IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT IN THE ESTATE OF: NORMA JEAN ) MEYER, DECEASED, DUSTIN MEYER, ) PERSONAL REPRESENTATIVE, ) ) Appellant, ) ) v. ) WD77903 ) ROBERT S. PRESLEY, TRUSTEE OF THE ) Opinion filed: September 8, 2015 NORMA J. MEYER REVOCABLE LIVING ) TRUST AGREEMENT, AND ROBERT S. ) PRESLER, A/K/A TOMMY EARL ) RICHARDSON, ) ) Respondents. )
APPEAL FROM THE CIRCUIT COURT OF COOPER COUNTY, MISSOURI The Honorable Richard P. Beard, II, Judge
Before Division One: Cynthia L. Martin, Presiding Judge, Joseph M. Ellis, Judge and James E. Welsh, Judge
Dustin Meyer, acting in his capacity as personal representative for the Estate of
Norma J. Meyer, appeals from a judgment entered in the Circuit Court of Cooper
County declaring that the assets of the Norma J. Meyer Revocable Living Trust were
not assets of the Estate of Norma J. Meyer. The trial court rejected Appellant's
arguments that the Trust had been created as a result of undue influence on the part of Tommy Richardson or, in the alternative, that the Trust had been terminated by Norma
J. Meyer1 prior to her death. For the following reasons, the judgment is affirmed.
In 2001, when Norma first met Richardson at a bar in Jefferson City, she was
married to Paul Meyer, with whom she had three children (Lisa Brinkley, Steve Meyer,
and Jeffrey Meyer) and multiple grandchildren. Norma and Richardson immediately
became involved in an intimate relationship. Shortly thereafter, Norma and Paul
separated, and Norma and Richardson began living together. Eventually, Paul and
Norma divorced in 2003. After the divorce, Norma stopped visiting or calling her
children on a regular basis, and the children made little effort to maintain contact with
her.
With proceeds from the divorce, in November 2003, Norma purchased
approximately 300 acres of farmland in Cooper County upon which she intended to
operate a ranch with Richardson. She soon purchased livestock and began
farming/ranching operations on the property. She built a home on the ranch and moved
there with Richardson.
On July 19, 2005, Norma executed the Trust, which had been drafted by St.
Louis attorney James Anding at her direction. The trust named Norma as trustee and
provided that she would be succeeded as trustee by Richardson2 upon her death. The
trust language provided that, upon Norma's death, Richardson was to receive the ranch
property and Norma's daughter, Lisa Brinkley, was to receive all of the personal
1 Because a significant number of the individuals involved in this case share the same last name, we will refer to them by their first names throughout this opinion. In so doing, we intend no disrespect. 2 The language of the Trust uses the name "Robert Pressler" instead of Tommy Richardson to refer to Richardson. This was an alias that Norma helped Richardson assume within the first month of their relationship. She even helped Richardson create a fake Michigan birth certificate in that name. The trial court found that to Norma, Robert Pressler and Tommy Richardson were one and the same person and that, in using the name Robert Pressler in the Trust, Norma was referring to Richardson. This finding has not been challenged on appeal.
2 property placed in the Trust. Norma also executed a pour-over will, also drafted by
Anding, at that time. Norma subsequently transferred the ranch to the Trust by warranty
deed executed on August 29, 2005, and recorded on March 13, 2006. She also
transferred certain personal property and title to her motor vehicles to the Trust.
In May 2006, Norma decided to end her relationship with Richardson. She
enlisted the assistance of the Cooper County Sheriff's Department in asking Richardson
and the ranch's other employees to leave the premises and not return. While on the
property and performing a consent search, the Sheriff's department found marijuana in
the rim of Richardson's cowboy hat and a birth certificate he had forged for himself, with
Norma's aid, in the name of Robert Pressler. Richardson was arrested and was
eventually convicted of one count of forgery, for which he received a sentence of five
years probation, subject to a special condition that he not have any further contact with
Norma. Richardson did not have any further contact with Norma aside from complying
with a request from her that he pick up his personal property from the ranch at a
designated time when she was not present.
On September 23, 2009, Norma executed a will that had been prepared by
Jefferson City attorney Mike Riley at her direction. The Will generally provided that
Norma's property should be divided between Lisa Brinkley and Jeffery Meyer. The Will
made no mention of the Trust, nor did it specifically reference any property owned by
the Trust.
Norma died on August 16, 2011. Letters testamentary were granted to Jeffrey
Meyer on March 14, 2012. Subsequently, Jeffrey, acting as personal representative of
the Estate, filed a Petition for Discovery of Assets against Richardson, individually and
3 as Trustee of the Norma J. Meyer Revocable Living Trust.3 The petition averred that
Richardson had exerted undue influence over Norma and that, by executing her 2009
Will, Norma had intended to revoke the Trust. It asked the court to enter a judgment
finding that the Trust was revoked in its entirety and that all assets conveyed to the
Trust should be deemed to be assets of the Estate. After filing the action, Jeffrey died,
and his son, Dustin Meyer, was named Personal Representative of the Estate.
The case was tried to the court in June and July 2014. The trial court
subsequently entered its judgment finding that there was no clear and convincing
evidence to support a claim that the Trust was created as the result of undue influence
on the part of Richardson. It further found that the record did not contain sufficient
evidence to support the Estate's claim that Norma had revoked the Trust. In so finding,
the court noted that "Norma attempted to change the terms of her testamentary
directives, but circumstances combined to create a miscommunication between her and
her attorney, so that in the end, she made a new will but failed to revoke her trust."
Appellant brings two points on appeal.
"This case involves a proceeding for discovery of assets, which is authorized
under section 473.340, and is essentially a search for assets belonging to a decedent at
his or her death." In the Estate of Lambur, 397 S.W.3d 54, 62 (Mo. App. S.D. 2013).
"In such a proceeding, the court's role is to determine whether specific property has
been adversely withheld from the estate." Id. (internal quotation omitted). "Upon the
trial of the discovery of assets action, the 'court shall determine the persons who have
an interest in said property together with the nature and extent of any such interest.'" In
3 The petition also named Brinkley as a defendant based upon her status as a beneficiary of the Trust. Brinkley, however, sided with the Estate in the case.
4 the Estate of Herbert, 152 S.W.3d 340, 345 (Mo. App. W.D. 2004) (quoting §
473.340.3). If the court "determines that the property belongs to the estate, it shall
order the transfer of the title or possession, or both, to the estate." Id. (citing §
473.340.3).
"The standard of review in a discovery of assets proceeding is governed by
Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)." Id. at 344. Accordingly, "[t]he
judgment will be sustained unless there is no substantial evidence to support it, it is
against the weight of the evidence, or it erroneously declares or applies the law." In re
Estate of Hock, 322 S.W.3d 574, 579 (Mo. App. S.D. 2010). "We review the evidence
and all reasonable inferences in the light most favorable to the judgment and disregard
all contrary evidence and inferences." Salem United Methodist Church v. Bottorff,
138 S.W.3d 788, 790 (Mo. App. S.D. 2004). "Credibility of the witnesses and the weight
to be given to their testimony is for the trial court, which is free to believe none, part, or
all of the testimony of any witness." Id.
In his first point, Appellant contends that the trial court erred in finding that Norma
had not revoked her 2005 Trust. He argues that the evidence showed that Norma
intended for the 2005 Trust to be revoked when she executed the 2009 Will and that
she should be deemed to have waived the Trust's requirement that any revocation be
made "by instrument in writing executed by Settlor and delivered to the Trustee."
With regard to the revocation of a revocable trust, § 456.6-602.3 provides:
The settlor may revoke or amend a revocable trust: (1) if the terms of the trust provide a method of amendment or revocation, by substantially complying with any method provided in the terms of the trust; or (2) if the terms of the trust do not provide a method, by any other method manifesting clear and convincing evidence of the
5 settlor's intent, including the terms of a later duly probated will or codicil that identify the trust being revoked or the trust terms being amended.
Accordingly, where, as here, "the terms of the trust provide a method for amendment,
the Settlor may amend the trust only by substantially complying with the method
provided in the terms of the trust." Banks v. Central Trust & Inv. Co., 388 S.W.3d
173, 176 (Mo. App. E.D. 2012) (citing § 456.6-602.3).
Norma's 2005 Trust specifically provides that Norma, as the Settlor, reserved the
right during her lifetime to revoke the Trust "by instrument in writing executed by Settlor
and delivered to the Trustee."4 The Trust goes on to provide that "[t]he manner
provided in this Item for altering, amending and/or revoking this Agreement, as the
case may be, shall be the exclusive method for such alteration, amendment or
revocation, notwithstanding any contrary provision of applicable law." Thus, under the
terms of the Trust, in order to revoke the Trust, Norma was required to (1) execute a
written instrument revoking the trust and (2) deliver that written instrument to the
Trustee. Norma is presumed to have known the terms of the 2005 Trust and, therefore,
to have been aware of these requirements.5 Rouner v. Wise, 446 S.W.3d 242, 254
(Mo. banc 2014).
Where, as here, "'the settlor reserves a power to modify the trust only in a
particular manner or under particular circumstances he [or she] can modify the trust only
in that manner or under those circumstances.'" Banks, 388 S.W.3d at 176-77 (quoting
In re Estate of Mueller, 933 S.W.2d 903, 907 (Mo. App. E.D. 1996)); see also In re
4 Similarly, the Trust reserved to the Settlor the authority to amend, alter, or modify the Trust "by instrument in writing executed by Settlor and delivered to and executed by the Trustee." 5 Similarly, Norma executed the deed transferring ownership of the ranch to the Trust and is, therefore, presumed to know that she did not personally own that property.
6 Gene Wild Revocable Trust, 299 S.W.3d 767, 774 (Mo. App. S.D. 2009); In re
Thomas L. Harris Trust, 204 S.W.3d 267, 271 (Mo. App. S.D. 2006); Salem United
Methodist Church, 138 S.W.3d at 794; Maple Tree Invs. v. Port, 821 S.W.2d 562,
564 (Mo. App. W.D. 1991); Love v. St. Louis Union Trust Co., 497 S.W.2d 154, 159
(Mo. banc 1973).
The 2009 Will, while expressly revoking all previous wills and codicils, makes no
mention of the 2005 Trust or trusts in general.6 Nothing contained therein can be
interpreted as having revoked the 2005 Trust. Indeed, Appellant concedes on appeal
that "[n]o written instrument was in evidence in which Norma explicitly revoked the 2005
trust."
Appellant argues, however, that Norma had the authority to waive all of the
revocation requirements set forth in the Trust and that she should be deemed to have
done so based upon extrinsic evidence presented at trial regarding her intent in
executing the 2009 Will. He contends that testimony that Norma told the attorney
drafting her 2009 Will that she wanted "everything" to go to Lisa and Jeffrey proved that
she wanted the property held by the Trust to go to them and that she intended for the
Trust to be revoked. He argues that, since Norma never explicitly stated in writing that
she was revoking the trust, it should be inferred that she waived the written instrument
requirement.
6 We further note that there is no apparent inconsistency between the 2005 Trust and the 2009 Will. The 2009 Will divided any property owned by Norma at the time of her death, on a percentage basis, to Lisa and Jeffrey. The 2009 Will revoked and replaced Norma's 2005 Will, which was a spillover will executed to deal with the property personally held by Norma outside of the Trust at the time of her death. The 2009 Will does not specifically reference any property held by the Trust, and Norma never made any attempt to convey title to the property held by the Trust back to herself. Thus, as written, the 2009 Will only applies to property owned by Norma at the time of her death and would not apply to property owned by the Trust. Accordingly, the provisions of both the 2005 Trust and the 2009 Will may be carried out without any apparent conflict.
7 While the requirement of delivery of the written instrument by the settlor to the
trustee may be for the trustee's benefit and might arguably be waivable by the trustee
under certain circumstances, see St. Louis Union Trust Co. v. Dudley, 162 S.W.2d
290, 293 (Mo. App. E.D. 1942), a question we need not and do not decide herein, the
other requirements for revocation are most certainly not waivable and must be satisfied
to effectuate the revocation of a trust. Maple Tree Invs., 821 S.W.2d at 564. The
requirement that any amendment to or revocation of the trust be effectuated through a
written instrument executed by the settlor serves a very significant purpose. It protects
the integrity of the trust, operating similarly to the Statute of Frauds. By requiring a
written instrument for any amendment or revocation, the Trust insures that challenges
like the present one, attempting to avoid and/or alter the provisions of the Trust through
the use of parol evidence and hearsay, are precluded. Were we to allow a party
challenging a trust to overcome the written instrument requirement in the manner
prescribed by Appellant, the provision would be rendered meaningless.
Since the record does not contain a written instrument revoking Norma's 2005
Trust, the trial court did not err in finding that Appellant failed to prove that the Trust was
revoked. Point denied.
In his second point, Appellant claims that the trial court erred in finding that the
record did not contain clear and convincing evidence that the Trust was created as a
result of undue influence on the part of Richardson. He contends that "the evidence
presented at trial required the trial court to find that Richardson exerted undue influence
over Norma to cause her to execute the 2005 trust." Appellant argues that he
presented sufficient evidence to establish a prima facie case of undue influence; that
8 Richardson, therefore, bore the burden of rebutting the presumption of undue influence;
and that Richardson failed to adequately rebut that presumption. He claims that the trial
court's finding is, therefore, against the weight of the evidence.
"Undue influence . . . is usually defined as such overpersuasion, coercion, force,
or deception as breaks the will power of the testator or grantor and puts in its stead the
will of another." In re Estate of Hock, 322 S.W.3d at 579 (internal quotation omitted).
"[E]ven when evidence of influence over the settlor is shown, it does not amount to
undue influence unless it removed the settlor's free agency." Cima v. Rhoades, 416
S.W.3d 320, 325 (Mo. App. E.D. 2013). The task before the trial court is to resolve the
evidence and determine as a matter of fact whether the Trust was executed as a result
of such influence. Id. The party challenging the validity of the will or trust at issue bears
the burden of proving undue influence. Id. at 324.
"[A] presumption of undue influence arises in discovery of assets cases where
substantial evidence shows (1) a confidential and fiduciary relationship; (2) benefaction
to the fiduciary; and (3) some additional evidence from which undue influence may be
inferred." In re Estate of Hock, 322 S.W.3d at 579 (internal quotation omitted). The
import of this presumption was analyzed by the Eastern District of this Court in
Watermann v. Eleanor E. Fitzpatrick Revocable Living Trust, 369 S.W.3d 69, 75-76
(Mo. App. E.D. 2012), which noted:
Through the use of this presumption, Missouri places a prima facie case requirement upon the party alleging undue influence which once satisfied, allows the party to submit the case to the jury. Thus, in a jury-tried case, the court is required to determine if the plaintiff made a prima facie case when the defendant makes a motion for directed verdict at the close of plaintiff's case or at the close of all evidence. Further, when a plaintiff makes a prima facie case in a jury-tried case, the
9 presumption does not disappear upon the introduction of rebutting evidence; rather, it raises an issue for the jury. However, in a court-tried case, the trial court is not as concerned with the question of a 'prima facie case' as it is in a jury-tried case. In a court-tried case, the court has considerable discretion in the taking of evidence and in determining the order of the evidence, and it may hear all of the evidence before ruling on the case. Further, even if a plaintiff makes a prima facie case, this does not mean that the plaintiff is entitled to recover. The fact that a plaintiff's evidence, if believed by the trial court, would make a prima facie case is not determinative on appeal.
(internal citations and quotations omitted). "Therefore, in court-tried cases, the court
need not specifically evaluate whether the contestant met the elements giving rise to a
presumption of undue influence, but rather must only determine the ultimate question of
fact: whether the trust was the result of undue influence that deprived the settlor of his
or her free agency." Cima, 416 S.W.3d at 324.
Where the trial court has made a factual finding regarding undue influence in a
court-tried case, this Court's task is limited to reviewing the trial court's ultimate
conclusion according to our standard of review, simply determining whether it is
supported by substantial evidence and/or is against the weight of the evidence. Id. In
making that determination, we view the evidence and all reasonable inferences arising
therefrom in the light most favorable to the judgment and to disregard all contrary
evidence and inferences. Salem United Methodist Church, 138 S.W.3d at 790.
Furthermore, the "[c]redibility of the witnesses and the weight to be given to their
testimony is for the trial court, which is free to believe none, part, or all of the testimony
of any witness." Id.
In advancing his argument that the trial court erred in finding that Appellant failed
to sufficiently prove undue influence, Appellant disregards our standard of review -- he
accepts as credible the evidence he presented at trial, disregards evidence favorable to
0 10 Richardson, and draws inferences favorable to himself. When properly viewed,
however, the trial court's finding is clearly not against the weight of the evidence.
"The mere existence of a confidential relationship is not sufficient to compel a
finding of undue influence." Watermann, 369 S.W.3d at 76. "There must be facts and
circumstances tending to show that undue influence was an active factor in the
[challenged] transaction." Id. (internal quotation omitted). Furthermore, "[i]t is not
undue influence for the beneficiary to exercise influence as long as it was not so
coercive or importunate as to deprive the benefactor of his or her free agency." Id.
(internal quotation omitted).
Anding, the attorney who drafted the Trust for Norma, testified that Norma had
contacted him for estate planning services after being referred to him by her financial
advisor, Greg Reynolds. He testified that Norma asked him to draft a revocable trust for
her and that nobody else provided him with any direction related to the creation of the
Trust. Anding stated prior to the execution of the Trust he had spoken with Norma
multiple times on the phone and had met with her personally at her ranch on one
occasion. Anding testified that Richardson was not present for his meeting with Norma
at the ranch and that he never received any instructions from Richardson related to the
Trust. Anding said that Norma had told him that she was leaving her children out of the
Trust because she felt her children would be adequately taken care of by their wealthy
father.7 Anding testified that during his interactions with Norma he never had any
reason to doubt her competence or intelligence and that he never thought that she was
7 Andings notes, which were entered into evidence, reflect that Norma told him that her divorce from their father had affected her relationship with her children. The notes further reflect that she told Anding that she intended to disinherit her children, not because she didn't love them but because they would be adequately taken care of as beneficiaries of an irrevocable $30,000,000 trust that had been created by their father and their share of father's remaining estate. 1 11 under the influence of any third party with regard to making decisions related to the
Trust. Anding stated that after his meeting with Norma, she had asked him to explain
the terms of the Trust and how it worked to Richardson. Anding indicated that
Richardson merely listened to the explanation of how the Trust would work and did not
ask any questions or instruct Anding in any way. Anding testified that he subsequently
met with Norma at a bank in Columbia, Missouri where she executed the Trust after
discussing its provisions with him for approximately three hours.
Richardson testified that, prior to their break-up, he and Norma had shared a
dream of running a ranch and growing old together on it. Richardson testified that, prior
to Norma's meeting with Anding on the ranch, he and Norma had never discussed her
creating a trust. He stated that, after Norma met with Anding, she had summoned him
to the house where she and Anding had explained to him that Norma was leaving the
farm to him in a trust and was also "doing some wills and stuff."
Richardson testified that, subsequently, at Norma's request, he had driven her to
a bank in Columbia, Missouri to meet with her attorney. He testified that he waited for
her in the bank while Norma and her attorney conferred until he was eventually
summoned into the conference room where Anding and Norma explained the
documents Norma had executed to him. Richardson testified that he never forced or
compelled Norma to do anything regarding the Trust and will she executed in 2005.
The trial court was entitled to believe the testimony of Anding and Richardson and to
find that the evidence did not establish that Richardson had asserted any undue
influence over Norma in the creation of the Trust.
2 12 Appellant points to evidence that Norma stopped seeing her children and
grandchildren shortly after her divorce and did not begin seeing them again until
sometime after Richardson left the ranch. He argues that it was unnatural for her to
leave property to her lover over her own children. He further makes much of the fact
that Richardson was present on the ranch when Norma met with her attorney and was
present at the bank when she executed the trust. Appellant also relies on testimony
that there were guns in the house and that Norma was generally fearful of Richardson.
From this evidence, Appellant argues that the only reasonable conclusion is that
Richardson exerted undue influence over Norma and substituted his will for her own in
the creation of the Trust. The trial court was not required to believe any of the evidence
or testimony relied upon by Appellant and, even if it found it to be credible, was not
required to afford it any weight or to draw the inferences relied upon by Appellant.
Salem United Methodist Church, 138 S.W.3d at 790.
Viewing the evidence in accordance with our standard of review, the trial court's
finding that Appellant failed to prove that Richardson exerted undue influence over
Norma in the creation of her trust is not against the weight of the evidence. Point
denied.
The judgment is affirmed.
________________________________ Joseph M. Ellis, Judge All concur.
3 13