                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0467
                              Filed August 15, 2018


IN THE MATTER OF THE ESTATE OF DONALD G. SPECK, Deceased.

LISA M. SPECK, MATTHEW D. SPECK, TODD M. SPECK, JEREMY J. SPECK,
and NICHOLAS A. SPECK,
      Intervenors-Appellants,

vs.

MARK D. FARGO,
     Petitioner-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Warren County, Patrick W.

Greenwood, Judge.



      Testator’s children appeal a district court order granting a petition to probate

a lost will. AFFIRMED.




      Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, PC, West Des

Moines, for appellants.

      Matthew D. Gardner of Gardner Law Firm, PC, Urbandale, and John D.

Hartung of Hartung & Schroeder, Des Moines, for appellee.



      Heard by Danilson, C.J., and Mullins and McDonald, JJ.
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MULLINS, Judge.

      The children of Donald Speck (Don) appeal a district court order granting a

petition to probate a lost will filed by Donald’s ex-son-in-law, Mark Fargo, under

which Mark was a beneficiary and co-executor and the majority of Donald’s

children were disinherited. The children argue the presumption of revocation was

not rebutted by clear, satisfactory, and convincing evidence. They also assert the

court erroneously shifted the burden of proof to them.

I.    Background Facts and Proceedings

      Don and his ex-wife, Margo, had five children: Matthew, Todd, Jeremy,

Nicholas, and Lisa. The negative nature of the dissolution of Don and Margo’s

marriage, Don’s perception that the children favored Margo, and Margo’s

remarriage to Don’s friend led to varying degrees of hostility and alienation

between Don and his children for many years.

      Don executed a will on August 15, 2012 with the assistance of his long-time

attorney Robert Thomson. The will left fifty percent of the residue of Don’s estate

to his son, Jeremy, and fifty percent to his then son-in-law, Mark, and named both

as co-executors of the estate. The will also expressly disinherited Don’s other four

children. Thomson retained a copy of the will, gave the original to Don, and

advised him to keep it in a safe place. Don was known to use a filing cabinet in

his house to keep important documents. On the same day, Don also executed a

durable general power of attorney and a power of attorney for healthcare

decisions, naming Mark and Jeremy as attorneys-in-fact. Soon after, Don met with

Mark and Jeremy to reveal he had written a will and put both of them in charge of

it. He told them the will would anger the rest of the family but did not produce a
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copy or explain the specifics of the will. Don also asked Mark and Jeremy to not

reveal this conversation to anyone, including their spouses.

         At the time the will was executed, Mark was married to Don’s daughter,

Lisa, and had known Don and the family since childhood. In September 2014,

Mark petitioned for a dissolution of their marriage.1      During the time of the

dissolution proceedings, Mark continued to talk with Don and met him at a car

show. Mark had keys to and stored a car in Don’s garage. Don and Mark also

worked on a sewer project at Don’s home until Don’s stroke.

         On December 3, 2015, Don suffered a catastrophic stroke.          He was

hospitalized and ultimately died on December 16. Don’s son Matthew moved into

Don’s home during his hospitalization and remained there after his death based

upon the recommendation that someone be present at the house in order to protect

the house and other assets and handle any issues with Don’s tenant.

         On December 28, Don’s son Jeremy met with Thomson alone to discuss

the estate and its assets as well as the process going forward. Thomson showed

Jeremy a copy of the will in his possession and informed Jeremy to look for the

original of that copy. On December 31, Thomson met with Don’s children and

Mark to review the terms of the will. Before this meeting, Jeremy met with his

siblings and informed them that the contents of the will could frustrate them, but

he did not explain the specifics of his siblings’ disinheritance. At the December 31

meeting, after discovering that Mark was to receive fifty percent of the estate, two

of Don’s children asked Mark to decline and waive his rights under the will. Mark



1
    Their marriage was dissolved in September 2015.
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refused. When Thomson asked Jeremy if he had found the original will yet, Jeremy

answered he had not looked for it yet.

       Jeremy and Matthew subsequently conducted a search of Don’s home.

Lisa was present during the search. All three testified they did not find Don’s

original will. However, they found a life insurance policy worth fifty-thousand

dollars which named Matthew the sole beneficiary.

       On January 7, 2016, Mark petitioned the court to probate a lost original will

and asked the court to admit the copy to probate to allow its administration. Don’s

children objected. During a three-day bench trial, the court heard testimony from

all of Don’s children, Thomson, Don’s sister, Don’s friend, Mark, and Mark’s

brother. The court granted Mark’s petition to probate the will. Jeremy, who would

share in Don’s estate under the will or intestacy, and his siblings, who would share

in Don’s estate under intestacy, appeal.

II.    Standard of Review

       The action was triable in probate as one at law without a jury, so our review

is only upon the errors assigned. In re Estate of Crozier, 232 N.W.2d 554, 556

(Iowa 1975). “The trial court’s decision on the facts has the force and effect of a

jury verdict.” Id. at 558. “The credibility of witnesses and weight of evidence is for

the trial court.” Id.   If there is doubt or ambiguity, we construe the findings “to

uphold, rather than defeat, the judgment.” Grinnell Mut. Reins. Co. v. Voeltz, 431

N.W.2d 783, 785 (Iowa 1988). The question we face “is not whether the evidence

might support a different finding, but whether the evidence supports the findings

actually made.” Second Injury Fund of Iowa v. Braden, 459 N.W.2d 467, 468 (Iowa

1990). If substantial evidence supports the trial court’s findings of fact, such
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findings are binding upon this court. In re Estate of Hoxsey, 225 N.W.2d 141, 142

(Iowa 1975). However, this principle is “true only if in reaching the fact findings the

court applied the proper rules of law.” Crozier, 232 N.W.2d at 558.

III.    Analysis

        “In the absence of any evidence, as to circumstances of destruction, a

presumption arises that a will which was in the custody of a testator, and which

cannot be found at his death, was destroyed by him with the intention of revoking

it.”   Goodale v. Murray, 289 N.W. 450, 459 (Iowa 1940).               However, this

presumption is not conclusive and is rebuttable. Id. The presumption of revocation

is an “inference of fact drawn from the inability to locate a will which was last known

to have been in the possession of the testator . . . and it is a fact question as to

whether the presumption, or inference, has been overcome.”            In re Estate of

Givens, 119 N.W.2d 191, 194 (Iowa 1963).

        To establish the existence of a lost will, it is incumbent upon the proponent

to prove by clear, satisfactory, and convincing evidence:

        (1) due execution and former existence of the alleged will (2) that it
        has been lost and could not be found after diligent search (3) that the
        presumption of destruction by decedent with intent to revoke it,
        arising from its absence at death, has been rebutted, and
        (4) contents of the will. The evidence need not be free from doubt.

Crozier, 232 N.W.2d at 556.

        The trial court found Mark proved all elements of a lost will by clear and

convincing evidence. This conclusion is binding on us if supported by substantial

evidence. On appeal, the children do not contest the establishment of elements

one, two, and four.       They challenge whether the third element has been

established by clear and convincing evidence, arguing Mark failed to present
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sufficient evidence to rebut the presumption Don destroyed his will with the intent

to revoke it. They contend Don’s relationship with Mark had deteriorated to the

point that Don wanted to remove Mark from the will, due to his divorce from Lisa

along with some of Mark’s business decisions. They also argue the district court

erroneously shifted the burden of proof from Mark to the children and concluded

they failed to prove Don had revoked his will.

       The district court found the following acts and declarations of Don were

sufficient to rebut the presumption: (1) the will still existed on or about Thanksgiving

of 2015; (2) there was no direct evidence that Don had destroyed his will or

declared his intention to revoke it; (3) while Don may have wished to revise his will,

there was insufficient evidence of what those contemplated changes would be;

(4) though Don’s relationship with his children likely improved from the time of the

execution of the will to the day of his stroke, the court was not convinced Don’s

relationship with Mark had inversely deteriorated; and (5) after Don’s death,

Jeremy, Matthew, and Lisa had access to Don’s house and his filing cabinet in

which he had previously stored important documents. The court held “on balance

the facts available to the Court are inconsistent with a conclusion that Don intended

to die intestate.”

       The presumption of revocation “may be strengthened or overcome by proof

of declarations of the testator, either for or against it, or by proof of the

circumstances of the testator, or of his relations to the persons involved.” Goodale,

289 N.W. at 459. First, the court determined the will was still in existence around

Thanksgiving of 2015 based on comments Don made to his sister at that time

about wanting to make changes to his will. Jeremy also testified to comments Don
                                           7


made about his will in late October 2015 which suggest the will was still in

existence at that time. Additionally, the court found there was no evidence that

Don actually destroyed his will at any point before Thanksgiving of 2015 or before

his stroke on December 3. This conclusion was influenced by evidence Don had

destroyed a previous will in 2005 and had notified his attorney when he did so. No

witness testified that Don had expressed any desire to revoke or destroy the 2012

will or informed anyone that he had actually done so. The court did recognize that

because Don’s stroke was unexpected, he would have had no sense of urgency

to contact his attorney or replace his will.

       There was also testimony that Don expressed a desire to modify his will but

Don never communicated the exact modifications to anyone. Jeremy repeatedly

testified that his father had stated that he “needed to get him off of there” and

equated this statement to removing Mark from the will. However, Jeremy also

admitted the statement meant nothing to him. The testimony that Don expressed

wanting to take Mark “off there” is vague and ambiguous as to what “there” meant.

As Mark was a co-executor of the will, a beneficiary under the will, and a co-power

of attorney for both health care and financial affairs, any of these could have been

“there.”

       Additionally, Don’s sister testified that Don “[had] some changes [he]

need[ed] to make after everything that has happened.” The children argue that

Don’s statements indicated he wanted to remove Mark from the will, citing the

improved relationship between Don and some of his disinherited children and the

deteriorating relationship between Don and Mark. In its ruling, the trial court did

not discount the improved relationship between Don and some of his children. On
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examination of the evidence, it is certainly possible that Don intended to change

his will to include some of those children as beneficiaries. However, as the district

court found, the evidence before the court did not show that the possibility of

adding some of his children as beneficiaries necessarily meant Don wanted to or

was going to remove Mark as an executor or beneficiary.                Mark presented

testimony that he still had a relationship with Don, including that Don gave him

keys and allowed him to store a car in his workshop, as well as the fact that they

continued to consult and work together on a sewer project.              Further, Don’s

attorney, Thomson, was also aware of the strained relationship between Don and

some of his children. Thomson testified that Don was trying to determine if he

should change the provisions of his will relating to his children. But Don never told

Thomson of any specific changes he was considering.              Don also never told

Thomson that he had revoked his will or was contemplating revoking the will, nor

did Don communicate that he was thinking about removing Mark from the will as

an executor or beneficiary or from his powers of attorney.

       Finally, the court, though not concluding one or more of Don’s children

destroyed his will, took into consideration the fact that Jeremy, Matthew, and Lisa

had access to Don’s house and filing cabinet—in which Don was known to keep

important documents—after Don’s stroke and subsequent death.2 “Proof a person

who has an adverse interest had access to the testator’s will either before or after

the testator’s death may carry weight in the determination as to whether the will

was revoked by the testator.” In re Estate of Wiarda, 508 N.W.2d 740, 743 (Iowa


2
 The court’s ruling included its observations concerning Lisa’s demeanor as a witness but
did not expressly or implicitly tie those facts to any credibility determination.
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Ct. App. 1993). The children do not deny that Jeremy, Matthew, and Lisa all had

access but argue the court placed too much weight on this point and erroneously

placed the burden of proof on them. Matthew and Lisa only share in the estate

under intestacy and so they have an interest that is adverse to the terms of the

will—a lost will presumed revoked benefits them. They argue, however, that

Jeremy, who would receive fifty percent under the will and only twenty percent

under intestacy, would benefit by finding the will. The court reasoned that although

Jeremy would take less if the will were revoked, his feelings of guilt over being the

only child named in Don’s will and the effect that could have on the family going

forward would be assuaged by his joining forces with his siblings. The court’s

consideration of access by some of Don’s disinherited children is a proper

consideration as “the mere fact that the contestant had an opportunity to destroy

the will would not of itself overcome the presumption that it was destroyed by the

testator with the intent to revoke it; still it is a circumstance to be considered with

other proof.” Id. at 744 (citations omitted). The court here did not base its entire

decision on the opportunities some of the children had but was mindful of those

opportunities in context with all of the evidence before it while making its decision.

       Throughout its ruling, the court repeatedly identified the burden was on

Mark to rebut the presumption of revocation, and we do not find the trial court

misapplied this burden in its conclusion. In isolation, each of the reasons for the

court’s conclusion would be insufficient to rebut the presumption of revocation.

However, the court’s ruling does not identify that one fact or factor alone was the

basis for its ruling. Instead, after taking into consideration all of the evidence before

it, the court held Don did not intend to die intestate.
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       We hold the district court’s conclusion that Mark presented sufficient

evidence to rebut the presumption of revocation is supported by substantial

evidence in the record. The district court applied the appropriate rules of law in its

ruling that the copy of Don’s will which he executed on August 15, 2012 be filed

and admitted into probate. We therefore affirm the decision of the district court.

       AFFIRMED.
