In Re Estate of Milton A. Boman, Wesley Boman v. Cynthia Cramer, Individually and as and Trudy Burford

IN THE COURT OF APPEALS OF IOWA

No. 16-0110
Filed February 8, 2017

IN RE ESTATE OF MILTON A. BOMAN, deceased

WESLEY BOMAN,
Plaintiff-Appellee,

vs.

CYNTHIA CRAMER, Individually and as Executor,
and TRUDY BURFORD,
Defendants-Appellants.
________________________________________________________________

Appeal from the Iowa District Court for Hancock County, Gregg R.

Rosenbladt, Judge.

Two sisters appeal various rulings in their brother’s successful lawsuit

contesting their father’s will and alleging tortious interference with his inheritance.

AFFIRMED.

Stephen H. Locher and Emily M. Schirmer of Belin McCormick, P.C., Des

Moines, for appellant Cynthia Cramer.

Deborah M. Tharnish of Davis, Brown, Koehn, Shors & Roberts, P.C., Des

Moines, for appellant Trudy Burford.

Nathan J. Schroeder and David J. Dutton of Dutton, Braun, Staack &

Hellman, P.L.C., Waterloo, for appellee.

Heard by Potterfield, P.J., and Doyle and Tabor, JJ.
2

TABOR, Judge.

Cynthia Cramer and Trudy Burford, daughters of Milton and Helen Boman,

appeal jury verdicts in favor of their brother, Wesley Boman, in his lawsuit

contesting their father’s will and alleging tortious interference with inheritance.

On appeal, Cynthia and Trudy argue the district court should have granted their

motion for judgment notwithstanding the verdict or a new trial because Wesley

did not offer sufficient evidence to support the verdicts.1 We find no error in the

court’s refusal to disturb the verdicts or the jury’s award of punitive damages.

Because the admission of improper opinion testimony from Wesley’s expert

constituted harmless error, we affirm.

I. Facts and Prior Proceedings

Cynthia, Wesley, and Trudy grew up on the Boman farm bordering Pilot

Knob State Park in Hancock County. When Wesley was in high school, he

started farming with his father. Wesley attended Iowa State University and

worked for a stint at Winnebago Industries but always returned to help Milton with

the farming operation. Meanwhile Trudy and Cynthia moved away from the farm.

Trudy and husband Tom lived in Texas for seven years before moving to

Johnston, Iowa. Cynthia and husband Bob lived in Boone.

Wesley later substituted as a mail carrier while he farmed with his father,

sharing the farm’s profits on a fifty-fifty basis. Milton had coronary bypass

surgery in 1991, limiting his ability to do heavy work and increasing his reliance

1
Wesley named three defendants: Cynthia and Trudy, individually, and Milton’s estate,
Cynthia as executor. The defendants’ counterclaim alleged Wesley converted property
belonging to Milton or Milton’s estate. The jury ruled in favor of Wesley on the
counterclaim, and the defendants do not appeal that verdict.
3

on Wesley. While farming with his father, Wesley and his first wife, Jayne, spent

thousands of dollars to remodel a small house on the farmstead, in which they

lived rent-free.

In 1997, Britt attorney Earl Hill started helping Milton and Helen with their

estate planning, and that year Hill drafted their revocable trust instrument.2

Under this trust, upon their parents’ deaths, Wesley and Trudy would serve as

trustees, and each would receive one-half of the trust’s net income for twenty-five

years. Thereafter, Wesley and Trudy would each receive one-half of all trust

assets (personal and real property). Cynthia disclaimed any share in the trust

because she felt she was “sufficiently provided for by her husband.”3

The trust went through a series of amendments. A 1999 amendment

again specified Wesley and Trudy would receive one-half of the net trust income

but reduced the income period to ten years. Wesley also received all farm

machinery and tools. For the first time, Cynthia received one-third of the

personal property, along with her siblings. Among the personal properly Cynthia

expected to receive was a burled-wood chest of drawers, considered an

important family heirloom from Sweden. Trudy and Wesley again received one-

half of the estate and remained the trustees.

Wesley and Jayne had three daughters before they divorced in 2000.

During the last year of his marriage and through his difficult divorce, Wesley

started using marijuana and cocaine. Subsequently, he completed six weeks of

inpatient substance abuse treatment. Wesley believed his parents were proud of

2
Before the trust, Milton had executed a will in 1965 bequeathing his property to the
three children in equal shares.
3
At the 2015 trial, Cynthia testified her individual net worth exceeded $1.5 million.
4

his efforts to get clean, but his sisters were less supportive. Wesley admitted

relapsing several times after his inpatient treatment.

In August 2001, Helen and Milton again amended the trust. Attorney Hill

testified the impetus for the amendment was their concern about Wesley’s drug

addiction. While the interests of Wesley, Cynthia, and Trudy remained

unchanged, Milton and Helen wanted to ensure that if Wesley predeceased

them, his share would pass to his children and would be held in the trust until

Wesley’s youngest child was twenty-one years old.

In the fall of 2001, Helen and Milton moved off the farm and into a

condominium in nearby Garner, telling Wesley to move into the main farmhouse.

Milton gave Wesley his interest in the farm machinery.4 Thereafter, Wesley and

Milton continued to make joint decisions as to the farming operation. After

Wesley moved into the main farmhouse, he rented out the smaller home.

According to Wesley, his father told him to keep the rent.

Because the Garner condo was close to the farm, Wesley was able to

assist his parents by paying their bills and arranging services. For instance,

Wesley scheduled cable service at the condo. The equipment installer struck a

deal with Wesley that his parents would not be charged for the service if Wesley

would allow the installer to hunt on the farmland. Wesley also helped manage

his parents’ health issues as Wesley held their medical power of attorney. Helen

and Milton both suffered from type 2 diabetes.

4
At trial, Wesley provided receipts showing he paid for one-half of some of the farm
equipment.
5

In 2005, Milton and Helen amended the trust, revoking the prior

amendments and again giving Wesley and Trudy each one-half shares. Trudy

and Wesley remained successor co-trustees after their parents’ deaths. Wesley

still had the right to purchase Trudy’s share of the farm. Attorney Hill testified the

parents made the 2005 amendment because they wanted Wesley to be able to

continue farming without having “the land sold out from under him.” If Wesley did

not survive his parents, Cynthia was appointed trustee of Wesley’s share, which

she could not distribute until Wesley’s youngest child reached thirty years of age.

Then Cynthia could terminate the trust.

Wesley met his second wife, Cherie, in 2006. Cherie, her son, and her

grandson moved in with Wesley. For Wesley’s birthday in 2007, Cheri arranged

a video recording of Milton and Helen sharing memories about their son. In the

video, Helen professed her love and admiration for Wesley. Also on the video,

Milton acknowledged difficulty in recalling details of Wesley’s youth, saying: “My

memory is so shot.” At this time, Cherie’s daughter, Jessica, and her family

rented the small house Wesley had remodeled. Jessica also was a caretaker for

Milton and Helen as they aged, and Helen developed a close relationship with

her.

Cherie and Wesley married on January 1, 2008. Wesley’s parents initially

embraced his second marriage, serving as best man and matron of honor at the

wedding. In early February 2008, Milton turned ninety years old. Also in 2008,

Milton took medication for Alzheimer’s. Later that year, family relationships

started to fray. When Helen had to be hospitalized in Britt for a diabetic ulcer on

her foot, Wesley arranged for Milton, who could not care for himself, to stay at
6

the Summit House, an assisted-living facility attached to the Britt hospital. Both

facilities are near the Boman farmstead. Helen joined Milton after being released

from the hospital but was unhappy at the Summit House and made it clear to

Wesley she wanted to return with Milton to the Garner condo. Based on medical

advice, Wesley believed Helen and Milton should remain near the hospital.

When Wesley refused Helen’s requests, she became very angry with him. The

sisters then stepped in. On July 23, 2008, Helen and Milton executed powers of

attorney, including medical powers, making all three children attorneys-in-fact

with the “agreement of any two children” binding. The sisters then acceded to

Helen’s request.

Wesley believed his parents’ return to the condo caused further

deterioration of Helen’s foot ulcer. Wesley and Cherie drove his parents to Des

Moines for doctors’ appointments, and Trudy met them at the first appointment.

Trudy and Wesley argued about whether Helen needed to go to the second foot

appointment. Eventually, Helen required hospitalization following the amputation

of her toe on August 15, 2008. For Helen’s post-hospital assisted living, Cynthia

found The Cedars in Madrid, Iowa. Over Wesley’s objections, Helen and Milton

moved to The Cedars, which was closer to Cynthia’s Boone home and Trudy’s

Johnston home, but one and one-half hours from the Boman farm where Wesley

lived and from the parents’ community and likely visitors. The sisters frequently

visited their parents at The Cedars but stopped speaking with Wesley.

In 2009, Cynthia and Trudy took over the tasks Wesley had performed for

their parents, helping with bills and other obligations while their parents’ care at
7

The Cedars continued.5 That January, attorney Hill met with Milton, Helen, and

Cynthia and then commenced drafting the fourth amendment to the trust, which

wrought the most significant change. Hill testified the fourth amendment was

prompted by Helen’s unhappiness with a phone call from Cherie and the parents’

desire to prevent Cherie from owning their farmland. Milton and Helen converted

Wesley’s outright interest in one-half of the farm upon their death to the

equivalent of a life estate. During the life estate some of the farm and investment

income would be paid to Wesley at Cynthia’s discretion. At Wesley’s death, the

trust was slated to terminate and the principal and income would be distributed

per stirpes to Trudy and Cynthia. According to attorney Hill, “Helen and Milt

decided they wanted no opportunity for [Cherie] to have her name on property

that they had worked so hard to accumulate.” Despite the fact Wesley was still

helping his father make farm decisions, neither sister informed Wesley of the

fourth amendment.

In June 2009, Helen and Milton left The Cedars and returned to their

Garner condo. In July 2009, Milton’s doctor noted slowly progressive memory

loss. Over that summer, Wesley’s relationship with his parents worsened.

Cherie remained a point of contention with Helen. Helen, described by trial

witnesses as strong-willed, grew upset when Wesley visited less often after his

marriage to Cherie.

Helen returned to the hospital in fall 2009. When she was discharged,

Cherie and Wesley picked up his parents and drove them to The Cedars.

Coinciding with the parents’ move, attorney Hill again met with Cynthia and her

5
Wesley pointed out at trial that also during 2009, the values of Iowa farmland doubled.
8

parents before drafting a September 2009 restatement of the trust to equalize the

income generated by the tracts of real estate owned by the Bomans. On

September 16, 2009, Hill sent his revisions to Bob and Cynthia.

In May 2010, the parents lobbied to return to the Garner condo. Despite

reservations from The Cedars staff, who believed Milton and Helen were not

ready to live independently, Trudy returned her parents to the condo. Wesley

tried to stay in contact with his parents through 2010, but his relationship with his

mother had deteriorated after her time at The Cedars. Helen would “dig” at

Wesley and make accusations about him. If Milton was around when Helen

would say negative things to Wesley, Milton would admonish her, “Helen, for

goodness sakes. Leave Wes alone.” According to Wesley, his sisters’ false

statements caused him to fall out of favor with his mother to the point Helen

continually called Wesley to berate him and express what a disappointment he

was to his parents. Eventually, Wesley refused to take Helen’s calls and

declined to visit.

In early January 2011, Milton’s doctor noted he was sleeping more and

was “quite demented.” In the spring of 2011, several events added to the friction

between Wesley and his parents. An employee with the Iowa Department of

Human Services (DHS) came to the Garner condo to investigate an allegation of

dependent-adult abuse against Helen. Although the abuse was determined to be

unfounded, Helen was devastated and blamed Wesley, though the complaint

was actually filed by Cherie’s daughter, Jessica, who had been Milton’s

caretaker.
9

On April 10, Helen asked Wesley and his cousin, Steve Boman, to meet

with her and Milton. During the meeting, Wesley suggested the proper division of

his parents’ estate would be one-third for each sibling with Steve serving as a

paid executor. Wesley said he did not want to be under “Bob and Cynthia’s

thumb.” During this same time period, the sisters contacted Steve Boman and

told him they “thought Wesley was in trouble with drugs again.” At trial, Trudy

admitted she had not personally seen Wesley doing drugs, but the sisters

“wondered” if Wesley was doing drugs based on his behavior.

On April 12, Cherie and Helen had an unpleasant phone call, in which

Cherie said she now understood why Milton had extramarital affairs. Cherie

testified she almost immediately regretted the harsh words, but she had been

frustrated by Helen’s treatment of Wesley, who was “so shook up” that he was

not sleeping, not eating, “just couldn’t figure out why he was being thrown to the

wolves.” Helen was upset and described the phone call to Trudy.

Trudy, in turn, compiled a timeline of incidents (dating from 1954 to the

present) that she believed showed Wesley’s “abuse” of their parents. On

April 18, Trudy’s husband, Tom, emailed the timeline to attorney Hill so he could

“discuss the content” with Milton and Helen during an appointment the next day.

On April 20, Milton’s doctor noted Milton was “[s]miling, happy, but totally

disoriented.” According to Hill, he had discussed lawyer-client communications

with Milton and Helen and they told Hill he could exchange e-mails with the

sisters. The email communication offered into evidence provided the jury with

strong evidence of the sisters’ intent to interfere with Wesley’s inheritance.
10

On the morning of May 10, 2011, Hill sent the sisters an e-mail with a draft

letter to Wesley incorporating “the changes suggested in your e-mails.” The

letter advised Wesley of three developments: (1) he would start paying monthly

rent on the farmhouse as of June 15; (2) it was not his responsibility to lease the

southeast acreage that would soon be vacant; and (3) he was finally advised that

“according to the Restatement of the Boman Trust . . . you have been given a life

estate in the residence and surrounding buildings [on the NE property.] You may

also, depending on the discretion of the trustee, share in the net income from the

SE [property].” Hill closed by telling Wesley to contact him—“You are not to

directly contact Milt or Helen Boman in any manner as related to these subjects.”

Wesley testified the letter was his first news of the trust’s change to a life estate.

The unpleasantries between Helen and Cherie continued during May.

Helen left voicemails calling Cherie a “real bitch” and threatening to contact the

sheriff regarding Wesley. When Helen telephoned again, Cherie called Helen an

“old hag” and hung up. Cherie left a message for attorney Hill on May 26, asking

him to curtail the harassing telephone calls from Helen. On May 26, Milton’s

doctor described him as “pleasantly demented.” The next day, Hill e-mailed the

sisters to tell them about Cherie’s message—“I would not characterize it as a

nasty call, but certainly passionate.” Hill expressed his belief Helen should stop

making such calls and asked for the sisters’ input.

Trudy responded on May 27, telling Hill that Helen “won’t ever contact

[Wesley] again.” Trudy wrote: “Wesley has been a source of a lot of problems

throughout the years for them . . . . It sickens me that Wesley has chosen to

ignore and neglect them.” An hour later, Trudy sent Hill another e-mail, saying
11

Helen told her “Wes and Cherie called Mediacom and had Mom and Dad’s

[television] disconnected.” Trudy continued: “It seems Wes knew an employee

who hooked them up for free. Mediacom received a ‘tip’ from a woman about

Mom and Dad receiving free service.” Milton felt ashamed by the implication he

was stealing cable. Without discussing the matter with Wesley, the sisters

blamed him for shutting off the cable. Wesley pointed out the sisters were

handling their parents’ bills then and knew they had not paid for cable service.

Also in her second May 27 e-mail, Trudy told Hill: “Because Wesley

doesn’t come to see them and is unkind to them, Mom said that they are

discussing cutting him out of the trust entirely.” Trudy asked for Hill’s view on the

viability of that option. Hill replied, telling both sisters on May 28, the Saturday of

Memorial Day weekend:

I really don’t know what to say. Any attempt to change the trust at
this point, could, in my opinion, be challenged on grounds of
competency. You know your parents mental condition better than I.
While I think we would be successful with respect to your mother,
I’m not so sure with respect to your dad.

About an hour later, Cynthia e-mailed Hill, including Trudy and both

husbands on the communication. She asked for Hill’s thoughts, stating:

As to my parents, I was wondering if we could handle this problem
by destroying the trust—the main reason that they drew it up was to
keep the farm out of Wesley’s name. Instead handle the estate
through their wills—with the benefits going to Trudy and [me], thus
leaving out Wesley.

Hill replied in the early morning hours of Sunday, May 29: “Terminating the

trust would certainly be a way to go if the wills are set up correctly.” Hill noted

the will provisions would be important “to make sure it goes where you want.”

Hill explained the mental capacity necessary to make a will was “a fairly low
12

standard.” Hill opined, if Milton gave all his assets to Helen, “I don’t think we

have a court in Iowa that would overturn the will if challenged. Whatever you

decide, I think we should do it quickly.”

Trudy’s next e-mail to Hill was on Tuesday evening, May 31, stating “It

appears Wes is collecting monies/income related to the farm that he is not giving

to Mom and Dad.” Trudy made allegations as to the farm equipment and the

rental of crop and pasture land. Trudy asked Hill: “So what can we do? Shall we

wait and see whether he is selling the equipment and then press charges?

Should we contact the [auctioneer] and let him know that the equipment is not

Wes’s to sell and if they auction it they will be selling stolen goods?” At no point

did the sisters ask Wesley himself about ownership of the farm equipment.

Trudy concluded, after the parents’ multiple visits to the farm with each sister

around Memorial Day weekend:

Mom and Dad are ready to create new wills that will exclude Wes
entirely from any inheritance. The thought being that he has
already received his inheritance throughout the many years that
they have supported him . . . . [W]e do have a concern that if Mom
passed first, that Dad could still change his will and get Wes back in
the picture.

For her part, Cherie was so upset by Cynthia driving through the farm yard

that she took a hammer and “whacked” the side of the Swedish chest that was

being stored in the barn and that Cynthia was to receive as a bequest. Before

the June 15 rent deadline, Wesley and Cherie bought a house and moved off the

farm.

On June 1, 2011, Hill told the sisters to “be very careful” as “ownership of

the machinery will be critical. Without your Dad’s help that may be a significant
13

issue.” Regarding the proposal that Milton and Helen execute new wills, Hill

advised: “There is what is called a joint and mutual will . . . . You are correct in

that following the death of the first spouse, the will cannot be changed.”

On June 6, Wesley sold farm machinery at an auction in Floyd. Helen

called Hill to report that someone from Garner told her Wesley had sold

machinery that morning. Hill told Helen it was time to take action. According to

Cynthia, Milton and Helen were crushed when they learned that Wesley had sold

the equipment, and Helen wanted to pursue criminal charges. That same day,

Hill had a conference call to discuss new estate documents with Helen, Cynthia,

and Bob.6 According to Hill, Helen made the final decision to move forward.7

Trudy testified her parents’ decision to change their estate plans was based on “a

culmination” of events. After the call, Hill drafted documents to terminate the

trust and create mutual wills. On the morning of June 7, Hill sent the “proposed

will” to Trudy and Cynthia. “Let me know ASAP what you think.”

On the afternoon of June 7, Hill and his assistant, Janice Bertilson, met

with Milton and Helen at their Garner condo. Neither sister was present. Hill

said he probed Milton’s competency by sitting down to visit with him. Hill did not

recall Milton saying why he was disinheriting Wesley. Milton and Helen executed

several estate planning documents, including revocation of the trust and

disinheriting Wesley. On June 8, Hill e-mailed Cynthia and Trudy, saying “both

Janice and I thought your parents were capable of signing new wills. Janice was

6
At trial, Hill explained Helen was vocal, and Milton was quiet. But Milton valued Bob’s
opinion.
7
Hill testified he met with Milton and Helen on June 3 to discuss their estate. Wesley
disputed such a meeting took place, pointing out Hill had not prepared a bill for the
discussion. Hill responded he was sometimes a sloppy bookkeeper.
14

particularly impressed with the amount of time your father took to make the

decision to sign the will. Frankly, neither of us was sure he would do so.”

On July 17, 2011, Trudy told Hill the sisters were concerned about Helen’s

“unlimited spending” so they discussed a conservatorship for their parents but

the conversation did not go well. Further, Helen had filed a complaint with the

sheriff about the sale of the machinery. On July 25, Hill reiterated his reluctance

concerning criminal charges. Hill also stated, “[Y]our mother will make a very

poor witness and your father will make almost no witness at all.”8 On November

2, Hill again advised against taking action regarding Wesley’s sale of farm

equipment. Also in November 2011, Trudy sent an e-mail to Hancock County

Deputy Sheriff Steve Nelson stating the sisters believed “Wesley is still

connected to drugs.”

Helen died in March 2012. Wesley did not attend the funeral because he

was worried the “family drama”9 would be hard on his father. The sisters asked

Hill to create a voluntary guardianship/conservatorship for Milton, which was

finalized at the end of March. On April 26, 2012, Hill informed the sisters he was

8
The sisters complained that Cherie’s daughter Jessica sold over-priced jewelry to their
mother. Hill noted an earlier occasion when Helen had been very complimentary of
Jessica and said how much Jessica meant to her. Hill advised the sisters not to take
action.
9
It is hard to miss the parallels this case presents to the Shakespearean tragedy of King
Lear, which
recounts the events surrounding the aging Lear’s decision to divvy up his
kingdom among his three daughters, Cordelia, Regan and Goneril.
Looking for his progeny to bask him in love, Lear decides he will
bequeath the greatest riches upon whichever daughter makes the most
sycophantic incantation of devotion and adoration. When his favorite
daughter, Cordelia, fails to be sufficiently obsequious in the eyes of the
King, he disowns her.
Van Horn v. Van Horn, 393 F. Supp. 2d 730, 734 n.1 (N.D. Iowa 2005) (discussing the
play’s plot).
15

required to send Helen’s will to Wesley. Cynthia replied, “I did not think he would

realize what was going on until Dad died . . . . Now the cat is ‘out of the bag,’

unless he thinks Dad’s will is going to say something else??” Hill responded,

“[W]e are in good shape,” explaining Milton “has a binding contract with [Helen],

that became irrevocable” when Helen died. Therefore, if Wesley influenced

Milton to make a new will, “it would be of no value.”

When Wesley received the copy of his mother’s will, he learned for the

first time of his June 2011 disinheritance. Wesley met with Milton at The Cedars,

showed him the will, and Milton told his son, “I don’t think this is fair.” When the

sisters learned of Wesley’s visit, they took steps to restrict Wesley’s contact with

Milton. Cynthia told Hill: “Trudy and I have had enough of this ‘crap’!! We are

ready to restrict further phone calls and visits from Wesley to Dad. Period!!!” On

May 11, 2012, Hill instructed Wesley’s attorney that any visits by Wesley’s family

with Milton had to be arranged in advance with the guardians—Cynthia and

Trudy—and the visits would be monitored by another person.

Milton died on February 18, 2013. Trudy’s husband sent Hill an email that

night, asking him to keep Milton’s death “completely confidential” because the

sisters did not want Wesley to know “prior to the small service” they were

planning. The sisters’ plan was effective; Wesley did not learn of his father’s

death until after the private funeral. Milton’s will was admitted to probate nine

days later. Just over a month later, Tom sent Hill an e-mail stating the sisters
16

and their husbands had been researching 1031 exchanges10 and seeking Hill’s

advice on their questions regarding an exchange or a sale of the farm.

In May 2013, Wesley filed suit. His amended petition and jury demand

sought to invalidate the 2011 will on the grounds Milton lacked testamentary

capacity to execute the will or Milton was unduly influenced by the sisters in

executing the will. Wesley also sought damages for tortious interference with a

bequest.

In September 2014, the sisters moved for summary judgment on all claims.

In a detailed ruling filed on November 19, 2014, the court rejected Wesley’s

contention the capacity at issue for Milton was “the standard applicable to

forming contracts.” See Costello v. Costello, 186 N.W.2d 651, 654-55 (Iowa

1971). Citing Gillette v. Cable, the court ruled “the relevant standard here is

testamentary capacity, not contractual capacity.” 79 N.W.2d 195, 199 (Iowa

1956) (involving reciprocal wills). The court denied summary judgment on the

will contest.

The court recognized tortious interference with a bequest is an independent

cause of action distinct from the will contest, the same evidence will not

necessarily support both claims, and the evidence to prove the tort focuses on

the alleged tortfeasor. See Huffey v. Lea, 491 N.W.2d 518, 521 (Iowa 1992)

(“[I]n a will contest, the testator’s intent or mental state is the key issue; in an

intentional interference case, the wrongdoer’s unlawful intent to prevent another

10
Pursuant to section 1031 of the United States Internal Revenue Code, capital gains
tax may be deferred where property is exchanged for “property of like kind which is to be
held either for productive use in a trade or business or for investment.” 26 U.S.C.
§ 1031(1)(a).
17

from receiving an inheritance is the key issue.”). The court also denied summary

judgment on the tortious-interference claim.11

A jury trial occurred over eight days in late August and early September

2015. The court submitted Wesley’s two counts—will contest and tort—to the

jury, along with Cynthia’s counterclaim for conversion of the farm machinery.12

During closing arguments, Wesley’s counsel asked the jury to find conduct

by Trudy and Cynthia resulted in Wesley losing his inheritance—one-half of the

parents’ $2.6 million estate, plus the right to purchase the rest of the farm.

Wesley asked for compensatory damages based on his sisters’ actions that

resulted in his emotional distress from his mother’s rejection, limits on his contact

with his father, and his inability to attend Milton’s funeral. Defense counsel

argued the “two sisters did absolutely nothing wrong.”

The jurors returned their verdict on September 11, 2015, finding Milton’s

June 2011 will should be set aside on two grounds—either Milton’s insufficient

mental capacity at the time of execution or due to undue influence exercised by

the sisters. On the tort claim, the jury found in favor of Wesley, awarding

damages for loss of inheritance of $1,183,430.5013 and consequential damages

of $295,857.62. The jury also found a preponderance of clear, convincing, and

11
The court granted summary judgment on portions of Wesley’s separate defamation
claim. The court assumed Trudy’s distribution of the “timeline” to attorney Hill in April
2011 constituted defamation but granted summary judgment based on the two-year
statute of limitations. The court rejected Wesley’s two claims for defamation by
implication, ruling the sisters’ request for a police presence at Milton’s funeral was “not
defamatory.”
12
On the conversion issue, Steve Boman testified Milton said he gave his interest in the
farm machinery to Wesley. Daisy Schwichtenberg, from the Garner condo association,
testified Helen told her that Milton had given the farm machinery to Wesley.
13
This amount is one-half of the “total Iowa gross estate” listed by Cynthia as Milton’s
executor on the probate inventory.
18

satisfactory evidence supported punitive damages, assessing $59,171.53 from

Trudy and $118,343.05 from Cynthia. The jury found for Wesley on the estate’s

counterclaim alleging conversion. The sisters filed a joint motion for judgment

notwithstanding the verdict (JNOV) or for a new trial. The district court denied

the motion, concluding all aspects of the verdict were supported by substantial

evidence. Trudy and Cynthia separately appeal the court’s denial of their joint

motion.14

II. Scope and Standards of Review

We review an action to set aside a will for errors at law. In re Estate of

Bayer, 574 N.W.2d 667, 670 (Iowa 1998). Tortious interference with a bequest is

also an action at law. See Frohwein v. Haesemeyer, 264 N.W.2d 792, 795 (Iowa

1978). Accordingly, we review the JNOV rulings for legal error. See Van Sickle

Constr. Co. v. Wachovia Commercial Mortg., Inc., 783 N.W.2d 684, 687 (Iowa

2010). “[W]e view the evidence as the district court did in ruling on the motion,

that is, in the light most favorable to the party against whom the motion was

directed,” here Wesley. See Bayer, 574 N.W.2d at 670. Similarly, we examine

the court decision not to instruct the jury as to qualified privilege for errors at law.

See Kiray v. Hy-Vee, Inc., 716 N.W.2d 193, 199 (Iowa 2006). We also review

the punitive-damages award for correction of legal error. See Wolf v. Wolf, 690

N.W.2d 887, 893 (Iowa 2005). By contrast, we review the evidentiary rulings for

an abuse of discretion. See Hall v. Jennie Edmundson Mem’l Hosp., 812 N.W.2d

681, 685 (Iowa 2012).

14
The sisters had the same attorneys at trial and for their post-trial motion, but they are
represented by separate counsel on this appeal.
19

III. Will Contest

The jury decided Wesley proved both alternatives of his will contest,

finding by special interrogatory that Milton lacked the mental capacity to make a

will on June 7, 2011, and that the will was the product of the sisters’ undue

influence.

A. Testamentary Capacity

On appeal, Cynthia and Trudy argue Wesley failed to present sufficient

evidence showing Milton was so mentally impaired he could not execute the will

on June 7, 2011. They contend Wesley did not offer any qualified witnesses to

discuss Milton’s testamentary capacity.15 See Hart v. Lundby, 137 N.W.2d 642,

647 (Iowa 1965). On the flip side, the sisters highlight the lay opinions they

elicited from Hill and Bertilson, who were both present at the will signing, as well

as the medical opinion from Dr. Taylor—all confirming Milton’s mental capacity to

make a will on the specific day in question.

In support of the verdict, Wesley points to testimony from several sources

that Milton had been growing forgetful over the years and required assistance

from Helen with cooking, dressing, and bathing. Wesley also relies on his

father’s 2007 videotaped self-assessment that his memory was “shot.”

Iowa law presumes a testator has the mental ability to make a will and

does so free from undue influence. In re Estate of Pritchard, 443 N.W.2d 95, 98

(Iowa Ct. App. 1989). In contesting his father’s will, Wesley had the burden to

15
The sisters acknowledge Wesley’s presentation of evidence from attorney Bruce
Walker, but they argue because Walker lacked medical or psychological expertise, his
opinion was not helpful to Wesley. As discussed below, we agree Walker’s testimony
did not assist the jury on the issue of Milton’s testamentary capacity or on the issue of
susceptibility to undue influence.
20

overcome that presumption by showing Milton lacked the mental capability to

sign a will on the date of execution. See In re Estate of Lachmich, 541 N.W.2d

543, 545 (Iowa Ct. App. 1995). Although he was a nonagenarian suffering from

dementia, Milton was legally competent to execute the June 2011 will if he

possessed the requisite testamentary capacity, marked by the following factors:

(1) knowledge a will was being made, (2) knowledge of the nature and extent of

his property, (3) an ability to identify and remember the persons to whom he

would naturally give his property, and (4) knowledge of how he wanted to

distribute his property. See id. at 546.

Hill had worked as Milton’s estate-planning attorney since 1997. Hill

recalled taking more than an hour to go through the documents with Milton and

Helen and having a conversation with Milton to determine his competency. Hill

sensed some hesitation on Milton’s part:

[Milton] looked to Helen and said, is this really what we want to do,
or something to that effect, and they had a discussion. And then
[Milton] looked at me and he said, what would you do? And then
before I answered he said, you can’t tell me, can you? And I said
no. He and Helen discussed a little further. Again, on the second
occasion, he turned to me and said, what would you do? And then
a second time he said, you can’t tell me, can you? And I said, no,
you have to make up your own mind.

Hill testified, after hesitating, Milton picked up the pen and signed the document.

Hill believed Milton understood what he was signing and intended to extinguish

Wesley’s inheritance. Hill’s belief was seconded by Bertilson, who testified

Milton “mulled it over” before signing because it was a “hard thing to do for him

because he loved his son.” Bertilson recalled Helen stating her mind before the

signing, making the case to her husband that Wesley had “lived for free for a long
21

time,” sold the farm machinery and kept the money for himself, and didn’t have

time for them anymore. Bertilson believed Milton was “brokenhearted” over the

decision to disinherit Wesley, but she did not observe Milton having any “memory

issues” that day.

Wesley’s evidence is unpersuasive because it does not focus on the day

Milton executed his mutual will. See In re Gruis’ Estate, 207 N.W.2d 571, 573

(Iowa 1973) (stating plaintiff’s burden is “to establish testator, at the exact time of

the making of the will,” lacked testamentary capacity). The testimony cited by

Wesley shows only Milton’s gradual mental deterioration over time. Milton’s

mounting forgetfulness and dementia diagnosis, standing alone, do not render

him unable to dispose of his property by will as he saw fit on June 7, 2011. See

generally Drosos v. Drosos, 103 N.W.2d 167, 172 (Iowa 1960) (“No mere

impairment of his mental or physical powers, so long as he retains mind and

comprehension sufficient to meet the tests . . . , invalidates his will.”). Thus, the

jury’s verdict cannot be sustained on this ground. We turn to the alternative

basis for Wesley’s will contest.

B. Undue Influence

The sisters’ JNOV motion alleged insufficient evidence that they had “the

disposition to unduly influence Milton for the purpose of procuring improper favor”

and that the will was clearly the result of undue influence.16 On appeal, they

16
The district court instructed the jury that to show Milton’s will was the product of undue
influence, Wesley was required to prove the following propositions by a preponderance
of the evidence: (1) at the time the will was made, Milton was susceptible to undue
influence; (2) the defendants had the opportunity to exercise influence and carry out the
wrongful purpose; (3) the defendants were motivated to influence their father “unduly to
get an improper favor”; and (4) the result, reflected in the will, was clearly brought about
by undue influence. See Burkhalter v. Burkhalter, 841 N.W.2d 93, 105-06 (Iowa 2013)
22

focus their will-contest challenge on the mental-capacity alternative. Neither

provides more than a cursory statement contesting the proof of undue

influence.17 Because neither sister develops an argument or cites authority on

the undue-influence alternative, we affirm the ruling denying the sisters’ JNOV

motion and setting aside the 2011 will on that basis. See Midwest Auto. III,

L.L.C. v. Iowa Dep’t of Transp., 646 N.W.2d 417, 431 n.2 (Iowa 2002) (holding

random mention of an issue without elaboration or supporting authority fails to

preserve the claim for appellate review); Hyler v. Garner, 548 N.W.2d 864, 876

(Iowa 1996) (“In a case of this complexity, we will not speculate on the

arguments [a party] might have made and then search for legal authority and

comb the record for facts to support such arguments.”); see also Iowa R. App. P.

6.903(2)(g)(3) (noting that the failure to argue an issue or cite authority in support

of it in the brief may be deemed a waiver of that issue).

In any event, the e-mail exchanges and other facts detailed above

demonstrate ample evidence of the sisters’ undue influence. See Bayer, 574

N.W.2d at 670-71 (discussing undue influence in a will contest).

IV. Tortious Interference with Inheritance

The tort of interfering with an inheritance subjects a person to liability if by

“tortious means” he or she intentionally prevents another from receiving an

inheritance from a third person if that inheritance would have otherwise been

received. See Huffey, 491 N.W.2d at 520 (quoting Restatement (Second) of

(stating “a requirement that causation be clearly established” in element four “is not
inconsistent with the preponderance-of-the-evidence standard” for other elements).
17
Additionally, neither Cynthia nor Trudy tie those conclusory statements to their more
lengthy arguments concerning undue influence as an element of Wesley’s tort claim. In
making this observation, we do not imply the two claims are identical.
23

Torts § 774B (Am. Law Inst. 1979)). Here, the district court instructed the jury

that Wesley had to prove the following propositions: (1) he expected to receive

an inheritance from Milton upon Milton’s death, (2) Trudy and Cynthia knew of

Wesley’s expected inheritance, (3) Trudy and Cynthia intentionally and

improperly interfered with Wesley’s expectancy by way of defamation or undue

influence, (4) there was a reasonable certainty Wesley would have received an

inheritance but for his sisters’ interference, and (5) Wesley suffered damages as

a result of his loss of inheritance.18

On appeal, Trudy and Cynthia jointly challenge the third and fourth

elements. Trudy raises a separate undue-influence challenge based on her

alleged lack of motivation to interfere with her brother’s inheritance. Viewing the

record in the light most favorable to Wesley as the non-moving party, we assess

whether substantial evidence supports the challenged elements. See Winger v.

CM Holdings, L.L.C., 881 N.W.2d 433, 445 (Iowa 2016). Evidence is substantial

if it forms the basis for the jury’s reasonable inference of facts at issue. See id.

18
The sisters argue Wesley needed to prove they improperly interfered with the sole or
predominant purpose to injure or financially destroy him, citing the business case of
Compiano v. Hawkeye Bank & Trust, 588 N.W.2d 462, 464 (Iowa 1999) (distinguishing
intentional interference with contract and intentional interference with prospective
business relations by noting prospective theory required plaintiff to prove defendant
acted “with the sole or predominant purpose to injure or financially destroy” plaintiff).
Wesley contends the “sole or predominant” language misstates the proof necessary for
this noncommercial tort. We have recognized the difference between interference with a
bequest and a commercial tort. See Hosier v. Hosier ex rel. Estate of Hosier, No. 00-
1225, 2001 WL 1451137, at *7 (Iowa Ct. App. Nov. 16, 2001) (“[The plaintiff] has cited
no authority, and we have found none, in which Iowa recognizes the theory of intentional
interference with prospective economic benefit as a legal theory in a noncommercial
context.”). Assuming error is preserved, it is not our role to graft a new standard of proof
into the existing law of interference with a bequest. See Spencer v. Philipp, No. 13-
1887, 2014 WL 4230223, at *2 (Iowa Ct. App. Aug. 27, 2014) (“[T]he task of materially
altering substantive or procedural rights is best left to the General Assembly or the
Supreme Court of Iowa.”).
24

A. Element Three: “Undue Influence”

Wesley had to prove by a preponderance of the evidence that his sisters

intentionally and improperly interfered with his expectancy by way of undue

influence. We consider the existence of a confidential relationship in actions

alleging undue influence. At trial, Wesley argued his sisters enjoyed a

confidential relationship with his parents, and the court instructed the jury on

factors showing a confidential relationship. On appeal, neither sister disputes the

existence of a confidential relationship. Therefore, as to Milton’s will, “a

suspicion, not a presumption, of undue influence, arises where the dominant

party in a confidential relationship participates in either the preparation or

execution of a contested will.” Bayer, 574 N.W.2d at 675. While neither sister

was present at will signing, they were active in their parents’ estate planning from

2008 when they arranged for new powers of attorney and moved their parents

away from Wesley. Thus, a suspicion of undue influence exists here.

The sisters jointly contend “the first shortcoming in Wesley’s evidence was

one of timing.” They point to the limit on Wesley’s inheritance imposed by the

fourth amendment to the trust, resulting in a life estate and farm income. They

assert the record does not show they engaged in “improper interference” or

employed “wrongful means” before March 2009. They contend Wesley did not

establish a basis to recover damages. Continuing, they state:

Assuming arguendo Cynthia and Trudy engaged in tortious
interference in 2011, the effect of that interference was merely to
invalidate the June 7, 2011 will, and return Wesley to the
inheritance he would have received immediately prior to it. But
Wesley had no inheritance immediately prior to the June 7, 2011
will, other than a one-third interest in farm machinery that was sold
anyway and personal property. With respect to the farmland, he
25

merely had a life estate in one portion of it, which he made no
attempt at trial to place a value on. Thus, in the absence of tortious
interference in 2008 or 2009, Wesley has not satisfied his burden of
proving damages with reasonable certainty.

This argument fails because neither in the district court nor on appeal do

the sisters challenge their parents’ June 7, 2011 revocation of the trust or the

simultaneous execution of deeds. At this point, the Bowman Trust has been

dissolved. See Linkmeyer v. Brandt, 77 N.W. 493, 494 (Iowa 1898) (discussing

revocation of a trust). Setting aside the will based on the sister’s undue influence

would not return Wesley to the life estate created under that revoked instrument.

Further, the record includes evidence of undue influence predating the

March 2009 amendment to the trust. Trudy specifically testified “from 2008 to

2009” she provided care for her parents, dealing with “their emotional and

physical needs.” A reasonable jury could have found the sisters started their

campaign of influence in 2008, when (1) the dispute over Helen’s health care

occurred, (2) the sisters acted to obtain their own powers of attorney, and

(3) they moved their parents away from Wesley and closer to them. See Bayer,

574 N.W.2d at 670 (“Evidence is not insubstantial simply because it may support

contrary inferences.”). At that time, Wesley expected to receive one-half of his

parents’ property.

Finally, Wesley was required to show an “intended bequest.” Hosier, 2001

WL 1451137, at *7. Here, under each estate-planning instrument drafted before

the 2011 will, Wesley received some inheritance. Cf. id. (noting plaintiff’s failure

to present prior documents legitimizing his expectancies). We conclude the jury
26

was justified in finding the sisters wielded undue influence over the expected

bequest and affirm the district court on this issue.

We next turn to Trudy’s separate claim she had no reason to exert undue

influence over her father because she did not benefit from the changes made to

his estate plan. She asserts her status did not change—she remained the

beneficiary of one-half of Milton’s estate. Assuming her status did not change,

we are not persuaded. Wesley was not required to prove Trudy’s inheritance

was diminished or increased, instead, the jury was instructed to consider a

number of circumstances “in deciding if there was undue influence.”19 Further, a

reasonable jury could have found Trudy had the disposition to unduly influence

even if her inheritance stayed the same. The “improper favor” logically could be

the ousting of Wesley to the benefit of her sister, Cynthia. The sisters’ e-mails

show joint action to undermine Wesley. See Kerber v. Eischeid, No. 15-1249,

2016 WL 1696929, at *4 (Iowa Ct. App. Apr. 27, 2016) (finding breach of

fiduciary duty where conservators removed beneficiaries to whom they were

19
The instruction listed the following circumstances:
1. Dominance over the maker of the will; 2. Whether the condition of the
maker’s mind was subject to such dominance; 3. Whether the distribution
of the maker’s property is unnatural, unjust, or unreasonable; 4. The
activity of the person charged with undue influence; 5. Whether
defendants had the opportunity and frame of mind to exercise undue
influence. Activities may include suggestion, request, and persuasion
short of controlling the will of the maker, but they do not alone constitute
undue influence. Consider such activities along with any other evidence
of undue influence; 6. The intelligence or lack of intelligence of Milton;
7. Whether Milton was physically or mentally weak; 8. Whether Cynthia
Cramer and/or Trudy Burton was the controlling party in a confidential
relationship with Milton; 9. Whether Cynthia Cramer and/or Trudy Burton
was the controlling party in a fiduciary relationship with Milton; 10. Any
other facts or circumstances shown by the evidence which may have any
bearing on the question.
27

“antagonistic” or to whom they had “demonstrated their dislike”); Bronner v.

Randall, No. 14-0154, 2015 WL 2089360, at *8-9 (Iowa Ct. App. May 6, 2015)

(finding sufficient evidence decedent’s sister, who was not a beneficiary,

improperly interfered with a prior beneficiary’s expectation of inheritance, such

interference benefitting the sister’s daughter). We find no merit to Trudy’s

argument.

B. Element Three: Defamation

Wesley also had to prove the sisters intentionally and improperly

interfered with his expectancy by way of defamation. The tort of defamation

concerns the invasion of Wesley’s interest in reputation or good name by “the

publication of written or oral statements.” See Barreca v. Nickolas, 683 N.W.2d

111, 116 (Iowa 2004). Wesley alleged he was defamed by his sisters’

statements on the following topics: his drug use, his responsibility for cutting off

their parents’ cable television service, the DHS complaint of elder abuse, and

stealing Milton’s farm equipment.

On appeal, the sisters first argue they did not improperly interfere because

they had a good faith basis for their conduct and statements. As to all four

categories of defamatory statements, the sisters contend Wesley “merely

established” that they “discussed information with Milton and Helen that they had

every reason to believe was true.” The sisters contend their conversations with

their parents and attorney Hill “were so deeply rooted in undisputed facts” that

those communications “cannot possibly rise to the level of wrongfulness

necessary for a tortious interference claim.”
28

The jury considered whether the sisters acted in good faith. The court

instructed that “[o]ne who by legitimate means merely persuades a person to

disinherit a child and to leave the estate to the persuader instead is not liable to

the child.” But the jurors did not find the sisters were persuaders using legitimate

means. The jurors, who had a front-row seat for assessing the credibility of the

witnesses, did not believe the sisters acted in good faith. After reviewing the

sisters’ emails with Hill, as well as their statements critical of Wesley made to

their parents and others in the community, we find substantial evidence to

support the jury’s finding.

In a related argument concerning the defamation alternative, the sisters

complain the district court should have instructed the jury on qualified privilege,

an affirmative defense providing immunity from liability for defamation in some

circumstances. See id. at 118 (explaining qualified privilege exists with respect

to an otherwise defamatory statement “when (1) the statement was made in good

faith; (2) the defendant had an interest to uphold; (3) the scope of the statement

was limited to the identified interest; and (4) the statement was published on a

proper occasion, in a proper manner, and to proper parties only”). Wesley

argues his sisters did not identify “which statements to what persons” would be

covered by qualified immunity. The district court refused to give the instruction,

concluding qualified immunity did not apply to the “matter at hand.”

The sisters assert this instructional error requires us to remand for a new

trial. We find no error in the district court’s refusal to instruct on qualified

immunity. First, at trial, the sisters did not specify the “occasions” giving rise to a

qualified privilege. See id. (explaining court’s task was “to determine whether the
29

occasion of [the defendant’s] statement[, a city council meeting,] was qualifiedly

privileged”). Second, on appeal, the sisters do not cite any cases applying

qualified immunity to testamentary actions. We affirm the district court on the

issue of qualified immunity.

C. Element Four: Causation

On appeal, Cynthia and Trudy argue their actions were not clearly the

cause of Wesley’s loss of inheritance.20 They assert Wesley and Cherie’s

deteriorating relationship with Wesley’s parents, particularly his mother, loomed

as independent motivation for disinheriting him that had “nothing to do with

Cynthia or Trudy.”

We defer to the jury’s finding of causation because it was supported by

substantial evidence. The jury learned of the deteriorating relationship but was

free to credit Wesley’s version of the events. Wesley offered testimony to show

Milton was susceptible to unfair persuasion by his daughters—his physical

strength was limited, his hearing was impaired, and his memory was declining.

Milton relied on Helen for his daily needs, and Helen was receptive to

disparaging information about Wesley and Cherie. A reasonable jury could

conclude Trudy and Cynthia had the opportunity to exercise influence over their

parents’ decision-making and to carry out the wrongful purpose of excluding

Wesley from receiving a share of the family farm that he had long worked with his

father. Two prime examples of their opportunity to inject themselves into their

parents’ estate planning were the sisters’ efforts to move their parents closer to

20
They again contend Wesley, as a matter of law, failed to prove “reasonably certain”
damages. We previously rejected this argument and need not repeat our analysis here.
30

them and farther from Wesley and their arrangement with attorney Hill to act as

liaisons with him because their parents did not have the ability to send emails.

A reasonable jury could also conclude, based on the record, that the

sisters were motivated to influence their father to unduly get an improper favor.

Wesley submitted evidence of the increasing Iowa land values around 2009 and

of the exploration by the sisters’ husbands into the possibility of selling the

Boman farm. Substantial evidence supported the jury’s conclusion the parents’

mutual wills disinheriting Wesley were clearly brought about by the sisters’ undue

influence.

Like the district court, we find sufficient evidence of all the challenged

elements of the tort, including causation.

V. Evidentiary Challenges

A. Admission of Wesley’s Expert Testimony on Legal Concepts

Wesley called attorney Bruce Walker as an expert witness.21 On appeal,

the sisters claim the district court abused its discretion in allowing Walker to

opine, over objection, that Milton lacked the requisite capacity to execute a will

and that Milton and Helen were subjected to “undue influence” by Cynthia and

Trudy. They argue Walker was improperly allowed to explain what the law is and

to then offer an opinion on whether the facts satisfied the legal standards.22 We

include a portion of the challenged testimony below:

21
A lengthy discussion occurred outside the presence of the jury before Walker testified.
Both sides agreed expert opinion was not admissible to explain the applicable law.
22
Wesley contends Cynthia and Trudy did not preserve error on this claim because they
did not raise it in their post-trial motions and did not address error preservation in their
appellate briefs. In their reply briefs, the sisters contend they preserved error by seeking
to exclude Walker’s testimony by filing a motion in limine and renewing their objections
during his testimony. We agree the sisters’ trial objections citing “lack of competency of
31

Q. Do you have an opinion, based upon reasonable
certainty, as to whether . . . Milton and Helen Boman were
susceptible to undue influence on June 7, 2011 when the mutual
wills were executed? . . . . A. Okay. It looked to me at the time of
the execution and before, but particularly at the time of the
execution, based on the information that was provided by Mr. Hill’s
office, that when the actual documents were presented there was a
pause in the execution, which was telling to me. Apparently the
information was that Mr. Boman wanted these documents
prepared, he wanted to execute them, and [Mr. Hill] was informed
that [Mr. Boman] understood what he was doing. And then when it
came time to actually sign the documents, there was a pause, and
it wasn’t clear because the memos and so forth weren’t completely
clear as to how long that pause occurred, but it was at least several
minutes.
When there’s a pause like that, it triggers bells in the mind of
an attorney that’s supposed to be supervising the execution of
documents that maybe the individual either did not understand the
documents or did not agree with the content and the effect of the
documents.
....
Q. Do you have an opinion, based upon reasonable
certainty; as to whether Milton or Helen Boman were susceptible to
undue influence and also had the requisite testamentary capacity to
sign those wills and to execute the other documents . . . that were
presented to them on June 7, 2011? . . . . A. It appeared from the
information that I reviewed from Mr. Hill’s file that there wasn’t
much, if any, concern about Helen Boman’s capacity to execute
documents. There were, however, indications in Mr. Hill’s file about
his concern about Milton Boman’s ability to competently understand
and execute documents. That’s spread throughout some of the
emails and other notes that I was supplied to review. On the
question of undue influence, I’ve already said that I believe the
daughters were influencing Mrs. Boman, Mrs. Boman was then
influencing Milton Boman. And the most telling portion of the
influence that I found was that in the actual execution of the
documents themselves during this period that I mentioned about
the pause, Mrs. Boman prompted Mr. Boman to recall that that’s
what they’d agreed to and that’s what he wanted to do. I think that
speaks to undue influence pretty clearly.

this expert to make such an opinion” preserved error on the admissibility of Walker’s
opinion evidence. As to appellate procedure, we agree with Wesley that Cynthia and
Trudy contravened the rules by not citing the place in the record where the evidentiary
issue was preserved. See Iowa R. App. P. 6.903(2)(g)(1). While this omission is an
inconvenience to the appellate courts, in this case we opt to reach the merits of the
sisters’ claim regarding expert testimony.
32

In addressing the sisters’ objections, we first acknowledge Iowa’s liberal

rule allowing “expert opinion testimony if it will aid the jury and is based on

special training, experience, or knowledge with respect to the issue in question.”

Bornn v. Madagan, 414 N.W.2d 646, 647 (Iowa Ct. App. 1987). “Testimony in

the form of an opinion or inference otherwise admissible is not objectionable

because it embraces an ultimate issue to be decided by the trier of fact.” Iowa R.

Evid. 5.704. But when an expert witness opines on a legal conclusion or on

whether the facts of the case meet a given legal standard, that opinion holds no

value for the jury. See In re Det. of Palmer, 691 N.W.2d 413, 419 (Iowa 2005),

overruled on other grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 708

n.3 (Iowa 2016). “[T]he jurors are fully capable of applying the facts of the case

to the law provided to them by the trial judge.” Id. Such an opinion is

inadmissible under rule 5.702, which requires the specialized knowledge of an

expert witness to assist the trier of fact. Id. at 419-20 (“Whether an opinion

couched in legal terms is excludable . . . depends on ‘whether the terms used by

the witness have a separate, distinct and specialized meaning in the law different

from that present in the vernacular. If they do, exclusion is appropriate.’” (citation

omitted)).

In this case, the district court allowed attorney Walker to give opinions

about Milton’s “susceptibility to undue influence” and Milton’s “testamentary

capacity”—specialized legal concepts not within the common knowledge of lay

persons. Walker’s opinions were inadmissible under rule 5.702 and the analysis

in Palmer because his views invaded “‘the province of the court to determine the

applicable law and to instruct the jury as to that law.’” See id. at 419 (citation
33

omitted). Walker’s opinions were couched in legal terms that carry “a separate,

distinct, and specialized meaning in the law different from that present in the

vernacular.” See id. at 420 (explaining “the question, ‘Did T have the capacity to

make a will?’ would be excludable because ‘capacity’ is a legal term with a more

precise, specialized legal meaning than the lay understanding of that term,”

though the danger of jury confusion could be avoided if the questioner explored

the basis for the expert’s opinion in factual terms). Accordingly, such testimony

by Walker should have been excluded. See id.

Although the district court mistakenly allowed attorney Walker to express

his opinions on specialized legal concepts, not every erroneous admission of

evidence requires reversal. See Mohammed v. Otoadese, 738 N.W.2d 628, 633

(Iowa 2007). Reversal is only warranted when the admission affects a party’s

substantial right. Id. (citing Iowa R. Evid. 103(a)).

On the question whether allowing Walker’s testimony amounts to

reversible error, Wesley contends Trudy and Cynthia were not prejudiced by

Walker’s testimony because their trial attorney asked the same “inappropriate”

questions to their expert witnesses—Dr. Michael Taylor and attorney Gregory

Kenyon. The sisters reply: “A party cannot, over objection, ask inappropriate

questions of an expert witness, then turn around and claim waiver or lack of

prejudice when the other side is forced to respond in kind.” See Thavenet v.

Davis, 589 N.W.2d 233, 236 (Iowa 1999) (finding legal error in allowing expert

testimony on legal standards prejudiced litigants and forced them into Hobson’s

choice of offering equivalent opinions).
34

If we had resolved the will-contest claim on the issue of testamentary

capacity, we would be more inclined to find the erroneous admission of attorney

Walker’s opinions rose to the level of reversible error. But as stated above, we

agree with the sisters’ position that Milton had the mental wherewithal on June 7,

2011, to execute a will. Our decision to uphold the jury’s verdict on the undue-

influence alternative is not significantly impacted by Walker’s inadmissible

opinions because, on appeal, neither Cynthia nor Trudy directly challenged the

undue-influence basis for Wesley’s will-contest claim. Accordingly, we find no

prejudice resulted from the erroneous admission of Walker’s testimony in the will

contest. See Palmer, 691 N.W.2d at 422 (finding error harmless where issues

discussed by expert witness were not disputed).

As to the tort claim of intentional interference, which included an element

of undue influence, we conclude that to the extent attorney Walker was allowed

to offer inadmissible opinions, when the record is considered as a whole, the

sisters were not prejudiced.

The jury’s view of Walker’s expertise was likely tempered by his disclosure

that he had not drafted a will for twenty-five years and had no recent experience

in probate matters. Moreover, the sisters countered Walker’s testimony not only

with their own experts, but through extensive cross-examination. For example,

on cross, Walker acknowledged if Wesley or Cherie said things that upset either

parent, that could have influenced their estate planning; Cherie’s harsh phone

call “probably did” influence Helen; and if Milton heard Cherie call Helen “an old

hag,” it could have influenced Milton. Walker further agreed that accusations

from people outside the family about Wesley’s drug use could have influenced
35

Wesley’s parents, as could have Wesley’s decision to sell farm machinery or his

less frequent visits. In the context of Milton’s pause during execution of the wills,

Walker admitted, when someone is about to disinherit a child, “they should be

thinking about it.” Walker’s testimony on cross-examination supported the

sisters’ theory of the case point by point. When the record is viewed as a whole,

the court’s admission of Walker’s testimony did not result in reversible error.

B. Exclusion of Evidence Concerning Wesley’s Past Conduct

Wesley filed a motion in limine seeking to exclude evidence of his alleged

use of illegal drugs, specifically methamphetamine. The district court declined to

make a preliminary ruling on admissibility because it “wasn’t sure of what the

context would be and what the evidence necessarily would be showing in detail.”

Wesley revealed in his own testimony that during his divorce he had used

marijuana and cocaine, sought treatment, and had several relapses.

Midtrial, counsel for the sisters informed the court they intended to offer

testimony from a former deputy sheriff concerning drug investigations in which

Wesley’s name had come up. Wesley’s counsel argued the evidence was not

relevant because it had not been communicated to Helen or Milton and would be

unfairly prejudicial. The district court ruled the prejudicial effect of the proposed

evidence substantially outweighed its probative value. See Iowa R. Evid. 5.403.

The court did not find “a real solid connection” between the information sought to

be offered and Milton’s decision to revoke the trust and change his will.

Additionally, the sisters made an offer of proof seeking to admit Trudy’s

testimony that in 2006, she was visiting her parents when Wesley brought her a

phone book and asked if she saw a highlighted name, but no names were
36

highlighted. In the same time frame, according to Trudy, Wesley told his parents

“people were chasing him and the police were after him.” The court also

excluded this proffered testimony, finding the timing—two years before the March

2009 amendment to the trust—detracted from its probative value.

On appeal, the sisters argue the court abused its discretion in excluding

this evidence because it supported their position that they had a good-faith basis

for their suspicions Wesley was using drugs. They also contend the remoteness

of the evidence went to its weight and not its admissibility.

The balancing of probative value against grounds for exclusion in rule

5.403 rests in the sound discretion of the district court. See Thompson v. City of

Des Moines, 564 N.W.2d 839, 846 (Iowa 1997). Here, the district court

reasonably determined the tendered evidence was too remote in time and lacked

a significant nexus to Milton’s estate planning. See Goche v. Goche, No. 09-

0761, 2010 WL 2925140, at *9 (Iowa Ct. App. July 28, 2010) (upholding

exclusion of family discussions remote from the date the will was executed).

Given its weak probative value, the district court exercised sound judgment in

deciding evidence that Wesley was acting paranoid and was the target of drug

investigations tipped the scales too far toward the danger of unfair prejudice.

VI. Punitive Damages

The jury awarded Wesley $118,343.05 in punitive damages from Cynthia

and $59,171.53 from Trudy. Both Cynthia and Trudy argue on appeal that

Wesley failed to show that either sister’s behavior was “willful and wanton.”

Cynthia claims she “simply participated in conversations that were driven by

others and based on natural inferences from undisputed facts.” Trudy also
37

contends she “she engaged in discussions with her parents about natural

inferences from undisputed facts” regarding Wesley’s conduct, pointing to her

testimony she loved her brother “but they disagreed about issues relating to their

parents’ care.”

Punitive damages “serve a vital function in our tort system.” Spaur v.

Owens-Corning Fiberglas Corp., 510 N.W.2d 854, 865 (Iowa 1994). Such

damages exist to punish and deter the defendant and to deter “like-minded

individuals from committing similar acts.” Ryan v. Arneson, 422 N.W.2d 491,

496 (Iowa 1988). The primary focus of our review is the relationship between

the offending party’s wrongful conduct and the punitive damage award. See id.

To merit an award of punitive damages, Wesley was required to prove by a

preponderance of clear, convincing, and satisfactory evidence that each sister

acted in willful and wanton disregard for his rights. See Iowa Code § 668A.1

(2013); Wolf, 690 N.W.2d at 893. The “willful and wanton” element requires

Wesley to show the sisters’ “conduct constituted actual or legal malice.” See

Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 396 (Iowa 2001). Wesley can

prove actual malice by evidence of ill-will, personal spite, or hatred. See Wolf,

690 N.W.2d at 893 (citation omitted). Wesley can prove the “legal malice”

alternative by evidence of “wrongful conduct committed or continued” by each

sister “with a willful or reckless disregard” for his rights. See Gibson, 621

N.W.2d at 396 (stating punitive damages are not awarded for “merely negligent

conduct”).

In upholding the jury’s award of punitive damages, the district court cited

the following evidence: the overall hostility of the siblings’ relationship, including
38

the fact Trudy and Cynthia did not talk to Wesley from mid-2008 until the trial

date; the sisters’ failure to ask Wesley or his neighbors about the sale of any

farm machinery; the sisters’ accusation Wesley stole the machinery; their claim

Wesley was still using drugs and that he or Cherie had reported Helen to the

DHS for maltreatment of Milton; and the sisters’ allegations Wesley was abusive

to his mother and took financial advantage of his parents.

In our review, we would further point to the sisters’ callous, intentional

decision to keep Milton’s death a secret from Wesley, even though Wesley had

farmed with his father for more than thirty years, thereby preventing Wesley from

attending his father’s funeral. This conduct, along with the conduct detailed by

the district court, satisfied the “actual malice” alternative for both Cynthia and

Trudy. Accordingly, we affirm on this issue.

In conclusion, we affirm the district court’s denial of the sisters’ motion for

JNOV or a new trial. We have considered all the issues presented by Cynthia

and Trudy, and any issues not specifically addressed are deemed meritless.

AFFIRMED.