IN THE COURT OF APPEALS OF IOWA
No. 3-1257 / 13-1003 Filed April 16, 2014
IN THE MATTER OF THE ESTATE OF TENA STEENSMA, Deceased.
DALE BRAAKSMA and DANA BRAAKSMA, Plaintiffs-Appellants,
vs.
IRENE TIMMERMAN, Individually and as Co-Executor of the Estate of Tena Steensma; ANITA DREESEN, Individually and as Co-Executor of the Estate of Tena Steensma; ARNOLD BRAAKSMA, CHRISTIAN REFORMED WORLD RELIEF COMMITTEE, WORLD HOME BIBLE LEAGUE, SIBLEY CHRISTIAN REFORMED CHURCH, BACK-TO-GOD HOUR, BILLY GRAHAM EVANGELISTIC ASSOCIATION, OCHEYEDAN CHRISTIAN SCHOOL, WESTERN CHRISTIAN HIGH SCHOOL, and DORDT COLLEGE, Defendants-Appellees. ________________________________________________________________ Appeal from the Iowa District Court for Osceola County, David A. Lester,
Judge.
Following a jury verdict finding certain defendant beneficiaries did not
unduly influence the testatrix in the execution of her last wills, the plaintiffs appeal
the district court’s rulings admitting evidence over their objections. AFFIRMED.
Matthew T. E. Early of Fitzgibbons Law Firm, L.L.C., Estherville, for
appellants.
Sean J. Barry of Montgomery, Barry, Bovee & Barry, Spencer, for
appellees Timmerman and Dreesen, as co-executors.
Lloyd W. Bierma of Oostra, Bierma, Van Engen & Mouw, P.L.C., Sioux
Center, for all appellee “charities.”
Irene Timmerman, Anita Dreesen, and Arnold Braaksma, individually,
appellees pro se.
Heard by Vogel, P.J., and Doyle and Mullins, JJ. 2
DOYLE, J.
Following a jury verdict finding certain defendant beneficiaries did not
unduly influence the testatrix in the execution of her last wills, the plaintiffs appeal
the district court’s rulings admitting evidence over their objections. We affirm.
I. Background Facts and Proceedings.
From the evidence presented at trial, the jury could have found the
following facts. Pete and Tena Steensma married in the 1930’s. They were a
frugal and deeply religious couple. During their lifetimes, they worked hard,
saved money, and accumulated many assets from their joint efforts. They did
not have children.
During their marriage, the Steensmas executed several wills and codicils
with the assistance of their longtime attorney, Gene Philiph. It was the
Steensmas’ intent, upon the first of their deaths, to leave their estate to the
surviving spouse. Upon the death of the surviving spouse, the Steensmas
wished to leave the majority of their assets to charities and missions.
The couple’s first will in 1972 left 100% of their estate to charity. However,
starting in 1980, the Steensmas changed their wills to include their nephew,
plaintiff Dale Braaksma, as a minor beneficiary of their estate. Dale farmed the
Steensmas’ land with Pete, and the Steensmas regarded Dale as the son they
never had. In 1990, the Steensmas executed a new will, leaving 95% of their
estate to charity and the 5% remainder to Dale.
Pete passed away in 1998. Tena, then eighty-five-years old, inherited the
total estate, worth at least $1,600,000 at that time. Tena felt uncomfortable
handling the farm and other business matters, and she asked Dale to manage 3
her affairs. Shortly thereafter, she appointed Dale her attorney-in-fact via a
power of attorney, giving Dale broad authority to manage her affairs. Tena later
moved to an independent/assisted-living facility.
In December 2004, one of Dale’s siblings, defendant Irene Timmerman,
took Tena to a doctor’s appointment. While there, Tena told Irene she had not
talked to Dale for a long time and that she did not know if she had any money
left. Dale and Irene’s sister, defendant Anita Dreesen, dropped in thereafter to
see how Tena’s appointment had gone, and Tena again expressed worry to both
her nieces about whether she would be able to continue to afford living at the
facility. Tena’s nieces suggested Tena contact her investment account
representative to inquire about her account’s status, and Anita called and
scheduled an appointment for the two to meet.
Tena’s account representative Keith DeBoer met with Tena, along with
Anita, Irene, their other sibling, defendant Arnold Braaksma, as well as the
siblings’ spouses. Dale and his wife were not present. DeBoer advised Tena
that her account had a balance of $300,000, though it had had a million dollars or
so in it a few years prior thereto. Tena and her nieces and nephew were
shocked. DeBoer also noted Tena had named Dale as the sole beneficiary on
the account, with the proceeds of the account to be transferred upon her death to
Dale rather than to her estate. Tena acknowledged she had gifted money to
Dale over the years, but it was clear she had not “appreciate[d] the totality of
what she had done.” Tena was angry and embarrassed because she believed
she had been “buffaloed” by Dale. She immediately directed DeBoer not to take 4
any further instructions from Dale, and she changed the beneficiary of her
account to her estate.
Thereafter, Tena, Anita, and Irene met with Tena’s attorney Philiph to draft
a new power of attorney document changing Tena’s attorney-in-fact from Dale to
Irene. Tena, Irene, and Anita, with their spouses, then met with Dale, his wife,
and son at Tena’s apartment for a family meeting. Irene, Anita, and Tena asked
Dale where the money had gone and requested bookkeeping records for Tena’s
finances. At times, Dale and his wife reminded Tena she had made many gifts to
Dale over the years that they had not requested, but at one point Tena remarked
in reply: “Don’t kid yourself, Dale could talk pretty smooth about some things that
he really wanted. He should have this; he should have that.”
On Tena’s behalf, Anita and Irene contacted another attorney, Tom
Whorley, to see if he could represent Tena. They were concerned about the gifts
being made to Dale out of Tena’s accounts, and Tena believed Philiph was
working more for Dale than her at that point. Whorley requested to meet with
Tena and asked her to bring a copy of her will. Anita and Irene, with Tena’s
permission, obtained a copy of Tena’s most recent will from 2000 from the county
courthouse, and they gave the documents to Tena. Tena read the documents
and was very angry and upset at seeing that her will had many bequests to Dale,
including one for $500,000 cash, “[a]nd at that time [Tena] knew there wasn’t that
much left in [her investment account], and . . . the light switch went on that there
wouldn’t have been anything left for the charities that were still listed on there. ”
Tena said that will was not what she wanted. Although Tena had signed that will,
she still thought her charities would get the major part of her estate. Anita called 5
Whorley right away because Tena was upset about the will, and he advised that
Tena void the will and codicil, which Tena immediately did.
Tena asked Whorley to draft for her a new will. Before meeting with him,
Tena reviewed her voided will with Irene and Anita to indicate what parts she
wanted to keep or delete. Tena requested Dale be removed as her named
executor and replaced with Irene and Anita, and she requested the bequests to
Dale, including the $500,000 cash bequest, be removed. Tena also requested
the provision providing Dale the first option to purchase her farm be changed
from Dale to Anita and Arnold, because she wanted the farm to stay in the family
but not with Dale. Additionally, Tena revised some of her charitable-donation
percentages to lower amounts, and she added additional new charities. Finally,
Tena told her nieces she wanted Irene, Anita, and Arnold (collectively “the
siblings”) included in her will for them helping her. Ultimately, Tena structured
her new will so that 70% would go to charities and the remaining 30% would go
to the siblings.
Tena and the siblings met with Whorley numerous times. Tena told
Whorley, in the presence of the siblings, that she wanted to include the three in
her will. Whorley later met privately with Tena and his law partner, outside the
presence of her nieces and nephew, to determine if that was actually what Tena
wanted and that she was acting voluntarily and had the requisite mental capacity
to do so. She reaffirmed to them that she was not going to include Dale in her
new will because she felt she had been “buffaloed” and “swindled” by him and
that “he had had enough.” The attorneys believed Tena was acting voluntarily 6
and was of sound mind, but they recommended Tena see a doctor before
executing her new will to confirm their beliefs.
Tena met with her doctor at the end of January 2005 for an examination,
and he found Tena’s “mental capacity was sound, her judgment was sound and
he knew of no impediment that would prevent her from executing a will.” He
provided a letter stating such to Whorley, and on January 31, 2005, Tena
executed her new will, leaving 70% of her estate to charities and 10% each to the
siblings. Whorley was sure Tena was not unduly influenced in executing that will
because Tena “knew what she wanted.”
In February 2007, Tena and Anita met with Whorley at his law office for
Tena to execute a new will. Tena told Whorley that she had been into Philiph’s
law office and had signed documents she believed were pertaining to the
corporation she had with Dale and his son, but she did not have copies of those
documents and she was unsure what she had signed. She wanted a new will
“because [she] did not want there to be any question about the contents of [her]
will.” The new will draft was substantively the same, but Tena added a sentence
specifically stating she “made no provisions for [Dale] as he has been the
recipient of a substantial amount of [her] money over the years.” Whorley and
his law partner met with Tena privately to ensure she was executing the will
voluntarily and was of sound mind, and they found she was and that she knew
what she wanted. Tena then executed the new will.
Tena passed away in October 2010. Her last will from February 2007 was
filed for probate thereafter. 7
In March 2011, Dale and his wife (the plaintiffs) filed a petition to set aside
Tena’s wills dated after 2003, asserting the wills were the product of undue
influence by the siblings. A jury trial on the matter was held in April and May of
2013. The jury returned a verdict in favor of the siblings. The court then entered
a judgment in favor of the defendants.
The plaintiffs now appeal.
II. Scope and Standards of Review.
A will contest is an action at law, so we ordinarily review for errors at law.
Burkhalter v. Burkhalter, 841 N.W.2d 93, 106 (Iowa 2013). However, “[w]e
review the district court’s determination of relevancy and admission of relevant
evidence for an abuse of discretion.” Mohammed v. Otoadese, 738 N.W.2d 628,
631 (Iowa 2007). An abuse of discretion occurs when “the court exercised its
discretion on grounds or for reasons clearly untenable or to an extent clearly
unreasonable.” Id. (citations, internal quotation marks, and alteration omitted).
“A ground or reason is untenable when it is not supported by substantial
evidence or when it is based on an erroneous application of the law.” In re
Estate of Rutter, 633 N.W.2d 740, 745 (Iowa 2001).
Even so, not every erroneous admission of evidence requires reversal.
Mohammed, 738 N.W.2d at 633. Rather, reversal is only warranted when “‘a
substantial right of the party is affected.’” Id. (quoting Iowa R. Evid. 103(a)).
“Although a presumption of prejudice arises when a court receives irrelevant
evidence over a proper objection, the presumption is not sufficient to require
reversal if the record shows a lack of prejudice.” Johnson v. Kaster, 637 N.W.2d
174, 181 (Iowa 2001). “This requires a finding that it is probable a different result 8
would have been reached but for the admission of the evidence or testimony.”
Mohammed, 738 N.W.2d at 633 (citation and internal quotation marks omitted).
III. Discussion.
Here, the plaintiffs do not challenge the jury’s verdict directly. Rather, they
assert the district court committed “prejudicial error with respect to [several of its
evidentiary] rulings” admitting certain evidence over their objections. They
request the jury verdict be reversed and that we remand for a new trial. We
address their arguments in turn.
A. Expert Testimony.
In their case-in-chief, the plaintiffs supported their contention of undue
influence by comparing Pete and Tena’s longtime inclusion of only Dale in their
past wills to the siblings’ new inclusion in Tena’s last wills. As part of that
evidence, at the plaintiffs’ request, the court admitted the Steensmas’ and then
Tena’s individual wills and codicils from 1984 to 2003. Dale testified he filed the
will contest because Tena “left nearly a third of her estate to [his] siblings who
had never been mentioned in any of her wills prior [thereto].”
The siblings named Certified Public Accountant Gary Peters as an expert,
and they sought to have him testify, along with admission of defense exhibits
created by him, to “introduce into evidence how much charities would have
gotten and how much [Dale] would have gotten on each of the wills from the one
before [Pete’s] death up to the last will that was prepared by [Philiph].” The
plaintiffs requested the expert be excluded, arguing his testimony was irrelevant 9
and prejudicial.1 The plaintiffs asserted the only purpose of the information
would be to show Tena’s intent at the time the past wills were executed, which
would require irrelevant assumptions that Tena meant to leave substantial assets
to charity or to show how the past wills influenced her intent to change the wills in
2005 and 2007.
The siblings resisted, noting the plaintiffs’ themselves had those past wills
admitted into evidence, as well as Iowa’s liberal admission of expert testimony.
They argued the expert’s testimony would help the jury put into perspective why
Tena executed new wills awarding the majority of her estate to charities and the
remainder to the siblings. The siblings also pointed out that the plaintiffs’ witness
Philiph testified he believed the charities stood to receive “hundreds of thousands
of dollars” even after Dale was given $500,000 and various assets.
The court agreed with the siblings, stating: “[F]rom the very outset of this
case, starting with the testimony of [Philiph], the intent of [Pete and Tena’s] wills
as to the time period in question, 1998 to 2003, has been an issue.” The court
further explained:
Not only has the intent of [Peter] and Tena been an issue during that time period, but also: Did their wills carry out that intent based on distribution that was set forth therein? That, again, has been a disputed issue throughout this case. There’s been no objection to the presentation . . . of the documents supporting each party’s position. There has been disputed testimony from . . . the plaintiffs, as to what the distribution under some of those earlier wills would have been. So after hearing [the expert’s anticipated] testimony this morning, I do find . . . that the testimony he’s going to offer is relevant to those issues that have been previously raised.
1 The plaintiffs did not challenge the witness’s qualifications to testify as an expert on the subject matter. 10
I do find further that based on [the expert’s anticipated and] very limited testimony, the jury would be assisted in understanding the distribution plans under the 1998-2003 wills as they may support the defendants’ position on the intent of both Tena and, to a lesser extent, Peter under those wills. I didn’t hear anything, . . . at this point that [the expert] intends to go beyond the four corners of the . . . documents that are involved. My understanding is, he’s strictly going to look at the distribution, look at their assets and testify as to what that distribution, within the four corners of the document, would have resulted in. So I don’t believe, in my opinion, that that constitutes extrinsic evidence to modify those documents, nor does it constitute parole evidence, to the extent those were raised.
As a precaution, the court gave the jury a limiting instruction explaining that the
expert’s evidence of the specific numbers were not known nor considered by
Tena at the time she executed the 2005 and 2007 wills at dispute in the case.
On appeal, the plaintiffs argue the district court abused its discretion by
permitting the expert to testify.2 They contend:
It is unimaginable how a fictional distribution on dates in 2000 and 2003 under prior wills has any bearing upon the conduct of [the siblings] in unduly influencing Tena in 2005 or 2007. The only use of this information was to influence the jury to an improper conclusion about Tena’s intent vis-à-vis her prior wills.
Upon our review, we find no abuse of discretion by the district court in
admitting the testimony. The admission of expert testimony is largely within the
discretion of the district court. Johnson v. Am. Family Mut. Ins. Co., 674 N.W.2d
2 The plaintiffs also assert the expert’s testimony allowed the siblings to show a different intent on Tena’s part from her intent “disclosed by the language of [her earlier wills].” Based upon this theory, the plaintiffs maintain the parol evidence rule applies to prohibit the expert’s testimony, and, as a result, the district court erred as a matter of law. See, e.g., Pitts v. Farm Bureau Life Ins. Co., 818 N.W.2d 91, 107 (Iowa 2012) (“The parol evidence rule forbids use of extrinsic evidence to vary, add to, or subtract from a written agreement.”). However, we agree with the district court that the parol evidence rule is not applicable here because the expert only testified as to the valuations of the assets listed within the four corners of Tena’s wills at the time she made those wills. Although Tena may not have known the exact value of her assets, the assets’ value was what it was and does not vary, add to, or subtract from her written intent. See id. 11
88, 91 (Iowa 2004). A qualified expert’s testimony should be admitted if it will
assist the jury in understanding the evidence or determining a fact at issue.
Ranes v. Adams Labs., Inc., 778 N.W.2d 677, 685 (Iowa 2010). “We are
committed to a liberal rule on admissibility of opinion testimony, and only in clear
cases of abuse would the admission of such evidence be found to be prejudicial.”
Heinz v. Heinz, 653 N.W.2d 334, 341 (Iowa 2002); Leaf v. Goodyear Tire
& Rubber Co., 590 N.W.2d 525, 531 (Iowa 1999).
It is presumed that, in the execution of one’s will, the testator acts of his or
her own free will. See Burkhalter, 841 N.W.2d at 96. However, if another
substitutes his or her intentions for those of the testator, thereby making the
writing the intent of the person exercising the influence rather than that of the
testator, undue influence occurs. See id. Thus, “[i]n cases involving challenges
to wills based upon undue influence, the central issue is whether the acts of the
testator were a product of free will or coercion.” Id. at 105. Where a confidential
relationship exists between a testator and a beneficiary and that beneficiary
participates in either the preparation or execution of the testator’s contested will,
a suspicion, though not a presumption, of undue influence arises. In re Estate of
Bayer, 574 N.W.2d 667, 675 (Iowa 1998). Those seeking to set a will aside
based on undue influence carry the burden of proving the essential elements of
the action—susceptibility, opportunity, disposition, and causation—by a
preponderance of the evidence. See Burkhalter, 841 N.W.2d at 105-06.
Although it is possible that the first three elements of undue influence are
present, the provisions of the will may nevertheless still be the result of the
testator’s free will and not the result of undue influence. Id. at 106. The testator 12
has “the right to change her mind regarding distribution of her property.” Bayer,
574 N.W.2d at 674. Because the testator is not available to testify for his or her
self, “a speculative element” is unavoidably introduced into the mix. Burkhalter,
841 N.W.2d at 105. Further complicating matters is that “it is not always easy to
distinguish ordinary permissible influences on a testator from improper coercion.”
Id. at 105. As our supreme court noted:
[M]ost persons assert some influence over others, through friendship or familial duties, which may have some tangential effect on their receiving a testamentary benefit. This influence is not tainted. Rather, undue influence must dominate the motives of the testator in executing his will. It must be equivalent to moral coercion.
Id. at 106 (citations and internal quotation marks omitted). Consequently, while
undue influence may be proved by circumstantial evidence, more than a
“scintilla” of evidence is required. Bayer, 574 N.W.2d at 671. Persuasion by a
defendant against the testator, without more, is not sufficient to show undue
influence by a defendant. Burkhalter, 841 N.W.2d at 106. Furthermore, “[m]ere
suspicion, surmise, conjecture, or speculation is not enough to warrant a finding
of undue influence”; rather, “there must be a solid foundation of established facts
upon which to rest an inference of its existence.” Bayer, 574 N.W.2d at 671
(citation and internal quotation marks omitted).
Here, it was essentially undisputed by the siblings that they had a
confidential relationship with Tena and that they participated in the preparation
and the execution of Tena’s 2005 and 2007 wills. Generally speaking, as the
“foundation of established facts” for which the jury could find “an inference” of the
existence of undue influence, the plaintiffs introduced and contrasted Tena’s past 13
favor of Dale and the inclusion of him in her prior wills to Tena’s dramatic writing
of Dale out of her will for the first time and suddenly including his siblings for the
first time, in 2005. See id. at 671. To rebut the inference, the siblings, by various
uninterested witnesses’ testimony, introduced evidence that while Tena did in
fact authorize the gifts to Dale and the favorable bequests to him in her wills, she
was unaware of the actual value of her assets at the times she made those
decisions, and when she found out the amount remaining, she was angry and
wrote Dale out of her will. To support their rebuttal of the inference, the siblings
had the expert merely put forth an opinion as to the dollar amounts on what Dale
sought to inherit under the past wills; the expert did not testify as to his
knowledge of Tena’s intent. Rather, the valuations spoke for themselves to aid
the jury in determining a fact at issue: whether the siblings unduly influenced
Tena or whether Tena acted on her own free will to remove Dale and include his
siblings and charities instead. We find the district court did not abuse its
discretion in the admission of the expert’s testimony under the unique facts of
this case.
B. Other Evidentiary Rulings.
The plaintiffs also argue the court abused its discretion concerning the
admission of other evidence: (1) an insurance contract values quotation with
handwritten notes by a trust officer concerning Dale, (2) Anita’s testimony of how
she felt about being accused of undue influence, (3) a subpoena requesting
documents from a bank where Dale, Tena, and his son had executed documents
concerning purchasing a corporation and land with Tena’s funds, and (4) an
affidavit by Tena herself from 2008. We disagree. 14
In 2005, Tena voluntarily requested a conservatorship be opened for her.
Tena and Whorley met with a bank representative, and Tena requested that the
bank manage her business affairs. In 2008, Tena signed an affidavit in support
of closing the contents of her conservatorship file, requesting the contents be
closed to the public. The affidavit states, in part:
Dale . . . had previously managed my business affairs and it was my belief that [he] exceeded his authority as my attorney-in- fact appropriating substantial amounts of money to himself and members of his family. I became increasingly concerned about this appropriation of my assets, and for that reason, I voluntarily requested that [c]onservatorship be established and I terminated the [p]ower of [a]ttorney with [Dale] as my attorney-in-fact. . . . [I]nitially the contents of the [c]onservatorship were not sealed and I have been credibly informed that upon filing an annual report, [Dale] used the information provided in the annual reports, made photo copies and discussed this information with members of the community as well as members of my church, which made me feel betrayed and very uncomfortable.
On appeal, the plaintiffs assert “[t]he self-serving and manipulative nature
of the [a]ffidavit at a time that is completely irrelevant to the time frame at issue in
the case make it wholly irrelevant and inadmissible.” However, the very heart of
the issue of this case is whether Tena was unduly influenced by Dale’s siblings at
the time she executed the 2005 and 2007 wills. This affidavit is dated December
2008 and was executed before a disinterested party. Moreover, it affirms Tena’s
understanding of Dale’s past actions; indeed, it refers to the time he had served
as her attorney-in-fact via her power of attorney, which she terminated in
December 2004, just before the 2005 will was executed. That Tena’s account
does not support the plaintiffs’ assertions in the case does not make the
evidence irrelevant and unfair. The plaintiffs asserted claims of undue influence 15
by the siblings, but Tena’s own account evidences her belief that Dale exceeded
his authority as her attorney-in-fact. Furthermore, Tena’s account supports her
choice to omit him from her will, as well as his siblings’ account as to why Tena
decided to include them in her later wills—gratitude for helping her remove Dale.
We do not find the court abused its discretion in admitting Tena’s affidavit.
Additionally, upon our review of the remaining evidentiary rulings
challenged on appeal, we conclude that even if the district court erred in
admitting the evidence, the plaintiffs have failed to show they were prejudiced by
the admission of the evidence. As noted above, we are not required to reverse
an erroneous ruling that does not prejudice the complaining party. Johnson, 637
N.W.2d at 181. “Unfair prejudice is the undue tendency to suggest decisions on
an improper basis, commonly though not necessarily, an emotional one.”
McClure v. Walgreen Co., 613 N.W.2d 225, 235 (Iowa 2000) (citation and
internal quotation marks omitted). Here, none of the complained about evidence
suggests the jury made their decision on an improper basis, and it is not probable
a different result would have been reached but for the admission of this evidence
or testimony. Many of these issues were first raised by the plaintiffs and by
duplicative evidence. Moreover, the evidence was minor considering the length
of the trial, and in light of the numerous witnesses’ testimony concerning Tena’s
intent at the end of her life to exclude Dale from her will. We find no abuse of
discretion by the district court. 16
IV. Conclusion.
For the foregoing reasons, we affirm the jury’s verdict in favor of the
defendants.
AFFIRMED.