In the Matter of the Estate of Rosalyn J. Schaul

                   IN THE COURT OF APPEALS OF IOWA

                                   No. 19-1394
                             Filed November 4, 2020


IN THE MATTER OF THE ESTATE OF ROSALYN J. SCHAUL, Deceased.

MARK SCHAUL, JOAN CLARK, DALE                     SCHAUL,      and MARY        ANN
KNABENBAUER,
    Plaintiffs-Appellees/Cross-Appellants,

and

JANET GLYNN,
     Plaintiff-Appellee,

vs.

DENNIS SCHAUL, Individually and as executor, and DEAN SCHAUL,
     Defendants-Appellants/Cross-Appellees.

________________________________________________________________


      Appeal from the Iowa District Court for Delaware County, Thomas A. Bitter,

Judge.



      Defendants appeal from the jury verdict finding in favor of plaintiffs on their

will contest and claim of intentional interference with inheritance and the court

order granting plaintiffs additur or new trial. AFFIRMED IN PART, REVERSED IN

PART, AND REMANDED ON APPEAL; AFFIRMED ON CROSS-APPEAL.



      David J. Dutton and Nathan J. Schroeder of Dutton, Daniel, Hines, Kalkhoff,

Cook & Swanson, P.L.C., Waterloo, for appellants.
                                      2


      William S. Vernon and Robert S. Hatala of Simmons Perrine Moyer

Bergman, PLC, Cedar Rapids, for appellee Janet Glynn.

      Matthew D. Gardner of Gardner Law Firm, P.C., Urbandale, for appellees

Mark Schaul, Joan Clark, Dale Schaul, and Mary Ann Knabenbauer.



      Heard by Doyle, P.J., and Tabor and Ahlers, JJ.
                                            3


AHLERS, Judge.

       This case involves a dispute between seven siblings regarding the estate

of their mother, Rosalyn Schaul. The siblings are aligned such that the five middle

children sued the oldest and youngest of the siblings. The five middle children—

plaintiffs Mark Schaul, Joan Clark, Dale Schaul, Mary Ann Knabenbauer, and

Janet Glynn1 (Plaintiffs)—brought suit challenging their mother’s will that favored

the oldest and youngest of the siblings, respectively, defendants Dennis and Dean

Schaul (Defendants).2       The Plaintiffs also asserted a claim for intentional

interference with inheritance.

       Following a jury trial, the jury returned a verdict in favor of the Plaintiffs both

on their will contest and their claim of intentional interference with inheritance. The

jury awarded no damages on the intentional-interference-with-inheritance claim,

but the district court ordered an additur or new trial on the issue of damages.

       The Defendants appeal, claiming the jury instructions were erroneous, the

trial proceedings were unfair, evidence was insufficient to support the verdict,

evidence in the form of a memo by a former attorney was improperly admitted, and

attorney fees should not have been awarded.3



1 Mark, Joan, Dale, and Mary Ann began this action by filing a petition naming
themselves as plaintiffs, Dennis and Dean as defendants, and Janet as an “other
defendant.” Janet later joined Mark, Joan, Dale, and Mary Ann as plaintiffs. Janet
retained separate counsel throughout the district court and appellate proceedings.
2 The seven named parties are the adult children of Ambrose and Rosalyn Schaul.

When necessary, we will refer to the family members by their first names.
3 The Plaintiffs also filed a cross-appeal. Janet voluntarily dismissed her cross-

appeal, and the remaining Plaintiffs do not make any arguments or identify any
issues for cross-appeal. We find the cross-appeal waived. See Iowa R. App.
P. 6.903(5) (requiring the cross-appellant to file a brief “address[ing] the issues
raised in the cross-appeal”).
                                          4


       I.     Background Facts and Proceedings.

       Ambrose and Rosalyn Schaul married in 1941 and soon purchased a 240-

acre farm near Manchester. Their marriage produced seven children: from oldest

to youngest, Dennis, Janet, Dale, Mary Ann, Mark, Joan, and Dean.

       In 1994, Rosalyn executed a will that left her estate to the children in equal

shares if Ambrose did not survive her. In 2005, Rosalyn executed a new will.

Under the 2005 will, if Ambrose did not survive her, the Defendants had an option

to purchase the farm for $240,000.00 with the remaining assets divided evenly

between the Plaintiffs; or if the Defendants did not exercise this option, the entire

estate was to be divided evenly among the seven children. On March 23, 2009,

Rosalyn executed a new will that divided her entire estate equally among her

children if Ambrose did not survive her. On June 30, 2009, Ambrose passed away.

On April 6, 2012, Rosalyn executed yet another new will revoking all prior wills

and, this time, leaving her “tangible personal property” to the Plaintiffs in equal

shares and the residue—notably the farm—to the Defendants in equal shares.

       On January 29, 2017, Rosalyn passed away. Dennis sought to probate her

estate under the 2012 will as an executor named in the will. Mark, Joan, Dale, and

Mary Ann filed a petition seeking to set aside the 2012 will due to undue influence

and lack of testamentary capacity and claiming the Defendants intentionally

interfered with their inheritance. Although initially brought into the suit designated

as an “other defendant,” Janet joined the other Plaintiffs in making the same claims

against Dennis and Dean. The matter proceeded to jury trial. The jury determined

the 2012 will should be set aside, finding Rosalyn lacked the mental ability to make

the will and the will was the result of undue influence by the Defendants. The jury
                                           5


also found Dennis, but not Dean, interfered with the inheritance for all five Plaintiffs

but awarded no damages.

       The Defendants filed a motion seeking judgment notwithstanding the verdict

or new trial, and the Plaintiffs filed motions seeking an additur or new trial plus

attorney fees. Ruling on post-trial motions, the district court concluded “[w]ithout

any doubt” the jury’s award of no damages on the intentional-interference-with-

inheritance claim was because the jury “simply wanted to restore the siblings to a

one-seventh position” that they would have had under their mother’s most recent

prior will, which the jury presumably believed would occur based on its verdict on

the will contest count. Due to the fact the siblings had not agreed to proceed under

their mother’s most recent prior will, the district court ordered an additur to each of

the Plaintiffs equal to the amount each would have received under their mother’s

most recent prior will–$319,860.88—with the judgment to be reduced by any

amounts each Plaintiff receives under their mother’s most recent prior will if the

Defendants agree to probate that will. The court also awarded attorney fees in the

amount of $146,025.32 and costs of $3233.94 to Janet, and attorney fees of

$86,838.27 and costs of $7603.77 to the remaining Plaintiffs. The Defendants

appeal.

       II.    Standard of Review.

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

Estate of Bayer, 574 N.W.2d 667, 670 (Iowa 1998). We review matters of trial

administration within the court’s discretion for abuse of that discretion.

Weyerhauser Co v. Thermogas Co., 620 N.W.2d 819, 823 (Iowa 2000). While we

normally review the admissibility of evidence for abuse of discretion, we review
                                           6

hearsay rulings for correction of errors at law. GE Money Bank v. Morales, 773

N.W.2d 533, 536 (Iowa 2009). We review an award of attorney fees for abuse of

discretion. Landals v. George A. Rolfes Co., 454 N.W.2d 891, 897 (Iowa 1990).

       We will affirm the denial of a motion for judgment notwithstanding the verdict

“if there is substantial evidence to support the claim.” Bayer, 574 N.W.2d at 670.

“Evidence is substantial when a reasonable mind would accept it as adequate to

reach a conclusion.” Id. (quoting Johnson v. Dodgen, 451 N.W.2d 168, 171 (Iowa

1990)). “Evidence is not insubstantial simply because it may support contrary

inferences.” Id.

       III.   Intentional Interference with Inheritance—Jury Instruction.

       “We review jury instructions to decide if they are a correct statement of the

law and are supported by substantial evidence.” Bride v. Heckart, 556 N.W.2d

449, 452 (Iowa 1996). The defendants claim error in Instruction No. 19, which

stated the Plaintiffs must prove all of the following elements to prevail on their claim

of intentional interference with inheritance:

               1. Plaintiffs were to inherit under a prior Will of Rosalyn
       Schaul;
               2. Defendants acting in concert or individually knew of
       Rosalyn Schaul’s prior Will;
               3. Defendants acting individually or in concert intentionally
       and improperly interfered with Plaintiffs’ inheritance in one or more
       of the following wrongful means:
               a. coercing Rosalyn to change her Will;
               b. causing Rosalyn to change her Will through duress;
               c. using deceit to change Rosalyn’s Will;
               d. misusing confidential information to change Rosalyn’s Will;
               4. There was a reasonable certainty that Plaintiffs would have
       received an inheritance but for the interference; and
               5. The interference was a cause of harm or damages to one
       or more of the Plaintiffs.
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               A. Statement of Law.

         Iowa recognized the tort of intentional interference with inheritance in

Frohwein v. Haesemeyer, 264 N.W.2d 792, 795 (Iowa 1978), overruled in part by

Youngblut v. Youngblut, 945 N.W.2d 25, 37 (Iowa 2020). Our supreme court later

clarified the application of the tort in Huffey v. Lea, 491 N.W.2d 518, 520 (Iowa

1992), overruled in part by Youngblut, 945 N.W.2d at 37. In doing so, the court

approved language from the Restatement (Second) of Torts § 774B (Am. Law Inst.

1979).     Recently, the supreme court questioned the continuing viability of

intentional interference with inheritance as a recognized tort. See Youngblut, 945

N.W.2d at 32–35 (collecting cases that reject the tort and commentaries that

criticize the tort). However, the court declined the appellant’s invitation to entirely

disallow the tort, instead overruling Frohwein and Huffey only to the extent they

allow an intentional-interference-with-inheritance claim to be brought separately

from a will contest. Id. at 37. The court emphasized an intentional-interference-

with-inheritance claim “has value in circumstances when a probate proceeding

cannot provide an adequate remedy.” Id. at 35.

         When the supreme court adopted language from the Restatement, it

described intentional interference with inheritance as occurring when “[o]ne who

by fraud or other tortious means intentionally prevents another from receiving from

a third person an inheritance.” Huffey, 491 N.W.2d at 520 (quoting Restatement

(Second) of Torts § 774B). The Defendants point to the use of “other tortious

means” in this description. The Restatement provides the following comment on

this language:
                                         8


      Unlike the liability stated in § 766B [(Intentional Interference with
      Prospective Contractual Relation)], the liability stated in this Section
      is limited to cases in which the actor has interfered with the
      inheritance or gift by means that are independently tortious in
      character. The usual case is that in which the third person has been
      induced to make or not to make a bequest or a gift by fraud, duress,
      defamation or tortious abuse of fiduciary duty, or has forged, altered
      or suppressed a will or a document making a gift. In the absence of
      conduct independently tortious, the cases to date have not imposed
      liability under the rule stated in this Section. Thus one 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.

Restatement (Second) of Torts § 774B cmt. c.

      The Defendants argue this language requires the Plaintiffs to prove they

committed an “independently tortious” act as part of the elements for their

intentional-interference-with-inheritance claim. According to the Defendants, this

requirement is not contained in the jury instructions. We agree that, as stated in

Huffey, the Plaintiffs must show the Defendants engaged in “fraud or other tortious

means.” 491 N.W.2d at 520 (quoting Restatement (Second) of Torts § 774B).

However, we disagree that this requirement was not included in the instructions.

This requirement is reflected in element three of Instruction No. 19, which required

the Plaintiffs to prove the Defendants acted “in one or more of the following

wrongful means:” fraud, duress, coercion, or misusing confidential information.

While the Restatement (Second) of Torts section 774B notes “[t]he usual case”

involves a tortfeasor who has committed “fraud, duress, defamation or tortious

abuse of fiduciary duty, or has forged, altered or suppressed a will,” neither the

Restatement nor Iowa precedent requires a tortfeasor to commit one of these

enumerated acts for liability to attach. We find Instruction No. 19 accurately
                                         9


presented a jury question as to whether the Defendants engaged in the required

tortious means, and we find no misstatement of law.

              B. Sufficient Evidence.

       Instruction No. 19 required the Plaintiffs to prove one or both Defendants

engaged in at least one of the specified wrongful means: fraud,4 duress,5

coercion,6 or misusing confidential information. The Defendants claim there was

insufficient evidence to submit any of these theories of wrongful acts to the jury.

                     1.     Fraud, Duress, and Coercion

       With regard to the alleged wrongful means of fraud, duress, and coercion,

the lengthy trial record contains ample evidence supporting those theories of

wrongdoing. The witnesses testified to Rosalyn’s severe mental decline due to

Alzheimer’s disease. For example, Joan testified Rosalyn was mostly unable to

carry a conversation after Ambrose died in 2009. Medical records submitted into

evidence supported the witnesses’ observations of Rosalyn’s condition. After

reviewing some of these records, David Tracey—Rosalyn’s longtime attorney—

wrote a letter on December 28, 2010, stating he did “not feel [Rosalyn] is able to

competently sign a new will.”

       Nevertheless, the witnesses described Dennis making numerous attempts

over the years to convince his parents to leave the farm to the Defendants. Mark


4 The jury instructions defined “coercion” as “compulsion, constraint, compelling by
force of arms or threat, or pressure by which the testator’s action is restrained
against her free will in the execution of her Will.”
5 The jury instructions defined “duress” as “subjecting a person to improper

pressure which overcomes his or her will and coerces him or her to comply with
demands to which he or she would not yield if acting as a free agent.”
6 The jury instructions defined “deceit” as “the act of representing as true what is

known to be false; deceiving or lying, a dishonest action or trick, fraud or lie.”
                                            10


testified to a 2005 family meeting when Dennis “was dictating to [the parents] how

he thought things should be handled” and Ambrose “stated clearly” the parents

would not leave the farm to the Defendants. This meeting led to the 2005 will that

provided an option for the Defendants to purchase the farm. According to a

March 23, 2009 memo attorney Tracey prepared, the Defendants met with Tracey

alone and told Tracey the parents wanted new wills that left the farm to the

Defendants. When Tracey presented the new wills to the parents, they rejected

the wills and directed Tracey to prepare the 2009 wills that left their estate to the

children in equal shares. On March 16, 2012, Tracey sent a letter to Dennis stating

Rosalyn declared “she definitely was not going to change her will” and requesting

that Dennis “and Dean cease and desist trying to talk her into changing it.” Dennis

acknowledged he contacted another attorney, rather than Rosalyn’s longtime

attorney (Tracey), to arrange for the drafting and execution of the 2012 will that left

the farm to the Defendants. Dennis also acknowledged he did not involve the

Plaintiffs in drafting this will, he did not inform this other lawyer of his parents’ prior

refusal to leave the farm to the Plaintiffs, and he personally paid the other attorney

for the will.7 Joan testified she only learned about the 2012 will in 2014 after Dennis

told her, “If [the Plaintiffs] think they’re going to get one-seventh [of the estate],

they’ve got another thing coming, I’ve got it all taken care of.” She further testified

the Plaintiffs then obtained a conservatorship for Rosalyn, with Joan and Mark



7Besides calling into question on whose behalf the new attorney was working, the
direct payment by Dennis from his own funds was sneaky in the sense that his
payment bypassed the usual procedure for paying Rosalyn’s bills. The usual
procedure for paying Rosalyn’s bills was to run them through Joan, who paid them
on Rosalyn’s behalf.
                                          11


serving as co-conservators, “to protect [Rosalyn] and her assets.” This evidence

is sufficient to prove the Defendants engaged in fraud, duress, and coercion in

procuring the 2012 will. We find no error in the jury instructions with regard to

these three theories of wrongful conduct.

                     2.     Misuse of Confidential Information

       The submission of the theory of misuse of confidential information is more

problematic.   To begin, the parties raise an issue over whether misuse of

confidential information is a viable theory of recovery within the context of a claim

for intentional interference with inheritance. The Defendants argue misuse of

confidential information applies only in the context of claims for interference with

prospective business advantage, where confidential information includes trade

secrets, customer lists, or other proprietary business information. The Defendants

argue misuse of confidential information has no place in the context of an

intentional-interference-with-inheritance claim.

       In contrast, the Plaintiffs argue that the tort of intentional interference with

inheritance is based on the tort of intentional interference with prospective

business advantage.        They argue intentional-interference-with-prospective-

business-advantage claims recognize misuse of confidential information as a

viable theory for committing that tort, so the same should apply regarding

intentional interference with inheritance.

       We need not decide whether misuse of confidential information is a viable

theory for committing the tort of intentional interference with inheritance. For the

sake of argument, we will assume it applies. Even with that assumption, however,

there was insufficient evidence supporting that theory of committing the tort. While
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there is ample evidence of various forms of skullduggery and other wrongful

conduct engaged in by the Defendants, including attempting to trick attorney

Tracey into divulging the distribution scheme of Rosalyn’s 2009 will, there was

insufficient evidence that the information obtained was confidential and was

misused.    This problem is exacerbated by the fact that none of the parties

submitted proposed instructions, and the district court gave no instructions,

defining “confidential information” or explaining what constituted “misuse” of the

information.8 With no jury instructions explaining the scope and meaning, the jury

was left to speculate as to what information was confidential and whether it was

misused. Like the jury, we too are left to speculate what those terms mean in the

context of this suit. The Plaintiffs claim the confidential information received by the

Defendants that forms the basis for this theory of recovery was the information

supplied by attorney Tracey about the distribution scheme of Rosalyn’s 2009 will.

However, the evidence showed that one or more of the Plaintiffs already had that

information, which calls into question whether there was sufficient evidence that it

was confidential.     Furthermore, even if we assume the information was

confidential, there is insufficient evidence that it was “misused.” The fact that

obtaining the information about the distribution scheme of Rosalyn’s 2009 will may

have been the motivating force that compelled the Plaintiffs to spring back into

action to try to get Rosalyn to change her will is not misuse of the underlying

information itself. Perhaps if the jury instructions had included some parameters


8 In contrast, as previously noted, the jury was instructed about the scope and
meaning of the other three theories of committing the tort, even though those three
theories may have been more easily understood by a lay person than “misusing
confidential information.”
                                            13


of what the terms “confidential information” and “misuse” mean, we could be

persuaded there was sufficient evidence supporting this theory of recovery.

However, given the fact that the jury was given no guidance as to the scope and

meaning of those terms, we cannot say there was sufficient evidence to support

this theory of recovery. Therefore, misuse of confidential information should not

have been submitted as a theory of how the Defendants committed the tort of

intentional interference with inheritance.

       Having determined that it was error to submit misuse of confidential

information as a theory of commission of the tort at hand, we must now determine

the remedy. In making that determination we note that, in spite of a request by the

Plaintiffs for a special jury verdict question to state whether the jury based its

decision on the misuse-of-confidential-information theory, no such special verdict

was submitted to the jury. Instead, the verdict forms only called for the jury to

make a finding in favor of one party over the other, making it a general verdict.

See Clinton Physical Therapy Servs., P.C. v. John Deere Health Care, Inc., 714

N.W.2d 603, 610 (Iowa 2006) (defining a general verdict as “a verdict in which the

jury only makes a finding in favor of one party over the other party”). Due to a

general verdict being used, we have no way of knowing which theory the jury relied

upon in finding in favor of the Plaintiffs in their claim for intentional interference with

inheritance. Since one of the theories submitted was submitted in error, the

Defendants are entitled to a new trial on this claim. See Erickson v. Wright Welding

Supply, Inc., 485 N.W.2d 82, 86 (Iowa 1992) (“In civil cases, ‘when a trial court errs

in submitting even one of several theories of recovery and the jury returns only a
                                          14


general verdict for the plaintiff the verdict cannot stand and the defendant is entitled

to a new trial.’” (quoting Gordon v. Noel, 356 N.W.2d 559, 565 (Iowa 1984))).

       IV.    Participation by Both Plaintiffs’ Attorneys.

       As previously noted, four of the Plaintiffs were represented by one attorney,

and Janet, the remaining Plaintiff, hired her own attorney. Before the start of trial,

the Defendants sought to prevent the Plaintiffs’ attorneys from separately

participating in each phase of the trial, arguing the Plaintiffs should have to choose

which of their attorneys would handle each phase but be limited to only one. The

district court denied the Defendants’ request but permitted the Defendants to make

a standing objection to the separate participation of both counsel throughout the

trial. The Defendants raised this issue again in a motion for mistrial and their

motion for new trial, both of which were denied.

       Trial judges have a great deal of discretion in “all matters which relate to the

orderly conduct of trial, or are necessary to the proper administration of justice in

a court, and which are not regulated by precise statute or rule.” State v. Harris,

222 N.W.2d 462, 464–65 (Iowa 1974) (quoting 88 C.J.S. Trial § 36 at 91–93).

“When the motion and the ruling are based on discretionary grounds, we review

the district court's ruling for an abuse of discretion.” Weyerhauser, 620 N.W.2d at

823. “An abuse of discretion occurs when ‘the court exercise[s] [its] discretion on

grounds or for reasons clearly untenable or to an extent clearly unreasonable.’”

Eisenhauer ex rel. T.D. v. Henry Cnty. Health Ctr., 935 N.W.2d 1, 9 (Iowa 2019)

(quoting Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000)). “Grounds

or reasons are clearly untenable if they are not supported by substantial evidence

or if they are based on an erroneous application of law.” Id.
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       The Defendants argue the district court’s decision to allow counsel for both

groups of Plaintiffs to participate in the trial was prejudicial because counsels’

“duplicative” opening and closing arguments “gave [the Plaintiffs] two bites at the

same apple and diluted any burden of proof” the Plaintiffs had at trial. The

Defendants further maintain that they were similarly harmed by the district court’s

decision to allow both counsel to examine witnesses.

       We first note that the Defendants do not cite—nor can we find—any

authority supporting the position that it is an abuse of discretion for the district court

to permit two attorneys representing separate plaintiffs to give opening and closing

arguments and to separately examine and cross-examine witnesses. The reasons

separate parties are not required to have only one co-party’s attorney perform a

specific part of the trial are apparent. Such a rule would require one party’s counsel

to essentially litigate a co-party’s claims, despite the fact that attorney does not

represent the co-party, and would significantly harm an attorney’s ability to

effectively represent the attorney’s own client’s interests and to develop trial

strategy. In this very case, the two groups of counsel engaged different expert

witnesses and took different positions on several issues. Furthermore, even if the

Defendants’ request had been granted, it would have most likely just resulted in

one attorney whispering with the other attorney during each phase of the trial (e.g.,

to make sure no more questions should be asked of prospective jurors, whether

additional questions should be asked of a witness, etc.), which would have been

just as time-consuming and disruptive, if not more so, than simply permitting the

second attorney to act independently. If there were concerns about duplication of

questions or creating confusion for witnesses, none of which concerns were raised
                                            16


here, those concerns could be addressed by specific objections during trial. While

we are not saying the district court was required to rule as it did, we find no abuse

of discretion in the district court’s decision to permit both attorneys representing

the separate Plaintiffs from fully participating in the trial.

         The Defendants further claim the district court’s ruling denied them their

right to cross-examine witnesses and that having multiple attorneys ask questions

“gave the jury the impression that [the Plaintiffs’] case was insurmountable” and

“effectively eliminated [the Plaintiffs’] burden of proof.” This argument is similarly

unpersuasive. The district court was confronted with a situation where co-parties

had similar causes of action and at times relied on the same witnesses, but

ultimately did not have precisely the same claims. The court thus permitted

counsel for both groups of Plaintiffs to give arguments and examine and cross-

examine witnesses, but the court admonished counsel against duplicative

questioning. The Defendants do not cite any instances where the counsel asked

witnesses questions the co-party’s counsel had already asked, and they do not

explain how permitting both attorneys to ask witnesses questions denied them the

ability to cross-examine witnesses or otherwise shifted the Plaintiffs’ burdens of

proof at trial. We cannot say the district court abused its discretion based on these

facts.

         V.    Will Contest.

         The jury set aside the 2012 will because it found Rosalyn lacked the mental

ability to make the will and the will was the result of undue influence.         The

Defendants argue these findings lack substantial evidentiary support.
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       Instruction No. 13 stated Rosalyn had the mental ability required to make

the 2012 will if, at the time she made the will, she:

              1. Knows a will is being made.
              2. Knows the kind and extent of her property.
              3. Is able to identify and remember those persons she would
       naturally give her property to.
              4. Knows how she wants to distribute her property.

Instruction No. 15 set forth the elements of undue influence:

              1. At the time the Will was made, Rosalyn Schaul was
       susceptible to undue influence.
              2. Dennis Schaul and/or Dean Schaul had the opportunity to
       exercise such influence and carry out the wrongful purpose.
              3. Dennis Schaul and/or Dean Schaul was inclined to
       influence Rosalyn Schaul unduly for the purpose of getting an
       improper favor.
              4. The result was clearly brought about by undue influence.

       As explained above in section III.B, evidence in the record—including

witness testimony and medical records—thoroughly described Rosalyn’s

diminished mental state at the time she signed the 2012 will. This evidence also

showed the Defendants had the opportunity and inclination to unduly influence

Rosalyn when they arranged for a new attorney to draft and execute the 2012 will.

       Nevertheless, the Defendants argue the Plaintiffs failed to meet their high

burden to prove lack of mental ability and undue influence. See Bayer, 574 N.W.2d

at 671 (“For influence to be considered undue, it must be the ‘equivalent to moral

coercion.’” (quoting Estate of Hollis, 12 NW.2d 576, 581 (Iowa 1944)); Gillette v.

Cable, 79 N.W.2d 195, 199 (Iowa 1956) (“[T]he law is slow to deny the right of any

person to dispose of [her] property by will as [she] sees fit. No mere impairment

of [her] mental or physical powers is enough so long as [she] retains mind and

comprehension sufficient to meet the tests we have itemized.”). The Defendants
                                         18


assert Rosalyn’s mental ability, while diminished, was sufficient to execute a will in

2012. They point to evidence in the record, including testimony from the attorney

who prepared and oversaw the execution of the 2012 will and witnesses to that

execution who did not have concerns about Rosalyn’s mental state when she

signed the will. This contradictory evidence merely presents a question for the

jury. See Bayer, 574 N.W.2d at 670–71 (“In a will contest, weight and credibility

of the evidence are questions for a jury.”). We find substantial evidence to support

the jury verdict setting aside the will due to lack of mental ability and undue

influence.

       VI.       Attorney Tracey’s March 23, 2009 Memorandum.

       Attorney Tracey9 prepared a March 23, 2009 memorandum that described

Rosalyn rejecting the will draft that left the farm to the Defendants outright and

executing the 2009 will that left her estate to the children in equal shares. The

district court admitted the memo over the Defendants’ hearsay objection, finding it

met a hearsay exception as a business record.10 The Defendants argue the court

erred in admitting the memo.

       A business record that would otherwise be inadmissible hearsay is

admissible if:

             (A) The record was made at or near the time by—or from
       information transmitted by—someone with knowledge;



9 Tracey died in January 2017, before the trial in this case.
10  The exception at issue, found in Iowa Rule of Evidence 5.803(6), is actually
referenced as an exception for “[r]ecords of a regularly conducted activity,” and, by
its terms, would apply to more than just business records. However, the exception
is commonly referred to as “the business record exception” and we will refer to it
as such.
                                           19


                (B) The record was kept in the course of a regularly
         conducted activity of a business, organization, occupation, or calling,
         whether or not for profit;
                (C) Making the record was a regular practice of that activity;
                (D) All these conditions are shown by the testimony of the
         custodian or another qualified witness . . . ; and
                (E) The opponent does not show that the source of
         information or the method or circumstances of preparation indicate a
         lack of trustworthiness.

Iowa R. Evid. 5.803(6); see also GE Money Bank, 773 N.W.2d at 538.

         Janice Russ, Tracey’s longtime secretary, provided foundation for the

memo. According to her testimony, Tracey dictated the memo, Russ transcribed

it, and they both signed it. Tracey typically prepared memoranda or notes for client

files.   Russ testified “the only thing that’s not typical about that particular

memorandum from other memorandums that Mr. Tracey might have done is that

[Tracey] had [Russ] sign it and [Tracey] signed it.” The district court found this

evidence met the foundational requirements for the business-record exception and

admitted the evidence.        The Defendants claim this was error, arguing the

foundational requirements for the business records exception were not met

because preparation of the memo was not a regularly-conducted activity by

attorney Tracey and the memo was prepared in anticipation of litigation.

         The claimed error implicates Iowa Rule of Evidence 5.104(a), which

provides “the court must decide any preliminary question about whether . . .

evidence is admissible.” State v. Veverka, 938 N.W.2d 197, 202 (Iowa 2020). In

making that decision, the court is not bound by the rules of evidence. Id. Our

review of the district court’s ruling on the preliminary question of whether the facts

met the foundational requirements for a hearsay exception is for the correction of

legal error. Id. “When the preliminary question is one of fact, ‘we give deference
                                          20


to the district court’s factual findings and uphold such findings if they are supported

by substantial evidence.’” Id. (quoting State v. Long, 628 N.W.2d 440, 447 (Iowa

2001).      Here, Russ’s testimony constituted substantial evidence that the

foundational requirements for the business-record exception were met. See Iowa

R. Evid. 5.803(6). Her testimony also established that the memo—written more

than eight years prior to the filing of the petition here—was not prepared in

anticipation of litigation so as to exclude it from rule 5.803(6). See Timberlake

Constr. Co. v. U.S. Fid. & Guar. Co., 71 F.3d 335, 342 (10th Cir. 1995) (“[O]ne who

prepares a document in anticipation of litigation is not acting in the regular course

of business.”).      We find no error in admitting Tracey’s March 23, 2009

memorandum pursuant to the business-record exception to the hearsay rule.

         VII.    Attorney Fees.

         The Plaintiffs were awarded attorney fees, which award the Defendants

challenge on appeal. Our supreme court has found “attorney fees are proper

consequential damages” in an intentional-interference-with-inheritance claim.

Huffey, 491 N.W.2d at 522. The only basis for the attorney fee award was as

damages regarding the Plaintiffs’ intentional-interference-with-inheritance claim.

Due to the fact we are setting aside the judgment on the intentional-interference-

with-inheritance claim and remanding for a new trial on that claim, the attorney fee

award is set aside as well, making it unnecessary to otherwise address the

Defendants’ challenges to the award.

         VIII.   Conclusion.

         There having been insufficient evidence submitted in support of the

Plaintiffs’ claim for intentional interference with inheritance based on the theory of
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misuse of confidential information, the Defendants are entitled to a new trial on

liability and damages on that claim. Therefore, the judgment in favor of the

Plaintiffs on the claim of intentional interference with inheritance is hereby vacated

and the case is remanded for a new trial on that claim. The judgment in favor of

the Plaintiffs and against the Defendants on the will contest claim is affirmed.

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED ON

APPEAL; AFFIRMED ON CROSS-APPEAL.