In the Matter of the Estate of James Robert Martin

IN THE COURT OF APPEALS OF IOWA

No. 23-0173
Filed December 20, 2023

IN THE MATTER OF THE ESTATE OF JAMES ROBERT MARTIN, Deceased.

TODD A. KERMOADE,
Plaintiff-Appellant,

vs.

CHRISTY AINSWORTH and LESLEE SORENSEN, Executors of the ESTATE
OF JAMES ROBERT MARTIN,
Defendants-Appellees.
________________________________________________________________

Appeal from the Iowa District Court for Cass County, Craig M. Dreismeier,

Judge.

The plaintiff in a will contest challenges the district court’s grant of summary

judgment in favor of the defendant co-executors. AFFIRMED.

Robert J. Engler of Cambridge Law Firm, P.L.C., Atlantic, for appellant.

Edward F. Noethe of McGinn, Springer & Noethe, PLC, Council Bluffs, for

appellees.

Considered by Tabor, P.J., Buller, J., and Potterfield, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023).
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POTTERFIELD, Senior Judge.

Todd Kermoade petitioned to contest the will of his deceased stepfather,

James Martin, claiming Martin lacked testamentary capacity when the will was

executed on October 1, 2020, and that the will was the result of undue influence

by Martin’s daughters, co-executors Christy Ainsworth and Leslee Sorensen. The

co-executors moved for summary judgment, which the district court granted.

Kermoade challenges that adverse ruling on appeal; he argues there is a genuine

issue of material fact regarding both of his claims so summary judgment was not

proper.

I. Background Facts and Proceedings.

According to an affidavit filed by Kermoade, he stayed with and helped

provide care for Martin for a period of time leading up to September 2020. Their

relationship soured and matters came to a head in late September 2020 when the

pair argued and Kermoade “got frustrated and threw a [pill] bottle at [Martin].” A

few days later, at the behest of Martin and Sorensen, law enforcement told

Kermoade he was not allowed to return to the home.

Martin executed a new will on October 1, 2020. Unlike with his previous

will, in which Martin left Kermoade land and the “home residence,” the October

2020 will split Martin’s property between Ainsworth and Sorensen and left

Kermoade $5000.

Martin died on April 26, 2022, and Sorensen submitted Martin’s will for

probate soon after. Pursuant to provisions in the will, Sorensen and Ainsworth

were appointed co-executors of the estate.
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Kermoade petitioned to contest the will, asserting Martin “did not have the

mental ability to execute a will on October 1, 2020, and did not understand the

consequences of his actions” and the will “was the result of undue influence by

[Ainsworth and Sorensen], either jointly or individually.”

The co-executors moved for summary judgment. They asserted Kermoade

failed to raise a material issue of genuine fact as to Martin’s testamentary capacity

on October 1, 2020—the date Martin executed his will. Kermoade’s testamentary-

capacity claim seemed to rest on an allegation that Martin was dependent on

hydrocodone and that one day in September 2020, Martin wanted Kermoade to

give him more hydrocodone before it was time for his next prescribed dose.

Kermoade was silent as to Martin’s mental status on October 1. Meanwhile, the

will included an attestation clause, signed by the attorney who drafted the will and

another person, attesting they witnessed Martin sign the will and each “believe[d]

that, at the time [Martin] executed the foregoing instrument, [Martin] was of sound

mind and memory, of lawful age, and did so execute it as his own free act and

deed and not under the unlawful influence of any person.” Additionally, based on

an affidavit provided by Martin’s doctor and the accompanying medical records,

Martin was seen on September 12, 2020, for a cognitive evaluation because he

was “having family issues with his step-son, [Kermoade]” and wanted to change

his will. Martin told Dr. Elaine Berry he wanted to change his will “so that his 2

daughters receive the actual land and property, and this his stepson will just

receive money”—matching what Martin did in his October 1, 2020 will. As part of

the September 12 record, Dr. Berry noted that while Martin was prescribed

oxycodone to take daily, “The PMP website is checked every month for refills and
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there have not been any aberrant behaviors. I have not allowed him to escalate

doses. At this point he continues to meet criteria for continuing to receive narcotic

prescriptions from me.” Finally, the medical records from the September 12 visit

show Martin scored 16/19 on the status evaluation form, which Dr. Berry later

opined in her affidavit “was consistent with mental competency.” Two caretakers

for Martin—one who acted as his caretaker twice weekly from July 2019 until

March 2022, and one who helped with home healthcare two or three days a week

from July 2019 until October 2019 (a window of time following Martin’s shoulder

surgery)—filed affidavits stating they never saw Martin abuse hydrocodone and

always thought he seemed mentally competent during their conversations and

interactions with him.

The co-executors also moved for summary judgment on Kermoade’s undue

influence claim, pointing out that Kermoade had the burden to prove the October

1, 2020 will was “clearly brought about by undue influence,” see Burkhalter v.

Burkhalter, 841 N.W.2d 93, 101 (Iowa 2013), and needed evidence “that influence

was not only present but that it was in fact exerted with respect to the making of

the testament itself.” In re Estate of Davenport, 346 N.W.2d 530, 533 (Iowa 1984).

But, the co-executors argued, Kermoade had only a conclusory statement in his

affidavit that Martin “was not in his right mind” and “bec[a]me unduly influenced by

[the co-executor’s] and Chad Birdwell, Christy’s son” in support of this claim.

Kermoade resisted summary judgment, arguing there were genuine issues

of material fact so summary judgment was not appropriate. He relied on medical

records from visits other than the September 12, 2020 visit—the one upon which

Dr. Berry relied to opine Martin was competent to change his will—showing that
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the doctor questioned Martin’s judgment and clarity at appointments both before

and after September 12, 2020.

The district court granted the co-executor’s motion for summary judgment

on both of Kermoade’s claims. The court started with the presumption that Martin

was competent at the time he executed his October 1, 2020 will and recognized

there was no evidence presented to contradict the presumption of competency at

that specific date and time. Instead, Kermoade pointed the court to other time

periods when Martin’s competency was in question and asked the court to rely on

those to rebut the presumption. The court reviewed the other medical records but

noted that the reports indicating Martin was confused and had impaired memory

and failing health did not reflect that Martin consistently suffered from those

conditions. And reports of apparent fluctuations in judgment and clarity were

similarly reflected in Kermoade’s affidavit, which stated that “[t]here were days and

times” Martin was confused or delusional—not that he was consistently in such a

state. The court concluded Kermoade failed to generate a factual dispute about

Martin’s testamentary capacity at the time he executed his new will. In considering

Kermoade’s claim for undue influence, the court noted that other than pointing out

that Ainsworth and Sorensen benefitted from the execution of the October 2020

will and their attendance at Martin’s doctor appointments and meeting with the

lawyer to change his will, Kermoade offered no evidence to establish Sorensen,

Ainsworth, or both exerted undue influence on Martin that caused him to execute

a new will.

Kermoade appeals.
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II. Standard of Review.

“We review a grant of summary judgment for correction of errors at law.”

McNeal v. Wapello Cnty., 985 N.W.2d 484, 490 (Iowa 2023). “Summary judgment

is proper when the moving party has shown ‘there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law.” Id.

(citation omitted).

III. Discussion.

Kermoade challenges the district court’s grant of summary judgment in

favor of defendants Ainsworth and Sorensen, arguing there were genuine issues

for a factfinder to decide so disposing of the case through summary judgment was

not appropriate.

A. Testamentary Capacity.

To have testamentary capacity, the testator must know and understand

(1) “the nature of the instrument that is being executed”; (2) “the nature and extent

of his property”; (3) “the natural objects of his bounty; and” (4) “the distribution he

desires to make of his property.” Pearson v. Ossian, 420 N.W.2d 493, 495 (Iowa

Ct. App. 1988). When a party challenges a decedent’s testamentary capacity, the

challenger’s “proof of a mental deficiency must be applicable to the time of making

the will.” Id. And “the law is slow to deny the right of anyone to dispose of his

property by will as he sees fit.” Drosos v. Drosos, 103 N.W.2d 167, 172 (Iowa

1960). “No mere impairment of his mental or physical powers, so long as he

retains mind and comprehension sufficient to meet the tests above set forth,

invalidates his will.” Id. Testamentary capacity has a lower threshold than the

competence needed to enter a contract. See, e.g., Gillette v. Cable, 79 N.W.2d
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195, 198 (Iowa 1956) (“That there is a difference between competence to contract

and competence to dispose of property by will is abundantly recognized in our

decisions.”); Drosos, 103 N.W.2d at 172 (“It is not essential to testamentary

capacity that the maker be able to make contracts or carry on business

generally.”).

As he did to the district court, Kermoade focuses on the medical reports

from June 2019 through March 2020 and then a report from January 2021, which

include notes from Dr. Berry questioning Martin’s judgment and clarity of mind.

Kermoade maintains these medical reports create a genuine issue as to Martin’s

testamentary capacity on October 1, 2020. We disagree. As the district court

noted, nothing in the doctor’s notes suggest Martin’s medical state was static, and

Kermoade himself seemed to recognize that Martin’s mental acuity fluctuated

between good and bad periods. The medical note closest in time to the execution

of the October 1, 2020 will was positive; Dr. Berry completed a cognitive evaluation

of Martin and concluded he was competent. And both the lawyer who prepared

the will and a third party signed attestation clauses indicating their belief that, at

the time he executed the will, Martin “was of sound mind and memory.” See Bishop

v. Scharf, 241 N.W. 3, 7–8 (Iowa 1932) (“Mental weakness due to disease does

not deprive one of testamentary capacity until it has progressed to the extent that

the power of intelligent action has been destroyed. Mere forgetfulness and

enfeeblement of the body are not alone sufficient to disqualify one from making a

will.”). While Martin may have lacked testamentary capacity at times during the

final few years of his life, Kermoade has not established a genuine issue regarding

Martin’s testamentary capacity at the pertinent time. See Hlubek v. Pelecky, 701
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N.W.2d 93, 96 (Iowa 2005) (“Speculation is not sufficient to generate a genuine

issue of fact.”); see also Bishop, 241 N.W. at 7 (“The important and controlling fact

in the case is the condition of [the testator] at the very time the will was executed.”).

Kermoade suggests that the district court wrongly placed a “very high

burden” on him in order to survive summary judgment, but “[s]ummary judgment is

not a dress rehearsal or practice run; ‘it is the put up or shut up moment in a lawsuit,

when a [nonmoving] party must show what evidence it has that would convince a

trier of fact to accept its version of the events.’” Slaughter v. Des Moines Univ.

Coll. of Osteopathic Med., 925 N.W.2d 793, 808 (Iowa 2019) (second alteration in

original) (citation omitted). The district court properly granted summary judgment

for the co-executors on Kermoade’s testamentary-capacity claim.

B. Undue Influence.

Generally, to succeed on a claim of undue influence, the person challenging

the will must prove: “(1) the testator was susceptible to undue influence;

(2) defendants had an opportunity to exercise undue influence and effect the

wrongful purpose; (3) defendants had a disposition to influence unduly to procure

an improper favor; and (4) the result, reflected in the will, was clearly the effect of

undue influence.” In re Est. of Bayer, 574 N.W.2d 667, 671 (Iowa 1998). Requests

or persuasion do not rise to the level of undue influence. Cookman v. Bateman,

231 N.W. 301, 304 (Iowa 1930). Rather, “‘[u]ndue influence,’ in order to vitiate the

testamentary disposition of property, must be such that the party accused of undue

influence must have substituted his mind or wish for that of the testator.” Id. “In

other words, it must be equivalent to moral coercion.” Id.
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“Direct proof of undue influence is not required and circumstantial evidence

may be sufficient.” Bayer, 574 N.W.2d at 671. But “more than a ‘scintilla’ of

evidence is” needed to invalidate the will. Id. And “[a]n unnatural disposition of

property will not of itself carry the issue of undue influence” past the summary-

judgment stage. Id. (citation omitted). “Mere suspicion, surmise, conjecture, or

speculation is not enough to warrant a finding of undue influence”; “there must be

a solid foundation of established facts upon which to rest an inference of its

existence.” Id. (citation omitted).

Kermoade relied on the fact that Martin’s daughters were around him in the

months before Kermoade and Martin’s relationship soured and the new will was

executed and that the new will ultimately benefitted the daughters as proof of their

undue influence on the new will. This alone is not sufficient to survive summary

judgment. See In re Est. of Davenport, 346 N.W.2d 530, 532 (Iowa 1984) (“[W]eak

circumstantial evidence which at most raises the possibility of influence is not

sufficient to support a finding of undue influence.”). Even if the co-executors

exerted some amount of influence over Kermoade, “most persons assert some

influence over others, through friendship or familial duties, which may have some

tangential effect on their receiving a testamentary benefit. This influence is not

tainted.” Id. (citation omitted). To show undue influence, Kermoade needs some

evidence to show the co-executors “dominate[d] the motives of the testator in

executing his will.” Id. (citation omitted). His generalized allegations are without

the specifics needed to establish undue influence. See id. at 533 (providing undue

influence “cannot be inferred alone from opportunity, but there must be some
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testimony, direct or circumstantial, to show that influence was not only present but

that it was in fact exerted with respect to the making of the testament itself”).

The district court properly granted summary judgment for the co-executors

on Kermoade’s claim of undue influence.

IV. Conclusion.

Because Kermoade failed to establish a genuine issue as to Martin’s

testamentary capacity and any undue influence on the part of the co-executors,

summary judgment in favor of the defendants was proper. We affirm.

AFFIRMED.