Probate & Trust Law

Editors:
Dawn T.Christoffersen, Esquire

Bhavik R. Patel, Esquire

Randy Dale Vanniewaal appeals a judgment of undue influence to derive a benefit from Charles Michael Hock.  In the Estate of Charles Michael Hock, Deceased, Susan Hanson v. Vanniewaal, No. 30100 (Mo. App. S.D., September 20, 2010), Lynch, P.J.
Randy Dale Vanniewaal, as personal representative of the estate, and one of four equal beneficiaries of Charles Michael Hock's will filed for reimbursement by the estate for funeral expenses paid by him.  Susan Hanson, another of the four equal beneficiaries of Charles' will, then brought this action of discovery of assets against Randy alleging certain assets were unlawfully obtained by Randy "by fraud and/or undue influence" including two bank accounts.  The trial court found Randy's exercise of undue influence and ordered him to pay back into the estate some of the money he received from Charles.  They also held that the funeral expenses were paid by one of the bank accounts that belonged to the estate.  Randy now appeals these findings.
Held: Affirmed. Undue influence is 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."  Hamilton v. Steininger, 168 S.W.2d 59, 67 (Mo., 1943).  This is determined in a case by case analysis, and it is almost impossible to set a rigid formula.  In the Estate of Gross, 840 S.W.2d 253, 257 (Mo. App., 1992).  However, "[a] presumption of undue influence arises in discovery of assets cases when 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." Id.  The burden is then shifted to the fiduciary to rebut.  Id.  Appellant solely argues the third point that there was not substantial evidence to show undue influence. A not-supported-by-substantial-evidence challenge requires:
(1) identification of a challenged factual proposition, the existence of which is necessary to sustain the judgment;
(2) identification of all of the favorable evidence in the record supporting the existence of that proposition; and,
(3) demonstration of why that favorable evidence, when considered along with the reasonable inferences drawn from that evidence, does not have probative force such that the trier of fact could not reasonably decide the existence of the proposition.
Houston v. Crider, SD29879, 2010 WL 2831094, at 11 (Mo. App. S.D., July 20, 2010).  Appellant argues evidence favorable to his position, not that the evidence the court relied on does not have probative force.  As he fails the last two steps, the court must deny his position and affirm the trial court.  Nevertheless, the appellate court ruled that the trial court's finding of undue influence is supported by substantial evidence.  Finally, Randy's second claim on appeal of reimbursement for funeral expenses is moot as the account is held to belong to the estate.

Karen Lindquist appeals a judgment which ruled that interest accrues only on unpaid portions of a damages judgment.  Karen Lindquist, Individually and as Personal Representative of the Estate of Michael Lindquist, v. Mid-America Orthopaedic Surgery, Inc., Nos. 93538 and 94209 (Mo. App. E.D., September 14, 2010), Sullivan, P.J.
Mr. and Mrs. Lindquist filed suit for medical malpractice against Respondents Mid-America Orthopaedic Surgery, Inc. and others.  On May 13, 2003 the jury returned a verdict for the Lindquists with damages to both Mr. and Mrs. Lindquist, apportioning 40% fault to Respondents.  The trial court entered judgment on the verdict on June 18, 2003, but later vacated that and awarded judgment notwithstanding the verdict to another defendant and granted a new trial for Respondents.  The appellate court then reinstated the jury award and remanded for the issue of economic damages.  On February 21, 2006, the trial court entered judgment on past economic damages and awarded a statutory 9% interest retroactive to the first judgment.  Respondents appealed the retroactive application of interest and Appellant appealed to hold Respondent liable for another defendant's fault.  The Supreme Court reversed on both issues and remanded for judgment assessing 45% fault of the jury's verdict against Respondent, plus interest from February 21, 2006.  Respondent appealed and the appellate court affirmed the post-judgment interest from February 21, 2006, but remanded to apply partial payments by Respondent and to apportion them to the Appellants.  On July 24, 2009, the trial court entered judgment and then amended that judgment on November 23, 2009 applying the partial payment and apportioning it and ordering the statutory 9% interest to run only on the unpaid balances.  Appellant now appeals claiming that interest should run on the entire award until paid in full, not just the unpaid balance. 
Held: Affirmed.  Appellant's first point is that the trial court erred in not ordering post-judgment interest to continue to run on the amount of the entire judgment, paid and unpaid.  "Interest accrues on unpaid monies.  Once monies are paid, there is no debt on which interest can accrue."  Burns v. Smith, 303 S.W.3d 505, 515 (Mo. banc 2010).  Thus, interest only accrues on the unpaid portions.  Appellant's second and third points are based on the July 24, 2009 judgment.  "[I]f the trial court amends its judgment.the amended judgment becomes the new judgment for all purposes."  Koppenaal v. Director of Revenue, 987 S.W.2d 446, 449 (Mo. App. W.D., 1999).  As the November 23, 2009 amended judgment replaced the July 24, 2009 judgment, Appellants points are dismissed as moot because a decision on them is unnecessary.

David Peters appeals a summary judgment denying his requests for accounting of a trust.  Peters v. Peters, No. 94219 (Mo. App. E.D., August 31, 2010), Baker, J.
David Peters sought an accounting and other documentation from a trust formed in 1991 by Gilbert Peters, Sr. and Marcella Peters as joint tenants with the survivor to continue as sole trustee.  David was a beneficiary of the trust.  Marcella died in 1995.  Gilbert Sr. took trust property out and executed a beneficiary deed with Gilbert Peters, Jr. as beneficiary.  Gilbert Sr. was found incapacitated and probate named Gilbert Jr. as conservator.  David claims he was a qualified beneficiary entitled to an accounting and the trust became irrevocable upon Marcella's death.  Gilbert Jr. filed a motion for summary judgment and the trial court granted it.  David appeals this summary judgment.
Held: Affirmed in part and reversed and remanded in part.  Appellant David's first point is that as a beneficiary he was entitled to accounting.  "[F]uture beneficiaries of a trust have standing to bring an accounting action against a trustee." Siefert v. Leonhardt, 975 S.W.2d 489, 492 (Mo. App. E.D., 1998).  Section 456.6-603 provides that while a settlor has capacity, the rights of beneficiaries and duties of the trustee are subject to and owed exclusively to the settler, but when the settlor does not have capacity, this section is not applicable.  Here, Gilbert Sr. was incapacitated, so as trustee, Gilbert Jr.'s duties were owed also to the beneficiaries, thus he had the right to an accounting.  Appellant David also argued that the trust became irrevocable upon Marcella's death and thus Gilbert Sr. could not take trust property out.  However, the trust terms were clear that it remained revocable even after Marcella's death.

Deanna Kraemer appeals a judgment stating failure to join necessary parties to a will contest.  Kraemer v. Maniscalco, No. 94239 (Mo. App. E.D., August 31, 2010), Dowd, J.
Deanna Jan Kraemer filed an application to probate a will of decedent purportedly written in 2003, this was rejected by the circuit court.  Josephine Maniscalco also filed an application to probate a different will of decedent purportedly written in 2004, which was admitted.  Kraemer then filed a petition to contest the 2004 will and have the 2003 will admitted naming several defendants.  Maniscalco filed a motion to dismiss Kraemer's petition due to failure to join all necessary parties as it did not include decedent's great-nieces which were heirs-at-law.  The circuit court granted this motion. Kraemer now appeals the dismissal. 
Held: Reversed and remanded.  Section 473.083.3 states that "[i]t is not necessary to join as parties in a will contest persons whose interests will not be affected adversely by the result."  The Supreme Court has interpreted this as "whether an interested person stands to lose some benefit if the will contest ultimately succeeds, not whether there is a possible loss of a benefit or expectancy if the contest fails."  Zimmerman v. Preuss, 725 S.W.2d 876, 877 (Mo. banc, 1987).  However, legatees of a contested will are necessary parties to a will contest.  Jones v. Jones, 770 S.W.2d 246, 248 (Mo. App. E.D., 1988).  As the omitted parties were not mentioned in either will they are not legatees and because they would not be adversely affected by the result of the will contest, they are not necessary parties. 

Suzanne Murray appeals certain rulings declaring her insane.  In the Matter of Murray v. Hunter, No. 30320 (Mo. App. S.D., August 18, 2010), Burrell, J.
St. John's Regional Medical Center filed petition seeking guardianship and conservatorship to protect Appellant Suzanne Murray, who allegedly suffered from Schizophrenia.  Appellant failed to appear at her hearing, though her appointed counsel did.  The probate division entered judgment granting "Letters of Guardianship of Incapacitated Person and Conservatorship of Disabled Person."  Appellant appealed, but failed to file a brief and the appeal was dismissed.  She then filed a motion for rehearing, reconsideration, or transfer to the Missouri Supreme Court, all of which were denied.  Almost four years later, the probate division entered judgment finding the Appellant no longer incapacitated.  Appellant now appeals certain rulings made during the initial judgment where Appellant was found incapacitated.
Held: Dismissed as moot.  "A cause of action is moot when the question presented for decision seeks a judgment upon some matter which if the judgment was rendered, would not have any practical effect upon any then existing controversy."  Sherry v. Farr, 996 S.W.2d 541, 543 (Mo. App., 1999).  As the guardianship  Appellant seeks to dismiss no longer exists, the case is dismissed as moot. 

Sherry L. Crider and John L. Crider appeal the judgment setting aside a deed conveying property to Sherry L. Crider due to undue influence.  Houston v. Crider, No. 29879 (Mo. App. S.D., July 20, 2010), Lynch, P.J.
Respondents filed suit against Appellants Sherry and John Crider to set aside a warranty deed to Sherry claiming undue influence over their relative grantor.  The trial court entered judgment after a bench trial setting aside the deed.  Appellants now appeal claiming no undue influence
Held: Affirmed. Appellants first argue that the court misapplied Section 461.054 because it discusses beneficiary deeds, not general warranty deeds, even though the trial court did not cite this statute, but relied on cases which applied the statute.  However, the three prongs of undue influence used in those cases are substantially identical to the three prongs of the undueinfluence presumption in an equitable action to set aside a deed and therefore are allowed by the court.  Duval v. Brenizer, 818 S.W.2d 332, 335 (Mo. App.W.D., 1991).  Appellants next argue the trial court's ruling is not supported by substantial evidence and against the weight of the evidence, each with separate requirements to win on appeal.  Appellant's failure to identify evidence the trial court used to find undue influence undermined their ability to show how such evidence would not have had probative effect or probative value such that the trier of fact could not have found undue influence.  For the court to reverse, it would have to act as an advocate in finding the evidence used and disproving it, which is not allowed.  Boyd v. Boyd, 134 S.W.3d 820 (Mo. App., 2004).  Thus, the trial court is affirmed.

Missouri Department of Mental Health appeals, claiming no notice of the decedent's death, the circuit court's denial of their claim to recover unpaid costs due to an expired statute of limitations.  In re: Kraus v. Missouri Department of Mental Health, No. 71327 (Mo. App. W.D., July 6, 2010), Ahuja, J.
The Missouri Department of Mental Health filed a claim against the estate of George Leonard Kraus to recover unpaid costs of unspecified services provided to Mr. Kraus.  Ms. Denton, as personal representative of the estate, filed an objection to the claim.  The circuit court denied the claim on the basis of an expired applicable statute of limitations, expiring on July 7, 2009.  The Department filed a Motion to Set Aside Denial and after Ms. Denton opposed it, the circuit court denied it on July 21, 2009.  The Department filed for interlocutory appeal on July 31, 2009 under RSMo Section172.160.1.   
Held:  Dismissed the appeal for failure to timely file such appeal under Rule 81.04. Missouri Supreme Court Rule 81.04(a) provides that a notice of appeal must be filed no later than ten days after the judgment or the order becomes final.  Normally, Rule 81.05(a)(1) and (2) provide that judgments do not become final until thirty days after their entry or if motions are filed the earlier of the disposition of the last motion or ninety days after the last motion is filed.  However, court in Estate of  Standley v. Standley, 204 S.W.3d 745, 749 n.9 (Mo. App. S.D., 2006) (en banc) held that Rule 81.05 does not apply to interlocutory probate orders appealable under Section 472.160.1(1)-(13) (of which this was).  Thus, the order became final on July 7, 2009, the date of the first denial.  The Department did not file the appeal until July 31, 2009, more than 10 days later, therefore the appeal is dismissed for lack of timely filing. The court notes that though the Department lost its interlocutory appeal, they are not without recourse as they may later appeal "following a final settlement or other judicial actions fully and finally disposing of the proceeding."  In re the Estate of Burg, 68 S.W.3d 543, 545 (Mo. App., 2001).

Jane Moerschel, personal representative of the Estate of Rollin J. Moerschel appeals a judgment against her allowing the parties to go against the partnership agreement between her husband and his partners regarding the value of his partnership interest and the timing of payments and accrual of interest.  Weber v. Moerschel, Personal Representative of the Estate of Rollin J. Moerschel, Deceased, No. 93652 (Mo. App. E.D., June 15, 2010), Sullivan, P.J.
Jane Moerschel filed a motion and petition seeking a declaration of rights, interests and entitlements between the deceased Rollin J. Moerschel and his partners, Respondents.  Respondents then filed their claim against Jane for breach of contract.  After a hearing, the trial court entered judgment declaring the estate's portion to be the appraised value of the assets reduced by the cost of updates and repairs Respondents wanted to make to the property.  Additionally, the money was to be paid out with interest from the date of judgment, not the date of death.  Jane appeals.
Held:  Affirmed in part and reversed in part.  Appellant appeals on two points.  The first is that the partnership agreement states that the value be determined solely by the appraised value at death with no reductions for updates and repairs.  The intention of the parties should control contract interpretation.  G.H.H. Investments, L.L.C. v. Chesterfield Management Associates, L.P., 262 S.W.3d 687, 691 (Mo. App., 2008).  The court now agrees with Appellant that the agreement was clear that value of the assets should be determined by an appraiser with no language allowing for a reduction.  Thus, the trial court was reversed and a reduction for updates and repairs was not allowed.  Appellant's second point is that the partnership agreement states the payments and interest schedule should be as of the date of the deceased's death and not the date of the judgment.  "Generally, prejudgment interest on unliquidated claims is not recoverable, for the reason that where the person liable does not know the amount he owes, he should not be considered in default because of failure to pay."  Watters v. Travel Guard Intern., 136 S.W.3d 100, 111 (Mo. App. E.D., 2004).  Here, the court affirms the trial court on accruing interest from the date of judgment, not the date of death, as the value of the debt was not ascertainable until such date. 

Gwen Marie Spicer appeals the trial court's setting aside of its prior grant of summary judgment which gave her quiet title to property previously titled to her deceased husband and her.  Spicer v. Donald N. Spicer Revocable Living Trust, et al., Nos. 93371 and 93529 (Mo. App. E.D., June 15, 2010), Gaertner, J.
Gwen Marie Spicer filed a petition for quiet title against the Donald N. Spicer Revocable Living Trust to gain complete ownership of a home purchased by her deceased husband and her.  The trial court entered summary judgment in her favor on January 22, 2007.  On February 7, 2008, the trustee moved to set aside the judgment believing himself to be a necessary party to be joined.  On February 25, the court granted trustee's motion to set aside the summary judgment.  Spicer appeals.
Held: Trial court ordered to reinstate the January 22, 2008 summary judgment because it lacked subject matter jurisdiction to grant trustee's motion after February 22, 2008.  Rule 75.01 of Mo. R. Civ. P. (2010) gives a trial court authority to vacate, reopen, correct, amend, or modify its judgment for thirty days following its entry.  Additionally, Rule 81.05(a)(1) states that at judgment becomes final thirty days after entry if no timely, authorized after-trial motions are filed.  Trustee's filing of the motion to set aside judgment is not an authorized after-trial motion because he was a non-party.  Wolfner v. Dalton, 955 S.W.2d 928, 929-31 (Mo. banc, 1997) (non-parties who do not apply for intervention until after judgment became final could not seek to set aside judgment).  Trustee, a non-party to the suit, did not move to intervene and therefore the trial court lost jurisdiction 30 days after the judgment, or February 22, 2008, and therefore it could not set the previous judgment aside as it did on February 25, 2008. 

Madolyn Hahn appeals from a judgment against the Estate of Jerry Hahn denying attempts to set aside a deed and recover proceeds from certain bank accounts Respondents allegedly converted.  Hahn, Personal Representative of the Estate of Jerry L. Hahn, Deceased, v. Tanksley, No. 29751 (Mo. App. S.D., May 27, 2010), Bates, P.J.
Jerry Hahn filed a suit against his daughters and their husbands to set aside a deed and recover proceeds from certain bank accounts that the daughters allegedly converted.  Jerry died shortly after the case was tried and Madolyn Hahn was appointed as the personal representative of his estate.  The circuit court ruled against Hahn.  She appeals. 
Held: Affirmed.  Appellant contends two points on appeal.  In Point I, Appellant contends the evidence shows Jerry lacked mental capacity, thus the deed should be set aside.  The party seeking to set aside the deed for lack of capacity "bears the burden of establishing by clear, cogent, and convincing evidence the basis for exercising such power."  Lee v. Hiler, 141 S.W.3d 517, 523 (Mo. App., 2004); Blackbrun v. Spence, 384 S.W.2d 535, 539 (Mo. 1964).  Appellant failed to meet her burden in establishing that decedent lacked sufficient mental capacity and the court affirmed that the deed not be set aside.  Point II is that Jerry did not intend to give proceeds to his daughters thus the daughters converted two accounts.  "Conversion is the unauthorized assumption and exercise of right of ownership over personal property of another to the exclusion of the owner's rights."  Reynolds County Memorial Hosp. v. Sun Bank of America, 974 S.W.2d 663, 665 (Mo. App., 1998).  As for the first account, the daughters' names were always on the account and when decedent removed his, they could not convert what was rightfully theirs.  As for the second account, the elements of a gift were presented by clear and convincing evidence.  Thus, the daughters did not convert what was gifted to them. 

The Missouri Bar Courts Bulletin, 11-Feb