Weber v. Jordahl

IN THE COURT OF APPEALS OF IOWA

No. 23-0064
Filed January 10, 2024

MELISSA WEBER and SHELLY DONLON,
Plaintiffs-Appellants,

vs.

NANCY JORDAHL and WAYNE JORDAHL, individually, and NANCY
JORDAHL in her capacity as Executor of the Estate of Pauline Fossum and
Trustee of the Pauline Fossum Revocable Trust,
Defendants-Appellees.
________________________________________________________________

Appeal from the Iowa District Court for Winneshiek County,

Alan T. Heavens, Judge.

Granddaughters appeal the order dismissing their petition contesting their

grandmother’s will and trust. AFFIRMED.

Judith O’Donohoe of Elwood, O’Donohoe, Braun, White, LLP, Charles City,

for appellants.

Thomas C. Verhulst of Beecher, Field, Walker, Morris, Hoffman & Johnson,

P.C., Waterloo, for appellees.

Heard by Tabor, P.J., and Ahlers and Chicchelly, JJ.
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CHICCHELLY, Judge.

Melissa Weber and Shelly Donlon appeal the order denying their petition

that contests the will and trust of their grandmother, Pauline Fossum, claiming that

Pauline’s daughter and son-in-law, Nancy and Wayne Jordahl, exercised undue

influence over Pauline and tortiously interfered with their inheritance. Melissa and

Shelly first claim the district court erred by excluding their rebuttal witness.

Because we find the rebuttal was improper, we affirm the exclusion of the witness.

Next, Melissa and Shelly contend the district court erred by finding they failed to

prove: (1) Nancy and Wayne exercised undue influence over Pauline in the

execution of her will and trust and (2) tortiously interfered with their inheritance.1

Because we find that Melissa and Shelly failed to establish either claim, we affirm

the denial of their petition.

I. Background Facts and Proceedings.

Pauline passed away on January 29, 2021, and was predeceased by both

her husband, Delford Fossum, and their son, David Fossum. She was survived by

a daughter, Nancy, and Nancy’s husband, Wayne Jordahl. This action was

brought by David’s children, Melissa and Shelly.

Before Pauline’s death, the Fossum family was fraught with tension. David

had consistent substance-use concerns over the years, including three operating-

while-intoxicated charges. Pauline, Nancy, and Wayne pitched in to bail him out

from jail and provide care. David completed a substance-abuse evaluation in 2014

1 The district court found that Pauline had testamentary capacity due to the
overwhelming amount of evidence. While the appellants preserved this issue at
the district court level, they did not dispute it on appeal. We therefore find this
issue waived. See Iowa R. App. P. 6.903(2)(g)(3).
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that recommended he participate in extended outpatient treatment, but he did not

complete it. By 2014–2015, David’s health and cognitive decline prevented him

from living independently and properly caring for himself. The house he had been

living in on Pauline’s property was “unsanitary” and covered in filth. He lived with

Pauline off and on, and she and Nancy cared for him.

As time passed, Pauline’s longtime physician expressed concerns with the

shared housing situation. It was apparent that David’s needs were a great source

of stress for Pauline, and there was evidence that David may have been verbally

abusive to her. In 2015, David was placed under guardianship and

conservatorship, and Melissa was eventually appointed as his guardian. Melissa

moved David to an apartment and provided consistent care to him until his death

in 2020.

During her lifetime, Pauline executed two separate wills. Her long-time

attorney drafted both. In 1990, she executed a first will and testament, naming her

husband as sole beneficiary and executor. Their two children, David and Nancy,

were named as contingent beneficiaries, with David serving as replacement

executor. Following her husband’s death, Pauline executed a codicil that named

both David and Nancy as co-executors.

On June 26, 2015, during David’s guardianship proceedings, Pauline

executed both a second will and revocable trust, which are the subjects of this

appeal. In her revised will, Pauline revoked the 1990 will and named Nancy as the

sole executor. She also established a revocable trust and directed that all her

estate pass to the trust, of which Nancy was the sole trustee and beneficiary.

Nancy’s children were named as contingent beneficiaries in the event Nancy
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should predecease Pauline. The same day, Pauline conveyed property—such as

real estate, financial accounts and investments, and tangible personal property—

to the trust.

After Pauline’s death in 2021, Melissa and Shelly contested her will. In their

petition, they alleged Pauline lacked testamentary capacity, that Nancy and Wayne

unduly influenced Pauline, and that Nancy and Wayne tortiously interfered with

their bequest.

Less than two weeks before trial, Melissa and Shelly disclosed several

witnesses for the first time. The district court excluded these witnesses for lack of

timeliness and prejudice to the opposing parties. During the bench trial, Melissa

and Shelly again attempted to call one of these witnesses, Pat O’Regan, as a

rebuttal witness, and the district court again denied them, determining the use of

rebuttal was a thinly-veiled attempt to subvert the timeliness issue and introduce

new, additional evidence.

Following trial, the district court denied Melissa and Shelly’s petition with

prejudice. Melissa and Shelly appealed. On appeal, they do not contest the district

court’s conclusion that Pauline had testamentary capacity. Instead, they contend

the district court erred by excluding the rebuttal testimony and dismissing their

claims for undue influence and tortious interference with a bequest.

II. Exclusion of Rebuttal Witness Testimony.

First, although Melissa and Shelly do not appeal witness Pat O’Regan’s

exclusion from their case-in-chief, they claim the district court erred by excluding

his rebuttal testimony. “Rebuttal evidence is evidence that explains, repels,

controverts, or disproves evidence produced by the opposing party.” State v.
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Weaver, 608 N.W.2d 797, 806 (Iowa 2000). We generally review evidentiary

rulings for an abuse of discretion. Valdez v. West Des Moines Cmty. Schs., 992

N.W.2d 613, 634 (Iowa 2023). An abuse of discretion is a decision that is based

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

State v. Einfeldt, 914 N.W.2d 773, 778 (Iowa 2018) (citations omitted). “The trial

court has considerable discretion in admitting rebuttal evidence . . . .” Weaver, 608

N.W.2d at 806.

Melissa and Shelly argue O’Regan would be used to rebut two other

witnesses: Kevin Bidne, Pauline’s neighbor, and Dave Wise, her longtime tenant.

Both Bidne and Wise testified that Pauline had never discussed her estate

planning decisions with them. Melissa and Shelly claim that O’Regan would serve

as rebuttal because Pauline had shared her wishes with him. But the district court

concluded that this was not proper rebuttal testimony. O’Regan’s statements were

not being used to explain or disprove any interactions Pauline had with Bidne or

Wise. Instead, it was new evidence of a separate conversation that should have

been timely disclosed prior to trial. Because we find the evidence did not rebut the

testimony of Bidne or Wise, we conclude the district court properly exercised its

discretion by denying it.

III. Dismissal of Claims.

Next, Melissa and Shelly contend the district court erred by dismissing their

claims that Nancy and Wayne unduly influenced Pauline in the execution of her

will and tortiously interfered with their bequest. Because will contests are triable

in the probate court as an action at law, our review is for the correction of errors.

See Iowa Code § 633.311 (2021); Wolf v. Wolf, 690 N.W.2d 887, 892 (Iowa 2005).
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In reviewing for correction of errors at law, “the district court’s fact findings are

binding on us if they are supported by substantial evidence.” Wolf, 690 N.W.2d

at 892. We consider each claim in turn.

A. Undue Influence.

Melissa and Shelly allege the district court erred by dismissing their undue-

influence claim. To exercise undue influence over another, the person exercising

influence substitutes their will with that of the testator. In re Est. of Bayer, 574

N.W.2d 667, 671 (Iowa 1998). In order to prove that Nancy and Wayne unduly

influenced Pauline, Melissa and Shelly must establish: (1) Pauline was susceptible

to undue influence; (2) Nancy and Wayne had an opportunity to exercise undue

influence; (3) they had a disposition to influence unduly to procure an improper

favor; and (4) the result was clearly the effect of undue influence. Id. Mere

suspicion is not adequate, but instead, “there must be a solid foundation of

established facts upon which to rest an inference of its existence.” Id. (quoting In

re Will of Pritchard, 443 N.W.2d 95, 98 (Iowa 1989)).

In contending the district court erred, the appellants’ argument rests solely

on the credibility of their own witnesses. But it is not the job of this court to make

credibility determinations. See Van Sloun v. Agans Bros., 778 N.W.2d 174, 182

(Iowa 2010) (“On appeal in a law action we are bound by such factual findings on

the credibility of witnesses.”); see also Bayer, 574 N.W.2d at 670 (stating that in a

will contest, weight and credibility of the evidence are questions for the trier of fact).

Instead, we defer to the district court’s evaluation of the evidence. It found Nancy

and Wayne’s evidence credible and that Pauline was not susceptible to being

unduly influenced. Several witnesses expressed Pauline’s strength and resolve.
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Despite health complications and stressors related to David’s caregiving, Pauline

was described as “alert, oriented,” “active,” “sharp,” and “independent.” At trial,

the appellants attempted to present a narrative of Nancy and Wayne’s isolation of

Pauline away from loving family. But the evidence instead depicted Pauline’s

conflict between her love for her children and her concern for the loss of the family

farm to creditors or liens should David continue to have substance-abuse issues

or potentially cause an accident while driving under the influence. Pauline then

used her long-term, trusted attorney to make her provisions in light of those

particular circumstances.

Melissa and Shelly further claim Pauline and Nancy shared a “confidential

relationship,” which impacts Nancy’s level of influence over her mother. A

“confidential relationship” exists in “all the variety of relations in which dominion

may be exercised by one person.” In re Herm’s Est., 284 N.W.2d 191, 199 (Iowa

1979) (citation omitted). A suspicion of undue influence arises “where the

dominant party in a confidential relationship participates in either the preparation

or execution of the contested will.” Bayer, 574 N.W.2d at 675. Whether a

confidential relationship exists between Pauline and Nancy, the presence of

suspicion would not change the analysis. Substantial evidence shows Nancy did

not unduly influence Pauline. While Pauline and Nancy had a close relationship

and Nancy certainly had an influential role in her life, the district court found Nancy

highly credible. It described her as “not a controlling or domineering person” and

found no evidence that she used her caregiving position to manipulate Pauline’s

estate plans. With regard to Wayne, the district court found that he had no interest

in Pauline’s property. In fact, he actually requested he be removed as a contingent
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beneficiary. Upon review, we find substantial evidence supports that Pauline was

not unduly influenced by either Nancy or Wayne. We therefore affirm dismissal of

this claim.

B. Tortious Interference with a Bequest.

Finally, Melissa and Shelly argue the district court erred by denying their

tort claim because Nancy and Wayne tortiously interfered with their bequest.

There is “substantial overlap” between undue influence and tortious interference

with a bequest. Youngblut v. Youngblut, 945 N.W.2d 25, 37 (Iowa 2020) (citation

omitted). Like their undue-influence claim, Melissa and Shelly hinge their

argument on credibility determinations, claiming their evidence is more reliable.

But they once again fail to explain why the district court’s findings constitute error.

To be successful on a claim for tortious interference, Melissa and Shelly must

show: (1) they expected to receive a bequest from Pauline upon her death,

(2) Nancy and Wayne knew of the expected bequest, (3) Nancy and Wayne

intentionally and improperly interfered with their expectancy through undue

influence, (4) there was a reasonable certainty Melissa and Shelly would have

received an inheritance but for the interference, and (5) Melissa and Shelly

suffered damages as a result of their loss of the bequest. In re Est. of Boman,

No. 16-0110, 2017 WL 512493 (Iowa Ct. App. Feb. 8, 2017).

Melissa and Shelly have not produced substantial evidence in support of

their tortious-interference claim. They had no expectation of any bequest. Pauline

provided no inheritance to any of her grandchildren in the 1990 will, and likewise,

she only included any grandchildren as contingent beneficiaries in the 2015 will.

Neither appellant was named in a previous will, and there is no evidence Pauline
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ever had any intentions to include them. In fact, when her attorney asked her about

including David’s children, Pauline reportedly answered, “If David isn’t to have it, I

would rather have Nancy and her family have it.” Her attorney testified it was his

understanding that while she loved Melissa and Shelly, Pauline did not wish for

them to inherit anything. Because the same activities speak to the undue-influence

claim as here, we similarly find no evidence of interference from Nancy or Wayne.

Further, Nancy and Wayne could not interfere with an expectancy that did not exist.

Accordingly, there is no showing of interference.

IV. Disposition.

Because the district court did not abuse its discretion in its evidentiary ruling,

we affirm the exclusion of the appellants’ rebuttal witness. Because substantial

evidence supports the district court’s findings, we affirm the denial of the undue

influence and tortious interference with a bequest claims.

AFFIRMED.