Watermann v. Eleanor E. Fitzpatrick Revocable Living Trust

• Decision Date: 19 June 2012
• Docket Number: No. ED 96541.,ED 96541.
• Citation: 369 S.W.3d 69
• Parties: Jane WATERMANN, Plaintiff/Appellant, v. ELEANOR E. FITZPATRICK REVOCABLE LIVING TRUST, Wallace W. Fitzpatrick, Individually and as Trustee of the Eleanor E. Fitzpatrick Revocable Living Trust, Bonita Fitzpatrick, Leroy G. Fitzpatrick, Paulette Fitzpatrick, Deric Fitzpatrick, Dean Fitzpatrick, and Wayne C. Fitzpatrick, Defendants/Respondents.
• Court: Missouri Court of Appeals

369 S.W.3d 69

Jane WATERMANN, Plaintiff/Appellant,

v.ELEANOR E. FITZPATRICK REVOCABLE LIVING TRUST, Wallace W. Fitzpatrick, Individually and as Trustee of the Eleanor E. Fitzpatrick Revocable Living Trust, Bonita Fitzpatrick, Leroy G. Fitzpatrick, Paulette Fitzpatrick, Deric Fitzpatrick, Dean Fitzpatrick, and Wayne C. Fitzpatrick, Defendants/Respondents.

No. ED 96541.

Missouri Court of Appeals,

Eastern District,

Division Two.

June 19, 2012.

Joseph V. Neill, St. Louis, MO, for appellant.

Steven P. Kuenzel, Colleen M. Kuenzel, Eckelkamp Kuenzel LLP, Washington, MO, Frederick H. Schwetye, Union, MO, for respondents.

KATHIANNE KNAUP CRANE, Presiding Judge.

Plaintiff, the beneficiary of a trust, filed a lawsuit against the trust, the trustee, the trustee's wife, and the remaining trust beneficiaries to obtain an accounting, removal of the trustee, and imposition of a constructive trust on the ground that the settlor of the trust created the trust and transferred assets to it as a result of the undue influence of the trustee and his wife (Count I) and to obtain damages based on tortious interference with inheritance (Count II). Defendants filed a counterclaim seeking repayment under the trust's anti-contest clause of a $25,000 distribution to plaintiff. After a bench trial, the trial court entered judgment in defendants' favor on Counts I and II and awarded defendants $24,999 on their counterclaim. Plaintiff appeals, contending that the trial court misapplied the law of undue influence. We affirm.

FACTUAL BACKGROUND

The Parties

The settlor, Eleanor E. Fitzpatrick, died on August 13, 2007. She was survived by her daughter, plaintiff Jane Watermann, and her sons, defendant Wallace Fitzpatrick (Wallace),¹ who is married to defendant Bonita Fitzpatrick; defendant Wayne Fitzpatrick; and defendant Leroy Fitzpatrick, who died in April 2008. Leroy Fitzpatrick was survived by his wife, defendant Paulette Fitzpatrick, and his sons, defendants Deric Fitzpatrick and Dean Fitzpatrick.

The Settlor's Property Dispositions

On June 26, 1996, the settlor executed a will that left her assets in equal shares per stirpes to her four living children, and she appointed Wallace as her personal representative. She also executed two beneficiary deeds to real property in St. Charles and Franklin Counties that provided that upon the settlor's death, the properties would be divided in four equal shares among her four children. The settlor also executed a durable power of attorney to Wallace.

On May 2, 2007, the settlor sent a written request to Citizen's Bank to remove plaintiff as a beneficiary on three certificates of deposit (CDs) belonging to the settlor. The settlor included a letter describing her reasons for removing plaintiff from the CDs.

On May 8, 2007, the settlor met with attorney Robert Zick at his office to discuss her estate plan. Wallace and his wife were at the meeting. Mr. Zick testified that if family members accompany an elderly person to his office, he is careful not to let them preempt or override the conversation, and he makes sure that he hears what his client wants directly from the client. He testified that the settlor wanted to exclude plaintiff from receiving a share of the St. Charles property because of her longstanding, troubled relationship with plaintiff. Mr. Zick testified that he ensured that the settlor's statement about excluding plaintiff did in fact come from the settlor, and he added: “I was very confident that this was her intention. There was no doubt in my mind that—that she was lucid and able to articulate why on her own.”

On May 9, 2007, a Citizen's Bank customer service representative went to the settlor's home to meet with the settlor about her request to remove plaintiff as a beneficiary on the CDs. The settlor, who was alone, explained that she wished to remove plaintiff from the CDs because they had not been on good terms and plaintiff had not been contacting her. After the representative went over the affidavit removing plaintiff from the three CDs with the settlor and confirmed that the settlor understood it and agreed with it, the settlor executed the affidavit. The representative testified, “From the conversation I had with her, she was doing it totally on her own.”

Mr. Zick prepared a durable power of attorney, a living will declaration, a last will and testament, and the Eleanor E. Fitzpatrick Revocable Living Trust, naming Wallace as trustee. He also prepared beneficiary deeds that revoked the 1996 beneficiary deeds and conveyed the settlor's interests in the St. Charles and the Franklin County properties to the Trust. The Trust provided that upon the settlor's death, Wallace, as trustee, had discretion to sell the St. Charles property, and that the net proceeds from the sale would be distributed in three equal shares to Wallace, Leroy Fitzpatrick, and Wayne Fitzpatrick. The Trust provided that Wallace had discretion to sell the Franklin County property, and divide the proceeds into four equal shares to be distributed to the settlor's four children, including plaintiff. The Trust further provided that the residue of the trust estate was to be divided into equal shares, one share for each of the settlor's four children, including plaintiff. The Trust also contained an anti-contest clause that provided that if any beneficiary contested the Trust, the settlor's capacity, or the settlor's estate plan, all provisions of the Trust in favor of that beneficiary would be cancelled, and the beneficiary would be awarded one dollar.

On May 15, 2007, Mr. Zick, accompanied by a witness and a notary, hand-carried these documents to the settlor, who, because of her foot problems, was seated in a car in the office parking lot, so that she would not have to walk into the office. Wallace was also in the car. Mr. Zick went over each of the documents with the settlor before she signed them. Mr. Zick specifically went over the provisions with the settlor that divided the St. Charles County property in thirds and the Franklin County property and residue of the estate in fourths.

Mr. Zick testified that he did not believe that the settlor was “under anyone's undue influence” at either the May 8 meeting or May 15 meeting. On cross-examination, defense counsel read the definition of undue influence from the Missouri Approved Instructions (MAI) and asked Mr. Zick: “In your opinion, using that definition out of MAI 15.03,² do you have an opinion whether [the settlor] was under anybody's undue influence at that time?” Mr. Zick responded that he did, and continued:

THE WITNESS: With that definition and any other reasonable definition of ‘undue influence,’ I do not believe she was under anyone's undue influence. Had she been, I would not have appreciated if—if—if—If this instruction had some—come solely from her son or Bonnie and—and she was not able to independently articulate it to me, I would have, number one, kicked them out of the room and then ascertained whether it was coming from her or not. I did not feel it was necessary to do that. And had that happened and had I not been able to confirm it that it was her intention, I would not have proceeded. I take very seriously my obligation to make sure that I'm meeting the testator or the grantor's intention in—in doing what I'm asking—being asked to do.

Q. And I'm going to narrow that down, that question now, very specifically, although it's obviously included in my previous line of questioning. In your opinion, on either that first meeting on May the 8th or the signing meeting on May the 15th, did Eleanor—was Eleanor Fitzpatrick, in your opinion, under the undue influence specifically of either Wally Fitzpatrick or Bonnie Fitzpatrick?

A. Absolutely not.

Diane Kluesner was the settlor's home healthcare nurse who cared for the settlor from October to December 2006 and from March through May 2007. In addition to testifying to the settlor's mental competency, Ms. Kluesner testified that the settlor never complained that Wallace or his wife was overbearing to her or making her do anything against her will. Rather, she testified that the settlor was “so grateful” to them because they spent time with her and changed the dressing on her wound, which allowed her to remain in her own home rather than in a nursing home.

Judgment

The trial court entered judgment in defendants' favor. In its findings, it considered the evidence relating to the settlor's competency and whether the settlor had been subject to undue influence. The trial court found that plaintiff's claim that the settlor was incompetent was based upon plaintiff's observations that:

a. Eleanor was unable to get out of the car she was in, to execute her Trust and other estate planning documents;

b. Eleanor was nervous about the impending amputation of her leg, and

c. Eleanor's vision and hearing were failing.It found the testimony of the settlor's lawyer, Mr. Zick; her internist, Dr. Tim Baker; her home healthcare worker, Ms. Kluesner; and her bank's customer service representative to be credible and to support a finding that the settlor was competent when she executed the documents in 2007.

The trial court found that plaintiff's claim of undue influence was based on plaintiff's observations that:

a. Wallace and Bonita saw Eleanor every day;

b. Bonita scheduled Eleanor's appointment with Mr. Zick, to discuss Eleanor's estate planning, and

c. Wallace and Bonita accompanied Eleanor to her initial meeting with Mr. Zick.

The trial court found credible Mr. Zick's testimony that the settlor explained in detail why she was removing plaintiff as a beneficiary from part of her estate, that she executed the documents of her own free will, and that he saw nothing to suggest that anyone was exerting undue influence over her. It also found that Mr. Zick's testimony supported its finding that there was no undue influence.

The court concluded its judgment with the following findings and conclusions:

30. In order...