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COURT OF
APPEALS DECISION DATED AND
RELEASED March
12, 1997 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals pursuant to § 808.10, Stats., within 30 days hereof,
pursuant to Rule 809.62(1), Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-1108
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
In
the Matter of the Estate of
Lydia
May Hanisch, a/k/a Lydia M.
Hanisch,
a/k/a May Hanisch:
SALLY
GAKENHEIMER,
Appellant,
v.
ESTATE
OF LYDIA MAY HANISCH,
Respondent.
APPEAL
from an order of the circuit court for Fond du Lac County: HENRY B. BUSLEE, Judge. Affirmed.
Before
Brown, Nettesheim and Anderson, JJ.
PER
CURIAM. Sally Gakenheimer appeals from
an order admitting into probate a will and two codicils executed by her mother,
Lydia May Hanisch. She argues that the
trial court erred in excluding evidence under § 885.16, Stats., the dead man’s statute, and that
the trial court’s admission of the will and codicils is not based on
appropriate consideration of the relevant factors and the evidence. We affirm the order.
Lydia
May Hanisch died on December 24, 1994, at the age of ninety-three. She was survived by her son, Harold W.
Hanisch, and her daughter, Sally Gakenheimer.
Admitted into probate were a will of July 20, 1982; a codicil of
September 21, 1983; and a codicil of September 18, 1987. In her original will, Lydia left real estate
owned at her death to Harold and provided that the residue of her estate be
divided equally between Harold and Sally.
The 1987 codicil provided that the residue of the estate be divided
between Harold and his wife Jeanine.
Sally was disinherited from receiving anything from her mother’s
estate. Sally objected to the admission
of the documents into probate on the ground that they were the product of undue
influence by Harold.
All
three documents were drafted by Attorney Richard Nuss. He testified that in 1982 Lydia presented
him with handwritten notes about the provisions to be put in her will. Although unknown to Nuss at that time, the
notes had been prepared by Harold. In
1987, Lydia contacted Nuss for changes to her will. She brought to Nuss a list of provisions written in longhand
entitled “Codicil to my will.” Sally
suggested that the document contained words and grammar that Lydia would not
use.
Sally
lived in Delaware. Lydia and Harold
resided in Fond du Lac. Lydia lived
independently until she entered a nursing home in the summer of 1994. Prior to 1982, Lydia would travel to
Delaware and stay with Sally and her husband Walter and their two
children. Between 1982 and 1987, Sally and
her family would visit Lydia in Wisconsin once a year.
Sally
testified that after 1982, Harold and his family had less and less contact with
her family. In August 1987, an incident
occurred which resulted in a total discontinuance of contact between Harold,
Sally and their families. There was an
angry family exchange with regard to Susan Gakenheimer, Sally’s twenty-year-old
daughter, having taken Brad Hanisch, Harold’s seventeen-year-old mentally
handicapped son, to the local Holiday Inn to pick up Sally from a high school
reunion party. Sally sought to illicit
testimony from Susan and Walter Gakenheimer about conversations with Lydia
regarding the hotel incident and other matters. Objections were sustained under the dead man’s statute.
Sally
contends that because her husband Walter and her children only had a contingent
and remote interest in Lydia’s estate, they were not incompetent under the dead
man’s statute[1]
to give testimony about conversations with Lydia. See Estate
of Christen, 72 Wis.2d 8, 11-13, 239 N.W.2d 528, 530-31 (1976); Estate
of Nale, 61 Wis.2d 654, 659-60, 213 N.W.2d 552, 555 (1974). No offer of proof was made as to the
testimony these witnesses would have given as to conversations with Lydia
regarding possible undue influence.
Section 901.03(1)(b), Stats.,
provides that error may not be predicated upon a ruling which excludes evidence
unless the substance of the excluded evidence was made known to the judge by an
offer of proof. Contrary to Sally’s
characterization of the testimony, it is not self-evident from the context of
the questions the substance of the evidence that was excluded. We need not consider the court’s ruling
under the dead man’s statute in the absence of an offer of proof.
Two
tests exist for determining whether a testamentary document is the result of
undue influence. The two-element test
requires a finding of a confidential or fiduciary relationship and suspicious
circumstances surrounding or relating to the preparation or signing of the
probate document. See Estate
of Vorel, 105 Wis.2d 112, 117, 312 N.W.2d 850, 853 (Ct. App.
1981). The four-element test requires
the court to consider issues of: (1) susceptibility, (2) opportunity,
(3) disposition, and (4) coveted result. See Estate of Kamesar, 81 Wis.2d 151, 158,
259 N.W.2d 733, 737 (1977).
Sally
argues that the trial court failed to apply these elements. We disagree because the trial court’s
opinion discusses the evidence bearing on each element. Although the court may not have made a
specific negative finding as to each element, that the factors were not
satisfied is implicit in its decision. See
Estate of Villwock, 142 Wis.2d 144, 149, 418 N.W.2d 1, 3 (Ct.
App. 1987) (when a trial court fails to make express findings of fact, we may
assume that a missing finding was determined in favor of the judgment).
Sally’s
contention that the court failed to consider the factors is simply a
disagreement with the findings made by the trial court. We consider whether the trial court’s
finding that no undue influence occurred is against the great weight and clear
preponderance of the evidence. See In
re Hamm Estate, 67 Wis.2d 279, 282, 227 N.W.2d 34, 35 (1975) (undue
influence must be proved by clear, satisfactory and convincing evidence and the
trial court’s finding will not be upset on appeal unless it is against the
great weight and clear preponderance of the evidence).
Here
the evidence established that Lydia and Harold enjoyed a good mother-son
relationship, with Harold performing a number of functions for Lydia as she
progressed in age. Harold and his wife
drove Lydia around, completed her income tax returns, saw to her daily needs,
held her power of attorney, and monitored her health and care at the nursing
home. This was within the normal bounds
of an adult child caring for an elderly parent. There was no special undertaking as a fiduciary relationship
entails.
The
evidence also established that Lydia drove herself to Nuss’s office to procure
the changes to her will. She was
unaccompanied during those meetings with Nuss and never gave Nuss any
indication that the changes were influenced by Harold. Indeed, the 1987 codicil itself gave an
explanation for Sally’s disinheritance.[2] Lydia was a strong-minded woman. She was eighty-six when the 1987 codicil was
executed. She did not give Harold a
power of attorney until 1989 and did not find it necessary to obtain help with
her checkbook until 1991 or 1992. The
susceptibility to influence was not established by clear and convincing
evidence.
What
is telling in the review of the evidence is the trial court’s finding that the
testimony of Sally’s witnesses was “tailored” to the factors suggesting undue
influence. This was a credibility determination by the trial court which we
cannot disturb on appeal. See Plesko
v. Figgie Int'l, 190 Wis.2d 764, 775-76, 528 N.W.2d 446, 450 (Ct. App.
1994). The trial court simply did not
believe Sally’s suggestion that Harold used the Holiday Inn incident to
influence Lydia’s testamentary disposition.
We are not persuaded that the trial court’s finding is against the great
weight and clear preponderance of the evidence.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] Section 885.16, Stats., provides in part:
No party or person in the party’s or
person’s own behalf or interest, and no person from, through or under whom a party
derives the party's interest or title, shall be examined as a witness in
respect to any transaction or communication by the party or person personally
with a deceased or insane person in any civil action or proceeding, in which
the opposite party derives his or her title or sustains his or her liability to
the cause of action from, through or under such deceased or insane person ¼ unless such opposite party shall first, in his or her own
behalf, introduce testimony of himself or herself or some other person
concerning such transaction or communication, and then only in respect to such
transaction or communication of which testimony is so given or in respect to
matters to which such testimony relates.