Zech's Estate, Matter of

• Decision Date: 18 December 1979
• Docket Number: No. 12506,12506
• Citation: 285 N.W.2d 236
• Parties: In the Matter of the ESTATE OF Paul ZECH, Deceased.
• Court: South Dakota Supreme Court

Page 236

285 N.W.2d 236

In the Matter of the ESTATE OF Paul ZECH, Deceased.

No. 12506.

Supreme Court of South Dakota.

Argued March 16, 1979.

Decided Nov. 7, 1979.

Rehearing Denied Dec. 18, 1979.

Howard W. Paulson and Gary J. Pashby of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for opponents and appellants.

Francis C. Burns of Gribbin, Burns & Eide, Watertown, for proponent and respondent.

TICE, Circuit Judge.

This is an appeal from a judgment admitting a last will and testament dated June 16, 1970, executed by Paul Zech (deceased) into probate and the issuance of letters testamentary to Charles Tesch. The judgment appealed from was entered following a lengthy trial in which collateral heirs of decedent attempted to block entry of the will into probate on the basis of undue influence. We affirm.

FACTS

Decedent passed away at Aberdeen, South Dakota, on April 15, 1977. He was at that time eighty-three years of age. Decedent had never been married and at the time of his death his four sisters and nine brothers were all deceased. Of the fourteen children in the Zech family only two married and left children. These children constitute the sole heirs at law of decedent. Charles Tesch, a child of decedent's predeceased sister Emma Tesch, together with his wife, are the proponents of the disputed last will and testament of decedent (referred to jointly as proponents). Emma's remaining children, brothers and sisters of Charles Tesch, namely, Albert Tesch, Arthur Tesch, John Tesch, and Lorraine Tesch (referred to jointly as contestants) objected to the admission of the June 16, 1970, instrument into probate as the last will and testament of Paul Zech. They contended that the will was the product of undue influence exerted by the proponents over decedent and that deceased was not competent to make a will on the date of execution.

For many years decedent resided with his sister, Alma Zech, at the ancestral home near Watertown, South Dakota. As Alma began to slip into senility the living conditions on the farm became intolerable. Accordingly, in September of 1966 decedent became a resident of Jenkins Memorial Home in Watertown, South Dakota. Following a brief stay at the State Hospital in Yankton, South Dakota, Alma joined decedent in the Jenkins Home.

Decedent and his sister were not happy about living in the Jenkins Home. In the spring of 1967, decedent offered to purchase a house in Watertown, South Dakota, for the proponents if Charles and his wife would agree to care for decedent and his sister throughout the remaining years of their lives. In addition, decedent offered to pay to the proponents an amount equal to what it was costing them to live at the Jenkins Memorial Home.

In May of 1967, decedent and his sister left the Jenkins Home and moved in with the proponents. Title to the property was conveyed by decedent to the proponents; however, decedent continued to pay taxes and insurance on the property. In addition, decedent paid the proponents $3,000 to $3,500 a year for his care. Decedent also purchased an automobile and a pickup for the proponents.

On July 17, 1967, Alma Zech passed away. Decedent continued to reside with the proponents. By all accounts this arrangement was an amicable one. Decedent received certain real property in lieu of a legacy from Alma's estate.

During August and September of 1968, two contracts for deed, covering the property decedent received from Alma, were made between decedent and the children of the proponents. These contracts were prepared by an attorney and were executed out of the presence of the proponents.

Mary Tesch testified that when decedent moved into the home of the proponents he indicated that he did not wish to make a will because he did not believe that wills were of any value. She further testified that while she did not speak to decedent specifically about his will they did have conversations about wills in general. At some point decedent apparently changed his mind concerning the efficacy of a will, and on November 9, 1968, Mary Tesch typed up a will for decedent according to his instructions. This document is very brief and was, if valid in the first place, revoked by the instrument now at issue. The general outlines of the 1968 instrument are similar to decedent's last will and testament at least insofar as the will results in the proponents receiving the bulk of decedent's worldly goods.

A few days prior to execution of the June 16, 1970, will Mary Tesch called O. E. Beardsley, formerly of Watertown, South Dakota, and asked Mr. Beardsley to come to the house to see decedent. Attorney Beardsley met alone with decedent. Decedent then told Mr. Beardsley that he wished to make a will and discussed with the attorney the extent and nature of his property, who his relatives were, and how he wished to dispose of his property. Mr. Beardsley then returned to his office and prepared the will. On June 16, 1970, Mr. Beardsley, accompanied by his law partner, returned to the residence for execution of the will. After decedent had read the document and Mr. Beardsley had discussed its provisions with him, decedent signed the will in the presence of Mr. Beardsley and his law partner, both of whom signed the document as witnesses. The attorneys testified that no one else was in the room when the will was executed, and they also testified that each of them believed the instrument to be an expression of decedent's free will and that decedent was competent to make a will at the time of execution.

During the next several years much of decedent's property was transferred to the Teschs. On July 19, 1971, a savings certificate registered to decedent was transferred to the proponents and was increased to $10,000. On April 4, 1973, the name of Alma Zech, (decedent's deceased sister), was removed from approximately $60,000 worth of decedent's Series H savings bonds, and Mary Tesch's name was added. Certificates of deposit totaling approximately $13,500 were purchased between April 4, 1970, and July 29, 1974. These certificates were registered in joint-ownership between decedent and one of the proponents or one of their children.

Payments due under the contracts for deed between decedent and the proponents' children were forgiven by decedent for the year 1974. In 1975, Mary Tesch recorded a similar forgiveness of the amount due for that year without discussing the matter with decedent.

The proponents did not inform any other members of the family about the transfers of property and monies that decedent had made to them and their children.

Jerry Miller, trust officer of the bank in which decedent maintained a safety deposit box, testified concerning the April 4, 1973, transaction in which Alma Zech's name was deleted and Mary Tesch's name was added to the $60,000 worth of savings bonds. Mr. Miller explained to decedent the effect of having Mary's name added to the bond. He further testified that decedent was "adamant" about wanting Mary's name placed on the bonds. The trial court found that the acts whereby decedent transferred much of his property to the proponents following execution of the will indicated decedent's intention to carry out a disposition of his property in accordance with the disposition made in the will of June 16, 1970.

In June, 1975, the proponents moved decedent into a nursing home in Aberdeen, South Dakota. They apparently did not notify the other relatives that decedent had been moved to Aberdeen. It would, however, seem purposeless to have done so since no relatives had shown an interest in decedent for many years. On February 9, 1976, decedent was deemed no longer competent to manage his affairs and the bank in Watertown, South Dakota, was named financial conservator for decedent. Decedent remained in the Aberdeen nursing home until his death. The proponents frequently visited decedent during this period of time. It does not appear that any of the other relatives made any effort to locate or visit or even inquire about decedent during the final years of his life.

BASIS OF REVIEW

In reviewing this matter we are mindful of the fact that findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. SDCL 15-6-15(a); In Re Estate of Hobelsberger, 85 S.D. 282, 181 N.W.2d 455 (1970). In addition we must review the facts "in a light most favorable to the trial court's finding and all conflicts in the evidence (must be) resolved in its favor." In Re Metz' Estate, 78 S.D. 212, 214, 100 N.W.2d 393, 394 (1960). The function of this court is not to determine the weight of the testimony nor to decide whether any Justice of this court would have made a similar fact determination. This court can only ascertain whether there is evidence from which the trial court could properly have drawn its conclusion. Estate of Podgursky, 271 N.W.2d 52 (S.D.1978). As we said in In Re Estate of Hobelsberger, supra: "It was for the trial judge to select from the conflicting evidence that which he would believe. He, not this court, is the trier of the facts." 85 S.D. at 288, 181 N.W.2d at 458 (1970). In sum, then, it is not the function of this court to second-guess the trial court, but rather to insure that clear error occurring in the heat of trial is not allowed to deny justice to the parties bringing their causes before the court.

ISSUE

The sole issue we must consider is whether the proponents exercised undue influence upon decedent in the making of his will. In reaching this determination, five factors must be evaluated:

(1) Were the proponents in a confidential relationship with decedent?

(2) Was decedent susceptible to undue influence?

(3) Did proponents have an opportunity to exert undue influence?

(4) Did the proponents have a disposition to exert undue influence?

(5) Does the will clearly show the effect of such influence?

DECISION

...