CourtListener 2688072

IN THE COURT OF APPEALS OF IOWA

No. 3-1257 / 13-1003
Filed April 16, 2014

IN THE MATTER OF THE ESTATE OF
TENA STEENSMA, Deceased.

DALE BRAAKSMA and DANA BRAAKSMA,
Plaintiffs-Appellants,

vs.

IRENE TIMMERMAN, Individually and as Co-Executor of the Estate of Tena
Steensma; ANITA DREESEN, Individually and as Co-Executor of the Estate
of Tena Steensma; ARNOLD BRAAKSMA, CHRISTIAN REFORMED WORLD
RELIEF COMMITTEE, WORLD HOME BIBLE LEAGUE, SIBLEY CHRISTIAN
REFORMED CHURCH, BACK-TO-GOD HOUR, BILLY GRAHAM
EVANGELISTIC ASSOCIATION, OCHEYEDAN CHRISTIAN SCHOOL,
WESTERN CHRISTIAN HIGH SCHOOL, and DORDT COLLEGE,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Osceola County, David A. Lester,

Judge.

Following a jury verdict finding certain defendant beneficiaries did not

unduly influence the testatrix in the execution of her last wills, the plaintiffs appeal

the district court’s rulings admitting evidence over their objections. AFFIRMED.

Matthew T. E. Early of Fitzgibbons Law Firm, L.L.C., Estherville, for

appellants.

Sean J. Barry of Montgomery, Barry, Bovee & Barry, Spencer, for

appellees Timmerman and Dreesen, as co-executors.

Lloyd W. Bierma of Oostra, Bierma, Van Engen & Mouw, P.L.C., Sioux

Center, for all appellee “charities.”

Irene Timmerman, Anita Dreesen, and Arnold Braaksma, individually,

appellees pro se.

Heard by Vogel, P.J., and Doyle and Mullins, JJ.
2

DOYLE, J.

Following a jury verdict finding certain defendant beneficiaries did not

unduly influence the testatrix in the execution of her last wills, the plaintiffs appeal

the district court’s rulings admitting evidence over their objections. We affirm.

I. Background Facts and Proceedings.

From the evidence presented at trial, the jury could have found the

following facts. Pete and Tena Steensma married in the 1930’s. They were a

frugal and deeply religious couple. During their lifetimes, they worked hard,

saved money, and accumulated many assets from their joint efforts. They did

not have children.

During their marriage, the Steensmas executed several wills and codicils

with the assistance of their longtime attorney, Gene Philiph. It was the

Steensmas’ intent, upon the first of their deaths, to leave their estate to the

surviving spouse. Upon the death of the surviving spouse, the Steensmas

wished to leave the majority of their assets to charities and missions.

The couple’s first will in 1972 left 100% of their estate to charity. However,

starting in 1980, the Steensmas changed their wills to include their nephew,

plaintiff Dale Braaksma, as a minor beneficiary of their estate. Dale farmed the

Steensmas’ land with Pete, and the Steensmas regarded Dale as the son they

never had. In 1990, the Steensmas executed a new will, leaving 95% of their

estate to charity and the 5% remainder to Dale.

Pete passed away in 1998. Tena, then eighty-five-years old, inherited the

total estate, worth at least $1,600,000 at that time. Tena felt uncomfortable

handling the farm and other business matters, and she asked Dale to manage
3

her affairs. Shortly thereafter, she appointed Dale her attorney-in-fact via a

power of attorney, giving Dale broad authority to manage her affairs. Tena later

moved to an independent/assisted-living facility.

In December 2004, one of Dale’s siblings, defendant Irene Timmerman,

took Tena to a doctor’s appointment. While there, Tena told Irene she had not

talked to Dale for a long time and that she did not know if she had any money

left. Dale and Irene’s sister, defendant Anita Dreesen, dropped in thereafter to

see how Tena’s appointment had gone, and Tena again expressed worry to both

her nieces about whether she would be able to continue to afford living at the

facility. Tena’s nieces suggested Tena contact her investment account

representative to inquire about her account’s status, and Anita called and

scheduled an appointment for the two to meet.

Tena’s account representative Keith DeBoer met with Tena, along with

Anita, Irene, their other sibling, defendant Arnold Braaksma, as well as the

siblings’ spouses. Dale and his wife were not present. DeBoer advised Tena

that her account had a balance of $300,000, though it had had a million dollars or

so in it a few years prior thereto. Tena and her nieces and nephew were

shocked. DeBoer also noted Tena had named Dale as the sole beneficiary on

the account, with the proceeds of the account to be transferred upon her death to

Dale rather than to her estate. Tena acknowledged she had gifted money to

Dale over the years, but it was clear she had not “appreciate[d] the totality of

what she had done.” Tena was angry and embarrassed because she believed

she had been “buffaloed” by Dale. She immediately directed DeBoer not to take
4

any further instructions from Dale, and she changed the beneficiary of her

account to her estate.

Thereafter, Tena, Anita, and Irene met with Tena’s attorney Philiph to draft

a new power of attorney document changing Tena’s attorney-in-fact from Dale to

Irene. Tena, Irene, and Anita, with their spouses, then met with Dale, his wife,

and son at Tena’s apartment for a family meeting. Irene, Anita, and Tena asked

Dale where the money had gone and requested bookkeeping records for Tena’s

finances. At times, Dale and his wife reminded Tena she had made many gifts to

Dale over the years that they had not requested, but at one point Tena remarked

in reply: “Don’t kid yourself, Dale could talk pretty smooth about some things that

he really wanted. He should have this; he should have that.”

On Tena’s behalf, Anita and Irene contacted another attorney, Tom

Whorley, to see if he could represent Tena. They were concerned about the gifts

being made to Dale out of Tena’s accounts, and Tena believed Philiph was

working more for Dale than her at that point. Whorley requested to meet with

Tena and asked her to bring a copy of her will. Anita and Irene, with Tena’s

permission, obtained a copy of Tena’s most recent will from 2000 from the county

courthouse, and they gave the documents to Tena. Tena read the documents

and was very angry and upset at seeing that her will had many bequests to Dale,

including one for $500,000 cash, “[a]nd at that time [Tena] knew there wasn’t that

much left in [her investment account], and . . . the light switch went on that there

wouldn’t have been anything left for the charities that were still listed on there. ”

Tena said that will was not what she wanted. Although Tena had signed that will,

she still thought her charities would get the major part of her estate. Anita called
5

Whorley right away because Tena was upset about the will, and he advised that

Tena void the will and codicil, which Tena immediately did.

Tena asked Whorley to draft for her a new will. Before meeting with him,

Tena reviewed her voided will with Irene and Anita to indicate what parts she

wanted to keep or delete. Tena requested Dale be removed as her named

executor and replaced with Irene and Anita, and she requested the bequests to

Dale, including the $500,000 cash bequest, be removed. Tena also requested

the provision providing Dale the first option to purchase her farm be changed

from Dale to Anita and Arnold, because she wanted the farm to stay in the family

but not with Dale. Additionally, Tena revised some of her charitable-donation

percentages to lower amounts, and she added additional new charities. Finally,

Tena told her nieces she wanted Irene, Anita, and Arnold (collectively “the

siblings”) included in her will for them helping her. Ultimately, Tena structured

her new will so that 70% would go to charities and the remaining 30% would go

to the siblings.

Tena and the siblings met with Whorley numerous times. Tena told

Whorley, in the presence of the siblings, that she wanted to include the three in

her will. Whorley later met privately with Tena and his law partner, outside the

presence of her nieces and nephew, to determine if that was actually what Tena

wanted and that she was acting voluntarily and had the requisite mental capacity

to do so. She reaffirmed to them that she was not going to include Dale in her

new will because she felt she had been “buffaloed” and “swindled” by him and

that “he had had enough.” The attorneys believed Tena was acting voluntarily
6

and was of sound mind, but they recommended Tena see a doctor before

executing her new will to confirm their beliefs.

Tena met with her doctor at the end of January 2005 for an examination,

and he found Tena’s “mental capacity was sound, her judgment was sound and

he knew of no impediment that would prevent her from executing a will.” He

provided a letter stating such to Whorley, and on January 31, 2005, Tena

executed her new will, leaving 70% of her estate to charities and 10% each to the

siblings. Whorley was sure Tena was not unduly influenced in executing that will

because Tena “knew what she wanted.”

In February 2007, Tena and Anita met with Whorley at his law office for

Tena to execute a new will. Tena told Whorley that she had been into Philiph’s

law office and had signed documents she believed were pertaining to the

corporation she had with Dale and his son, but she did not have copies of those

documents and she was unsure what she had signed. She wanted a new will

“because [she] did not want there to be any question about the contents of [her]

will.” The new will draft was substantively the same, but Tena added a sentence

specifically stating she “made no provisions for [Dale] as he has been the

recipient of a substantial amount of [her] money over the years.” Whorley and

his law partner met with Tena privately to ensure she was executing the will

voluntarily and was of sound mind, and they found she was and that she knew

what she wanted. Tena then executed the new will.

Tena passed away in October 2010. Her last will from February 2007 was

filed for probate thereafter.
7

In March 2011, Dale and his wife (the plaintiffs) filed a petition to set aside

Tena’s wills dated after 2003, asserting the wills were the product of undue

influence by the siblings. A jury trial on the matter was held in April and May of

2013. The jury returned a verdict in favor of the siblings. The court then entered

a judgment in favor of the defendants.

The plaintiffs now appeal.

II. Scope and Standards of Review.

A will contest is an action at law, so we ordinarily review for errors at law.

Burkhalter v. Burkhalter, 841 N.W.2d 93, 106 (Iowa 2013). However, “[w]e

review the district court’s determination of relevancy and admission of relevant

evidence for an abuse of discretion.” Mohammed v. Otoadese, 738 N.W.2d 628,

631 (Iowa 2007). An abuse of discretion occurs when “the court exercised its

discretion on grounds or for reasons clearly untenable or to an extent clearly

unreasonable.” Id. (citations, internal quotation marks, and alteration omitted).

“A ground or reason is untenable when it is not supported by substantial

evidence or when it is based on an erroneous application of the law.” In re

Estate of Rutter, 633 N.W.2d 740, 745 (Iowa 2001).

Even so, not every erroneous admission of evidence requires reversal.

Mohammed, 738 N.W.2d at 633. Rather, reversal is only warranted when “‘a

substantial right of the party is affected.’” Id. (quoting Iowa R. Evid. 103(a)).

“Although a presumption of prejudice arises when a court receives irrelevant

evidence over a proper objection, the presumption is not sufficient to require

reversal if the record shows a lack of prejudice.” Johnson v. Kaster, 637 N.W.2d

174, 181 (Iowa 2001). “This requires a finding that it is probable a different result
8

would have been reached but for the admission of the evidence or testimony.”

Mohammed, 738 N.W.2d at 633 (citation and internal quotation marks omitted).

III. Discussion.

Here, the plaintiffs do not challenge the jury’s verdict directly. Rather, they

assert the district court committed “prejudicial error with respect to [several of its

evidentiary] rulings” admitting certain evidence over their objections. They

request the jury verdict be reversed and that we remand for a new trial. We

address their arguments in turn.

A. Expert Testimony.

In their case-in-chief, the plaintiffs supported their contention of undue

influence by comparing Pete and Tena’s longtime inclusion of only Dale in their

past wills to the siblings’ new inclusion in Tena’s last wills. As part of that

evidence, at the plaintiffs’ request, the court admitted the Steensmas’ and then

Tena’s individual wills and codicils from 1984 to 2003. Dale testified he filed the

will contest because Tena “left nearly a third of her estate to [his] siblings who

had never been mentioned in any of her wills prior [thereto].”

The siblings named Certified Public Accountant Gary Peters as an expert,

and they sought to have him testify, along with admission of defense exhibits

created by him, to “introduce into evidence how much charities would have

gotten and how much [Dale] would have gotten on each of the wills from the one

before [Pete’s] death up to the last will that was prepared by [Philiph].” The

plaintiffs requested the expert be excluded, arguing his testimony was irrelevant
9

and prejudicial.1 The plaintiffs asserted the only purpose of the information

would be to show Tena’s intent at the time the past wills were executed, which

would require irrelevant assumptions that Tena meant to leave substantial assets

to charity or to show how the past wills influenced her intent to change the wills in

2005 and 2007.

The siblings resisted, noting the plaintiffs’ themselves had those past wills

admitted into evidence, as well as Iowa’s liberal admission of expert testimony.

They argued the expert’s testimony would help the jury put into perspective why

Tena executed new wills awarding the majority of her estate to charities and the

remainder to the siblings. The siblings also pointed out that the plaintiffs’ witness

Philiph testified he believed the charities stood to receive “hundreds of thousands

of dollars” even after Dale was given $500,000 and various assets.

The court agreed with the siblings, stating: “[F]rom the very outset of this

case, starting with the testimony of [Philiph], the intent of [Pete and Tena’s] wills

as to the time period in question, 1998 to 2003, has been an issue.” The court

further explained:

Not only has the intent of [Peter] and Tena been an issue during
that time period, but also: Did their wills carry out that intent based
on distribution that was set forth therein? That, again, has been a
disputed issue throughout this case. There’s been no objection to
the presentation . . . of the documents supporting each party’s
position. There has been disputed testimony from . . . the plaintiffs,
as to what the distribution under some of those earlier wills would
have been.
So after hearing [the expert’s anticipated] testimony this
morning, I do find . . . that the testimony he’s going to offer is
relevant to those issues that have been previously raised.

1
The plaintiffs did not challenge the witness’s qualifications to testify as an expert
on the subject matter.
10

I do find further that based on [the expert’s anticipated and]
very limited testimony, the jury would be assisted in understanding
the distribution plans under the 1998-2003 wills as they may
support the defendants’ position on the intent of both Tena and, to
a lesser extent, Peter under those wills.
I didn’t hear anything, . . . at this point that [the expert]
intends to go beyond the four corners of the . . . documents that are
involved. My understanding is, he’s strictly going to look at the
distribution, look at their assets and testify as to what that
distribution, within the four corners of the document, would have
resulted in. So I don’t believe, in my opinion, that that constitutes
extrinsic evidence to modify those documents, nor does it constitute
parole evidence, to the extent those were raised.

As a precaution, the court gave the jury a limiting instruction explaining that the

expert’s evidence of the specific numbers were not known nor considered by

Tena at the time she executed the 2005 and 2007 wills at dispute in the case.

On appeal, the plaintiffs argue the district court abused its discretion by

permitting the expert to testify.2 They contend:

It is unimaginable how a fictional distribution on dates in 2000 and
2003 under prior wills has any bearing upon the conduct of [the
siblings] in unduly influencing Tena in 2005 or 2007. The only use
of this information was to influence the jury to an improper
conclusion about Tena’s intent vis-à-vis her prior wills.

Upon our review, we find no abuse of discretion by the district court in

admitting the testimony. The admission of expert testimony is largely within the

discretion of the district court. Johnson v. Am. Family Mut. Ins. Co., 674 N.W.2d

2
The plaintiffs also assert the expert’s testimony allowed the siblings to show a
different intent on Tena’s part from her intent “disclosed by the language of [her earlier
wills].” Based upon this theory, the plaintiffs maintain the parol evidence rule applies to
prohibit the expert’s testimony, and, as a result, the district court erred as a matter of
law. See, e.g., Pitts v. Farm Bureau Life Ins. Co., 818 N.W.2d 91, 107 (Iowa 2012)
(“The parol evidence rule forbids use of extrinsic evidence to vary, add to, or subtract
from a written agreement.”). However, we agree with the district court that the parol
evidence rule is not applicable here because the expert only testified as to the valuations
of the assets listed within the four corners of Tena’s wills at the time she made those
wills. Although Tena may not have known the exact value of her assets, the assets’
value was what it was and does not vary, add to, or subtract from her written intent. See
id.
11

88, 91 (Iowa 2004). A qualified expert’s testimony should be admitted if it will

assist the jury in understanding the evidence or determining a fact at issue.

Ranes v. Adams Labs., Inc., 778 N.W.2d 677, 685 (Iowa 2010). “We are

committed to a liberal rule on admissibility of opinion testimony, and only in clear

cases of abuse would the admission of such evidence be found to be prejudicial.”

Heinz v. Heinz, 653 N.W.2d 334, 341 (Iowa 2002); Leaf v. Goodyear Tire

& Rubber Co., 590 N.W.2d 525, 531 (Iowa 1999).

It is presumed that, in the execution of one’s will, the testator acts of his or

her own free will. See Burkhalter, 841 N.W.2d at 96. However, if another

substitutes his or her intentions for those of the testator, thereby making the

writing the intent of the person exercising the influence rather than that of the

testator, undue influence occurs. See id. Thus, “[i]n cases involving challenges

to wills based upon undue influence, the central issue is whether the acts of the

testator were a product of free will or coercion.” Id. at 105. Where a confidential

relationship exists between a testator and a beneficiary and that beneficiary

participates in either the preparation or execution of the testator’s contested will,

a suspicion, though not a presumption, of undue influence arises. In re Estate of

Bayer, 574 N.W.2d 667, 675 (Iowa 1998). Those seeking to set a will aside

based on undue influence carry the burden of proving the essential elements of

the action—susceptibility, opportunity, disposition, and causation—by a

preponderance of the evidence. See Burkhalter, 841 N.W.2d at 105-06.

Although it is possible that the first three elements of undue influence are

present, the provisions of the will may nevertheless still be the result of the

testator’s free will and not the result of undue influence. Id. at 106. The testator
12

has “the right to change her mind regarding distribution of her property.” Bayer,

574 N.W.2d at 674. Because the testator is not available to testify for his or her

self, “a speculative element” is unavoidably introduced into the mix. Burkhalter,

841 N.W.2d at 105. Further complicating matters is that “it is not always easy to

distinguish ordinary permissible influences on a testator from improper coercion.”

Id. at 105. As our supreme court noted:

[M]ost persons assert some influence over others, through
friendship or familial duties, which may have some tangential effect
on their receiving a testamentary benefit. This influence is not
tainted. Rather, undue influence must dominate the motives of the
testator in executing his will. It must be equivalent to moral
coercion.

Id. at 106 (citations and internal quotation marks omitted). Consequently, while

undue influence may be proved by circumstantial evidence, more than a

“scintilla” of evidence is required. Bayer, 574 N.W.2d at 671. Persuasion by a

defendant against the testator, without more, is not sufficient to show undue

influence by a defendant. Burkhalter, 841 N.W.2d at 106. Furthermore, “[m]ere

suspicion, surmise, conjecture, or speculation is not enough to warrant a finding

of undue influence”; rather, “there must be a solid foundation of established facts

upon which to rest an inference of its existence.” Bayer, 574 N.W.2d at 671

(citation and internal quotation marks omitted).

Here, it was essentially undisputed by the siblings that they had a

confidential relationship with Tena and that they participated in the preparation

and the execution of Tena’s 2005 and 2007 wills. Generally speaking, as the

“foundation of established facts” for which the jury could find “an inference” of the

existence of undue influence, the plaintiffs introduced and contrasted Tena’s past
13

favor of Dale and the inclusion of him in her prior wills to Tena’s dramatic writing

of Dale out of her will for the first time and suddenly including his siblings for the

first time, in 2005. See id. at 671. To rebut the inference, the siblings, by various

uninterested witnesses’ testimony, introduced evidence that while Tena did in

fact authorize the gifts to Dale and the favorable bequests to him in her wills, she

was unaware of the actual value of her assets at the times she made those

decisions, and when she found out the amount remaining, she was angry and

wrote Dale out of her will. To support their rebuttal of the inference, the siblings

had the expert merely put forth an opinion as to the dollar amounts on what Dale

sought to inherit under the past wills; the expert did not testify as to his

knowledge of Tena’s intent. Rather, the valuations spoke for themselves to aid

the jury in determining a fact at issue: whether the siblings unduly influenced

Tena or whether Tena acted on her own free will to remove Dale and include his

siblings and charities instead. We find the district court did not abuse its

discretion in the admission of the expert’s testimony under the unique facts of

this case.

B. Other Evidentiary Rulings.

The plaintiffs also argue the court abused its discretion concerning the

admission of other evidence: (1) an insurance contract values quotation with

handwritten notes by a trust officer concerning Dale, (2) Anita’s testimony of how

she felt about being accused of undue influence, (3) a subpoena requesting

documents from a bank where Dale, Tena, and his son had executed documents

concerning purchasing a corporation and land with Tena’s funds, and (4) an

affidavit by Tena herself from 2008. We disagree.
14

In 2005, Tena voluntarily requested a conservatorship be opened for her.

Tena and Whorley met with a bank representative, and Tena requested that the

bank manage her business affairs. In 2008, Tena signed an affidavit in support

of closing the contents of her conservatorship file, requesting the contents be

closed to the public. The affidavit states, in part:

Dale . . . had previously managed my business affairs and it
was my belief that [he] exceeded his authority as my attorney-in-
fact appropriating substantial amounts of money to himself and
members of his family.
I became increasingly concerned about this appropriation of
my assets, and for that reason, I voluntarily requested that
[c]onservatorship be established and I terminated the [p]ower of
[a]ttorney with [Dale] as my attorney-in-fact.
. . . [I]nitially the contents of the [c]onservatorship were not
sealed and I have been credibly informed that upon filing an annual
report, [Dale] used the information provided in the annual reports,
made photo copies and discussed this information with members of
the community as well as members of my church, which made me
feel betrayed and very uncomfortable.

On appeal, the plaintiffs assert “[t]he self-serving and manipulative nature

of the [a]ffidavit at a time that is completely irrelevant to the time frame at issue in

the case make it wholly irrelevant and inadmissible.” However, the very heart of

the issue of this case is whether Tena was unduly influenced by Dale’s siblings at

the time she executed the 2005 and 2007 wills. This affidavit is dated December

2008 and was executed before a disinterested party. Moreover, it affirms Tena’s

understanding of Dale’s past actions; indeed, it refers to the time he had served

as her attorney-in-fact via her power of attorney, which she terminated in

December 2004, just before the 2005 will was executed. That Tena’s account

does not support the plaintiffs’ assertions in the case does not make the

evidence irrelevant and unfair. The plaintiffs asserted claims of undue influence
15

by the siblings, but Tena’s own account evidences her belief that Dale exceeded

his authority as her attorney-in-fact. Furthermore, Tena’s account supports her

choice to omit him from her will, as well as his siblings’ account as to why Tena

decided to include them in her later wills—gratitude for helping her remove Dale.

We do not find the court abused its discretion in admitting Tena’s affidavit.

Additionally, upon our review of the remaining evidentiary rulings

challenged on appeal, we conclude that even if the district court erred in

admitting the evidence, the plaintiffs have failed to show they were prejudiced by

the admission of the evidence. As noted above, we are not required to reverse

an erroneous ruling that does not prejudice the complaining party. Johnson, 637

N.W.2d at 181. “Unfair prejudice is the undue tendency to suggest decisions on

an improper basis, commonly though not necessarily, an emotional one.”

McClure v. Walgreen Co., 613 N.W.2d 225, 235 (Iowa 2000) (citation and

internal quotation marks omitted). Here, none of the complained about evidence

suggests the jury made their decision on an improper basis, and it is not probable

a different result would have been reached but for the admission of this evidence

or testimony. Many of these issues were first raised by the plaintiffs and by

duplicative evidence. Moreover, the evidence was minor considering the length

of the trial, and in light of the numerous witnesses’ testimony concerning Tena’s

intent at the end of her life to exclude Dale from her will. We find no abuse of

discretion by the district court.
16

IV. Conclusion.

For the foregoing reasons, we affirm the jury’s verdict in favor of the

defendants.

AFFIRMED.