In re: Estate of Loretta M. Chisholm, Decedent.

• Court: Court of Appeals of Minnesota
• Decided: July 6, 2015
• Docket: A14-1347
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA IN COURT OF APPEALS A14-1347

In re: Estate of Loretta M. Chisholm, Decedent.

Filed July 6, 2015 Affirmed Hudson, Judge

Clay County District Court File No. 14-PR-12-4412

Daylen D. Ramstad, Johnson, Ramstad & Mottinger, PLLP, Fargo, North Dakota (for appellants Barbara Seelhammer, Darcy Nordick, Daryl Chisholm, SuRae Schmidt)

Berly D. Nelson, Ian R. McLean, Serkland Law Firm, Fargo, North Dakota (for respondent Kevin Chisholm)

Michael T. Andrews, Ann E. Miller, Anderson, Bottrell, Sanden & Thompson, Fargo, North Dakota (for respondent Randal Chisholm)

Considered and decided by Hudson, Presiding Judge; Kirk, Judge; and Smith,

Judge.

UNPUBLISHED OPINION

HUDSON, Judge

In this probate appeal, appellants challenge the district court’s order allowing

findings that when the decedent executed a new will shortly before her death she lacked

testamentary capacity and was unduly influenced. Because the district court did not

clearly err in finding that respondents met their burden to show the decedent was unduly

influenced, we affirm. FACTS

Appellants and respondents are the adult children of decedent Loretta Chisholm.

Appellants Barbara Seelhammer (Barb), Darcy Nordick (Darcy), Daryl Chisholm

(Daryl), and SuRae Schmidt (SuRae) contest the district court’s decision that their

mother, Loretta, lacked testamentary capacity and was unduly influenced to execute a

new will on September 21, 2012. Respondents Kevin Chisholm (Kevin) and Randal

Chisholm (Randal) request that this court uphold the district court’s decision to enter

Loretta’s May 14, 2010 will into probate. The dispute centers around the distribution of

Loretta’s assets, primarily her farmland and stock.

Loretta’s husband James died in 1994, creating through his will two trusts

containing most of their farmland. Loretta was the sole income beneficiary of these trusts

and held a special power of appointment for the first trust. Daryl, Barb, Darcy, and

SuRae did not receive land under James’s trusts. Daryl and Randal were appointed

trustees, but Daryl resigned in 1997 in exchange for the forgiveness of a loan and had

little contact with Loretta after he resigned.

Loretta’s long-time attorney, Tom Opheim, prepared a will that Loretta executed

on May 14, 2010; Opheim retired shortly thereafter. In Loretta’s May 2010 will, she left

the bulk of the farmland to Randal and Kevin who had essentially taken over the farming

business. Although Daryl had advocated for equal distribution, Loretta considered the

previous debt forgiveness and the sale of land to him—for which he would be reimbursed

half the sale price upon Loretta’s death—his inheritance. The daughters were not to

receive any land because they were not involved in farming. This distribution was

2 generally consistent with the estate plan that Loretta and James prepared before James’s

death.

With respect to Byron, Loretta had little contact with him in the years before her

death and ultimately sued him in bankruptcy court to obtain a non-dischargeable

judgment because of a debt he incurred through false pretenses. She paid $350,000 in

Byron’s bankruptcy proceeding. Loretta’s once positive relationship with Randal became

strained in the last years of her life, and Loretta asked him to step down as trustee in

April 2011. Loretta continued a positive relationship with Kevin, however, and he

remained a trustee. She also had a “generally close” relationship with her daughters,

giving Darcy health care power of attorney, and requesting that Barb and Kevin act as her

personal representatives.

In September 2010, Loretta met with attorney Ken Norman (Norman) to update

her estate plan. Loretta had met Norman at an estate-planning workshop she attended

with Barb. Norman eventually sent Loretta a letter stating that he understood she wanted

to leave the land held in her name and the land and stock from the trust to Kevin, and that

her home and personal property would go to her daughters. Nearly two years later, on

July 3, 2012, Norman sent Loretta a draft will and living trust representing this

disposition. On July 10, 2012, Barb called Norman, whom she knew because their

children attended activities together, and told him that Daryl overheard Kevin threatening

Loretta about signing her will, that Kevin had issues with insurance and the government

based on fraud (although she later admitted she had no factual basis for these claims), and

that Barb had a document that Loretta was comfortable with, showing where Loretta’s

3 assets should go. Norman discussed Loretta’s estate with Barb, Daryl, and Byron in

August 2012. Norman informed Loretta he was concerned about undue influence from

her children since the bulk of the estate was going to Kevin, but Norman acknowledged

that these concerns arose from the terms of the estate plan and not from Kevin’s actions.

As late as May 2012, Loretta told Norman that her daughters were not to get any

farmland. On August 21, 2012, Kevin took Loretta to an appointment that Loretta had

scheduled with Norman. At the August 21 meeting, Norman noted that Loretta stated

that Daryl, Byron, and Darcy had “it in for Kevin,” and that Loretta still wanted the bulk

of her assets to go to Kevin. Darcy admits that, the day before this meeting, she gave

Loretta a letter implying that Darcy would keep her own son away from Loretta if she did

not “understand” about Kevin.

On August 22, 2012, all of Loretta’s children, except Kevin, met with Norman at

an appointment Barb set up. The day after the meeting, some of the siblings made a

vulnerable-adult complaint to social services and the police, claiming that Kevin had

“dragged” Loretta to Norman’s office. Loretta was hospitalized for a urinary tract

infection. Kevin was not notified of her hospitalization then, and Darcy and Barb did not

allow Loretta to have any visitors besides themselves. Upon Loretta’s discharge, Darcy

and Barb began 24-hour supervision of Loretta. They placed baby monitors in Loretta’s

home, which Barb kept on when she was not with Loretta. Barb and Darcy had access to

and reviewed all of Loretta’s legal documents, even though Barb admitted that Loretta

did not give her permission to look at legal documents.

4 Barb and Darcy controlled Loretta’s visitors, but allowed their siblings, with the

exception of Kevin, to visit. Kevin made numerous attempts to call and visit Loretta but

was not allowed to see her until October 1, 2012.

Loretta was hospitalized again from September 5-11, 2012 for shortness of breath

and weakness. The medical records show that Loretta was steadily declining at this time,

and after discharge she began hospice care and was prescribed medications which can

cause confusion and mood change. Barb and Darcy decided stress was a factor in

Loretta’s declining health, and, after Loretta’s hospice admission implemented a “no

business talk policy” for visitors and continued to monitor Loretta’s conversations.

Darcy admitted that Barb threatened Kevin he would never see Loretta alive again if he

tried to talk business with her.

Barb asked Norman to come see Loretta on September 18, 2012, which he did,

sending Loretta a draft will the next day. In this draft will, the bulk of the farmland was

devised to the daughters and Daryl; Kevin received very little land; Byron was essentially

excluded, and Randal was completely disinherited. Although the September 19, 2012

hospice notes indicate that Barb and Darcy would not allow Loretta to see the hospice

chaplain because she needed to “conserve her energy,” Barb set up an appointment for

Loretta two days later to have the will signed. Present at the will-signing were Norman,

Loretta’s other attorney, David Johnson, and an assistant from his office. Norman stated

that he went through the will provisions, and that neither he nor any of the witnesses were

aware of any medications Loretta was taking. In addition, Loretta’s sister testified that

Loretta seemed herself around this time.

5 Kevin was allowed to visit Loretta on October 1, 2012, and she told him that she

had devised the daughters 80 acres, an amount significantly smaller than the new will

actually devised to them. Loretta died on October 22, 2012.

The district court found that Daryl, Barb and Darcy “actively participated and

induced the creation of the September 2012 will” and that the changes in the will were

against the intentions Loretta had expressed for years. The district court found Barb and

Darcy’s claims that they did not know the new will’s content not credible since they were

opening Loretta’s mail and admitted to reviewing Loretta’s legal documents. Further, the

district court found that the new “beneficiaries had been trying to convince Loretta to

change her [w]ill to benefit them, they knew they would not receive any of the farmland

under previous [w]ills, and they were able to isolate Loretta and take control of her life.”

The district court held the September 2012 will to be invalid because Loretta lacked

testamentary capacity due to her declining health and because she was unduly influenced

by the beneficiaries. This appeal follows.

DECISION

Appellants argue that the district court clearly erred when it determined that

Loretta was subject to undue influence when she signed the September 2012 will. We

review a district court’s findings of undue influence for clear error. In re Estate of

Larson, 394 N.W.2d 617, 620 (Minn. App. 1986), review denied (Minn. Dec. 12, 1986).

We will not overturn a district court’s findings unless, after reviewing the entire record,

we are “left with the definite and firm conviction that a mistake has been committed.” In

re Estate of Anderson, 384 N.W.2d 518, 520 (Minn. App. 1986) (quotation omitted). A

6 will contestant must prove undue influence by clear and convincing evidence, showing

that at the time the will was made there was “such dominant and persuasive force that the

will of the person exercising it is substituted for the will of the testator whereby the

resulting written testament expresses the intent and purpose of that person and not that of

the testator.” In re Estate of Reay, 249 Minn. 123, 126, 81 N.W.2d 277, 280 (1957).

Suspicion and conjecture of undue influence are insufficient. In re Estate of Novotny,

385 N.W.2d 841, 843 (Minn. App. 1986).

Courts consider several factors in determining whether there was undue influence,

including:

(1) an opportunity to exercise influence; (2) the existence of a confidential relationship between the testator and the person claimed to have influenced the testator; (3) active participation by the alleged influencer in preparing the will; (4) an unexpected disinheritance or an unreasonable disposition; (5) the singularity of will provisions; and (6) inducement of the testator to make the will.

In re Estate of Torgersen, 711 N.W.2d 545, 551 (Minn. App. 2006), review denied

(Minn. June 20, 2006).

Appellants first argue that Barb, Darcy, and Daryl did not have sufficient

opportunity to exercise influence over Loretta and that the district court mischaracterized

Barb and Darcy’s 24-hour care of Loretta. We disagree. The daughters admitted to

opening Loretta’s mail, looking at her legal documents without specific permission, and

monitoring Loretta 24 hours per day, including determining when and which visitors

7 were allowed. Although appellants argue that Kevin did not provide proof that his calls

were actually being screened or that he was kept from visiting in person, the district court

implicitly found Kevin’s testimony credible, and we discern no clear error in this finding.

Appellants also argue that others influenced Loretta; for example, they blame

Kevin for mortgaging Loretta’s house to pay off Byron’s contract for deed. But Kevin

testified that he only proposed the idea to mortgage the home instead of farmland, and

that Loretta made the final choice.

Appellants further argue that, while the daughters may have had a confidential

relationship with Loretta, this relationship did not extend beyond necessary caregiving

duties. But the district court found that the daughters were essentially controlling Loretta

from the time she returned home from the hospital in August 2012 until her death. They

were reading all her mail, monitoring all of her communications, and prohibiting any

“business talk” except when Barb made an appointment for Loretta to sign the new will.

In addition, Darcy held medical power of attorney for Loretta. These facts amply support

the existence of a confidential relationship.

Third, appellants claim that they did not participate in preparing the September

2012 will because Loretta independently hired Norman and they were not present when

Loretta discussed her will with Norman or her previous attorney, Johnson. But the

district court found that, after Norman sent Loretta an updated will draft prior to the

execution of the September 2012 will, it is likely that Barb read the draft. She also had

direct contact with Norman, including telling Norman that she had a document setting

forth where Loretta’s assets should go and that Loretta was comfortable with it. Further,

8 the day after Norman received Barb’s call, Norman sent a letter to Loretta saying that he

understood Loretta wanted further changes. But his notes reflect that he did not discuss

these changes with Loretta, despite his initial claim that this letter was based on a

conversation with Loretta. Norman’s notes also indicate that both Barb and Daryl called

him several times and that Daryl’s attorney called him as well. The notes also indicate

that Norman had a conference call with all the children except Kevin. Additionally, Barb

requested that Norman bring the September 2012 will to Loretta’s home to be signed.

We conclude that appellants actively participated in preparing the September 2012 will.

Appellants next argue that there was no unexpected disinheritance or disposition,

while respondents argue that Kevin’s significant decrease in land and Randal’s

disinheritance demonstrates undue influence. “An entire change from former

testamentary intentions is a strong circumstance to support a charge of undue influence.”

In re Olson’s Estate, 227 Minn. 289, 298, 35 N.W.2d 439, 446 (1948). Additionally, a

second will made by an ill person that varies from a will made when her “faculties were

in their full [v]igor” leads to a presumption of undue influence. Id. (quotation omitted).

Here, Loretta had long expressed her intent that the majority of the farmland would go to

Kevin and that no farmland would go to her daughters. Appellants argue that Loretta

regularly made changes to her will drafts, depending on her changing relationships with

her children. But the record is clear that Kevin never fell out of favor with Loretta, and

the other changes were relatively minor. And Loretta expressed no prior intent to

completely disinherit Randal. The September 2012 will is a significant departure from

Loretta’s previously expressed intent and her May 2010 will. Moreover, the new will

9 was executed shortly before Loretta’s death. These facts all support the district court’s

determination that Loretta was unduly influenced to execute the September 2012 will.

The parties next dispute the meaning of the fifth Torgersen factor—“the

singularity of the will provisions.” Appellants argue this factor does not favor undue

influence since Loretta did not leave her property to just one or two of her children.

Respondents claim that “singularity” refers to a change in a long-established pattern.

While “singul” can mean being “only one,” it is also defined as “[a] trait marking one as

distinct from others.” The American Heritage Dictionary 1685 (3d ed. 1996).. The

singularity factor in undue influence generally refers to the nature and extent of changes

in a new will from the testator’s previous will. See In re Estate of Overton, 417 N.W.2d

653, 658 (Minn. App. 1988) (noting that a conclusion of singularity was unwarranted

when there was only a small change in wills regarding the disposition of household

goods). Here, Loretta had several previous drafts of wills that left the majority of

farmland to Kevin; the September 2012 will was “singular” in that it left farmland to her

daughters, disinherited Randal, and re-inherited Daryl.

Finally, appellants assert that Loretta was “headstrong” and that while she may

have been influenced by her children, respondents did not show by clear and convincing

evidence that she was unduly influenced. While the district court did not acknowledge

Loretta’s sister Norma’s testimony that Loretta was “herself” around the time she

executed the September 2012 will, there is sufficient evidence in the record that Loretta

was unduly influenced to execute the new will: Barb summoned Norman to the house so

Loretta could sign the will, even though Loretta had previously made her own

10 appointments; Barb and Darcy controlled all visitors and would not allow any business

talk, making an exception only for the signing of the new will; and Daryl regularly

attempted to convince Loretta to evenly distribute the property. While appellants argue

that Kevin would have been completely disinherited if they had unduly influenced

Loretta, this argument is not persuasive in light of the entire record.

In sum, the district court made extensive findings of fact regarding undue

influence and succinctly summarized and analyzed the facts based on the testimony and

exhibits. While appellants point to evidence that could have been interpreted differently

or findings that are not wholly consistent, the overwhelming majority of the evidence

supports the district court’s findings and conclusions. Based on the six Torgerson

factors, appellants have not shown that the district court’s findings of fact that Loretta

was unduly influenced are clearly erroneous. To the contrary, this is a textbook case of

undue influence: Loretta’s original 2010 will was consistent with her long-expressed

intent, and the terms of that will stayed substantially the same from 2010 until as late as

July 3, 2012, when Norman sent her a letter updating her estate plan, noting that the bulk

of her assets were still going to Kevin. Then, one week later, Barb contacted Norman

informing him of a new distribution significantly changing Loretta’s previous

dispositions and favoring the daughters and Daryl. While Kevin still received some

assets under the new will, it was significantly less than under the original provisions.

Moreover, Loretta was under constant care of the daughters when she signed the new will

and essentially isolated from everyone except the daughters and Daryl. Thus, the district

court did not clearly err in finding undue influence.

11 Appellants also claim that the district court clearly erred by finding that Loretta

lacked testamentary capacity when she executed the September 2012 will. Because we

conclude that the September 2012 will was invalid because Loretta was unduly

influenced, we need not reach this issue.

Affirmed.