Estate of Hamm v. Jenkins

Connor T. Hansen, J.

Clayton P. Hamm, who had never married, died January 21, 1973, at the age of seventy-four. His surviving heirs and the appellants were his two sisters, Irene Hamm aged seventy-one years, and Phyllis Hamm aged sixty-eight years, who also were never married; a sister, Florence G. Stoker, aged seventy-two years, of Cleveland, Ohio; and three adult children of a deceased brother, Gilbert, and namely, Patricia Biever, Jeanne Eckels and Karen Rahn, all living outside the state and married.

In 1951, Clayton P. Hamm broke a hip and subsequently retired. July 19, 1954, Hamm suffered a stroke. The remainder of his life he required the services of a male attendant. Difficulty was experienced in securing such services from 1954 to 1965. In February, 1965, Jimmie Jenkins was employed as a male attendant for Hamm and he continued to serve in that capacity until Hamm died in 1978.

*282Between 1965 and 1970, Hamm executed four wills. The last will he executed was admitted to probate and is, therefore, the subject of this appeal. It was executed April 4, 1970. This will contained a $35,000 trust provision for his sister Irene, and a $50,000 bequest to his sister Phyllis. In the event of lapse, these bequests passed to the residuary legatees. The residue was divided 10 percent to his sister Florence G.; five percent to John T. Jenkins, Jimmie’s brother who served as Hamm’s attendant when Jimmie was not available; and 85 percent to Jimmie Jenkins. The will further provided that in the event Florence G. and her husband both predeceased the testator, her share was to go %0th.s to Jimmie Jenkins and %0th to John T. Jenkins. In the event Jimmie Jenkins predeceased Hamm, or failed to meet certain conditions set forth in the will and not at issue on this appeal, his distributive share passed to his wife and children. At the time of the death of the testator his estate was valued at slightly in excess of $1,000,000 and consisted largely of securities.

The dispositive issue is whether the trial court’s failure to find undue influence on the part of Jimmie Jenkins was contrary to the great weight and clear preponderance of the evidence.

The law governing the proof of undue influence and the scope of appellate review is well established. Undue influence must be proved by clear, satisfactory and convincing evidence and a finding by the trial court on the issue will not be upset on appeal unless it is against the great weight and clear preponderance of the evidence. Estate of Von Ruden (1972), 55 Wis. 2d 365, 373, 198 N. W. 2d 583; Estate of Velk (1972), 53 Wis. 2d 500, 192 N. W. 2d 844; Will of Cooper (1965), 28 Wis. 2d 391, 137 N. W. 2d 93.

Therefore, on appeal we examine the record, not for facts to support a finding the trial court did not make or could have made, but for facts to support the finding the trial court did make.

*283Undue influence may be proved under either of two theories, both are advanced on this appeal. The first is founded upon the four elements of susceptibility, opportunity to influence, disposition to influence, and coveted result. Will of Freitag (1960), 9 Wis. 2d 315, 101 N. W. 2d 108; Estate of Von Ruden, supra. The second theory is based upon a confidential relationship between the testator and the beneficiary coupled with suspicious circumstances. Will of Faulks (1945), 246 Wis. 319, 17 N. W. 2d 423; Will of Cooper, supra.

In the instant case, the trial court found Jenkins had the opportunity to exert undue influence; that he had no disposition to unduly influence the testator; that Hamm was not susceptible to undue influence by Jenkins or any other person prior to and at the time he executed the will; and that the will did not reflect a coveted result by Jenkins or any other person. The trial court also found a confidential relationship existed between Jenkins and Hamm and that there were no suspicious circumstances surrounding or relating tó the execution of the will.

We summarize the more relevant portions of the testimony, which we reviewed as a whole, to determine what is the great weight and clear preponderance of the evidence.

As a result of the stroke Hamm suffered in 1954, his right side was partially paralyzed and he, therefore, could not walk or write unassisted. His throat was also affected and his speech was impaired. The issue of competency is not raised. It appears that prior to 1963, he frequently drank alcoholic beverages to an excess; however, after 1963, his habits changed and this was no longer the situation.

The trial court found that he was alert and competent. His doctor testified that although Hamm was physically incapacitated, he was alert, intelligent and responsible *284up until the last two weeks of his life when he was confined to the hospital for what proved to be his terminal illness. The account executive who handled his investment activity during the last eight or ten years of his life testified that Hamm was intelligent, had excellent business acumen and could not be influenced.

The record reflects that Hamm enjoyed good relations with his family. His brother, Gilbert, was an accountant and prepared Hamm’s income tax returns until Gilbert died in 1960. From 1961, until the testator’s death, lawyer Ralph J. Jeka prepared his income tax returns and performed legal services for him which consisted of real estate transactions and will drafting, with the exception of an occasion in 1965, which will be referred to hereinafter. Jeka saw Hamm on an average of six times per year.

For a number of years prior to 1958, Hamm and his sisters Irene and Phyllis lived together. Phyllis was financially self-sufficient and moved from the family home in 1953. She continued to visit him thereafter and partially took care of his needs. Irene remained in the home with Hamm, did the cooking and cleaning and managed the household on $100 per month supplied by Hamm. In the period from the time of Hamm’s stroke in 1954 until 1965, at least 12 different male attendants were employed to care for him. All were discharged or left for various reasons.

In early 1965, Hamm was without an attendant and entered the Green Tree Nursing Home. While there he met Jimmie Jenkins, liked him and hired him as an attendant. Jenkins occupied this position until testator’s death. In February, 1965, Jenkins accompanied Hamm from the Green Tree Nursing Home to Hamm’s home. In September, 1965, Hamm entered the Pavilion Nursing Home. When this move took place Jenkins took over the writing and recording of the checks, a task formerly performed by Irene. Some of the checks were made out to *285cash with Jenkins aiding Hamm’s hand and Jenkins depositing the proceeds in his own account and writing cheeks to pay Hamm’s expenses.

At the commencement of Jenkins’ employment his net worth was meager. When Hamm died, Jenkins’ net worth was $86,000, all attributable to funds received from the testator. Hamm’s fondness for Jenkins and his dependency upon him continued to increase as the years passed. Among other things, Hamm enjoyed traveling and did so prior to his stroke in 1954. From 1954 to 1965, he did no traveling. With Jenkins as an attendant he was again able to resume traveling. At Hamm’s expense, they traveled extensively, both abroad and in the United States. On occasion, the Jenkins family accompanied them. Jenkins cared for Hamm from 7 a. m. to 5 p. m. six days a week and had access to his Cadillac automobile. Jenkins’ brother, John, cared for him on the seventh day.

There is no dispute about the fact that Jenkins was the best attendant Hamm ever had; that Hamm not only liked Jenkins, but was physically dependent upon Mm and apprehensive of losing his services. Hamm frequently visited the Jenkins family and occasionally the family of John Jenkins. It is practically undisputed that Hamm was a very frugal person and a shrewd businessman. Among other things, he constantly studied the Wall Street Journal and from the time he executed the first of his four wills in 1965, until his death in 1973, his assets approximately doubled in value, from $500,000 to over one million dollars.

The four wills he executed in his lifetime were dated February 15, 1965, August 24, 1965, July 8, 1966, and April 4, 1970, this latter one being the will admitted to probate.

The two 1965 wills were drafted by lawyer Irvin Chame. Irene Hamm testified that one Carl Elbinger was a client of Mr. Chame and recommended him. Neither *286she nor the testator knew Mr. Chame. The record does not disclose whether Irene knew that Ralph J. Jeka had been Hamm’s lawyer since 1961. The first of these wills was executed during Hamm’s short stay at the Green Tree Nursing Home. The second was executed at his home and shortly before he entered the Pavilion Nursing Home. The testimony surrounding the execution of the second will is conflicting and we find it to be of no particular probative value. This will provided for a specific bequest to Jenkins in the amount of five percent of his estate. The conditions of this bequest required Jenkins to continue working for Hamm until Hamm’s death unless unable to do so by no fault of his own.

The third will was executed July 8, 1966. This will was drafted by his lawyer, Ralph J. Jeka, who later also did legal work for Jenkins. This will established a $85,000 trust for Irene and bequeathed $50,000 to Phyllis and his automobile to Jenkins. The residue was divided as follows: 49 percent to Jenkins; two percent to John T. Jenkins; 10 percent to Florence G.; and 39 percent to Phyllis. The bequest to Jimmie was subject to the same qualifications as the prior will.

We now consider the facts and circumstances under which the last and fourth will was executed, it being the one admitted to probate.

This will was also drafted by lawyer Jeka. Hamm executed it on April 4, 1970, at the Pavilion Nursing Home. The testamentary provisions of this will have hereinbefore been set forth. Jenkins was with Hamm when the lawyer arrived at the nursing home. However, he left when requested to do so and was not present during the ensuing conversation between the lawyer and the testator or at the execution of the will.

The record discloses that during the will conference lawyer Jeka explained to Hamm that under the new will Jenkins’ family would receive Jenkins’ share of the *287residue even though Jenkins did not meet the conditions of the will. He explained that this was a change from the previous wills. Lawyer Jeka did not specifically mention that the same result would obtain if Jenkins was fired for cause. We observe, however, that if Jenkins had been fired for cause, it would have been a simple matter for Hamm to write another will and thereby solve the problem.

There is evidence in the record that prior to 1970, Hamm contemplated a gift program favoring his sisters, Irene and Phyllis, but these plans were never consummated. There is also evidence that at one time Hamm intended Irene to have the family home, but the land was taken by eminent domain in 1966 and the proceeds became part of his estate.

The record also discloses that in 1966, Hamm purchased a house in Wauwatosa and leased it to Jenkins for $1,000 a year. A new lease was executed in 1968, reducing the rent to $70 per month with an option to purchase. This lease provided for termination by the lessee; however, there was no specific provision for termination by the lessor. In March, 1970, Hamm made a $30,000 gift to Jenkins. Part of these funds were used to purchase property on Elkhart Lake and a house on North 70th street in Milwaukee. Also, in 1970, Hamm purchased a $1,000 and a $5,000 certificate of deposit, naming himself and Jenkins as joint owners. These and other papers belonging to Hamm were kept by Jenkins. After Hamm’s death, Jenkins had the certificates of deposit issued in his own name.

The record does not disclose that Hamm had a significant church relationship. Jenkins introduced Hamm to the pastor of his church, and, although it does not appear that Hamm ever attended church, on September 30, 1969, Hamm created a charitable remainder trust in the amount of $50,000. The Milwaukee Gospel Taber-*288nade was designated as benefidary and Jenkins was named as trustee.

In considering the merits of this appeal, appellants assert that proof of undue influence may rest on circumstantial evidence. We find no dispute with this general statement of the law. This court has stated:

“. . . [B] ecause acts of undue influence are usually done in secret, proof thereof must be based upon circumstantial evidence. Estate of Phillips (1961), 15 Wis. 2d 226, 231, 112 N. W. 2d 591. Obviously, if a beneficiary has either instructed the draftsman as to the contents of the will or has unduly influenced the testator as to the disposition of his property, he would not testify that he had done so.” Estate of Komarr (1970), 46 Wis. 2d 230, 241, 175 N. W. 2d 473;

and

“. . . circumstantial evidence is sufficient to prove undue influence . . . .” Estate of Larsen (1959), 7 Wis. 2d 263, 269, 96 N. W. 2d 489.

We first direct our attention to appellants’ contention that undue influence has been adequately proved under the four classical elements of susceptibility, opportunity to influence, disposition to influence, and coveted result. Estate of Von Ruden, supra.

Susceptibility.

The objectors must establish that the testator was susceptible of being influenced by the person charged with exercising undue influence. In its findings of fact, the trial court stated that Clayton P. Hamm was not susceptible to undue influence by Jimmie Jenkins or any other person prior to and at the time the will was executed.

While not determinative, the primary factors to be considered are testator’s age, personality, physical and *289mental health, and his ability to handle business affairs. Estate of McGonigal (1970), 46 Wis. 2d 205, 213, 174 N. W. 2d 256. Appellants point to Jenkins’ success in obtaining financial favors from Hamm in spite of the latter’s frugality; Hamm’s fear of being left without a capable attendant; and Hamm’s depression at about the time the will was signed in 1970. They also suggest that Hamm’s deathbed agitation in 1973, when he desperately tried to tell his sisters something and repeated the word “bastard,” indicates that Jenkins forced Hamm to do something against his will. Respondent counters with the considerable testimony of a doctor, nurse, investment counselor and others to the effect that Hamm had a strong-willed personality. In addition, there was testimony that Hamm’s physical condition improved under the care of Jenkins and that Hamm read the Wall Street Journal up to the day before he died. With regard to the deathbed agitation, appellants were unable to prove that Hamm was referring to Jenkins.

Hamm’s fear of losing the services of Jenkins provided motivation for the testamentary disposition, “. . . but all people are motivated by the influence of others.” Will of Cooper, supra, page 400. The findings of the court on this issue are not against the great weight and clear preponderance of the evidence.

Opportunity.

The trial court found that Jimmie Jenkins had opportunity to exert undue influence upon Hamm. It cannot be said that this finding is against the great weight and clear preponderance of the evidence.

Disposition.

Proof of disposition to unduly influence a person who is susceptible requires more than demonstrating a desire *290to obtain a share in the estate. “. . . It implies a willingness to do something wrong or unfair, and grasping or overreaching characteristics. . . .” Estate of Brehmer (1969), 41 Wis. 2d 349, 356, 164 N. W. 2d 318.

In the Estate of McGonigal, supra, page 214, it was stated:

“. . . There is nothing wrong with aiding and comforting a failing testator; indeed, such activity should be encouraged. The fact that the testator is wealthy should have no effect on this encouragement.”

This court evaluated the evidence pertaining to the element of disposition' by focusing attention on the character and activities of the one charged with exercising undue influences in the McGonigal Case, supra. Guided by the evaluation of the evidence in McGonigal, we find that both Irene and Florence testified that Jenkins was pleasant to have around and that Hamm’s family felt friendly toward him. To establish a grasping disposition on the part of Jenkins, appellants assert that he told Irene that he hoped “ ‘there is more in this job, more than peanuts for me;’ ” that he asked Hamm for a color TV set for his son; that he requested annual bonuses; that he told Hamm he wanted to be included in his will; and that Jenkins exhibited exuberant happiness at the funeral. Jenkins testified that he did not recall asking for a color TV and did not receive one from Hamm. Appellants also emphasize that, although Hamm did not like nursing homes, Jenkins arranged for him to enter the Pavilion and that Hamm’s family did not know of the move until an hour before; that Jenkins always remained in the room when Hamm had visitors; that Hamm made a generous gift to Jenkins’ church although Hamm had never been religious; and that a box containing Hamm’s check records could not be found.

As was stated in Estate of Von Ruden, supra, at page 375, “[a] 11 of the above circumstances, if unexplained, *291might tend to establish a disposition . . . However, each of these circumstances can be at least partially explained. The Pavilion agreed to prepare special meals for Hamm and to allow him to continue his daily routine of going to the tavern. Jenkins considered it part of his job to remain at Hamm’s side at all times; he left the room whenever he was requested to do so; and he was sometimes needed to interpret Hamm’s speech which was difficult to understand. The pastor of the Milwaukee Gospel Tabernacle testified of paying eight professional visits to Hamm at the home and of Hamm’s visits with the pastor in Hamm’s automobile in front of the church. Additionally, Irene testified that her brother never attended church but was interested in leaving something to charity. Jenkins recalled seeing the box containing Hamm’s canceled checks and check registers for the years after 1965 in the closet of the room at the Pavilion Nursing Home the Friday before he died. The day after the burial, Florence’s husband and Jenkins packed up everything in the room. While in the process of doing this, they were notified that Phyllis had suffered a stroke and had to be taken to the hospital. They hurriedly finished packing and Jenkins later delivered everything to a lawyer.

While there is evidence favorable to appellants with regard to this element, the finding of the trial court that there was no disposition on the part of Jimmie Jenkins to unduly influence testator is not contrary to the evidence.

Coveted result.

In considering the element of coveted result, this court has stated:

“A consideration of the element of a coveted result goes to the naturalness or expectedness of the bequest. Whether a will is unnatural, however, must be determined *292from a consideration of all the surrounding circumstances. Estate of Velk, supra, page 511; Estate of McGonigal, supra, page 217. The mere fact that a testator has chosen to leave his property to close friends rather than to relatives does not necessarily render the disposition unnatural. Estate of Steffke (1970), 48 Wis. 2d 45, 49, 179 N. W. 2d 846.” Estate of Von Ruden, supra, pages 375, 376.

The surrounding circumstances considered by this court in the Will of Cooper, supra, page 399; Estate of McGonigal, supra, page 217; Estate of Von Ruden, supra, page 376, and other cases have included the relationship between the testator and the beneficiary, the relationship between the testator and his relatives, whether the objectors were ever included in any previous will, whether the testator explained why he was excluding the objectors, the relative wealth of the parties and the unexpectedness of the testamentary provisions.

The relationship between Jenkins and Hamm was described as follows in the 1966 will, which was executed about five-and-one-half years prior to his death: “At the present I am employing JIMMIE JENKINS as a male nurse and attendant. I appreciate the services he is rendering to me and it is my hope and desire that he will continue to perform the services for me so long as I shall live.” There is nothing in the record to indicate that Jenkins did not treat Hamm with anything but the best care and respect. The record also indicates that Hamm was on friendly terms with his relatives and held no animosity toward any of them. Here the objectors had been named beneficiaries of prior wills. The 1970 will eliminated the three nonresident, married nieces entirely and reduced the shares of Irene and Phyllis. With regard to this factor, this court has stated: “. . . while a change of beneficiary is of some significance, it is not controlling that the change was caused by undue influence.” Estate of Elvers (1970), 48 Wis. 2d 17, 20, 179 *293N. W. 2d 881. Mr. Jeka testified that Hamm felt $50,000, free and clear of all death taxes, was sufficient for Phyllis and that, since Irene had an estate in her own right, the $35,000 trust would sufficiently take care of her. Irene testified that she had assets of about $100,000. The wealth of Phyllis, Florence and the nieces was not revealed in the record, but it is known that Phyllis was self-supporting and that Florence and the nieces were all married.

There is some dispute as to who knew how much about the will. Irene claimed Jenkins told her Hamm had changed his will but that she would not starve. Although lawyer Charne testified that in 1965, Jenkins was told Hamm wanted to leave something to him in his will, Jenkins denied knowing the contents of the will or that he was a beneficiary under it until after the funeral. John T. Jenkins stated that Hamm told him he was included in the will. This evidence is not adverse to the statements of the trial court that:

“. . . the will does not reflect a coveted result of undue influence by Jimmie Jenkins or any other person in view of all the facts and circumstances relating to the preparation and execution of such will; and
“. . . the bequest to Jimmie Jenkins was a reasonable and a natural one resulting from the kindness shown Clayton P. Hamm by Jimmie, Jenkins and the affection developed by Clayton P. Hamm for Jimmie Jenkins and his family; . . .”

Appellants and respondent cite and summarize the facts of numerous cases dealing with undue influence. However, the issue in each case is primarily a factual one dependent upon the particular facts of the case:

“In undue influence determinations the emphasis is on the facts surrounding the situation. Legal precedent often is of little value. . . .” Estate of McGonigal, supra, at pages 217, 218.

*294The finding's of fact made by the trial court in regard to the theory of undue influence above considered are not against the great weight and clear preponderance of the evidence.

These appellants also contend that undue influence was proved under the theory of confidential relationship between the testator and the beneficiary coupled with “suspicious circumstances.” Estate of Komarr (1970), 46 Wis. 2d 230, 175 N. W. 2d 473.

In order to raise the presumption of undue influence under this theory and shift the burden of going forward with the evidence, two things must be established.

First, there must be a confidential relationship between the testator and the person who engaged in procuring the drafting of the will and takes a benefit thereunder. This relationship has been characterized as follows:

“4. . . The basis for the undue influence presumption lies in the ease in which a confidant can dictate the contents and control or influence the drafting of such a will either as the draftsman or in procuring the drafting. ... If one is not the actual draftsman or the procurer of the drafting, the relationship must be such that the testator depends upon the advice of the confidant in relation to the subject matter of the will. . . .’ ” Estate of Velk (1972), 53 Wis. 2d 500, 507, 192 N. W. 2d 844.

The trial court found that such relationship existed between testator and respondent, and the record supports such a finding.

Second, coupled with such a confidential relationship there must be “suspicious circumstances” surrounding the actual execution of the will. On this issue the trial court found: “. . . That there are no unusual or suspicious circumstances surrounding or relating to the execution of such will; . . .”

The basic question which must be determined from the evidence submitted is always whether “the free agency of *295the testator has been destroyed.” Will of Faulks, supra, page 359. From our review of the record, it cannot be said that this had occurred when the will was executed in April, 1970, or at any other time. We are of the opinion that appellants endeavor to invoke this theory of undue influence based upon a misconception of its elements. The concept of this presumption of undue influence is based upon the ease with which the confidant can dictate the contents of and control or influence the drafting of such will either as the draftsman or in procuring the drafting. Estate of Steffke (1970), 48 Wis. 2d 45, 51, 179 N. W. 2d 846.

It is almost uncontroverted that the testator was “alert,” “competent,” “intelligent,” had “excellent business acumen” and “could not be influenced” up until the time he was hospitalized for his terminal illness two weeks before his death. The will admitted to probate was executed more than two-and-one-half years prior to his death. Jeka had done legal work and income tax work for Hamm for approximately four years before Hamm knew Jenkins. Jenkins did not know Jeka until after he started to work for Hamm.

There is no evidence in the record to reflect that Jenkins procured the drafting of the will or participated in its drafting. Nor is there evidence that Jenkins knew of the extent of his bequest until the will was published after the death of Hamm. The only possible evidence to support even an inference of such knowledge would be some opinion testimony of one of the sisters as to Jenkins’ purported demeanor after the will was published.

While there is evidence that Jenkins and his brother knew they were beneficiaries, this knowledge alone does not create a suspicious circumstance.

Since Jenkins was not the draftsman of the will and the evidence would not support a finding that he was the procurer of the drafting, the relationship would have to be such that the testator depended upon the advice of *296the confidant in relation to the subject matter of the will. While Hamm depended upon Jenkins for his physical needs, it does not follow that he depended upon or followed Jenkins’ advice in personal financial matters. We find no evidence, direct or circumstantial, that Hamm sought or received any advice or assistance from Jenkins in his personal financial affairs. We are of the opinion that Hamm accumulated his estate without Jenkins’ help or assistance and that he disposed of it as he saw fit and without his assistance.

By the Court. — Judgment affirmed.