Wesley Horstman v. Audra B. Dawson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 19, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP924 Cir. Ct. No. 2016PR120

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN RE THE ESTATE OF CAROL A. HORSTMAN:

WESLEY HORSTMAN AND MARINDA HORSTMAN,

APPELLANTS,

V.

AUDRA B. DAWSON,

RESPONDENT.

APPEAL from a judgment of the circuit court for Grant County:
ROBERT P. VAN DE HEY, Judge. Affirmed.

Before Fitzpatrick, P.J., Blanchard and Kloppenburg, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP924

¶1 PER CURIAM. On November 3, 2016, Carol Horstman executed a
will leaving all of her property to her son, Wesley Horstman, and his wife,
Marinda Horstman.1 After Carol died, her daughter, Audra Dawson, challenged
the will on the ground that Wesley and Marinda had exercised undue influence
over Carol when she executed the will. Following a court trial, the circuit court
concluded that Wesley and Marinda procured the will by undue influence. Wesley
and Marinda appeal, arguing that: (1) the court’s findings as to certain of the
elements that must be proven to establish undue influence are clearly erroneous;2
and (2) the court erroneously relied on extrinsic evidence (that is, outside the trial
testimony and trial exhibits) in determining that the will was the product of undue
influence. We conclude that Wesley and Marinda fail to show either that the
court’s findings as to the undue influence elements are clearly erroneous or that
the court relied on extrinsic evidence. Accordingly, we affirm.

BACKGROUND

¶2 The following facts are not in dispute. Carol was admitted to the
hospital for treatment of malignant melanoma on October 21, 2016, and remained
in the hospital until she died on November 8, 2016. She executed her first and
only will while in the hospital on November 3, 2016. Carol was survived by her
two children, Wesley and Audra, and her brother, Ted Dawson. The will left

1
Because multiple parties in the case share last names, after initial introduction we will
refer to the parties and their family members by their first names.
2
Wesley and Marinda specifically argue that the circuit court’s findings as to the undue
influence elements “are contrary to the great weight and clear preponderance of the evidence.”
We have explained that the “clearly erroneous” standard is substantively the same as the “great
weight and clear preponderance of the evidence” test stated in older cases. Noll v. Dimiceli’s,
Inc., 115 Wis. 2d 641, 643, 340 N.W.2d 575 (Ct. App. 1983).

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Carol’s entire estate, including the 224-acre family farm, to Wesley and his wife,
Marinda.

¶3 Audra filed a petition for the administration of Carol’s estate and,
after Wesley and Marinda filed the will, Audra objected to admission of the will
for probate on the ground of undue influence. Following a court trial, the circuit
court issued a detailed decision and order explaining its determination that the will
“was the product of undue influence applied by Wesley and Marinda Horstman”
and, as a result, the will was not accepted for probate by the circuit court.

¶4 Wesley and Marinda appeal.

¶5 We present additional facts as pertinent to Wesley and Marinda’s
arguments below.

DISCUSSION

¶6 As stated, Wesley and Marinda argue that: (1) the circuit court erred
in finding that certain elements of undue influence are met; and (2) the court
erroneously relied on extrinsic evidence in finding that the will was the product of
undue influence. We address each argument in turn.

I. Undue Influence

¶7 We first state the standard of review. We next state the applicable
legal principles as to undue influence and identify the three undue influence
elements that Wesley and Marinda contend were affected by the circuit court’s
erroneous fact-finding. Finally, we summarize the court’s findings for each
element in turn and explain why we reject Wesley and Marinda’s challenges to
those findings.

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A. Standard of Review

¶8 We accept the circuit court’s findings of fact regarding undue
influence unless they are clearly erroneous. See WIS. STAT. § 805.17(2) (2017-18)
(addressing fact-finding in a trial to the court); Odegard v. Birkeland, 85 Wis. 2d
126, 134, 270 N.W.2d 386 (1978) (addressing fact-finding regarding undue
influence); Miller v. Vorel, 105 Wis. 2d 112, 116, 312 N.W.2d 850 (Ct. App.
1981) (same).3 When the circuit court “acts as the finder of fact, and where there
is conflicting testimony, the [circuit court] is the ultimate arbiter of the credibility
of the witnesses. When more than one reasonable inference can be drawn from
the credible evidence, the reviewing court must accept the inference drawn by the
trier of fact.” Noll v. Dimiceli’s, Inc., 115 Wis. 2d 641, 643-44, 340 N.W.2d 575
(Ct. App.1983) (quoted source omitted); see also Miller, 105 Wis. 2d at 116.

¶9 We search the record for facts to support the findings the circuit
court did make, not for evidence to support the findings the court did not make.
Odegard, 85 Wis. 2d at 134. It is for the circuit court, not this court, to resolve
conflicts in the testimony. See Fuller v. Riedel, 159 Wis. 2d 323, 332, 464
N.W.2d 97 (Ct. App. 1990).

B. Applicable Legal Principles

¶10 Undue influence must be proved by clear, satisfactory, and
convincing evidence. Hamm v. Jenkins, 67 Wis. 2d 279, 282, 227 N.W.2d 34
(1975). “There are two avenues by which an objector to a will may challenge its

3
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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admission on the theory of undue influence.” Hoeft v. Friedli, 164 Wis. 2d 178,
184, 473 N.W.2d 604 (Ct. App. 1991).

¶11 One avenue is known as the “four-element test” and requires proof
of: (1) susceptibility to undue influence; (2) opportunity to influence;
(3) disposition to influence; and (4) coveted result. Id. at 185; Miller, 105 Wis. 2d
at 116. “When the objector [to the will] has established three of the four elements
by clear and convincing evidence, only slight evidence of the fourth is required.”
Hoeft, 164 Wis. 2d at 185.

¶12 The other avenue is known as the “two-element test” and requires
proof of: (1) “a confidential or a fiduciary relationship between the testator and
the favored beneficiary”; and (2) the existence of “suspicious circumstances
surrounding the making of the will.” Id. at 184.

¶13 “Only one test need be met for the objector [to the will] to prevail.”
Id. at 185. The circuit court in this case determined that Audra proved undue
influence under both tests.

C. Analysis

1. Four-element Test

¶14 Wesley and Marinda concede that the circuit court did not err in
finding proof of two of the four elements in the four-element test: opportunity to
influence and coveted result. They challenge only the court’s findings as to the
remaining two elements: disposition to unduly influence and susceptibility to
undue influence. We now address each element in turn.

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a. Disposition to Unduly Influence

¶15 Disposition to unduly influence means something more than a mere
desire to obtain a share of an estate; it implies a willingness to do something
wrong or unfair, with grasping and overreaching characteristics. Kehrberg v.
Pribnow, 46 Wis. 2d 205, 214, 174 N.W.2d 256 (1970). Disposition to unduly
influence has also been described as a willingness to bring about a “result
favorable to [oneself] and unjust to another.” Schaefer v. Ziebell, 207 Wis. 404,
415, 241 N.W. 382 (1932).

¶16 Here, the circuit court found that Wesley and Marinda’s “disposition
to influence was hardly concealed.” The court found that Wesley and Marinda
“were very willing to trash Audra in the most savage way and at every
opportunity.” The court found that Wesley and Marinda wanted to keep the farm
because Wesley had invested effort in it and they hoped that their sons would one
day farm it, and that Wesley and Marinda “despised” Audra and believed that
Audra deserved nothing because she had contributed nothing to the farm. The
court contrasted these facts with the testimony of Carol’s brother and sister-in-law,
Ted and Shirlaine Dawson, which the court credited to a great degree because of
their lack of interest in Carol’s estate. Ted and Shirlaine testified that Carol said
that she wanted her children to share her estate equally, and that she knew they
would without Carol having to make a will. The court also found significant
Carol’s message to Audra’s phone shortly before Carol’s hospitalization which, in
the court’s words, “ended with her tenderly saying ‘I love you.’”

¶17 The circuit court also found that, in order to create Carol’s will,
which named Wesley and Marinda as sole beneficiaries, Wesley and Marinda
procured the services of a law firm and participated in the discussion surrounding

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the drafting of the will. In addition, the court found not credible and inconsistent
much of the testimony of Wesley and Marinda and their family. For example, the
court found not credible and inconsistent Wesley’s and Marinda’s own testimony
that they were not aware of the terms of the will until they filed it in court, as well
as the testimony of Wesley, Marinda, their children, and Marinda’s sister, that
Carol had long wanted to disinherit Audra. The court credited evidence that
Wesley and Marinda arranged for a legal assistant to help Carol prepare a will at
the hospital and participated in the discussion surrounding the drafting of the will,
which named Wesley and Marinda as sole beneficiaries.

¶18 We conclude that the record sufficiently supports the circuit court’s
implicit finding that Wesley and Marinda were willing to bring about a result
favorable to them and unjust to Audra. In the years leading up to Carol’s death,
Wesley showed his desire that he, not Audra, get the farm, and his willingness to
act on that desire, when, as examples, he instructed Carol’s attorney to put the
farm in his name after Carol’s stroke, and he threatened to kill Audra’s daughter,
Katy Tomten, when he heard that Katy had offered to buy the farm from Carol.
When Carol appeared to be on the verge of dying without a will, Wesley
continued expressing and acting on his interest in securing the farm for himself,
even though his mother had always indicated that he would share it with Audra.
Also supporting the circuit court’s findings are numerous instances of Wesley and
Marinda expressing animus towards Audra. In light of the evidence the court
credited, its finding that Wesley and Marinda had a disposition to unduly influence
Carol to disinherit Audra is not clearly erroneous.

¶19 Wesley and Marinda’s arguments to the contrary lack merit. Wesley
and Marinda argue that Audra did not present clear and convincing evidence of
their disposition to unduly influence. But the standard of review on appeal is

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whether the circuit court’s findings as to their disposition to unduly influence are
clearly erroneous. Hamm, 67 Wis. 2d at 282; see also Miller, 105 Wis. 2d at 116.
Wesley and Marinda do not show that the circuit court erred. Their arguments—
that sibling rivalry does not alone indicate an inclination to take advantage of a
parent, and that Wesley’s desire for the farm based on his attachment to and work
on it does not make that “natural” desire wrong—disregard the totality of the
evidence before the court as well as the court’s role as the ultimate arbiter of the
weight and credibility of that evidence. Wesley and Marinda would have this
court view, credit, and weigh the evidence differently from the circuit court. But,
that is not our role. On appeal we search the record for facts to support the
findings the circuit court did make, not for evidence to support the findings the
court did not make. Odegard, 85 Wis. 2d at 134.

¶20 Wesley and Marinda direct this court’s attention to evidence that
they “took care of Carol during her greatest hour of need,” and to case law in
which no disposition to unduly influence was found where a beneficiary had
provided aid and comfort to a failing testator, or, more generally, when a parent
disinherited a child. However, those cases are easily distinguished on their facts
and do not assist Wesley and Marinda.4

4
In Brehmer v. Dehmien, the testator came into a law office unassisted and articulated
to an attorney that he desired to make no provision for his son in his will because of his son’s
wealth, lack of children, and “happenings of the past”; the court found “nothing” in the record
supporting a disposition to influence. Brehmer v. Dehmien, 41 Wis. 2d 349, 354-6, 164 N.W.2d
318 (1969). In Lee v. Kamesar, the court found no disposition to influence when one of the
testator’s children—who had not received substantial gifts from her parents while they were
alive—was present during the creation of a will and was given a portion of the estate when the
testator’s other children did not receive a portion of the estate, and where the attorney preparing
the will believed the testator to be competent and not under any undue influence. Lee v.
Kamesar, 81 Wis. 2d 151, 259 N.W.2d 733 (1977). In Sensenbrenner v. Sensenbrenner, the
court noted that “[i]nfluence gained by kindness and affection will not be regarded as ‘undue’ if
no imposition or fraud be practiced” and noted that the beneficiary was the true “natural object[]
(continued)

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¶21 Finally, Wesley and Marinda argue that Audra fails in her
respondent’s brief to cite to evidence which demonstrates that Marinda had a
disposition to unduly influence Carol, and that this failure requires this court to
reverse the judgment against Marinda. However, Wesley and Marinda
unsurprisingly fail to cite legal authority in support of their argument that such a
failure requires reversal. Undue influence is “undue influence” no matter who
exerts it. Had the circuit court found that the evidence established that only
Wesley satisfied each of the four elements in the undue influence test, so as to
support the determination that Wesley procured Carol’s will by undue influence,
those findings alone would have supported the court’s invalidation of the will.
Regardless, we do not agree that Audra failed to cite to evidence demonstrating
Marinda’s disposition to unduly influence. Moreover, even if Audra had not cited
instances supporting Marinda’s disposition to unduly influence, the record
contains such evidence.

¶22 In sum, Wesley and Marinda fail to show that the circuit court’s
findings as to disposition to unduly influence are clearly erroneous.

of [the testator’s] bounty.” Sensenbrenner v. Sensenbrenner, 89 Wis. 2d 677, 699, 701, 278
N.W.2d 887 (1979). The court in Kehrberg v. Pribnow ultimately found no disposition to
influence when the record did not indicate that the beneficiary was responsible for initiating the
execution of a will, or that the beneficiary had discussed the provisions of the will with the
testator. Kehrberg v. Pribnow, 46 Wis. 2d 205, 174 N.W.2d 256 (1970).

In addition, Wesley and Marinda cite two unpublished per curiam opinions of this court
in violation of WIS. STAT. RULE 809.23(3). Future violations of the Rules of Appellate
Procedure may result in sanctions. See WIS. STAT. RULE 809.83(2).

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b. Susceptibility to Influence

¶23 The circuit court also found that Carol was susceptible to undue
influence. In finding whether susceptibility to undue influence exists, the court
examines such factors as the testator’s “age, personality, physical and mental
health and ability to handle business affairs.” Lee v. Kamesar, 81 Wis. 2d 151,
159, 259 N.W.2d 733 (1977). Susceptibility to undue influence is established “[i]f
consideration of these factors demonstrates that the testator was unusually
receptive to the suggestions of others.” Johnson v. Merta, 95 Wis. 2d 141, 156-
57, 289 N.W.2d 813 (1980).

¶24 The circuit court found that Carol, seventy years old when she died,
had been “totally dependent on Wesley and Marinda for every aspect of her care in
the weeks leading up to her hospitalization,” and that that dependence caused her
to be susceptible to their influence. The court also found that Carol was
experiencing numerous physical and mental problems requiring numerous
medications when the will was drafted and that Carol was “literally on her death-
bed” when the will was drafted, further causing her to be susceptible to Wesley
and Marinda’s influence. The court found it most significant that Wesley and
Marinda had “cut Carol off from any unsupervised contact with Audra in the time
period immediately before [Carol’s] hospitalization, and cut her off totally while
she was at the hospital,” and that that isolation also caused Carol to be susceptible
to Wesley and Marinda’s suggestions, aggravated by their “savage” and constant
“trash[ing]” of Audra.

¶25 We conclude that these findings are sufficiently supported in the
record. Carol’s physical and mental health were, as testified by her doctor, dire.
Wesley and Marinda cared for Carol as she ailed in her home for two weeks, until

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Carol was admitted to the hospital. Wesley and Marinda did not tell Audra,
Audra’s daughter Katy (who was very close to Carol), or Ted (who was also close
to Carol) that Carol was dying and told them not to visit Carol. Wesley and
Marinda told hospital security not to let Audra in Carol’s room. Wesley and
Marinda testified that they did so at Carol’s request. Audra and Katy ultimately
found out from Ted that Carol was dying in the hospital and snuck into Carol’s
room and said good-bye to Carol just hours before she died on November 8. The
court’s finding that Carol was susceptible to the undue influence of Wesley and
Marinda when she prepared her will is not clearly erroneous.

¶26 Wesley and Marinda point to evidence that could have supported
findings that: Carol was generally an independent woman who could make up her
own mind; Carol wanted to go home and did not know that she would die five
days later; Carol was competent to consider her treatment options on the day she
created her will; Carol had told Wesley and Marinda not to let anyone visit her;
and Carol was not “isolated” because a call with Katy somehow slipped through.
While this evidence might have supported findings against susceptibility to undue
influence, the circuit court’s findings to the contrary are not clearly erroneous
given the evidence cited above and the court’s weighing and crediting of that
evidence.

c. Existence of Suspicious Circumstances

¶27 While we need not analyze this element from the two-element test
for undue influence, having rejected Wesley and Marinda’s challenge to the circuit
court’s determination of undue influence under the four-element test, we follow
the circuit court’s and the parties’ leads, and explain why Wesley and Marinda’s
challenge to the court’s findings as to the existence of suspicious circumstances

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also fails.5 The existence of the suspicious circumstances element is proven if the
objector to the will offers evidence regarding “the activity of the beneficiary in
procuring the drafting and execution of the will, or a sudden and unexplained
change in the attitude of the testator, or some other persuasive circumstance.”
Lee, 81 Wis. 2d at 166 (quoted source omitted).

¶28 The circuit court found the existence of suspicious circumstances
surrounding the execution of the will to be “perhaps the most troubling aspect of
this case, but also the most telling … because the train-wreck that was the
execution of this Will exposes the unreliability of almost everything Wesley and
Marinda testified to, and what they presented as corroborating evidence.” The
court found that, had Carol actually intended to disinherit Audra, as was
purportedly widely known, she would have done so years before, when Wesley
threatened to sue Carol in order to recover the contributions he made to the farm.6
The court found it suspicious that Wesley and Marinda contacted the attorney only
when Carol was dying in the hospital; that Wesley and Marinda isolated Carol
from her loved ones; that Wesley and Marinda “felt the need to minimize their role
in the drafting of the Will”; and that Wesley and Marinda testified that they did
not know the contents of the will until after Carol died, even though they were in
the room during the time the will was discussed and drafted, and Marinda took a

5
Wesley and Marinda concede that the circuit court did not err in finding proof of the
first element of the two-element test—that there was a confidential or fiduciary relationship
between Carol and Wesley and Marinda.
6
Wesley and Marinda argue that this specific finding is impermissibly supported by
extrinsic evidence. Even if the finding is supported by extrinsic evidence, it is also supported by
the trial record, as related below: Wesley testified that he told his mother he might seek a lien
against the farm, and Katy testified that Wesley had written to Carol’s attorney in 2011 in an
attempt to have the title to the farm placed in his name because Carol was “incompetent” after
suffering a stroke.

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copy of the will after it was executed. The court also found Wesley and Marinda’s
“feigned ignorance” about the will inconsistent with their testimony, their son’s
testimony, and Marinda’s sister’s testimony, all of which, if credited, would
indicate that “Carol’s desire to disinherit Audra was long-lived and the worst-kept
secret on the planet.” Finally, the court found it suspicious that no legal advice
was provided to Carol as to options other than disinheriting Audra, after Carol
expressed concerns to the legal assistant about protecting the farm from the state
and from being sold by Audra, all while Carol was in the presence of and being
assisted by “the two people [with the most] reasons to convince her to sign it.”

¶29 We conclude that the circuit court’s findings as to the existence of
suspicious circumstances are sufficiently supported by the record. Carol had
suffered a host of medical issues in the years leading up to her death, during which
time she told multiple people that she did not want a will, believing that her
children would share her property evenly, “fight over it,” and “sort it out” if
Wesley or Audra wanted specific items. Yet, days before her death, in the hospital
being treated for what would be her terminal disease, Carol suddenly changed her
mind and left all of her property to her son and his wife. Carol left nothing to her
daughter Audra, whom she had called days earlier with a medical update and a
declaration of love.

¶30 The circuit court’s finding of the existence of suspicious
circumstances is not clearly erroneous. In challenging that finding, Wesley and
Marinda point to various pieces of evidence, such as their helping Carol before she
was hospitalized, Carol’s having the assistance of a legal assistant who called the
attorney with questions, and Carol’s documented alertness and lucidity. However,
that these particular pieces of evidence may tilt in Wesley and Marinda’s favor is
not sufficient.

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¶31 In sum, Wesley and Marinda fail to show that the circuit court’s
findings as to the existence of suspicious circumstances are clearly erroneous.

II. Extrinsic Evidence

¶32 Wesley and Marinda argue that their due process rights were
violated because the circuit court, in making its undue influence findings,
considered and relied on extrinsic evidence not presented at the trial. More
specifically, Wesley and Marinda argue that the court erroneously relied on four
items of extrinsic evidence. We point out the deficiency of their argument as to
each item in turn.

¶33 Holt’s deposition testimony. The circuit court’s Decision and Order
states, “Despite [Legal Assistant] Holt’s attempt to attribute most of the significant
[will-related] statements to Carol, [Holt] remembered little and repeatedly let it
slip that it was a group discussion.” The court then includes in a footnote a
portion of Holt’s deposition testimony. However, Wesley and Marinda do not
explain how the quoted portion of Holt’s deposition testimony differs in any
material way from her testimony at trial about what took place and who was
present during her time with Carol at the hospital.

¶34 Wesley’s pretrial affidavit. The circuit court’s Decision and Order
states that the trial testimony of Wesley, Marinda, and Marinda’s sister was
inconsistent with Wesley’s pretrial affidavit, in which Wesley indicated that he
had sought legal counsel in 2015, and that this counsel told him that “it would be
better to sue Carol, because injunctions, liens, and wills might not work if we
wanted to get the money back we had invested in the farm.” Again, however,
Wesley and Marinda do not explain how the cited portion of Wesley’s affidavit

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differs in any material way from Wesley’s trial testimony that he told Carol he
would sue to get the money he had put into the farm.

¶35 An attorney’s pretrial affidavit. The circuit court’s Decision and
Order includes a footnote that references a pretrial affidavit from an attorney who
had counseled Wesley in 2015, but the court also notes that the information in the
affidavit is “not being considered for the purpose of this decision.”

¶36 A pretrial motion and findings regarding Carol’s remains. The
circuit court’s Decision and Order includes a footnote stating, “Wesley’s failure to
provide Carol’s ashes for a memorial service as ordered by the court led to a
contempt finding and exemplifies how far he is willing to go to cut Audra out of
their mother’s affairs.” However, Wesley and Marinda do not explain how this is
materially different from Audra’s testimony that Wesley told her that he would
under no circumstances allow her to attend Carol’s funeral.

¶37 In sum, Wesley and Marinda fail to show that the circuit court relied
on extrinsic evidence.7

7
Even if Wesley and Marinda had shown that the circuit court relied on any of these
items, we would conclude that any such error was harmless.

Under the harmless error rule, we will not reverse a judgment unless “the error
complained of has affected the substantial rights of the party seeking to reverse or set aside the
judgment.” WIS. STAT. § 805.18(2) “In order for an error to affect the substantial rights of a
party within the meaning of WIS. STAT. § 805.18(2), ‘there must be a reasonable possibility that
the error contributed to the outcome of the action or proceeding at issue.’ ‘A reasonable
possibility of a different outcome is a possibility sufficient to “undermine confidence in the
outcome.”’” Weborg v. Jenny, 2012 WI 67, ¶68, 341 Wis. 2d 668, 816 N.W.2d 191 (quoted
sources omitted). “If the error at issue is not sufficient to undermine the reviewing court’s
confidence in the outcome of the proceeding, the error is harmless.” In re Termination of
Parental Rights to Jayton S., 2001 WI 110, ¶28, 246 Wis. 2d 1, 629 N.W.2d 768. Application of
the harmless error rule presents a question of law that this court reviews de novo. Weborg, 341
Wis. 2d 668, ¶43.

(continued)

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CONCLUSION

¶38 Wesley and Marinda fail to show either that the circuit court’s
findings as to the elements establishing undue influence are clearly erroneous or
that the court erred in relying on extrinsic evidence. For the reasons stated, we
affirm.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

Here, any such error would not be sufficient to undermine our confidence in the outcome
of the proceeding. As explained at length above, the circuit court’s findings as to the elements
establishing that Carol’s will was procured by Wesley and Marinda’s undue influence are
supported by facts properly in the trial record and are not clearly erroneous.

16