Opinion
No. ED73874
OPINION FILED: June 29, 1999
APPEAL FROM THE CIRCUIT COURT OF THE COUNTY OF ST. LOUIS, HONORABLE LOUIS M. KOHN, JUDGE.
John F. Padberg, Gregory T. Mueller (co-counsel), 200 N. Broadway, Suite 700, St. Louis, MO 63102, for appellant.
James Ray Hicks, (Dorothy Fortune Leslie), 333 S. Kirkwood Rd., Ste. 303, St. Louis, MO 63122-6161, David L. Zwart, (Est. of William J. Stephenson), 200 N. Broadway, Ste. 700, St. Louis, MO 63102-2730, William G. Jochens, 1800 Equitable Building, 10 S. Broadway, St. Louis, MO 63102, John W. Moticka (co-counsel), (Little Sisters of the Poor) 10 S. Broadway, Ste. 2000, St. Louis, MO 63102. Patricia Kurtz (pro se), 7327 Devonshire Ave., Shrewsbury, MO 63119, Martin Fortune (pro se), 140 Cottage Ave., Webster Groves, MO 63119. Frances Yashuk (pro se), 111 East Woodbine Ave., #404, Kirkwood, MO 63122, Sr. Suzanne Hornung (pro se), Sacta Marie e Ripa, Mother House, 320 East Ripa Ave., St. Louis, MO 63125. Mrs. Norma Stephenson, 3617 Diamond Head Drive, St. Louis, MO 63125, for respondents.
ORDER
[2] Opinion of January 26, 1999 is ordered set aside.New opinion to issue.
Norma Stephenson ("wife") appeals the order of the probate court denying her petition for declaratory judgment seeking to be declared an omitted spouse pursuant to section 474.235 RSMo 1994. We reverse.
All further statutory references are to RSMo 1994 unless otherwise indicated.
William Stephenson ("husband") executed a will on December 15, 1988. He had been a widower for 21 months and had not remarried. Therein, he bequeathed the following: $40,000 and a car to his "friend, Norma Weidman"; $15,000 a piece to a sister, a brother, two former sisters-in-law, and a former brother-in-law; $5,000 to another sister-in-law; $10,000 to a friend; and his personal effects to a charity. The residuary was to be divided among several other charities and similar organizations. Husband's attorney, David Zwart ("attorney"), and wife were named co-personal representatives. The total value of husband's estate was approximately $450,000 when he executed the will, but was inventoried at $1.1 million at his death.
Weidman is wife's former surname.
Eight years after writing his will, husband and wife married in May 1996. He made no changes to his will after his marriage to wife. Husband died of a heart attack three months after the marriage.
Wife filed her petition for declaratory judgment in probate court, seeking to be declared an omitted spouse. Wife, husband's attorney, and two beneficiaries, who were relatives, testified at a hearing. One other beneficiary gave an unsworn statement. The court, on the request of wife, declined to render a judgment for seven days in order to give the parties an opportunity to reach a settlement. During the interim, the charities filed objections to wife's petition. A hearing was held on those objections, but no additional witnesses testified. Two beneficiaries, however, gave unsworn statements. The probate court denied wife's petition, stating she had not met her burden of proof that the bequest to her was not made in contemplation of marriage. This appeal followed.
We note initially that wife had three options upon husband's death. First, she could take under the will, which would entitle her to $40,000, a car, and to serve as a co-personal representative. Second, she could elect to take against the will under section 474.160, which would entitle her to one-half of husband's estate. Finally, she could ask to be declared an omitted spouse under section 474.235.1, which would entitle her to husband's entire estate pursuant to intestate succession.
Section 474.235.1 provides:
If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received if the decedent left no will, unless it appears from the will that the omission was intentional or that the testator provided for the spouse by transfer outside the will, and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator, the amount of the transfer or other evidence.
The issue before us is whether husband's bequest to wife was in contemplation of his later marriage to her. Estate of Groeper v. Groeper, 665 S.W.2d 367 (Mo. App. 1984). When a will executed before marriage contains a bequest for an individual who later becomes the testator's spouse, the surviving spouse has the burden of proving that the bequest was not made in contemplation of marriage. Id. at 369.
We will sustain the order of the court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Groeper, 665 S.W.2d at 369.
Wife bears the burden of proving that husband was not contemplating marriage to her when he executed his will in December 1988. Wife testified she and husband were not contemplating marriage in December 1988, and they first considered marriage almost eight years later, in March 1996, when he proposed to her.
Attorney testified that when he asked husband at the time of the will's execution if he had marriage plans, husband answered, "No." There was no other evidence regarding husband's statements or actions indicating any intention to marry wife.
The trial court expressed concerns with wife's credibility based on the court's belief that she misrepresented the extent of husband's illness and that she failed to effectively refute allegations that she and husband became romantically involved before he executed his will. The trial court also expressed concerns with attorney's credibility regarding his discussion of prenuptial agreements with husband even though husband had told attorney he was not contemplating marriage.
We defer to credibility determinations of the trial court.Business Men's Assur. Co. of America v. Graham, 984 S.W.2d 501, 507 (Mo. banc 1999). Although a trial court's judgment should not be based on mere speculation and conjecture, it may make reasonable inferences from the facts it has. State v. Rodgers, 260 S.W.2d 736, 740 (Mo. 1953); First Nat. Ins. Co. of America v. Clark, 899 S.W.2d 520, 521 (Mo. banc 1995). An inference is a logical a priori conclusion drawn by reason from proven or admitted facts. Wright v. Over-the-Road, 945 S.W.2d 481, 495 (Mo. App. 1997); Rusk Farms, Inc. v. Ralston Purina Co., 689 S.W.2d 671, 680 (Mo. App. 1985). Inferences are not founded on the possibility that a thing could have happened or on the probability that a thing may have occurred. Wright, 945 S.W.2d at 495.
The trial court, in finding that wife did not meet her burden of proof that husband's testamentary bequest was not made in contemplation of marriage, based this conclusion on conjecture and speculation rather than from a reasonable inference from the evidence.
The trial court's order stated that wife's credibility was questioned when she "failed to mention the extent of decedent's illness" and "would have the court believe that decedent died completely unexpectedly."
We find that the trial court's conclusions were not based on reasonable inferences in that the testimony of wife and beneficiaries is not inherently contradictory. Although other family members testified that husband had suffered from cancer and heart problems for ten years, there was no evidence that his condition was terminal or that death was imminent.
We further fail to see any evidence or reasonable inference that wife and husband had been romantically involved in 1988 when he wrote his will. Again, the trial court had predicated its conclusion on conjecture from the following evidence: wife and husband both worked at Proctor Gamble since 1953; husband had allegedly had an affair with a woman at Proctor Gamble before his first wife died; husband and wife started traveling together shortly after the first wife's death in 1987; husband listed wife as "my good friend" in setting out his bequest to her; and the proportion of the estate bequeathed to wife "certainly indicat[ed] that she was more than a friend."
The trial court stated, "[Wife] failed to deny that she was the one with whom he had an affair." However, wife was never asked that question. No direct contradiction can be found between wife's testimony and the beneficiaries' evidence.
Even if husband and wife were romantically involved at the time he executed the will, it cannot be inferred that marriage was contemplated. Many people who are romantically involved do not have any marriage plans. The trial court's conclusion that marriage was contemplated is mere conjecture.
Additionally, the court speculated that because husband possessed a book on estate planning, he must have been knowledgeable about Missouri probate law and inheritance rights of wife. There was no evidence, however, that he read the book or understood the law in this area.
Finally, the trial court speculated that because attorney discussed prenuptial agreements with husband, he must have been contemplating marriage at that time. However, the trial court had no evidence before it that would support the conclusion that attorneys discuss prenuptial agreements only with clients who are currently contemplating marriage. Attorneys may discuss this type of agreement as a matter of course with all of their recently widowed clients with considerable assets.
The court's findings and conclusions are based on conjecture and mere speculation and are against the weight of the evidence. We cannot uphold findings and conclusions that are not based on reasonable inferences.
Husband's statements to his attorney at the time of the will's execution denying any marriage plans, coupled with the near eight year passing of time between the will's execution and their marriage, demonstrate that wife has met her burden of proof underGroeper to show that his bequest to her was not made in contemplation of marriage.
By our holding, which we limit to the unique circumstances of this case, we are following the legislative intent of section 474.235 to protect the surviving spouse. See Groeper, 665 S.W.2d at 369. The purpose of the omitted spouse law is to ensure that a decedent considered the surviving spouse as a spouse when making a will. Substantially different considerations underlie a testator's bequest to a friend or relative as opposed to providing for the well-being of his or her spouse. Id. at 368-69.
We find that wife's substantive evidence indicates husband did not intend her to be his future spouse when he executed his will, and she is an omitted spouse within the meaning of section 474.235. She was not provided for otherwise outside the will and is entitled to what she would have received under intestate succession.
Rule 84.14 allows us to finally dispose of this case unless justice otherwise requires. See Meiners v. Meiners, 858 S.W.2d 788, 791 (Mo. App. 1993). On review, we may dispense with the remand process and render the judgment that should have been rendered by the trial court. Id. We therefore reverse the order of the court and grant wife's petition for declaratory judgment.
Mary K. Hoff, P.J., concurs.
Gary M. Gaertner, J., dissents in separate opinion.
DISSENTING OPINION
I respectfully dissent. It should be noted from the outset that wife had the burden of proof in this case. She had to demonstrate to the court that husband was not contemplating marriage to her when he executed his will. A trial court, sitting as the trier of fact, is free to disbelieve all of the testimony of any witness or to believe part of the testimony and reject the rest. Matter of Viviano's Estate, 624 S.W.2d 130, 133 (Mo. App. E.D. 1981). "Even if the evidence of a party having the burden of proof is uncontradicted, it still may not carry the burden of proof."Id. Credibility determinations are for the trial court and the court "is not required to believe even uncontradicted self-serving testimony." Carrel v. Carrel, 791 S.W.2d 831, 834 (Mo. App. W.D. 1990).
The majority has collapsed two fundamental precepts into one; resulting in the idea that the trial court's determination of credibility is based on inferences from proven facts. The majority does not cite, nor did I find, any case law to support this idea. Further, this idea ignores the law that states a credibility determination by a trial court (or more specifically our deference to it) is based in part on the court's opportunity to observe the witness, her physical and mental condition, and her demeanor. Meyer v. Pierce, 753 S.W.2d 79, 80 (Mo. App. E.D. 1988).
These two precepts are: 1) We defer to credibility determinations of the trial court; and 2) A trial court may make reasonable inferences from the facts it has, and such judgments deserve appellate court deference.
In the case at bar, the trial court found, "it has a problem with [wife's] credibility." The majority finds this is not based on reasonable inferences because they fail to see any inherent contradiction of evidence between the testimony of wife and beneficiaries. But to reiterate, no case law supports the precept that a trial court makes a credibility determination based on inferences. The law that allows a trier of fact to make reasonable inferences is applied when a plaintiff uses circumstantial evidence in attempting to meet her burden of proof. "Proof of essential facts may be accomplished by circumstantial evidence as long as the desired inference is established with such certainty as to cause it to be the more probable of the conclusions to be drawn." Wright v. Over-the-Road, 945 S.W.2d 481,495 (Mo. App. W.D. 1997). InWright, the case cited by the majority, a plaintiff was attempting to demonstrate actual malice on the part of her employer to support one element of her case for defamation. Id. The plaintiff failed because one with the burden of proof cannot meet same based on pure speculation. Id. The majority turns this law upside down when it attempts to say that the trial judge, who found plaintiff did not meet her burden of proof, based his determination of credibility (and ultimately his ruling) on mere speculation and conjecture.
The majority fails to cite law that connects inferences to contradictions.
The court said, "[w]e liberally view the legitimacy of inferences in the plaintiff's favor, however such liberal view does not include speculative free leaps to the desired inference." Wright, 945 S.W.2d at 495.
Even if we indulge the majority with the idea that a credibility determination by a trial court has to be supported by reasonable inferences, their conclusion fails. On the issue of husband's health, the legislative intent of Section 474.235 is to protect the surviving spouse from inadvertent disinheritance.Estate of Groeper v. Groeper, 665 S.W.2d 367, 369 (Mo. App. E.D. 1984). (Emphasis ours). Critical to that finding is the question of whether husband had the opportunity to review his will. In the case at bar, wife's attorney said in his opening statement that because of husband's sudden and unexpected death, husband had inadvertently disinherited his wife. Wife, while on the stand, testified her husband had died "very suddenly" of a heart attack. However, the other legatees all testified husband had been ill with cancer and heart problems for many years. Specifically, one legatee testified she had visited husband a few days after his marriage to wife, and husband told her he had had congestive heart failure on a recent trip. He appeared unable to rise from his chair. In its order, the trial court stated it had a problem with wife's credibility partly because, "she would have had the court believe that [husband] died completely unexpectedly."
If we follow the majority's logic, we say the following; the admitted facts are: Husband had battled cancer for years; husband had congestive heart failure around the time of marriage to the wife such that he was too weak to rise from a chair. It is reasonable to infer husband did not die suddenly or unexpectedly. (Whether there was evidence his condition was terminal or that death was imminent is irrelevant, the fact is he was seriously ill for a long period before and during the marriage.) To further follow the majority's logic on the credibility issue, the admitted facts are: Wife said husband died suddenly and unexpectedly; the legatees said he was ill for many years with cancer and heart failure; husband did not die suddenly or unexpectedly. The reasonable inference is either wife was untruthful or the legatees were. The trial court, which had the opportunity to observe wife and the legatees testify, obviously thought the former.
It should be noted that the legatees who testified were not represented by counsel.
The majority also states they fail to see any evidence or reasonable inference that wife and husband had been romantically involved in 1988 when husband wrote the will. I note, also critical to the question of whether husband was contemplating marriage to wife when he executed his will is the determination of the nature of husband's and wife's relationship at that time. When wife was asked whether she had a romantic relationship with husband in 1988, when the will was executed, wife replied, "I don't think so." However, other legatees testified that husband and wife traveled together on a long trip in a recreational vehicle shortly after the death of husband's first wife, Marian, in 1987 and before the will was executed. Further, one legatee, Marian's sister, testified husband and Marian had contemplated divorce due to an affair he was having with someone at work. Husband and wife both were employed at Proctor Gamble and it was intimated the affair was with wife.
Again to use the majority's logic, the admitted facts are: wife traveled in a recreational vehicle with husband shortly after the death of his first wife and before the will was executed; Marian (first wife) had contemplated divorcing husband due to an affair he was having with someone at work; wife worked with husband at Proctor Gamble; wife was left the largest specific bequest in husband's will along with in-laws whom husband had known and been close to for years. It is reasonable to infer wife was romantically involved with husband when the will was executed. To further follow the majority's logic on the credibility issue, the facts are: When wife was asked if she was romantically involved with husband when the will was executed, her reply was, "I don't think so."; wife never retook the stand to deny she was romantically involved with husband, even after one legatee intimated husband was having an affair with wife before Marian (first wife) died; wife did not deny that she traveled in a recreational vehicle with husband shortly after Marian's death. The reasonable inference is that wife was not entirely truthful about her relationship with husband before the will was executed.
On the preceding point, the majority writes, "[e]ven if husband and wife were romantically involved at the time he executed the will, it cannot be inferred that marriage was contemplated. Many people who are romantically involved do not have any marriage plans. The trial court's conclusion that marriage was contemplated is mere conjecture." The majority, who condemns the trial court for basing its conclusion on conjecture and speculation, does so much more egregiously and makes an incomplete conclusion. The majority's statement that many people who are romantically involved do not have any marriage plans is not supported in the record. Nobody was asked about people who are romantically involved and the percentage of those with marriage plans. The whole statement is an exercise in conjecture and speculation. Further, because the trial court concluded wife, who bore the burden of demonstrating marriage was not contemplated, failed to meet her burden, it felt bound to conclude that marriage was contemplated between husband and wife. Therefore the court didn't base its conclusion on speculation or conjecture, but rather on the fact that wife failed to meet her burden of proof.
Wife, in attempting to meet her burden, also put on the attorney who had drafted the will. The court found the attorney's testimony vague and contradictory in itself. Specifically, the trial court noted that at the hearing, attorney stated husband had told him he was not contemplating marriage to wife. Yet, the attorney went on to state that he then discussed a prenuptial agreement with husband. The court found attorney's testimony contradictory and wondered why he would suggest a prenuptial agreement if there were no talk of marriage. On this point the majority states, ". . . the trial court speculated that because attorney discussed prenuptial agreements with husband, he must have been contemplating marriage at that time. However, the trial court had no evidence before it that would support the conclusion that attorneys discuss prenuptial agreements only with clients who are currently contemplating marriage. Attorneys may discuss this type of agreement as a matter of course with all of their recently widowed clients with considerable assets." In response to the majority's statement that the trial court had no evidence to support it conclusion about prenuptial agreements, I note the definition of a prenuptial agreement: "One entered into by prospective spouses prior to marriage but in contemplation and in consideration thereof . . ." BLACK'S LAW DICTIONARY 1181 (6TH ed. 1990). Further, in response to the majority's last statement that attorneys may discuss these agreements as a matter of course, this is not supported in the record and therefore could only be based on mere conjecture and speculation on the part of the majority.
One of the legatees noted to the court that the attorney who drafted the will for husband is in the same law firm as wife's trial attorney, who is now attacking the will.
The trial court did not base its conclusion that wife did not meet her burden of proof, on conjecture and speculation, rather he found wife's evidence incredible. A trial court's determination of credibility is not based on legal inferences, but rather on his opportunity to observe the demeanor of the witnesses. Therefore, because we give great deference to the trial court's opportunity to judge the credibility of witnesses I would affirm the trial court's decision on that ground alone.
See Estate of Munday, 887 S.W.2d 734, 735 (Mo. App. E.D. 1994).
I go on, however, to note that under Murphy v. Carron, 536 S.W.2d at 32, I do not believe the trial court's ruling was against the weight of the evidence nor does it erroneously declare or apply the law.
This case involves the so-called "omitted spouse" rule, RSMo section 474.235. Before this statute was enacted in 1981, Missouri followed the "statutory and common law doctrine which required revocation of a will upon a change of circumstances such as a subsequent marriage." Estate of Dennis, 714 S.W.2d 661, 666 (Mo. App. W.D. 1986). One criticism of this doctrine was that such a revocation interfered with other provisions in the will.Id. RSMo section 474.235, which mirrors the Uniform Probate Code ("UPC") section 2-301, was enacted to abrogate this common law doctrine.
Essentially, this law allows a surviving spouse who was omitted from the testator's will to invalidate the will, but under the more limited circumstances set out by the statute. This statute demonstrates a legislative intent to protect the surviving spouse from inadvertent disinheritance, and beneficiaries who would not be entitled to an intestate share of the estate and would otherwise lose their bequest. Estate of Groeper v. Groeper, 665 S.W.2d 367, 369 (Mo. App. E.D. 1984).
In our case, wife was specifically provided for in decedent's will. Therefore, under a plain reading of the statute, it would appear wife has no claim under the omitted spouse statute. However, Missouri courts have carved out an exception whereby a surviving spouse, although specifically provided for in the will, may invoke the statute. Id. at 369-70.
In Groeper, decedent executed a will on March 24, 1970, the day his first wife died. Id. at 368. In the will, decedent left a class gift to his siblings and siblings-in-law, which left them equal shares of his property. Included in this class was Melinda, who at that time was the widow of his first wife's brother. Id. Melinda and decedent married October 16, 1971. Decedent passed away on March 15, 1982, having not changed his original will. Melinda petitioned the court, claiming she was an omitted spouse under RSMo section 474.235. The trial court determined Melinda was an omitted spouse but found she was provided for by non-testamentary transfers. The court of appeals examined the omitted spouse statute in reaching its decision. Id. at 368-70. The court said the omitted spouse statute "clearly reflects the legislature's intent to protect a spouse from inadvertent disinheritance in addition to protecting beneficiaries who are not entitled to intestate distribution and would otherwise not receive their devise or bequest." Id. at 369. Following the lead of other jurisdictions faced with the issue of what to do when the will contains a provision to an individual who later becomes a testator's spouse, the court determined "the surviving spouse has the burden of proving the provision was not made in contemplation of marriage." Id. at 369, citing In re Livingston's Estate, 172 So.2d 619, 620-21 (Fla. 2d Dist. Ct. App. 1965). See also Estate of Ganier v. Estate of Ganier, 418 So.2d 256 (Fla. 1982) and In re Poisl's Estate, 280 P.2d 789, 792 (Cal. 1955).
In Groeper, the facts were stipulated to, and the exhibits were entered into evidence with both parties' consent. Id. at 368. In Groeper, the court examined the provisions in the will and from that determined Melinda was an omitted spouse. Id at 369-70. In our case, we have evidence in the form of testimony of the wife herself, the attorney who drafted the will, various legatees and the will itself. As Groeper is silent as to what evidence, beyond the will, the court is to consider, the court examines other jurisdictions for guidance.
Upon examination of other jurisdictions, two different interpretations of section 2-301 of the Uniform Probate Code emerge. One where the surviving spouse had the burden of proving the provision was not made in contemplation of marriage, and one where the spouse has the burden of proving the testator failed to provide by will for his surviving spouse. In the latter approach, "[i]n order to satisfy [the] burden, the evidence must be sufficient to establish that the testamentary gift specified before the marriage could not reasonably represent [the] testator's effort 'to provide by will for his surviving spouse.'"Estate of Christensen, 655 P.2d 646, 650 (Utah 1982), quoting Utah Rev. Stats., section 75-2-301. Insofar as the evidence needed to satisfy the above burdens, other than the fact the contemplation of marriage test appears temporally limited to the time the will was executed, the evidence examined is similar.See Miles v. Miles, 440 S.E.2d 882, 883-84 (S.C. 1994) (stating decedent must consider "the surviving spouse in that capacity at the time the will was executed.") (emphasis in original). Generally, the evidence the courts have examined include the will itself and "evidence of the circumstances existing at the time of the will's execution . . . ." Ganier, 418 So.2d at 260. Specifically, courts have considered: 1) the alternative legatees under the will, 2) the monetary value of the bequest to the surviving spouse, 3) the fraction of the estate that bequest represents, 4) whether comparable gifts were made to others, 5) the length of time between execution of the will and the marriage, and 6) duration of the marriage. Estate of Christensen, 655 P.2d at 650 and Matter of Estate of Keeven, 716 P.2d at 1230.
Those applying the former "in contemplation of marriage" burden include: Estate of Ganier, supra, Miles v. Miles, 440 S.E.2d 882 (S.C. 1994), Groeper, supra. Those applying the latter burden include: Matter of Estate of Keeven, 716 P.2d 1224 (Idaho 1986) and Estate of Christensen v. Christensen, 655 P.2d 646 (Utah 1982), Estate of Herbach v. Herbach, 583 N.W.2d 541 (Mich. Ct. App. 1998). See also, The Problem of the "Un-omitted" Spouse Under Section 2-301 of the Uniform Probate Code, 52 U. Chi. L. Rev. 481 (1985).
As I have already addressed the issue of the credibility of wife's evidence, i.e, her testimony and that of the attorney, I will not be repetitious, but rather note the other evidence supports the trial court's decision as well. The will itself leaves the largest specific bequest to wife, which was approximately ten percent of the estate at the time of execution. No comparable specific bequest was made to any other person. The other legatees were former in-laws whom husband had remained close to throughout his life, and charities that husband had given to his entire life. Further, I note that wife may elect to take against the will, entitling her to one-half of decedent's estate, a fact of which, by inference, husband was aware. This evidence lends credence to the trial court's finding that husband's will reflected his actual intent. Therefore, based on the foregoing, I would affirm the trial court's decision finding wife is not an omitted spouse.