In re: Estate of Loretta M. Chisholm, Decedent. ( 2015 )

  •                           This opinion will be unpublished and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
                          In re: Estate of Loretta M. Chisholm, Decedent.
                                        Filed July 6, 2015
                                         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,
                             UNPUBLISHED OPINION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.
           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
    generally consistent with the estate plan that Loretta and James prepared before James’s
             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
    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.
            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.
           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.
           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
    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
    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,
                  (1) an opportunity to exercise influence;
                  (2) the existence of a confidential relationship between the
                  testator and the person claimed to have influenced the
                  (3) active participation by the alleged influencer in preparing
                  the will;
                  (4) an unexpected disinheritance or an unreasonable
                  (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
    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,
    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
    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
    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.
           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.