Troubling Issues in Execution of Will Not Sufficient for Jury or Court

In order for a will to be executed, there are several actions that must be taken. The testator must put the purported will in writing and state that the document is her declared will. The document must be signed by the testator, which must be witnessed by two persons who have no claim to anything in the will, are of legal age and mental capacity, and are witnessing the signing of will at the request of the testator. The witnesses must also sign the will in front of each other and in the presence of the testator. If these actions are taken, then the will is legally executed and can be deemed legally valid.

In a recent case involving a family dispute regarding the circumstances of a mother’s changed will, two children argued the circumstances surrounding the execution of her updated will were highly unusual and did not comply with Iowa law. They argued because of this, the changed will should not be admitted to probate. 

The testator and her husband had four children. After the husband retired, a family partnership was formed, but the three brothers could not get along, so the partnership was dissolved. Two brothers continued farming by renting land from their parents. The other two siblings, a brother and sister, objected to the rent paid to the parents as too low. As a result, the parents signed a letter stating they were satisfied with the rent received by the two brothers. 

During this time, the parents each executed wills dividing the property up in equal shares to the children upon their deaths. The bank was the executor for both wills. Shortly thereafter, the parents’ health deteriorated and they required 24-hour nursing care. The husband died and the wife remained. The two farming brothers became their mother’s voluntary conservator. The mother’s attorney represented the daughter in her petition for voluntary guardianship of her mother. A judicial determination was made a few years later that the guardianship should continue because the mother lacked decision-making capacity. 

Despite this legal determination, the mother decided to revise her will. Her attorney and two witnesses came to the house. The attorney then decided it would be better for the daughter to explain the will to her mother, so the attorney and witnesses left the room to allow this to transpire. Twenty minutes later, the daughter retrieved the attorney to execute the will. The new will named three children as executors with majority vote. The executors included the daughter and her brother who objected to the rent paid by the other brothers and one of the farming brothers. The will gave the executors the power to determine the debts, gifts, and forgiveness of those by each child to determine how much to deduct from each child’s share of the estate. It also expressly excluded $104,000 given to the daughter from this deduction. 

The revised will resulted in the possibility that the majority vote of the executors could decide that the farming brothers did not pay enough rent and their portions of the estate could be reduced for rent of the farmland from 1981 through 2002 despite the letter signed by the parents that they were satisfied with the rent paid during that time. 

After the mother died, a petition was filed to probate her will. The farming brothers petitioned to set aside the will for lack of due execution, lack of testamentary capacity, and undue influence. A jury trial was held. The mother’s attorney represented the daughter at trial. The farming brothers made motions for a directed verdict, which was taken under advisement by the court, and the matter was sent to the jury. The jury determined the will was duly executed, the testator had capacity, and that there was no undue influence. The farming brothers filed a motion for judgment notwithstanding the verdict. The court agreed the circumstances surrounding the execution of the will were unusual, but that there was sufficient evidence to generate a jury question and substantial evidence to support the jury’s verdict and denied their motion. The brothers appealed.

On appeal, the appellate court agreed that the circumstances were unusual but that there was substantial evidence to submit the issue to the jury, so a directed verdict was not required. The court also reviewed the record in the light most favorable to the other side and also found there was evidence to uphold the jury’s verdict. The court did express its concern that the mother had been judicially declared lacking in capacity for making decisions a year prior to the execution of the new will. The court also found it “extremely inappropriate” that the mother’s attorney left the mother isolated with her daughter for twenty minutes before the execution of the will. But, the court declined to overturn the jury’s verdict after a “carefully presented” and “lengthy trial” in which the jury was properly instructed prior to rendering its decision.

This case demonstrates the absolute deference the court gives to jury verdicts. This case included a judicial determination that the testator lacked capacity to make decisions. In addition, there was evidence of an attorney’s likely ethical violation of a conflict of interest over whom he was actually representing combined with possible legal malpractice in the execution of the disputed will. Despite these “troubling” issues, the court upheld the jury’s verdict. In re Estate of Buresh, No. 2-265/11-1110, 2012 Iowa App. LEXIS 477 (Iowa Ct. App. Jun. 27, 2012).