                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0430
                              Filed July 18, 2018

IN THE MATTER OF THE ESTATE OF LOIS B. ERICKSON, deceased.

WAYNE ERICKSON,
    Plaintiff-Appellant,

vs.

ALAN D. ERICKSON, MARY ANN WARD, LEAH ERICKSON, LISAH
ERICKSON, COOPER WARD, LUKE ERICKSON AND LAUREN ERICKSON
and ALL UNKNOWN AND UNBORN BENEFICIARIES,
     Respondents-Appellees.
________________________________________________________________

      Appeal from the Iowa District Court for Boone County, Steven J. Oeth,

Judge.



      Wayne Erickson appeals a ruling finding his mother’s 2011 will invalid based

on undue influence and lack of testamentary capacity and finding him liable for

tortious interference with a bequest. AFFIRMED.



      Patrick J. Riley and Peter C. Riley of Tom Riley Law Firm, P.L.C., Cedar

Rapids, for appellant.

      Amanda L. Green of Nading Law Firm, Ankeny, for appellee Estate of Lois

B. Erickson.

      Kevin Cunningham of Cunningham & Kelso, P.L.L.C., Urbandale, for

appellees Unknown and Unborn Beneficiaries.

      Matthew G. Sease of Kemp & Sease, Des Moines, for appellees Mary Ann

Ward, Cooper Ward, and Christina Ward.
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Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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VAITHESWARAN, Presiding Judge.

       An heir to his mother’s estate contends the district court erred in (1) finding

him liable for intentional tortious interference with a bequest, (2) assessing all the

estate’s attorney fees against his share of the estate, (3) denying his motion to

continue, (4) precluding him from testifying as a discovery sanction, and (5) finding

a 2011 will invalid based on lack of testamentary capacity and undue influence.

I.     Background Facts and Proceedings

       Lois Erickson executed two wills before she died in 2015—one in 2010 and

another in 2011.      Her 2010 will divided her estate equally among her three

children—Wayne Erickson, Alan Erickson, and Mary Ann Ward. Her 2011 will left

the vast majority of the estate to Wayne.

       Lois’ home and living conditions deteriorated over time. Alan and Mary Ann

petitioned for the appointment of a guardian and conservator. On learning of the

petition, Wayne had a codicil to the 2011 will drafted. The codicil provided that

anyone who contested the 2011 will “shall reimburse my son, Wayne D. Erickson,

at the rate of $1,500.00 per hour.” Lois signed the codicil two days before a

guardianship/conservatorship hearing and gave Wayne power of attorney one day

before the hearing.

       Wayne contested the appointment of a guardian and conservator and

objected to a medical evaluation of Lois.       The physician who evaluated her

diagnosed “moderate to severe” Alzheimer’s. The court ordered Alan to serve as

Lois’ guardian and named a bank as conservator.

       After Lois died, Alan filed a petition to probate the 2010 will. The court

admitted the 2010 will to probate. Two months later, Wayne filed a “petition to set
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aside probate of [the 2010] will and declaratory judgment to determine last will.”

Wayne asserted, “[T]he [2010 will] is not the most recent Last Will and Testament

of Lois B. Erickson. The [2011 will] is the Last Will and Testament of Lois Erickson

and as such should be the Will being administered and probated.” Mary Ann and

her two children filed a counterclaim against Wayne for tortious interference with

a bequest.

       The parties stipulated the issue for trial was the validity of the 2011 will. The

stipulation was memorialized in a court order. Following a bench trial, the district

court found the 2011 will invalid based on undue influence and lack of testamentary

capacity. The court also found Wayne liable to Mary Ann and her children for

tortious interference with a bequest. Finally, the court ordered Wayne to pay all of

the estate’s attorney fees from his share of the estate. Wayne appealed.

II.    Tortious Interference with Bequest

       “One who by fraud or other tortious means intentionally prevents another

from receiving from a third person an inheritance or gift that he [or she] would

otherwise have received is subject to liability to others for the loss of the inheritance

or gift.” Huffey v. Lea, 491 N.W.2d 518, 520 (Iowa 1992) (quoting Restatement

(Second) of Torts, § 774B (1979)). A plaintiff alleging tortious interference with a

bequest must show the defendant acted with tortious intent. See id. at 521 (“The

necessary proof in an action for intentional interference with a bequest or devise

focuses on the fraud, duress, or other tortious means intentionally used by the

alleged wrongdoer in depriving another from receiving from a third person an

inheritance or gift.”); In re Estate of Boman, No. 16-0110, 2017 WL 512493, at *10

(Iowa Ct. App. Feb. 8, 2017) (requiring a showing defendants acted “intentionally
                                           5


and improperly” in interfering with plaintiff’s expected inheritance). We review a

finding of tortious interference with a bequest for substantial evidence. Boman,

2017 WL 512493, at *11.

       Wayne contends the district court simply found he exerted undue influence

over Lois and a finding of undue influence was insufficient to support liability for

intentional interference with bequest. We agree undue influence is not coextensive

with tortious interference. As the court explained in Huffey, the former “focuses on

the testator’s mental strength and intent” while the latter “focuses on the fraud,

duress, or other tortious means used by the alleged wrongdoer.” 491 N.W.2d at

521.

        Although the district court did not explicitly determine Wayne acted by

“fraud, duress, or other tortious means,” the court’s detailed fact findings were an

effective equivalent. See Hubby v. State, 331 N.W.2d 690, 695 (Iowa 1983)

(stating “[f]indings of fact are given a liberal construction favorable to the judgment”

and “we assume as fact an unstated finding that is necessary to support the

judgment”). The court found that, four days before the drafting of the 2011 will,

Wayne and Lois called Lois’ lawyer, told him Alan was guilty “of breaking into Lois’

safe and stealing several items,” and told him to draft a new will divesting Alan of

any share of the estate. The court further found the lawyer “primarily spoke with

Wayne” and directed him to report the theft matter to law enforcement authorities.

The court found “[t]he Boone County Sheriff’s office investigated the matter, but

did not find any evidence of a theft.” Meanwhile, the lawyer “drafted a completely

new will,” which “left all of the farm ground to Wayne and the residue to Wayne

and Mary Ann.” The will was signed a month after the phone call. The court found
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“Wayne continued his control over Lois” following the signing. Specifically, he

called the police to investigate Mary Ann and prohibited her from taking Lois to two

events. On our review of the record, we discern the following evidentiary support

for the district court’s findings.

       The attorney who drafted the 2011 will testified Wayne called and said “oh,

somebody stole something from my mom, and she’s really upset about it.” The

attorney elaborated, “[Lois and Wayne] called me. They both were pretty rattled.

They said Alan broke into Lois and Arlo’s home and stole some stuff out of the safe

that was downstairs.” According to the attorney’s notes, Wayne and Lois informed

him the titles to cars and trucks, deeds, and other documents were missing,

together with a large diamond ring “worth thousands of dollars.” Although the

attorney testified both Lois and Wayne were on the phone call, he admitted Wayne

did all the talking. In his words, “Lois was very quiet. She probably didn’t do any

talking.”

       The lawyer testified, “In the meantime Lois wants to do a new will and cut

out Alan entirely.” The attorney stated he drafted the changes to the will in short

order and Lois executed the will.

       The attorney’s testimony about Wayne’s accusation against Alan was

corroborated by Alan. Alan testified to Wayne’s overall controlling behavior when

it came to his mother. As an example, he said he had phone conversations with

Lois in which he overheard Wayne “coaching her what to say.” He stated, Wayne

was “very aggressive” and “very outspoken” in directing his mother’s

communications.
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          A law enforcement officer confirmed Wayne’s accusation of theft. He

testified he went to Lois’ home and “tried to” talk with her, but every time he “would

ask her a question, Wayne would interrupt.” He stated it seemed as if Wayne was

trying to prevent Lois from communicating with him. The officer called Alan to

obtain additional information. He ultimately concluded there was no evidence to

“proceed further.”

       Mary Ann testified to Wayne’s controlling behavior after the 2011 will was

signed.      She cited Wayne’s refusal to let her take Lois for a manicure, his

accusation she was “stealing items from [her] mother,” his assertion that his mother

did not trust her, and his call to 911 accusing her of theft. When an officer arrived

at Lois’ home to investigate the assertion, Mary Ann told him she was simply there

to take her mother out. She encouraged the officer to check her trunk for allegedly

stolen items. She testified “that was that.” Like Alan, she said Wayne’s presence

when she telephoned her mother resulted in a change in her mother’s “tone of

voice” and shorter answers. In Mary Ann’s words, Lois “just kind of wanted to end

the call.”

       Substantial evidence supports the district court’s findings and the court’s

implicit determination of Wayne’s tortious intent to interfere with the bequest to his

siblings. Accordingly, we conclude the district court did not err in finding in favor

of the Wards on their tortious-interference-with-a-bequest claim. We affirm the

court’s award of consequential damages to the Wards in the form of attorney fees

incurred in defending the action filed by Wayne. See Huffey, 491 N.W.2d at 522

(“We are strongly committed to the rule that attorney fees are proper consequential

damages when a person, through the tort of another, was required to act in
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protection of his or her interest by bringing or defending an action against a third

party.”).

III.   Attorney Fees to Executor

       Iowa Code section 633.315 (2015) authorizes an executor to recoup

reasonable attorney fees:

       When any person is designated as executor in a will, or has been
       appointed as executor, and defends or prosecutes any proceedings
       in good faith and with just cause, whether successful or not, that
       person shall be allowed out of the estate necessary expenses and
       disbursements, including reasonable attorney fees in such
       proceedings.

A probate court is granted considerable discretion in taxing fees. In re Estate of

Wulf, 526 N.W.2d 154, 158 (Iowa 1994). Where the fees are assigned to the

objector’s share of the estate, the question is whether the objector acted in bad

faith. Id.; cf. Swartzendruber v. Lamb, 582 N.W.2d 171, 176-77 (Iowa 1998)

(applying “good faith and just cause” test in section 633.315 to executor proponent

of a will who was also a real party in interest and was unsuccessful in upholding

the validity of the will, and affirming conclusion that executor could not charge costs

to estate because he exerted undue influence over decedent).

       The district court assessed all of the estate’s attorney fees—$47,880.93—

against “Wayne’s share of the estate.” In doing so, the court reasoned,

       The fees were necessary and reasonable based upon Wayne’s
       action in challenging the 2010 will. The court considered reducing
       the Estate’s fees based on the use of two attorneys at trial. The
       Court decided that it would assess both attorneys’ fees to Wayne.
       There was significant money involved in this case which would justify
       the use of two attorneys. Additionally, Wayne had two attorneys at
       trial representing his interest.
               In the court’s view, Wayne’s conduct in attempting to probate
       the 2011 will justifies the assessment of the attorney fees as
       indicated herein. Wayne clearly was just trying to get a significantly
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       bigger share of the estate. His conduct in exerting undue influence
       and then trying to get the 2011 will probated is based on nothing but
       greed.
       ....
       Wayne has been domineering and controlling of his mother for years.
       His conduct justifies the assessment of attorney fees as indicated
       appropriate in this ruling.

       Wayne appeals the assessment of the estate’s fees solely against his share

of the estate. He argues the court’s assessment was unduly harsh because “[his]

claim cannot be said to be frivolous nor made in bad faith.”

       To the contrary, the record is replete with evidence of bad faith, some of

which we have recounted above. Although the court did not use the term “bad

faith,” the court cited Wayne’s “greed” and his “domineering and controlling”

behavior. These characterizations are indicative of bad faith. We conclude the

district court did not abuse its discretion in assessing the executor’s attorney-fee

obligation against Wayne’s share of the estate.

IV.    Wayne’s Motion to Continue

       Twenty-two days before trial, Wayne moved to continue trial, arguing the

2010 will was invalid because of undue influence and lack of testamentary

capacity. Wayne asserted he needed more time “to fully develop the evidence

showing the invalidity of the 2010 will.” The district court denied the motion. The

court reasoned (1) Wayne’s petition did not assert the 2010 will was invalid, (2)

“the parties agreed the issue to be decided at trial [was] whether the 2011 Will

[was] invalid due, in part, to undue influence,” (3) “the deadline for pleadings of

that nature [had] passed,” and (4) the “trial date should not be continued this close

to the trial date that was set one year in advance.”
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       On appeal, Wayne contends the defendants had “adequate notice” of his

intent to challenge the 2010 will on the stated grounds and he should have been

afforded additional time to develop this challenge. Our review of the court’s denial

of the continuance motion is for abuse of discretion. In re Estate of Lovell, 344

N.W.2d 576, 578 (Iowa Ct. App. 1983).

       We discern no abuse. Wayne’s petition made no mention of a challenge to

the 2010 will based on undue influence or lack of testamentary capacity. The

petition simply stated, “[T]he [2010 will] is not the most recent Last Will and

Testament of Lois B. Erickson. The [2011 will] is the Last Will and Testament of

Lois Erickson and as such should be the Will being administered and probated.”

Additionally, in interrogatories, Wayne was asked “whether or not [he was] claiming

that any person unduly influenced Lois B. Erickson.”          He responded “none.”

Wayne was also asked “whether or not [he believed] Lois B. Erickson was

susceptible to being influenced regarding his Last Will and Testament.”            He

responded, “No.” And, as noted, the district court clarified that the issue for trial

was whether the 2011 will—not the 2010 will—was “invalid due, in part, to undue

influence.” Finally, Wayne’s belated attempt to inject a new issue so close to the

trial date was unfair to the other parties, particularly where Wayne was aware of

the potential claim from the outset. See Scott v. Grinnell Mut. Reins. Co., 653

N.W.2d 556, 561 (Iowa 2002) (“Principles of fairness . . . dictate notice of the claims

asserted in order to give the opposing party opportunity to make an adequate

response.”); see also In re Estate of Workman, 903 N.W.2d 170, 178-79 (Iowa

2017) (affirming denial of an amendment “to add the prior wills and codicil to [the]

undue influence claim” because the movant “knew of the prior wills long before”
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and also knew about any evidence of undue influence long before he proposed the

amendment). We affirm the district court’s denial of the continuance motion.

V.    Discovery Sanction

      Wayne failed to appear for a deposition on two separate occasions. As a

sanction for his nonappearance, the defendants moved to dismiss his action. The

district court found Wayne’s failure to appear following ten mailed notices was

willful. Nonetheless, the court found dismissal to be too harsh a sanction and opted

for two lesser sanctions. First, the court stated Wayne would “not be permitted to

testify on his own behalf at trial.” Second, the court ordered Wayne “to pay all

attorney fees and court reporter costs incurred based on his failure to appear for

depositions.”

      On appeal, Wayne contends the court’s refusal to allow him to testify

amounted to an abuse of discretion. See Haumersen v. Ford Motor Co., 257

N.W.2d 7, 14 (Iowa 1977) (setting forth standard of review). We disagree.

      Iowa Rule of Civil Procedure 1.517(4) authorizes the imposition of sanctions

for failure to appear at a deposition. One of the possible sanctions is “[a]n order

refusing to allow the disobedient party to support or oppose designated claims or

defenses, or prohibiting such party from introducing designated matters in

evidence.” Iowa R. Civ. P. 1.517(2)(b)(2).

      The sanction of excluding Wayne’s testimony was entirely appropriate, for

the reasons stated by the district court. See id.; see also Farley v. Ginther, 450

N.W.2d 853, 856 (Iowa 1990) (upholding district court’s exclusion of expert

testimony because of party’s failure to abide by discovery order); Sullivan v.
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Chicago & N.W. Transp. Co., 326 N.W.2d 320, 324 (Iowa 1982) (same). We affirm

the district court’s ruling.

VI.    Invalidity of 2011 Will

       The district court determined Lois lacked testamentary capacity when she

executed the 2011 will and the will was the product of undue influence. Wayne

argues these determinations are not supported by substantial evidence. See In re

Estate of Lachmich, 541 N.W.2d 543, 545 (Iowa Ct. App. 1995) (setting forth

standard of review). We begin with the district court’s detailed fact findings on

each issue.

       On the question of Lois’ testamentary capacity, the court cited the

physician’s diagnosis of severe Alzheimer’s disease, the physician’s view that Lois

could not make any major decisions on her own, and his ability to “very confident[ly]

opine as to Lois’ mental capabilities” at the time she executed the 2011 will. The

court quoted the physician’s testimony, pointed out that “[n]o other medical

person[nel] testified,” and stated other individuals were not called “to rebut [the

physician’s] medical diagnosis.” The court stated, “Based upon [the physician’s]

undisputed testimony, it is clear that Lois was medically and legally incapable of

knowing a will was being made, knowing ‘the natural objects of [her] bounty,’ or

the true ‘distribution [she] desires to make of [her] property.’” (quoting Pearson v.

Ossain, 420 N.W.2d 493, 495 (Iowa Ct. App. 1988)). The court concluded the

2011 will was invalid.

       As to undue influence, the court found “[w]ithout question” that Lois “was

susceptible to undue influence.”     The court cited her medical diagnosis “that

extended into the relevant time periods of the April 2011 Will formation,” the effect
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of the diagnosis on “her executive functioning,” her age, her dependence on others

“for her general basic necessities and travelling,” and her other medical conditions

that made ambulation difficult. The court next turned to Wayne’s opportunity to

exercise undue influence and found “this element is really not in dispute.” The

court also found the record “replete” with evidence Wayne was inclined to influence

Lois unduly to gain an improper favor. The court cited his attempt to force Alan

out of a meeting with an attorney, his placement of signs around Lois’ home

“establishing visiting hours and precluding other family members from visiting

Lois,” and his possession of one of two keys to the house.          Next the court

summarized the evidence indicating Lois “acted like a completely different person

when away from Wayne,” evidence showing Wayne “controlled the conversations

and did most of the talking” with Lois’ attorney, and evidence of his continued

control over Lois after the 2011 will was executed. Addressing the final element

of an undue influence claim—whether the will was “clearly brought about by undue

influence”—the court cited “the dramatic difference between” the two wills and the

attorney’s testimony that the 2011 will was the product of Wayne’s influence.

       No useful purpose would be served by summarizing the extensive evidence

supporting the district court’s findings.    Suffice it to say the findings and

determinations of lack of testamentary capacity and undue influence are supported

by substantial evidence and the court’s legal analysis was correct. See Burkhalter

v. Burkhalter, 841 N.W.2d 93, 99-105 (Iowa 2013) (discussing elements of undue

influence claim and declining to abandon the “clearly” requirement of causation).

We affirm the court’s conclusion that the 2011 will was invalid.

       AFFIRMED.
