Vancil v. Carpenter

• Decision Date: 29 October 1996
• Docket Number: No. WD,WD
• Citation: 935 S.W.2d 42
• Parties: Imogene L. VANCIL, Respondent, v. Edith CARPENTER, et al., Appellants. 51867.
• Court: Missouri Court of Appeals

Page 42

935 S.W.2d 42

Imogene L. VANCIL, Respondent, v. Edith CARPENTER, et al., Appellants.

No. WD 51867.

Missouri Court of Appeals Western District.

Oct. 29, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 24, 1996.

Dennis P. Colombo, Kansas City, for appellants.

James W. Henry, Kansas City, for respondent.

Before ELLIS, P.J., and LOWENSTEIN and LAURA DENVIR STITH, JJ.

ELLIS, Presiding Judge.

On January 13, 1993, Imogene Wicks executed a self-proving will leaving her estate in equal shares to respondent Imogene Vancil and appellants Edith Carpenter and Kevin Kirk. Subsequent to Wicks' death on January 18, 1993, Vancil filed suit in the Circuit Court of Cass County challenging the validity of this will. At the close of evidence, the jury found that Carpenter and Kirk had exerted undue influence on the decedent and declared the 1993 will invalid. Carpenter and Kirk now appeal from that verdict.

The appellants first claim the trial court erred in denying their motion for directed verdict at the close of evidence because Vancil failed to present a submissible case of undue influence. In considering whether the trial court erred in submitting the case to the jury, we must take Vancil's favorable evidence as true, disregard appellants' evidence unless it aids Vancil, and give Vancil the benefit of every favorable inference legitimately drawn from the evidence. Switzer v. Switzer, 373 S.W.2d 930, 938 (Mo.1964).

Wicks was a single, elderly woman who resided in Garden City, Missouri. She had no children of her own, but had numerous nieces and nephews, including Carpenter, Kirk, and Vancil. Wicks and Vancil had an "extremely close" relationship over the years. Carpenter and Kirk were not as close to Wicks as Vancil. Indeed, Kirk visited with her only about once a year.

On February 23, 1990, Wicks executed her first known will naming Vancil as her personal representative and sole beneficiary. On December 1, 1992, Wicks suffered a stroke and was hospitalized for eleven days. Subsequent to the stroke, Carpenter and Kirk began spending more time with Wicks than they had in the past. Neither Carpenter nor Kirk attempted to contact Vancil, who resided in Utah, as Wicks' physical condition deteriorated following the stroke.

In the month following the stroke, Carpenter twice went to her aunt's bank and attempted to obtain information about her aunt's accounts. Both times she was denied this information. ¹ Sometime in January of 1993, Carpenter scheduled an appointment for Wicks to meet with A.J. Anderson, Wicks' attorney of four years. Carpenter drove Wicks to this appointment on January 11, 1993. Carpenter waited in the reception area while Wicks met privately with Anderson. During this meeting, Wicks asked Anderson to draft a new will making Carpenter her personal representative and leaving equal shares of her estate to Carpenter, Kirk, and Vancil. Because Wicks had recently had a stroke, Anderson asked her to get a written statement from a doctor indicating she was capable of executing a will.

On January 13, 1993, Carpenter, Kirk, and Carpenter's son, Robert, took Wicks to see her doctor. Later that day they escorted her back to Anderson's office. Carpenter and Kirk waited in the reception area while Wicks met with Anderson. During this meeting, Wicks executed the will at issue which was witnessed by Anderson and his secretary. During this meeting, Wicks also signed a power of attorney naming Kirk her attorney in fact.

Also on the afternoon of January 13, 1993, Carpenter and Kirk took Wicks to her bank. While there, Wicks added Carpenter and Kirk to her account, including a right of survivorship among them. Carpenter stayed with Wicks from January 13, 1993, until she died on January 18, 1993.

After Wicks' death, Vancil filed the present action in the circuit court of Cass County. Vancil alleged Wicks was not of sound mind when the 1993 will was executed, that she did not have the mental capacity to make a will, and that the will was executed as a result of undue influence by Carpenter and Kirk. Following a jury trial on June 28, 1995, the trial court entered judgment that the 1993 will was the result of undue influence and was, therefore, not the last will and testament of Wicks.

Undue influence means influence that destroys the free choice of the person making the will. Morse v. Volz, 808 S.W.2d 424, 432 (Mo.App. W.D.1991) (citing MAI 15.03). In order to break a will, the evidence must show influence amounting to force, coercion, or overpersuasion sufficient to destroy the free agency and will power of the testator. Id. The burden is upon the contestant to produce substantial evidence of undue influence. Id.

A presumption of undue influence arises, however, when the evidence shows: (1) a fiduciary relationship existed between the testator and the beneficiary, (2) the beneficiary received a substantial bequest in the will, and (3) the beneficiary was active in procuring the execution of the will. In re Estate of Hague, 894 S.W.2d 684, 687 (Mo.App. W.D.1995). "When supported by probative evidence, this presumption makes a prima facie case which does not disappear upon the introduction of rebutting evidence and raises an issue for the jury." Disbrow v. Boehmer, 711 S.W.2d 917, 925 (Mo.App. E.D.1986).

The evidence clearly reflects that Carpenter and Kirk received a substantial bequest when they were each left one-third of Wicks' estate. The remaining elements necessary to warrant the presumption of undue influence, however, are both challenged by the appellants.

Carpenter and Kirk first claim that insufficient evidence was submitted to establish that a confidential or fiduciary relationship existed between themselves and Wicks. "The term 'fiduciary or confidential' within the meaning of the presumption is not used in its strict, formal sense but is equivalent to the confidential relationship between two persons where one trusts and relies on the other." Disbrow, 711 S.W.2d at 926. "While a confidential relationship cannot be exactly defined, it usually involves a situation in which one party relies upon another in regard to the handling of property or business affairs." Moyer v. Walker, 771 S.W.2d 363, 367 (Mo.App. S.D.1989) (citing Estate of Brown v. Fulp, 718 S.W.2d 588, 595-96 (Mo.App. S.D.1986)).

In the case at bar, Carpenter had a key to Wicks home and was helping Wicks with physical activities. Carpenter filled out checks for Wicks which Wicks would then sign and turn over to the payee. Sometime in early January, Carpenter took Wicks to a funeral home to plan her funeral. On the day the will was executed, Kirk and Carpenter escorted Wicks to the bank and to her lawyer's office. At the bank, Wicks added Kirk and Carpenter to her account and granted them the right of survivorship. At her lawyer's office, Wicks granted Kirk her power of attorney. The existence of a power of attorney is significant evidence that a confidential relationship has developed. Estate of Payne v. Howell, 671 S.W.2d 390, 392 (Mo.App. W.D.1984). On the whole, this evidence sufficiently established that, at the time the will was executed, a confidential relationship of trust and reliance had developed between Wicks and the appellants.

With regard to whether Carpenter and Kirk were active in procuring the execution of the will, the evidence is also sufficient. Once the plaintiff has established a confidential relationship and benefaction to the fiduciary, the courts take a very liberal attitude toward the quantum of proof necessary to establish that the fiduciary was actively concerned in some way which caused or contributed to the execution of the will. Disbrow, 711 S.W.2d at 926 (citing Carroll v. Knott, 637 S.W.2d 368, 371 (Mo.App. E.D.1982)). "The presence of the fiduciary at the execution of the will and the exertion of his influence at the exact moment of execution need not be shown." Dobbins v. Hupp, 562 S.W.2d 736, 741 (Mo.App. W.D.1978).

Disbrow held that evidence that Mrs. Boehmer increased her visits to the testatrix two months before the execution of the challenged will, that she saw the testatrix almost every day, that Mrs. Boehmer's husband made arrangements for the testatrix to meet with an attorney to execute the contested documents, and that Mrs. Boehmer prevented the respondent from speaking with the testatrix on two occasions was sufficient evidence to establish her involvement in the procuring of the will and to submit the issue of undue influence to the jury. Disbrow, 711 S.W.2d at 926-27.

Similarly, both Carpenter and Kirk increased their contact with Wicks in the month before the contested will was executed. Carpenter was in contact with Wicks almost every day. Neither Carpenter nor Kirk ever contacted Vancil regarding Wicks' condition, and they discouraged efforts by Vancil and her sister to talk with Wicks. One week before Wicks' death, Carpenter phoned Anderson's office to set up the initial appointment for Wicks to see him. Carpenter drove Wicks to the office and waited in the reception area while Wicks met with Anderson. Two days later, Carpenter and Kirk took Wicks to see her doctor. The jury could permissibly infer that this appointment was for the purpose of obtaining the physicians note requested by Anderson. Later that day, Carpenter and Kirk took Wicks back to Anderson's office. Carpenter and Kirk waited in the reception area while Wicks executed the will in question.

We find that Vancil produced sufficient evidence that Carpenter and Kirk were active in procuring the execution of the will. As all three prongs were sufficiently met, Vancil was entitled to the presumption of undue influence. ² The trial court did not err in submitting this case to the jury.

Appellants' next claim of error arises from the trial court's use of an incorrect verdict director. The trial court accidentally gave the jurors a verdict director which read:

We, the undersigned jurors, find:...