IN THE COURT OF APPEALS OF IOWA
No. 23-0064 Filed January 10, 2024
MELISSA WEBER and SHELLY DONLON, Plaintiffs-Appellants,
vs.
NANCY JORDAHL and WAYNE JORDAHL, individually, and NANCY JORDAHL in her capacity as Executor of the Estate of Pauline Fossum and Trustee of the Pauline Fossum Revocable Trust, Defendants-Appellees. ________________________________________________________________
Appeal from the Iowa District Court for Winneshiek County,
Alan T. Heavens, Judge.
Granddaughters appeal the order dismissing their petition contesting their
grandmother’s will and trust. AFFIRMED.
Judith O’Donohoe of Elwood, O’Donohoe, Braun, White, LLP, Charles City,
for appellants.
Thomas C. Verhulst of Beecher, Field, Walker, Morris, Hoffman & Johnson,
P.C., Waterloo, for appellees.
Heard by Tabor, P.J., and Ahlers and Chicchelly, JJ. 2
CHICCHELLY, Judge.
Melissa Weber and Shelly Donlon appeal the order denying their petition
that contests the will and trust of their grandmother, Pauline Fossum, claiming that
Pauline’s daughter and son-in-law, Nancy and Wayne Jordahl, exercised undue
influence over Pauline and tortiously interfered with their inheritance. Melissa and
Shelly first claim the district court erred by excluding their rebuttal witness.
Because we find the rebuttal was improper, we affirm the exclusion of the witness.
Next, Melissa and Shelly contend the district court erred by finding they failed to
prove: (1) Nancy and Wayne exercised undue influence over Pauline in the
execution of her will and trust and (2) tortiously interfered with their inheritance.1
Because we find that Melissa and Shelly failed to establish either claim, we affirm
the denial of their petition.
I. Background Facts and Proceedings.
Pauline passed away on January 29, 2021, and was predeceased by both
her husband, Delford Fossum, and their son, David Fossum. She was survived by
a daughter, Nancy, and Nancy’s husband, Wayne Jordahl. This action was
brought by David’s children, Melissa and Shelly.
Before Pauline’s death, the Fossum family was fraught with tension. David
had consistent substance-use concerns over the years, including three operating-
while-intoxicated charges. Pauline, Nancy, and Wayne pitched in to bail him out
from jail and provide care. David completed a substance-abuse evaluation in 2014
1 The district court found that Pauline had testamentary capacity due to the overwhelming amount of evidence. While the appellants preserved this issue at the district court level, they did not dispute it on appeal. We therefore find this issue waived. See Iowa R. App. P. 6.903(2)(g)(3). 3
that recommended he participate in extended outpatient treatment, but he did not
complete it. By 2014–2015, David’s health and cognitive decline prevented him
from living independently and properly caring for himself. The house he had been
living in on Pauline’s property was “unsanitary” and covered in filth. He lived with
Pauline off and on, and she and Nancy cared for him.
As time passed, Pauline’s longtime physician expressed concerns with the
shared housing situation. It was apparent that David’s needs were a great source
of stress for Pauline, and there was evidence that David may have been verbally
abusive to her. In 2015, David was placed under guardianship and
conservatorship, and Melissa was eventually appointed as his guardian. Melissa
moved David to an apartment and provided consistent care to him until his death
in 2020.
During her lifetime, Pauline executed two separate wills. Her long-time
attorney drafted both. In 1990, she executed a first will and testament, naming her
husband as sole beneficiary and executor. Their two children, David and Nancy,
were named as contingent beneficiaries, with David serving as replacement
executor. Following her husband’s death, Pauline executed a codicil that named
both David and Nancy as co-executors.
On June 26, 2015, during David’s guardianship proceedings, Pauline
executed both a second will and revocable trust, which are the subjects of this
appeal. In her revised will, Pauline revoked the 1990 will and named Nancy as the
sole executor. She also established a revocable trust and directed that all her
estate pass to the trust, of which Nancy was the sole trustee and beneficiary.
Nancy’s children were named as contingent beneficiaries in the event Nancy 4
should predecease Pauline. The same day, Pauline conveyed property—such as
real estate, financial accounts and investments, and tangible personal property—
to the trust.
After Pauline’s death in 2021, Melissa and Shelly contested her will. In their
petition, they alleged Pauline lacked testamentary capacity, that Nancy and Wayne
unduly influenced Pauline, and that Nancy and Wayne tortiously interfered with
their bequest.
Less than two weeks before trial, Melissa and Shelly disclosed several
witnesses for the first time. The district court excluded these witnesses for lack of
timeliness and prejudice to the opposing parties. During the bench trial, Melissa
and Shelly again attempted to call one of these witnesses, Pat O’Regan, as a
rebuttal witness, and the district court again denied them, determining the use of
rebuttal was a thinly-veiled attempt to subvert the timeliness issue and introduce
new, additional evidence.
Following trial, the district court denied Melissa and Shelly’s petition with
prejudice. Melissa and Shelly appealed. On appeal, they do not contest the district
court’s conclusion that Pauline had testamentary capacity. Instead, they contend
the district court erred by excluding the rebuttal testimony and dismissing their
claims for undue influence and tortious interference with a bequest.
II. Exclusion of Rebuttal Witness Testimony.
First, although Melissa and Shelly do not appeal witness Pat O’Regan’s
exclusion from their case-in-chief, they claim the district court erred by excluding
his rebuttal testimony. “Rebuttal evidence is evidence that explains, repels,
controverts, or disproves evidence produced by the opposing party.” State v. 5
Weaver, 608 N.W.2d 797, 806 (Iowa 2000). We generally review evidentiary
rulings for an abuse of discretion. Valdez v. West Des Moines Cmty. Schs., 992
N.W.2d 613, 634 (Iowa 2023). An abuse of discretion is a decision that is based
“on grounds or for reasons clearly untenable or to an extent clearly unreasonable.”
State v. Einfeldt, 914 N.W.2d 773, 778 (Iowa 2018) (citations omitted). “The trial
court has considerable discretion in admitting rebuttal evidence . . . .” Weaver, 608
N.W.2d at 806.
Melissa and Shelly argue O’Regan would be used to rebut two other
witnesses: Kevin Bidne, Pauline’s neighbor, and Dave Wise, her longtime tenant.
Both Bidne and Wise testified that Pauline had never discussed her estate
planning decisions with them. Melissa and Shelly claim that O’Regan would serve
as rebuttal because Pauline had shared her wishes with him. But the district court
concluded that this was not proper rebuttal testimony. O’Regan’s statements were
not being used to explain or disprove any interactions Pauline had with Bidne or
Wise.
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IN THE COURT OF APPEALS OF IOWA
No. 23-0064 Filed January 10, 2024
MELISSA WEBER and SHELLY DONLON, Plaintiffs-Appellants,
vs.
NANCY JORDAHL and WAYNE JORDAHL, individually, and NANCY JORDAHL in her capacity as Executor of the Estate of Pauline Fossum and Trustee of the Pauline Fossum Revocable Trust, Defendants-Appellees. ________________________________________________________________
Appeal from the Iowa District Court for Winneshiek County,
Alan T. Heavens, Judge.
Granddaughters appeal the order dismissing their petition contesting their
grandmother’s will and trust. AFFIRMED.
Judith O’Donohoe of Elwood, O’Donohoe, Braun, White, LLP, Charles City,
for appellants.
Thomas C. Verhulst of Beecher, Field, Walker, Morris, Hoffman & Johnson,
P.C., Waterloo, for appellees.
Heard by Tabor, P.J., and Ahlers and Chicchelly, JJ. 2
CHICCHELLY, Judge.
Melissa Weber and Shelly Donlon appeal the order denying their petition
that contests the will and trust of their grandmother, Pauline Fossum, claiming that
Pauline’s daughter and son-in-law, Nancy and Wayne Jordahl, exercised undue
influence over Pauline and tortiously interfered with their inheritance. Melissa and
Shelly first claim the district court erred by excluding their rebuttal witness.
Because we find the rebuttal was improper, we affirm the exclusion of the witness.
Next, Melissa and Shelly contend the district court erred by finding they failed to
prove: (1) Nancy and Wayne exercised undue influence over Pauline in the
execution of her will and trust and (2) tortiously interfered with their inheritance.1
Because we find that Melissa and Shelly failed to establish either claim, we affirm
the denial of their petition.
I. Background Facts and Proceedings.
Pauline passed away on January 29, 2021, and was predeceased by both
her husband, Delford Fossum, and their son, David Fossum. She was survived by
a daughter, Nancy, and Nancy’s husband, Wayne Jordahl. This action was
brought by David’s children, Melissa and Shelly.
Before Pauline’s death, the Fossum family was fraught with tension. David
had consistent substance-use concerns over the years, including three operating-
while-intoxicated charges. Pauline, Nancy, and Wayne pitched in to bail him out
from jail and provide care. David completed a substance-abuse evaluation in 2014
1 The district court found that Pauline had testamentary capacity due to the overwhelming amount of evidence. While the appellants preserved this issue at the district court level, they did not dispute it on appeal. We therefore find this issue waived. See Iowa R. App. P. 6.903(2)(g)(3). 3
that recommended he participate in extended outpatient treatment, but he did not
complete it. By 2014–2015, David’s health and cognitive decline prevented him
from living independently and properly caring for himself. The house he had been
living in on Pauline’s property was “unsanitary” and covered in filth. He lived with
Pauline off and on, and she and Nancy cared for him.
As time passed, Pauline’s longtime physician expressed concerns with the
shared housing situation. It was apparent that David’s needs were a great source
of stress for Pauline, and there was evidence that David may have been verbally
abusive to her. In 2015, David was placed under guardianship and
conservatorship, and Melissa was eventually appointed as his guardian. Melissa
moved David to an apartment and provided consistent care to him until his death
in 2020.
During her lifetime, Pauline executed two separate wills. Her long-time
attorney drafted both. In 1990, she executed a first will and testament, naming her
husband as sole beneficiary and executor. Their two children, David and Nancy,
were named as contingent beneficiaries, with David serving as replacement
executor. Following her husband’s death, Pauline executed a codicil that named
both David and Nancy as co-executors.
On June 26, 2015, during David’s guardianship proceedings, Pauline
executed both a second will and revocable trust, which are the subjects of this
appeal. In her revised will, Pauline revoked the 1990 will and named Nancy as the
sole executor. She also established a revocable trust and directed that all her
estate pass to the trust, of which Nancy was the sole trustee and beneficiary.
Nancy’s children were named as contingent beneficiaries in the event Nancy 4
should predecease Pauline. The same day, Pauline conveyed property—such as
real estate, financial accounts and investments, and tangible personal property—
to the trust.
After Pauline’s death in 2021, Melissa and Shelly contested her will. In their
petition, they alleged Pauline lacked testamentary capacity, that Nancy and Wayne
unduly influenced Pauline, and that Nancy and Wayne tortiously interfered with
their bequest.
Less than two weeks before trial, Melissa and Shelly disclosed several
witnesses for the first time. The district court excluded these witnesses for lack of
timeliness and prejudice to the opposing parties. During the bench trial, Melissa
and Shelly again attempted to call one of these witnesses, Pat O’Regan, as a
rebuttal witness, and the district court again denied them, determining the use of
rebuttal was a thinly-veiled attempt to subvert the timeliness issue and introduce
new, additional evidence.
Following trial, the district court denied Melissa and Shelly’s petition with
prejudice. Melissa and Shelly appealed. On appeal, they do not contest the district
court’s conclusion that Pauline had testamentary capacity. Instead, they contend
the district court erred by excluding the rebuttal testimony and dismissing their
claims for undue influence and tortious interference with a bequest.
II. Exclusion of Rebuttal Witness Testimony.
First, although Melissa and Shelly do not appeal witness Pat O’Regan’s
exclusion from their case-in-chief, they claim the district court erred by excluding
his rebuttal testimony. “Rebuttal evidence is evidence that explains, repels,
controverts, or disproves evidence produced by the opposing party.” State v. 5
Weaver, 608 N.W.2d 797, 806 (Iowa 2000). We generally review evidentiary
rulings for an abuse of discretion. Valdez v. West Des Moines Cmty. Schs., 992
N.W.2d 613, 634 (Iowa 2023). An abuse of discretion is a decision that is based
“on grounds or for reasons clearly untenable or to an extent clearly unreasonable.”
State v. Einfeldt, 914 N.W.2d 773, 778 (Iowa 2018) (citations omitted). “The trial
court has considerable discretion in admitting rebuttal evidence . . . .” Weaver, 608
N.W.2d at 806.
Melissa and Shelly argue O’Regan would be used to rebut two other
witnesses: Kevin Bidne, Pauline’s neighbor, and Dave Wise, her longtime tenant.
Both Bidne and Wise testified that Pauline had never discussed her estate
planning decisions with them. Melissa and Shelly claim that O’Regan would serve
as rebuttal because Pauline had shared her wishes with him. But the district court
concluded that this was not proper rebuttal testimony. O’Regan’s statements were
not being used to explain or disprove any interactions Pauline had with Bidne or
Wise. Instead, it was new evidence of a separate conversation that should have
been timely disclosed prior to trial. Because we find the evidence did not rebut the
testimony of Bidne or Wise, we conclude the district court properly exercised its
discretion by denying it.
III. Dismissal of Claims.
Next, Melissa and Shelly contend the district court erred by dismissing their
claims that Nancy and Wayne unduly influenced Pauline in the execution of her
will and tortiously interfered with their bequest. Because will contests are triable
in the probate court as an action at law, our review is for the correction of errors.
See Iowa Code § 633.311 (2021); Wolf v. Wolf, 690 N.W.2d 887, 892 (Iowa 2005). 6
In reviewing for correction of errors at law, “the district court’s fact findings are
binding on us if they are supported by substantial evidence.” Wolf, 690 N.W.2d
at 892. We consider each claim in turn.
A. Undue Influence.
Melissa and Shelly allege the district court erred by dismissing their undue-
influence claim. To exercise undue influence over another, the person exercising
influence substitutes their will with that of the testator. In re Est. of Bayer, 574
N.W.2d 667, 671 (Iowa 1998). In order to prove that Nancy and Wayne unduly
influenced Pauline, Melissa and Shelly must establish: (1) Pauline was susceptible
to undue influence; (2) Nancy and Wayne had an opportunity to exercise undue
influence; (3) they had a disposition to influence unduly to procure an improper
favor; and (4) the result was clearly the effect of undue influence. Id. Mere
suspicion is not adequate, but instead, “there must be a solid foundation of
established facts upon which to rest an inference of its existence.” Id. (quoting In
re Will of Pritchard, 443 N.W.2d 95, 98 (Iowa 1989)).
In contending the district court erred, the appellants’ argument rests solely
on the credibility of their own witnesses. But it is not the job of this court to make
credibility determinations. See Van Sloun v. Agans Bros., 778 N.W.2d 174, 182
(Iowa 2010) (“On appeal in a law action we are bound by such factual findings on
the credibility of witnesses.”); see also Bayer, 574 N.W.2d at 670 (stating that in a
will contest, weight and credibility of the evidence are questions for the trier of fact).
Instead, we defer to the district court’s evaluation of the evidence. It found Nancy
and Wayne’s evidence credible and that Pauline was not susceptible to being
unduly influenced. Several witnesses expressed Pauline’s strength and resolve. 7
Despite health complications and stressors related to David’s caregiving, Pauline
was described as “alert, oriented,” “active,” “sharp,” and “independent.” At trial,
the appellants attempted to present a narrative of Nancy and Wayne’s isolation of
Pauline away from loving family. But the evidence instead depicted Pauline’s
conflict between her love for her children and her concern for the loss of the family
farm to creditors or liens should David continue to have substance-abuse issues
or potentially cause an accident while driving under the influence. Pauline then
used her long-term, trusted attorney to make her provisions in light of those
particular circumstances.
Melissa and Shelly further claim Pauline and Nancy shared a “confidential
relationship,” which impacts Nancy’s level of influence over her mother. A
“confidential relationship” exists in “all the variety of relations in which dominion
may be exercised by one person.” In re Herm’s Est., 284 N.W.2d 191, 199 (Iowa
1979) (citation omitted). A suspicion of undue influence arises “where the
dominant party in a confidential relationship participates in either the preparation
or execution of the contested will.” Bayer, 574 N.W.2d at 675. Whether a
confidential relationship exists between Pauline and Nancy, the presence of
suspicion would not change the analysis. Substantial evidence shows Nancy did
not unduly influence Pauline. While Pauline and Nancy had a close relationship
and Nancy certainly had an influential role in her life, the district court found Nancy
highly credible. It described her as “not a controlling or domineering person” and
found no evidence that she used her caregiving position to manipulate Pauline’s
estate plans. With regard to Wayne, the district court found that he had no interest
in Pauline’s property. In fact, he actually requested he be removed as a contingent 8
beneficiary. Upon review, we find substantial evidence supports that Pauline was
not unduly influenced by either Nancy or Wayne. We therefore affirm dismissal of
this claim.
B. Tortious Interference with a Bequest.
Finally, Melissa and Shelly argue the district court erred by denying their
tort claim because Nancy and Wayne tortiously interfered with their bequest.
There is “substantial overlap” between undue influence and tortious interference
with a bequest. Youngblut v. Youngblut, 945 N.W.2d 25, 37 (Iowa 2020) (citation
omitted). Like their undue-influence claim, Melissa and Shelly hinge their
argument on credibility determinations, claiming their evidence is more reliable.
But they once again fail to explain why the district court’s findings constitute error.
To be successful on a claim for tortious interference, Melissa and Shelly must
show: (1) they expected to receive a bequest from Pauline upon her death,
(2) Nancy and Wayne knew of the expected bequest, (3) Nancy and Wayne
intentionally and improperly interfered with their expectancy through undue
influence, (4) there was a reasonable certainty Melissa and Shelly would have
received an inheritance but for the interference, and (5) Melissa and Shelly
suffered damages as a result of their loss of the bequest. In re Est. of Boman,
No. 16-0110, 2017 WL 512493 (Iowa Ct. App. Feb. 8, 2017).
Melissa and Shelly have not produced substantial evidence in support of
their tortious-interference claim. They had no expectation of any bequest. Pauline
provided no inheritance to any of her grandchildren in the 1990 will, and likewise,
she only included any grandchildren as contingent beneficiaries in the 2015 will.
Neither appellant was named in a previous will, and there is no evidence Pauline 9
ever had any intentions to include them. In fact, when her attorney asked her about
including David’s children, Pauline reportedly answered, “If David isn’t to have it, I
would rather have Nancy and her family have it.” Her attorney testified it was his
understanding that while she loved Melissa and Shelly, Pauline did not wish for
them to inherit anything. Because the same activities speak to the undue-influence
claim as here, we similarly find no evidence of interference from Nancy or Wayne.
Further, Nancy and Wayne could not interfere with an expectancy that did not exist.
Accordingly, there is no showing of interference.
IV. Disposition.
Because the district court did not abuse its discretion in its evidentiary ruling,
we affirm the exclusion of the appellants’ rebuttal witness. Because substantial
evidence supports the district court’s findings, we affirm the denial of the undue
influence and tortious interference with a bequest claims.
AFFIRMED.