. Furthermore, the Stroups alleged that the decedent had told them that the Leipards had caused him to sign this will and that he was confused and bewildered at the time.
The Stroups also alleged that the decedent's last will and testament executed in 1989, which left only two and a half percent of his estate (not to exceed $10,000) to Mr. Leipard, should be admitted into probate. In their petition, the Stroups alleged that the decedent executed the 1989 will as his free act and deed. They also pleaded that the 1989 will was signed by the decedent when he was of sound and disposing mind and memory and that the document was attested to by at least two competent witnesses who signed their name in his presence. Finally, the Stroups alleged that the 1989 will was executed when the decedent was under no constraint or undue influence.
In their answer, the Leipards admitted that the decedent was "completely competent, of majority age, and of sound mind" when he signed the 1989 will, but stated that they were without sufficient knowledge concerning whether the decedent was under undue influence. The Leipards denied the validity of the 1989 will because of a provision in the 1995 will which revoked all previous wills and codicils of the decedent. The Leipards also denied that the 1995 will was executed while the decedent was in an unsound state of mind or as a result of the undue influence or fraud of the Leipards. Therefore, the Leipards requested that the trial court declare the 1995 will to be the decedent's last will and testament.
The matter was transferred to the probate division and, in accordance with the Stroups' request under § 473.083.7, RSMo 1994, 2 the court empaneled a jury to decide the issues raised by their petition. On January 28, 1997, the jury entered its verdict that the 1995 document was not the decedent's last will and testament. However, the jury was not instructed and made no finding regarding the 1989 will. The trial court entered its order in accordance with the jury's verdict invalidating the 1995 document but entered no finding regarding the 1989 will. Subsequently, on February 6, 1997, the Stroups filed a motion pursuant to Rule 75 requesting that the trial court amend its judgment to admit the 1989 will into probate. In response, the Leipards contended that the trial court was without authority to amend its judgment because the Stroups failed to submit jury instructions or a verdict form concerning the validity of the 1989 will, so the jury did not determine the 1989 will to be the decedent's last will and testament.
In its order granting the Stroups' motion to amend its judgment, the trial court determined that it was appropriate to admit the 1989 instrument into probate as the decedent's last will and testament. The trial court noted that the Leipards admitted in their answer to the Stroups' petition that decedent "was completely competent, of majority age, and of sound mind in 1989...." The trial court also noted that the Leipards filed no counterclaim alleging the invalidity of the 1989 will and did not object to its admission into evidence. Because the 1989 will was executed as a self-proving will pursuant to § 474.337, the trial court determined that a presumption of due execution existed, thus making the 1989 will valid. Furthermore, the trial court ruled that the Leipards failed to establish evidence of any affirmative defenses which would have required invalidation of the 1989 will. Therefore, the trial court amended its judgment to admit the 1989 will into probate. The Leipards appeal from this order.
Under Rule 75.01, the trial court retains inherent power during the thirty-day period after entry of its judgment to amend the judgment upon a finding of good cause. Love v. Park Lane Medical Center, 737 S.W.2d 720, 723 (Mo. banc 1987). Although good cause "eludes a precise definition," it refers to a remedial purpose. In re Marriage of Bennett, 938 S.W.2d 952, 957 (Mo.App.1997). Under Rule 75.01, good cause is interpreted liberally in order to avoid manifest injustice. Brueggemann v. Elbert, 948 S.W.2d 212, 213 (Mo.App.1997). On appeal from a trial court's order amending a judgment under Rule 75.01, this court is limited to a determination of whether the trial court had good cause within the meaning of the rule to amend its judgment. Major v. Frontenac Industries, Inc., 899 S.W.2d 895, 897 (Mo.App.1995). The trial court is vested with considerable discretion in ruling on a motion to amend a judgment and this court will not reverse that decision absent an abuse of discretion. Bennett, 938 S.W.2d at 957.
As their only point on appeal, the Leipards contend that the trial court erred by amending its judgment to admit the 1989 will into probate because "Missouri law clearly holds that a will previously rejected from probate must be established as the will of a decedent by verdict of the jury where a jury trial has been requested...." The Leipards argue that the Stroups' failure to submit jury instructions and a verdict form regarding the 1989 will constitutes abandonment of their claim to establish that will as decedent's will. The Leipards also contend that the self-proving certificate does not establish the instrument as the decedent's will. Finally, the Leipards contend that the trial court erred in relying on the fact that they failed to object to the validity of the 1989 will because they were unable to contest the validity of a will which had not been admitted to probate.
"The right to contest a will did not exist at common law; it is a purely statutory right and can only be exercised in strict compliance with the statutory provisions relating to will contests." Brents v. Wachel, 849 S.W.2d 68, 70 (Mo.App.1993). When interpreting the statutory provisions governing will contests, this court must ascertain the legislative intent from the plain and ordinary meaning of the language used in the statute. Id. at 69-70. Section 473.083 governs will contests. Under § 473.083.7, "[i]f a timely petition is filed, it and the answer or answers thereto shall frame the issues of intestacy or testacy or which writing or writings constitute the decedent's will...."
Here, the Stroups' petition alleged that the decedent's 1989 will was his last will and testament. They alleged that the decedent signed this document when he was of sound and disposing...
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