                   IN THE COURT OF APPEALS OF IOWA

                                  No. 18-1923
                             Filed October 9, 2019


IN THE MATTER OF THE ESTATE OF
ELLEN P. VAN GINKEL, Deceased.

JOSEPH G. VAN GINKEL III and ELIZABETH A. WINTERHALTER,
    Plaintiffs-Appellants,

vs.

JENNIE L. KRONTHAL,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Craig E. Block,

Associate Probate Judge.



      The plaintiffs appeal from the adverse summary judgment ruling in this will

contest. AFFIRMED.




      Jason S. Rieper of Rieper Law, P.C., Des Moines, for appellants.

      Kevin J. Driscoll and Andrew T. Patton of Finley Law Firm, P.C., and Seth

Ryan Delutri of Bradshaw, Fowler, Proctor & Fairgrave, PC, Des Moines, for

appellee.



      Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
                                            2


BOWER, Judge.

          Joseph G. Van Ginkel III (“Joe”) and Elizabeth Winterhalter (“Elizabeth”),

two of Ellen Van Ginkel’s (“Ellen”) six children, contested Ellen’s will, asserting: (1)

Ellen lacked testamentary capacity to make the November 13, 2013 fourth codicil

to her will, and (2) the will was a result of the undue influence of their sibling, Jennie

Kronthal (“Jennie”). The district court entered summary judgment dismissing their

claims. Joe and Elizabeth (collectively “the plaintiffs”) appeal, contending the

district court abused its discretion in considering police reports and an untimely-

disclosed letter. They also assert the court erred in concluding they failed to

present sufficient evidence to go to a jury on the questions of Ellen’s lack of

testamentary capacity or undue influence. Finding summary judgment proper, we

affirm.

I. Background Facts.

          Ellen was married to her husband Joseph G. Van Ginkel Jr. (“Gerry”) in

1950. Ellen and Gerry had six children: Joan, Valerie, Elizabeth, Joe, Tamara,

and Jennie.      On March 31, 1995, Ellen executed her original Last Will and

Testament.

          Elizabeth “disengaged” from her family for several years beginning around

1996. Elizabeth did visit her parents in Iowa in 2005 (to help Ellen “with her hip”)

and in 2010 (to help Ellen “with her cancer”).

          In July 2010 and early November 2011, police were called to Ellen and

Gerry’s home to investigate reports Joe assaulted Gerry.
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       On November 16, 2011, Ellen executed a first codicil, removing Joe as the

executor and replacing him with Jennie. Other than the change of executors, the

first codicil ratified, confirmed, and republished Ellen’s 1995 will.

       In August 2012, Ellen and Gerry were both in ill health and moved to

Maryland. They lived with Jennie and her family for about two months and then

moved into their own apartment near Jennie. Elizabeth lived in Arlington, Virginia,

at the time.

       On December 18, 2012, Ellen executed a second codicil, which deleted the

dispositive provisions from Ellen’s 1995 will and, instead, included a new provision

leaving her assets to the Ellen P. Van Ginkel Trust she had created in August 2012.

The codicil also states: “As amended by this Codicil, I hereby ratify, confirm and

republish my Last Will and Testament dated March 31, 1995 and my First Codicil

to Last Will and Testament of Ellen P. Van Ginkel dated November 16, 2011.”

       Gerry died in January 27, 2013.

       On March 6, 2013, Ellen executed the third codicil exercising her power of

appointment granted to Ellen in Gerry’s will, directing the assets from Gerry’s Trust

be paid into Ellen’s Trust, to be administered according to its terms. Again, the

codicil “ratif[ied], confirm[ed,] and republish[ed]” Ellen’s 1995 Will and the first and

second codicils.

       On November 15, 2013, Ellen’s primary care physician since October 2012,

Dr. Veronica DiFresco, was asked to witness the execution of a fourth codicil. After

a forty-five minute examination in which Dr. DiFresco confirmed Ellen was aware

of her children and property and had knowledge of the effect of a will, Dr. DiFresco

determined Ellen had testamentary competency on November 15, 2013, and that
                                               4


Ellen understood what she was signing. Ellen then executed the fourth codicil, by

which she again exercised the power of appointment granted to her in Gerry’s will

and directing the following distributions: $50,000 to granddaughter Carolyn

Thomas; $25,000 to grandson James Jae Brown; $25,000 to grandson Andrew

Allen Brown; and the balance to be divided equally between Tamara and Jennie.

The fourth codicil ratified, confirmed, and republished Ellen’s 1995 will and the first,

second, and third codicils. This codicil effectively excluded Joe and Elizabeth from

Ellen’s will.

       Ellen died on January 9, 2016. On March 7, 2016, notice of probate,

appointment of executor, and the last will and testament and trust documents were

dispatched to all of Ellen’s heirs. On July 8, 2016, the plaintiffs filed a petition to

set aside the will,1 alleging Jennie exercised undue influence on Ellen and that

Ellen lacked testamentary capacity to execute the changes to her will.

       Jennie filed a motion for summary judgment, a statement of undisputed

facts, and supporting documents.            The plaintiffs resisted, relying on medical

records and personal accounts from the period of 2011 to 2014. Jennie filed a

reply brief and a response to plaintiffs’ facts, which included Attachment DD, a

three-page letter authored by attorney Jonathan Kramer on November 9, 2011,

and addressed to Ellen and Gerry. The plaintiffs moved to strike the letter as



1
  The petition did not list a challenge to Ellen’s trust itself, nor did plaintiffs file against
Jennie in her capacity as trustee within one year. The plaintiffs also admit that they “are
not contesting the trust, per se” but rather challenge whether Ellen had the capacity to
make the changes that established the trust and funded it. On July 13, 2017, the probate
court entered an “Order Interpreting Trust,” which held Elizabeth and Joe are barred and
forever precluded from challenging, contesting, or overturning Ellen’s Trust because they
failed to timely file a petition or claim, as required by Iowa Code section 633A.3110 (2017).
That order was not appealed.
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untimely produced. They also argued the court should not consider the proffered

police reports because they were hearsay.

       On October 3, the court granted summary judgment to Jennie. With respect

to the claim that Ellen lacked testamentary capacity, the district court noted “direct

evidence provided by a neutral medical practitioner [Dr. DiFresco] tending to show

competency is a high hur[d]le for Plaintiffs to overcome.”

       The court noted the plaintiffs’ circumstantial evidence had a number of

problems:

       First of all, as pointed out in the expert witness reports, Ellen’s
       primary cognitive disruptions were transitory in nature. Delirium,
       unlike its progressive relative dementia, represents a temporary dip
       in cognitive functioning, usually as a result of temporary biological or
       psychological events. In Ellen’s case, this appeared to be the result
       of her depression and blood pressure issues. Both of these
       appeared to be addressed or have resolved prior to signing the fourth
       codicil. Likewise, the plaintiffs’ expert witness claimed that Ellen was
       completely dependent on [Jennie], but Ellen was able to dress, care
       for, and feed herself. [Ellen also had a person who came to her home
       to help care for her and drive her.] There also exists contradictory
       evidence in medical records, including the assessment by [treating
       psychiatrist] Dr. [Allan] Berger that Ellen had full testamentary
       capacity months prior to her signing the fourth codicil. The “mild,
       mild, mild early dementia,” which was only ever discussed by Dr.
       Berger, is no different than the capacity that “50% of the American
       population in her age group” experiences. The defense also
       produced a number of statements by other observers claiming that
       Ellen was of sound mind during the applicable time period. Finally,
       there is little to no evidence that the distribution of the will was
       “unnatural.” Both plaintiffs had been alienated from Ellen by their
       own actions . . . .

The court concluded that while there was medical evidence Ellen had periods of ill

health,

       because Ellen had good days and bad days, evidence of an alleged
       incapacity on one particular date is irrelevant (i.e., does not allow an
       inference one way or the other) to Ellen’s capacity on a different date.
       Accordingly, in order to survive summary judgment, plaintiffs must
                                               6


         set forth specific, admissible evidence of Ellen’s capacity on the date
         —and at the time—the fourth codicil was executed, namely
         November 15, 2013. Construing the available evidence in the light
         most favorable to the non-moving party, there simply is not sufficient
         evidence to establish a claim that Ellen lacked capacity. Plaintiffs
         admitted that Ellen’s capacity was good some days and bad other
         days, as opposed to all bad days. Any evidence plaintiffs have
         produced is refuted by [Jennie], and is insufficient to overcome the
         direct evaluation of Ellen at the time of signing the fourth codicil.
         Ellen did not lack capacity on November 15, 2013, when she signed
         the fourth Codicil to her Last Will and Testament.

         Similarly, the court observed the plaintiffs had presented inadequate

evidence to support their claim of undue influence.

         The plaintiffs filed a motion to amend or enlarge, urging the court to address

their motion to strike the attorney letter. However, the district court had not ruled

on the motion when Joe and Elizabeth appealed.

         On appeal, the plaintiffs contend the district court abused its discretion in

not striking the untimely-disclosed letter and in considering the July 2010 and

November 2011 police reports. They also assert the court erred in concluding they

failed to present sufficient evidence of Ellen’s lack of testamentary capacity or

undue influence to go to a jury.

II. Scope and Standard of Review.

         We review evidentiary rulings for an abuse of discretion, which occurs when

the district court bases its ruling on grounds that are unreasonable or untenable.

See Giza v. BNSF Ry. Co., 843 N.W.2d 713, 718 (Iowa 2014).

         We review the grant of summary judgment for correction of legal error. In

re Estate of Graham, 690 N.W.2d 66, 69–70 (Iowa 2004). The district court must

render     summary     judgment    “if   the       pleadings,   depositions,   answers   to

interrogatories, and admissions on file, together with the affidavits, if any, show
                                            7


that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). “We are

obliged to view the record in the light most favorable to the nonmoving party and

must afford that party all reasonable inferences.” Graham, 690 N.W.2d at 70.

III. Analysis

       A. Motion to strike. The plaintiffs contend the district court abused its

discretion in not granting their motion to strike, on which they sought a ruling in

their October 17, 2018 motion to amend or enlarge. Jennie resisted the motion.

The district court did not rule on the motion to enlarge before the plaintiffs filed their

notice of appeal. By appealing, they waived the issue. See Freer v. DAC, Inc.,

929 N.W.2d 685, 687–88 (Iowa 2019) (“A moving party is deemed to have waived

and abandoned a posttrial motion when that party files a notice of appeal.”).

       As for the plaintiffs’ claim that the district court could not consider the police

reports on hearsay grounds, Jennie argued the exhibits were relevant and

admissible “for the nonhearsay purpose of showing the effect on, or state of mind

of, Ellen and the fact that she was afraid of Joe.” We find no abuse of discretion.

       In any event, the plaintiffs admit that police were called to Gerry and Ellen’s

home on July 22, 2010, and on November 8, 2011. Joe testified, “I may have

pushed him.” Jennie testified Joe pushed their eighty-six year old father, and

Elizabeth testified police were called because Joe laid hands on Gerry. See State

v. Newell, 710 N.W.2d 6, 19 (Iowa 2006) (“[N]otwithstanding the presumption of

prejudice from the admission of such evidence, the erroneously admitted hearsay

will not be considered prejudicial if substantially the same evidence is properly in

the record.”).
                                            8


       B. Testamentary capacity. Ellen was legally competent to execute the

November 15, 2013 codicil to her will if she possessed the requisite testamentary

capacity, i.e.: (1) knowledge a will was being made, (2) knowledge of the nature

and extent of her property, (3) an ability to identify and remember the persons to

whom she would naturally give her property, and (4) knowledge of how she wanted

to distribute his property. See In re Estate of Lachmich, 541 N.W.2d 543, 545–46

(Iowa Ct. App. 1995). Iowa law presumes a testator has the mental ability to make

a will and does so free from undue influence. In re Estate of Pritchard, 443 N.W.2d

95, 98 (Iowa Ct. App. 1989). In contesting their mother’s will, the plaintiffs have

the burden to overcome that presumption by showing Ellen lacked the mental

capability to sign the fourth codicil on the date of execution. See In re Estate of

Springer, 110 N.W.2d 380, 383 (Iowa 1961) (“[T]he burden is upon the contestants

to show lack of mental capacity of the testatrix . . . .” (citation omitted)).

       As noted by the district court, the plaintiffs’ burden was a high hurdle

inasmuch as Dr. DiFresco examined Ellen on the date she signed the fourth codicil

and concluded Ellen did have the requisite knowledge. Elizabeth admits she has

no evidence Ellen lacked testamentary capacity on the dates the first, second,

third, and fourth codicils were signed. Joe admits that at all relevant times Ellen

knew her heirs, including Joe himself, and her relationships with those heirs. Joe

also admits he has no evidence to prove Ellen did not understand her estate

planning documents or how she wanted to distribute her assets. Ellen’s brother,

Robert Peterson, testified he never questioned Ellen’s capacity, and that at all

relevant times she knew her family and her relationships, was capable of forming

and expressing her opinions, and was capable of deciding how to divide her
                                          9


property. Similarly, Ellen’s long-time friend and former sister-in-law, Elizabeth

Houts, testified that at all relevant times Ellen was competent, knew her family and

relationships, was oriented to time and her surroundings, was capable of forming

and expressing her own opinions, and was capable of deciding how she wanted

her property distributed. We agree with the district court the plaintiffs have not

cleared the requisite hurdle on this summary judgment record. The district court’s

ruling addresses the plaintiffs’ proffered evidence and the weaknesses of their

assertions. Further recitation of the district court’s ruling is unnecessary.

       C. Undue influence.         To set aside Ellen’s will on grounds of undue

influence, the plaintiffs must prove: (1) Ellen was susceptible to undue influence;

(2) Jennie had an opportunity to exercise undue influence and effect a wrongful

purpose; (3) Jennie was inclined to unduly influence Ellen to procure an improper

favor; and (4) the resulting will was the clear effect of undue influence. See In re

Estate of Bayer, 574 N.W.2d 667, 671 (Iowa 1998); see also Burkhalter v.

Burkhalter, 841 N.W.2d 93, 106 (Iowa 2013) (clarifying that contestant must prove

undue influence by a preponderance of the evidence, but the causation element

requires clear proof).

       The district court wrote:

              The plaintiffs admit that they have little beyond their own
       suspicions to support a claim of undue influence. They present their
       bare claims of undue influence, several ambiguous situations years
       apart from the issuance of the actual codicil in question where they
       claim [Jennie] unduly influenced Ellen, and an expert witness report
       with significant errors. This is inadequate.

After discussing the plaintiffs’ allegations, the district court summarized the record:

       Ellen’s treating physicians were quite clear that Ellen’s faculties were
       sufficiently sharp so as not to be readily susceptible to undue
                                        10


      influence.     Plaintiffs’ claims of undue influence are purely
      speculative; both Joe and Elizabeth noted that they weren’t
      prevented from seeing Ellen, and they both had little time to see her.
      Additionally, both of them had a storied relationship with Ellen.

      Because the district court did not err in concluding the plaintiffs failed to

produce evidence sufficient to survive summary judgment, we affirm.

      AFFIRMED.

      All judges concur; Doyle, J., writes separately.
                                          11


DOYLE, Judge. (writing separately)

       I concur, but write separately to address two appellate practice issues.

       The parties’ 1574-page appendix contains 1214 pages of exhibits identified

in the table of contents as follows:

EXHIBITS:

1. Exhibit 3, subparts (A) – (Q)……………………………………….359
2. Exhibit 4, subparts (R) – (BB)…………………………………..…439
3. Exhibit 5, subparts (1) – (32)………………………………….......640
4. Exhibit 6, subparts (33) – (53)…………………………………….805
5. Exhibit 7, subparts (54) – (55)……………………………………1009
6. Exhibit 8, subparts (56) – (59)……………………………………1157
7. Exhibit 9, subpart (60)………………………………………….….1337
8. Exhibit 10, subparts (61) – (63)…………………………………..1422
9. Attachments (CC) – (EE)
       (presumably meant to be subparts to Exhibit 4)……………1545

       No descriptors are provided for the 94 discrete exhibits nor does the table

of contents state the page number where each exhibit appears. Iowa Rule of

Appellate Procedure 6.905(4)(c) requires that if exhibits are included in the

appendix “the table of contents shall . . . give a concise description of [each] exhibit

(e.g., ‘warranty deed dated . . . ’; ‘photograph of construction site’; ‘Last Will and

Testament executed on . . . ’), and state the page number at which the exhibit

appears in the appendix.” Needless to say, this table of contents was not helpful

in any way in locating documents.

       While I have this soapbox, I expound on another troubling issue—those

awful condensed transcripts. You know, the ones with four pages of testimony

crammed onto one page. Some 218 pages of these things were interspersed

among the exhibits in the appendix. Of course, the table of contents gives us no

clue as to whose testimony is included or where.
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       At one time, in the paper world, condensed transcripts served a useful

purpose. There is no excuse for them in the electronic world. They are difficult to

read on a screen, particularly on a tablet. The small print is difficult to read,

particularly for the more mature reader, and poor scans just get fuzzier if you

enlarge them. On some condensed transcripts the pages read from side to side,

on others the pages read from top to bottom.          Either way, scrolling them is

cumbersome and frustrating. Please quit using them.

       In any event, our court rules ban the use of condensed transcripts in the

courts. Iowa Rule of Electronic Procedure 16.402 provides, “Transcripts must be

filed electronically . . . in accordance with . . . the formatting requirements of Iowa

Rule of Appellate Procedure 6.803(2).”         Rule 6.803(2)(f) prohibits the use of

condensed transcripts.     Specifically, the rule states:   “Condensed transcripts,

which include multiple pages of transcript on a single page, may not be submitted.”

Although rule 6.905(7) is silent on the matter concerning inclusion in the appendix

of transcripts of proceedings and depositions not filed electronically, I believe the

prohibition of the use of condensed transcripts applies to any submission to the

courts. And it should not matter whether the transcript is of proceedings, an

evidentiary deposition, an attachment to some filing in district court, or some

random exhibit as appears in the appendix here. If I am wrong, someone in a

higher pay grade can tell me.
