                 IN THE SUPREME COURT OF IOWA
                                 No. 15–2126

                            Filed October 20, 2017


IN THE MATTER OF THE ESTATE OF MARGARET E. WORKMAN,
Deceased,

DENNIS WORKMAN,

         Appellant,

vs.

GARY WORKMAN, Individually and as Executor of the Estate of
Margaret E. Workman,

         Appellee.


         On review from the Iowa Court of Appeals.



         Appeal from the Iowa District Court for Scott County, John D.

Telleen, Judge.



         A will contestant seeks further review of a court of appeals decision

affirming the district court judgment entered in the will proponent’s
favor.     DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.



         Eric M. Updegraff of Hopkins & Huebner, P.C., Des Moines, for

appellant.



         Daniel P. Kresowik of Stanley, Lande & Hunter, P.C., Davenport,

for appellee.
                                       2

MANSFIELD, Justice.

         This review of a will contest proceeding raises two questions for our

consideration. First, the unsuccessful will contestant asks us to adopt

the Restatement (Third) of Property standard concerning the appropriate

burden of proof in an undue influence case where a confidential

relationship existed.     Second, the contestant argues the district court

abused its discretion in denying his motion to amend the pleadings to

conform to the proof at the close of his case.       That motion sought to

broaden the contestant’s undue influence claim to include all of the

testator’s prior wills and codicils.

         We conclude the first issue is not preserved for our review. The

contestant asks us to overturn a ruling on burden of proof that was

incorporated within a pretrial order denying summary judgment. Yet the

contestant never renewed his position at trial. Instead, when presented

with jury instructions that reiterated the same burden-of-proof standard,

the contestant indicated he had no objection.            Iowa Rule of Civil

Procedure 1.924 requires more.

         On the second issue, we find no abuse of discretion. The district

court correctly determined that this last-minute amendment would have

broadened the issues and the proof.         Also, this case falls within our

precedent upholding denials of motions to amend under Iowa Rule of

Civil Procedure 1.457 when the motion is based on facts the movant

knew or should have known before trial. See, e.g., Meincke v. Nw. Bank

& Tr. Co., 756 N.W.2d 223, 229 (Iowa 2008). Accordingly, we vacate the

decision of the court of appeals and affirm the judgment of the district

court.
                                    3

      I. Background Facts & Proceedings.

      Margaret Workman died on December 26, 2012, at the age of

eighty-nine, survived by her husband, LaVerne Workman, and their

three children, Dennis, Gary, and Cynthia.        Long before Margaret’s

death, Gary had decided to move back home to farm in eastern Iowa.

For the next thirty-one years until his mother’s death, Gary lived within

five miles of his parents and saw them on a nearly daily basis as he

farmed with them.       Dennis, however, took up residences around the

country and became involved in a number of business ventures, several

of which were unsuccessful.

      Margaret’s will and codicil were admitted to probate on January

24, 2013. Margaret had previously executed a series of wills and codicils

that provided for the distribution of her personal and real property and

established a trust for the benefit of her husband and son Dennis.

      At her death, Margaret owned approximately 200 acres of

farmland, and she was supremely concerned about what would happen

to this land at her passing, often discussing the issue with her family

and her attorneys.       Margaret became, according to her attorney,

“obsessed with her estate-planning documents.”       From 1983 to 2008,

Margaret altered her distribution plan through either will or codicil no

fewer than ten times.

      Margaret’s initial will, executed in 1983, provided a life estate for

her husband in all of her personal property and the homestead.         The

farmland was to be divided into three parcels, with LaVerne receiving

forty acres and Gary and Dennis receiving eighty acres each.         In the

event LaVerne predeceased Margaret, Gary’s daughter Christine would

inherit the forty acres that would have been LaVerne’s, and the

remaining 160 acres would go entirely to Gary, with Dennis inheriting
                                    4

none of the farmland.    Apparently concerned about the possibility of

Dennis’s numerous creditors reaching the farmland, Margaret later

executed a codicil to this will to create a spendthrift trust for Dennis’s

benefit.

      The next few wills made shifts in the property distribution, many of

which benefited Gary, in response to Gary’s work on the farm for his

parents. Margaret noted the apparent discrepancy for the first time in

her 1987 will, in which she stated, “It may appear that I have provided

more generously for my son, Gary, than my other two children, but in

part it is in repayment for work and improvements he has done on our

farmlands.”   Every subsequent will executed by Margaret contained

similar precatory language.

      The final will, executed in 2007, passed the homestead to the

Workman Family Trust, subject to a life estate for LaVerne and a right of

first refusal to purchase in favor of Gary, and distributed 160 of the 200

acres of farmland in life estate to LaVerne, with the remainder passing to

Gary. Gary’s interest was subject to $25,000 in equalization payments to

be paid by him at $2500 per year over a ten-year period. The remaining

forty acres of land went to Gary’s two children. The will contains the

following statement by Margaret, similar to the one first included in the

1987 will:

      My husband and I wish to formally acknowledge that we
      recognize and understand that the cumulative effect of our
      Wills and The Workman Family Trust will be to give our son,
      Gary, a disproportionately large share of our combined
      assets. We have intentionally and knowingly made these
      provisions understanding that Gary will receive more of our
      combined estates than our other two children. We have
      done this to recognize the many years of contribution and
      effort made by Gary, which has benefitted us over the years
      that he has lived near us. The statement I am making in
      this paragraph is merely precatory and intended to express
      my intent.
                                     5

      In 2008, Margaret executed a codicil to the 2007 will, adding a

provision to prevent the sale of the farmland for a period of three years.

In the event the farmland was sold within three years of Margaret’s

death, the proceeds from the sale in excess of $5000 per acre would be

divided equally among Gary, Cynthia, and the Workman Family Trust.

      Several months after Margaret’s death, on June 14, 2013, Dennis

filed a petition to set aside the 2007 will and the 2008 codicil in the Iowa

District Court for Scott County.         The petition alleged both undue

influence by Gary and lack of testamentary capacity on the part of

Margaret, and also sought the imposition of a constructive trust.       On

July 9, 2014, Gary filed a motion for summary judgment seeking

dismissal of the case. After an opportunity for discovery, on March 12,

2015, the district court granted in part and denied in part Gary’s motion.

The court dismissed the testamentary capacity and constructive trust

claims but denied summary judgment as to undue influence.

      In his resistance to the motion for summary judgment, Dennis had

argued that the existence of a confidential relationship between Gary and

Margaret shifted the burden to Gary to prove that there was no undue

influence.   Although the district court ultimately denied summary

judgment on the issue of undue influence, the court disagreed with

Dennis’s contention that the burden would shift for a testamentary

transfer:

      [I]t appears as if this analysis is only considered when inter
      vivos transfers are involved. See In the Matter of Estate of
      Todd, 585 N.W.2d 273, 277 (Iowa 1998). . . . Here, we only
      have testamentary transfers at issue and thus the burden
      shifting does not appear to apply. It remains for the Plaintiff
      to establish at trial the Defendant unduly influenced
      Mrs. Workman and there is a fact question precluding
      summary judgment on that issue.
                                              6

       The case proceeded to trial on the undue influence claim. At the

close of the plaintiff’s case, Dennis moved to amend the pleadings to

conform to the proof to allow the jury to consider undue influence for the

entire series of wills and codicils Margaret made from to 1983 to 2008.

Neither the initial petition nor the amended petition had challenged the

earlier wills.     Ruling from the bench, the court denied the motion to

amend, stating,

       [B]ecause the defense has prepared their whole strategy and
       their whole basis of this case in defending the 2007 Will and
       the 2008 Codicil and did not defend the earlier Wills, there
       could have been and would have been . . . much different
       proof presented [and] many different witnesses called, it’s too
       late in the game and the motion to amend is denied.

       Only Gary submitted proposed jury instructions. At the close of

evidence, in accordance with Gary’s proposed instructions, the jury was

instructed that “[t]he law presumes a person is free from undue

influence,” and to overcome this presumption, Dennis had to prove “[t]he

result was clearly brought about by undue influence.”                 Dennis never

objected to these instructions or requested alternate instructions shifting

the burden of proof to Gary. 1

       The jury returned verdicts in Gary’s favor finding no undue
influence as to either the 2007 will or the 2008 codicil.




       1Here   is the relevant passage from the trial transcript:
       THE COURT: . . . I’ve proposed to you folks Instructions 1 through 15, are there
any objections to any of the instructions?
       PLAINTIFF’S COUNSEL: None from the Plaintiff, your Honor.
       ....
       THE COURT: Are there any additional instructions that you request to be given
for my consideration?
       PLAINTIFF’S COUNSEL: Not for the Plaintiff, your Honor.
                                     7

        Dennis appealed, challenging the summary judgment ruling that

he had the burden of proving undue influence and the later denial of his

motion to amend the pleadings to conform to the proof. On the former

point, Dennis urged adoption of the Restatement (Third) of Property:

Wills and Other Donative Transfers section 8.3, comment f, which

provides that

        [a] presumption of undue influence arises if the alleged
        wrongdoer was in a confidential relationship with the donor
        and there were suspicious circumstances surrounding the
        preparation, formulation, or execution of the donative
        transfer, whether the transfer was by gift, trust, will, will
        substitute, or a donative transfer of any other type.

Restatement (Third) of Prop.: Wills & Other Donative Transfers § 8.3 cmt.

f, at 145 (Am. Law Inst. 2003) [hereinafter Restatement (Third)]. Gary

responded that both trial court rulings were correct and also that Dennis

had failed to preserve error with regard to the allocation of the burden of

proof in an undue influence case. We transferred the case to the court of

appeals, which found that Dennis had preserved error but nonetheless

upheld both rulings on the merits. We granted Dennis’s application for

further review.

        II. Standard of Review.

        “We review summary judgment rulings for correction of errors at

law.”    Johnson Propane, Heating & Cooling, Inc. v. Iowa Dep’t of

Transp., 891 N.W.2d 220, 224 (Iowa 2017).        We will reverse the trial

court’s refusal to allow amendment of a petition to conform to the proof

only upon a showing of a clear abuse of discretion. Tomka v. Hoechst

Celanese Corp., 528 N.W.2d 103, 108–09 (Iowa 1995).

        III. Analysis.

        A. Allocation of the Burden of Proof. Dennis complains that the

district court’s allocation of the burden of proof—as reflected in its
                                        8

summary judgment ruling and its subsequent jury instructions—reflects

an outdated distinction between inter vivos and testamentary transfers.

He urges us to follow Restatement (Third) of Property, which treats both

categories of donative transfers the same. See Restatement (Third) § 8.3

cmt. f, at 145–46. But see In re Estate of Todd, 585 N.W.2d 273, 277

(Iowa 1998) (“Where a confidential relationship is found to exist, and

inter vivos conveyances are challenged, the burden of proof shifts to the

benefitted parties to prove—by clear, satisfactory, and convincing

evidence—their freedom from undue influence. No such presumption of

undue influence exists in the case of a will contest, even where the

testator and beneficiary stand in a confidential relationship.”).

      An      initial   hurdle Dennis   must   overcome   is   that   of error

preservation. Although Dennis argued burden of proof unsuccessfully at

the summary judgment stage, he did not object to any of the four jury

instructions at trial (numbers 7, 8, 9, and 10) that placed the burden of

proof on him, nor did he submit his own burden of proof instruction. In

our view, this did not comply with rule 1.924, which provides,

      Before jury arguments, the court shall give to each counsel a
      copy of its instructions in their final form, noting this fact of
      record and granting reasonable time for counsel to make
      objections, which shall be made and ruled on before
      arguments to the jury. Within such time, all objections to
      giving or failing to give any instruction must be made in
      writing or dictated into the record, out of the jury’s presence,
      specifying the matter objected to and on what grounds. No
      other grounds or objections shall be asserted thereafter, or
      considered on appeal.

Iowa R. Civ. P. 1.924; see Julian v. City of Cedar Rapids, 271 N.W.2d

707, 708 (Iowa 1978) (quoting predecessor to Iowa Rule of Civil

Procedure 1.924 and finding that the party “could not successfully assert

the burden of proof ground after failing to object prior to submission to

the jury”).
                                     9

      When instructions are not objected to, they become “the law of the

case.” Hoskinson v. City of Iowa City, 621 N.W.2d 425, 430 (Iowa 2001);

see also Pollmann v. Belle Plaine Livestock Auction, Inc., 567 N.W.2d 405,

411 (Iowa 1997); Poulsen v. Russell, 300 N.W.2d 289, 294 (Iowa 1981)

(“Unless objected to by a party, an instruction to the jury, right or wrong,

is the law of the case.”).

      Even though the district court addressed the issue of burden of

proof when it denied summary judgment on the undue influence claim,

“[w]e have said on numerous occasions that the district court’s denial of

a motion for summary judgment is not appealable if the case proceeded

to a trial on the merits.” In re Marriage of Johnson, 781 N.W.2d 553, 555

(Iowa 2010) (citing cases).    “[T]he denial of the motion for summary

judgment merges with the trial on the merits where the trier of fact

reviewed the exhibits and listened to the testimony of the witnesses.”

Kiesau v. Bantz, 686 N.W.2d 164, 174 (Iowa 2004), overruled on other

grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 708 & n.3 (Iowa

2016).   Therefore, we have declined to consider “assignments of error

relating to the denial of the motion for summary judgment” once the

matter proceeds to a trial on the merits. Lindsay v. Cottingham & Butler

Ins. Servs., 763 N.W.2d 568, 572 (Iowa 2009). Furthermore, “[u]ntil the

district court has rendered a final order or decree, it has the power to

correct any of the rulings, orders or partial summary judgments it has

entered.” Carroll v. Martir, 610 N.W.2d 850, 857 (Iowa 2000).

      In one case, when a trial court granted a contested motion to

adjudicate law points before trial but later modified its ruling at trial and

reflected the modification in its instructions, we said that rule 1.924 was

“unequivocal” and that we would only consider “those issues on damages

which were properly preserved by objections to the instructions.” Woods
                                     10

v. Schmitt, 439 N.W.2d 855, 866 (Iowa 1989). In another case, we held

that a party waived instructional error under rule 1.924 by merely

submitting a requested instruction earlier while not making a record of it

at the instruction conference. Ostrem v. State Farm Mut. Auto. Ins., 666

N.W.2d 544, 547–48 (Iowa 2003).

      For these reasons, to preserve error on the burden of proof issue,

Dennis had to renew his position at trial by objecting to the jury

instructions at the instruction conference. Instead, his counsel told the

court he had no objections to them.

      This is not a case where a litigant was raising the sufficiency of the

evidence to submit or not submit a claim or theory to the jury.          See

James ex rel. James v. Burlington N., Inc., 587 N.W.2d 462, 464 (Iowa

1998) (holding that a party, having unsuccessfully moved for a directed

verdict, was “not required, in order to preserve error, to also object to the

instructions”); Feldhahn v. R.K.B. Quality Corp., 356 N.W.2d 226, 229

(Iowa 1984) (“We see no need for plaintiff’s counsel, at the time of taking

exceptions to the instruction, to again complain or take exception to a

prior ruling which withdrew an issue from the jury.”). Rather, the issue

was how the claim would be submitted. That being so, Dennis had to
object to the relevant jury instructions to preserve error.

      From a policy standpoint, this rule makes sense. The positions of

parties and the court regarding the controlling law often evolve over the

course of a case. The instruction conference is “put up or shut up time,”

and it is important for parties to notify the court of any concerns with the

jury instructions at that time, not earlier or later. That way, any possible

legal misunderstandings can be cleared up, and the parties and the

court can be assured that the jury has the correct law before the case

proceeds to final verdict.
                                    11

      Here the summary judgment ruling came more than eight months

before trial, and the language on burden of proof was not essential to

that ruling (since Gary’s motion for summary judgment on undue

influence was denied). Furthermore, a different judge made the ruling

than the one who later tried the case. It would not be surprising if the

trial judge was unaware that the burden of proof had previously been a

fighting issue at summary judgment. If he had been aware, he might

have assumed that Dennis had abandoned his earlier position.            We

conclude error has not been preserved and therefore reject Dennis’s

appeal on this ground.

      B. Denial of the Motion to Amend the Pleadings to Conform to

the Proof. Dennis next contends the district court improperly denied his

motion to amend the pleadings at the close of his case.        This motion

sought to broaden Dennis’s undue influence claim to encompass all the

wills and codicils executed by Margaret.

      As we have already discussed, neither the petition nor the

amended petition raised a challenge to anything other than the 2007 will

and the 2008 codicil. At trial, Dennis took the stand as the first witness

on his behalf. On direct, he testified specifically only about the 2007 will
and acknowledged he did not know how the other wills came into

creation.   On cross, Gary’s attorney then sought to prove that Dennis

had lost his mother’s trust long before 2007 and 2008 through a series of

financial misadventures, including a personal Chapter 7 bankruptcy and

a decision to use his brother’s social security number to start a business

in Kansas. Gary’s attorney got Dennis to admit two propositions. First,

in many ways, the 2007 will was no less favorable to Dennis than the

2001 will and codicils it had replaced.          Second, Dennis was only

contesting the 2007 will and the 2008 codicil.
                                    12

      The following testimony is illustrative:

            Q. In this lawsuit the only thing this jury is deciding
      is whether Gary exerted undue influence in the 2007 Will
      and the 2008 Codicil, you understand that, right? A. Yes.

            Q. And you understand that part of your burden is to
      prove Gary’s undue influence was being exerted over your
      mother when she signed that 2007 Will, correct? A. Yes.

            Q. You’ve read the 2007 Will you are contesting,
      correct? A. Yes.

           Q. Please tell the jury what the 2007 Will changes
      from her 2001 Will as amended? A. I don’t remember
      without looking at them.

             Q. Are you saying that your brother exercised undue
      influence to get your mother to change from what she had
      prior to 2007, which is the 2001 Will as amended, correct?
      A. Yes.

           Q. That was what was in place before 2007, 2001 Will
      as amended, correct? A. Right.

            Q. You are claiming that Gary exercised undue
      influence to get her to change from that to what she has in
      her 2007 Will, correct? A. Yes.

           Q. What changed? A. Whatever changes speak[] for
      themselves are in the Will.

            Q. Do you know what those changes are? A. Right
      now, I would have to look at them to see the difference.

      Dennis’s second witness was Margaret’s primary care physician

during her final years. However, he did not treat Margaret until 2006.

In addition, he opined she would not have been susceptible to undue

influence until 2012, the final year of her life. Dennis’s final witness was

Gary, and at this point Dennis’s attorney seemed to shift his focus

somewhat. He questioned Gary some about earlier wills, suggesting that

a significant shift in the estate planning occurred in 1999 after family
                                         13

discussions regarding Dennis’s financial problems “came to a hilt.”2

Thereafter, Dennis moved under rule 1.457 to conform his pleadings to

the proof, but the district court denied the motion, finding it would

substantially change the issues in the case and unfairly prejudice Gary,

who had not anticipated having to defend the earlier wills.

       In examining the denial of a motion to amend to conform to the

proof, we must consider “whether allowance of the amendment to

conform to proof by the trial court materially changed the issues or

substantially altered the defenses.”          Beneficial Fin. Co. of Black Hawk

Cty. v. Reed, 212 N.W.2d 454, 456 (Iowa 1973).                   One indicator of

substantial change to the issues may be prejudice or unfair surprise to

the opposing party. See Holliday v. Rain & Hail L.L.C., 690 N.W.2d 59,

65 (Iowa 2004); Rife v. D.T. Corner, Inc., 641 N.W.2d 761, 767 (Iowa

2002); see also W & W Livestock Enters., Inc. v. Dennler, 179 N.W.2d 484,

488 (Iowa 1970) (finding no abuse of discretion in permitting the

amendment when “[it] in no way prejudiced plaintiff”).

       Here, the proposed amendment to conform to the evidence would

have changed the issues and unfairly prejudiced Gary.                   In his own

testimony to open the trial, Dennis specifically disclaimed a challenge to

any other will. At that point, Gary’s attorney undercut Dennis’s litigation

position by demonstrating that the 2007 will and the 2008 codicil did not

leave Dennis materially worse off than he was before.               Only after this

weakness in his case had been exposed at trial did Dennis seek to

expand his suit from one will and codicil to all the wills and codicils.

This would have unfairly disadvantaged Gary, because it would have

required a different line of questioning and proof than Gary had already

       2Of course, this testimony would also have been relevant to Gary’s defense that
there was no undue influence in connection with the 2007 will and the 2008 codicil.
                                       14

used. In the case as pled by Dennis, only the terms of the earlier wills

and codicils mattered, not the specific circumstances of their execution

or Margaret’s condition at the time.

        If the theory relied on to prove the proposed amended claim

“var[ies] materially” from the facts relied upon to prove the existing claim,

then the proposed amendment is deemed to substantially change the

issues. Smith v. Village Enters., Inc., 208 N.W.2d 35, 37–38 (Iowa 1973).

That is the case here.

Furthermore, we have said,

        To give appropriate deference to the trial court, when a
        movant seeks to amend a petition based on trial testimony
        the movant knew or should have known prior to trial, the
        amendment is more properly denied than one that might
        have been otherwise allowed earlier in the proceedings.

Meincke, 756 N.W.2d at 229. In Meincke, we held the district court did

not abuse its discretion in denying a rule 1.457 motion at the end of trial

to add a fraud claim where the plaintiff “knew, or should have known,

the testimony that supported her fraud claim.” Id. This principle applies

here.    Dennis knew of the prior wills long before trial.    He also knew

about Gary’s testimony that matters with Dennis from the perspective of
other family members “came to hilt” in 1998 because that was what Gary

had said in deposition.

        In short, rule 1.457 does not require the district court to grant a

motion to amend “when the movant seeks to amend based upon trial

testimony that the movant knew or should have known about

beforehand.” Allison-Kesley Ag Ctr., Inc. v. Hildebrand, 485 N.W.2d 841,

846 (Iowa 1992); see also Mora v. Savereid, 222 N.W.2d 417, 422–23

(Iowa 1974). In that event, “amendments that might well have otherwise
                                            15

been allowed earlier in the course of the proceedings may properly be

denied by the district court judge.” Allison-Kesley, 485 N.W.2d at 846.

       For the foregoing reasons, we hold the district court did not abuse

its discretion in denying Dennis’s motion at the close of his case to add

the prior wills and codicils to his undue influence claim. 3

       IV. Conclusion.

       We vacate the decision of the court of appeals and affirm the

judgment of the district court.

       DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.




       3In  his resistance to further review, Gary argued, among other things, that
Dennis no longer had standing to contest the 2007 will and the 2008 codicil. In doing
so, Gary relied on a separate order entered by the district court after the trial of the will
contest disinheriting Dennis based on the “no contest” clause and approving a final
accounting and disbursements. That order was separately affirmed by the court of
appeals. See In re Estate of Workman, No. 16–0908, 2017 WL 706342, at *6 (Iowa Ct.
App. Feb. 22, 2017). In light of our disposition of the case, we do not reach this
argument.
