                   IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1658
                            Filed November 27, 2019


IN THE MATTER OF THE ESTATE OF CHARLES H. KLINE, Deceased.

TOM J. KLINE,
     Plaintiff-Appellant,

vs.

MARY JO CULP,
     Defendant-Appellee.
________________________________________________________________


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

Associate Probate Judge.



      Tom Kline appeals the probate court’s denial of his claims of undue

influence and intentional interference with inheritance.      REVERSED AND

REMANDED.



      Matthew C. McDermott, Ryan G. Koopmans, and Erika L. Bauer of Belin

McCormick, P.C., Des Moines, for appellant.

      Matthew D. Gardner of Gardner Law Firm, P.C., Urbandale, for appellee.



      Considered by Potterfield, P.J., and Mullins and Greer, JJ.
                                         2


GREER, Judge.

        The probate court denied Tom Kline’s claims that his sister unduly

influenced their father to transfer his bank accounts and certificates of deposit to

her and intentionally interfered with Tom’s inheritance. For the reasons stated

below, we reverse the probate court ruling and remand for further proceedings.

        I. Background Facts and Proceedings.

        On November 19, 2016, Charles Kline died at age eighty-five. Charles had

four children: Tom Kline; Joyce Countryman, who died in October 2016; Mary Culp;

and Harm Kline, who died in April 2001. This case involves a dispute between

Tom and Mary over the validity of Charles’s inter vivos transfer of his accounts to

Mary.

        Charles worked as a truck driver until he suffered a stroke in 1989. After

recovering from his stroke, he worked odd jobs driving cars until around 2000.

Until a near accident, he maintained a driver’s license and continued driving for

personal reasons through 2016.

        According to a 2015 medical assessment, Charles last completed the fifth

grade and “[d]oes not read or write.” Tom testified Charles had relied on family

members to take care of his finances since he was a young man, including adding

his mother or children to his bank accounts as joint owners at different points in

time. Tom believed Charles added his family members to his accounts for his

“convenience to help him read and understand documents” and not to give them

access to the funds.

        Because Charles hounded Tom about retirement homes, Tom emailed

Mary and Joyce on August 21, 2012, asking for their help in deciding whether
                                            3


Charles should move to an assisted-living facility. Tom wrote that Charles “has

went down here quite a bit” and “sooner than later he will need us to care for him

like we have our own children.”         Tom suggested that one of them manage

Charles’s affairs, which includes “keep[ing] good records,” “communicat[ing] with

the other two” siblings, and “consult[ing] the other two with any major

expenditures.”

       As it turned out, Charles moved to an assisted-living facility around

December 2012. After the move, Mary assisted Charles on a regular basis until

his death. Her assistance included attending his medical visits and assessments

and paying his bills. According to Tom, Mary managed Charles’s affairs “[p]rimarily

because she insisted that she wanted to do it. And she had the time and had been

familiar with helping dad out throughout the years.” As for Tom, he “communicated

multiple times weekly” with Charles during his final years.

       Throughout his life, Charles accumulated several accounts and certificates

of deposit with multiple banks (collectively “accounts”). At trial, Tom produced

records from five such accounts.1 At one time, all five accounts listed at least two

of the siblings as either joint owners with Charles or beneficiaries upon Charles’s

death. However, by November 24, 2014, Charles and Mary were the joint owners

for all five accounts. Mary testified she received all records for the accounts at her

home address at Charles’s request.           After Charles’s death, Mary took sole

ownership of all five accounts.




1
  In 2003, Tom, Mary, and Joyce were beneficiaries, payable on death, on four accounts
containing the bulk of Charles’s funds. One of these accounts closed with its funds placed
in a new account.
                                            4


       Through use of a subpoena, Tom obtained records for Charles’s State Farm

credit card. Mary received the statements for this credit card at her home as well.

Although Charles already had another credit card, he opened the State Farm credit

card account shortly after entering the assisted-living facility. According to Mary,

Charles handed her a card under the account in her name. As a part of her

conversation with him, Mary asserts he allowed her to use the card for her own

purchases and repay him later. As it went, she claimed she often paid for her

charges using Charles’s checking account and then later paid him back with cash.

As an example, on September 23, 2016, she wrote a check to herself from

Charles’s checking account “upon [his] knowledge” to bring her personal account

into a positive balance.

       In 1992, Charles executed a will, which left all of his property to his children

in equal shares. On January 2, 2015,2 Charles executed another will, which left

two-thirds of his property to Mary and one-third to Tom; however, if Joyce

predeceased Charles, the will left his property to Mary and Tom in equal shares.

Tom and Kim Smith, the estate attorney, believed Charles structured his will this

way to protect Joyce’s share of the estate from her creditors. As Tom testified,

Charles “entrusted Mary to take [Joyce’s] third and to take care of her.” To explain

the estate plan, Smith drafted a December 17, 2014 letter from Charles to Mary,

with a copy to Tom, confirming, “It is important to me for you to know that I would




2
 The date listed on the will is January 2, 2014, but Tom and Mary agree this date is an
error and Charles executed the will on January 2, 2015. The 2015 will replaced a 2004
will written after Harms’s death providing for equal distribution among all three remaining
children.
                                           5


like you to assist Joyce, as you are able, from any inheritance you may receive

from me.”

       To further solidify the 2015 estate plan, Charles also named Mary as the

executor and Tom as the successor executor if needed. For executor fees, the will

directed, “The investment earnings on money I have set aside in the care of Mary

Culp for funeral expenses, nursing home expenses and the like will be presumed

to be reasonable compensation for her services as Executor.” At the same time

the will was executed, Charles signed a power of attorney naming Mary as attorney

in fact and Tom as the successor.

       About one month before Charles’s death, Joyce passed away. On the day

of Joyce’s funeral in October 2016, Tom testified Charles told him, “It’s now

everything to be split including what I have in the bank accounts between you and

Mary. Mary knows where everything is set up at. She [knows] what my wishes

are, and don’t let her cheat you.”

       Shortly after Charles died in November 2016, Mary began transferring

assets, paying bills, moving and otherwise disposing of personal property,

arranging the funeral, and filing Charles’s final tax return. She did not file Charles’s

will with the probate court or seek appointment as executor. Over a month after

Charles’s death, Tom met with Mary to discuss the estate. During that meeting,

Tom learned that all of Charles’s bank assets in the approximate amount of

$558,000 had been transferred to Mary. Without these accounts, roughly $4500

would pass through the estate. Tom received a bag of personal property and

$16,000 in life insurance proceeds, and Mary received $28,000 in life insurance

proceeds.
                                         6


      Given this news, on March 9, 2017, Tom filed the petition seeking to enter

the 2015 will to probate and to appoint himself as executor, and the court later did

so. On April 4, Tom, acting as executor, sent Mary a written request to turn over

Charles’s property and to provide financial records and other information about

Charles’s property. Tom testified Mary did not respond to this request, requiring

he send subpoenas to Charles’s banks for financial records.

      On July 19, Tom filed a petition alleging Mary engaged in undue influence

over Charles and intentional interference with a bequest. After a hearing, the

probate court granted a temporary injunction and ordered Mary to place the

enjoined funds in escrow. A bench trial was held May 7 and 8, 2018. On August

31, the court entered its ruling, concluding Tom failed to establish that Mary

exercised undue influence over Charles and declining to set aside the transfers.

The court also rejected the intentional-interference claim. Tom appeals.

      II. Standard of Review.

      The parties dispute the standard of review related to the issues of this case.

At the core, Tom seeks to set aside an inter vivos transfer of assets, which is an

equitable remedy. See, e.g., Mendenhall v. Judy, 671 N.W.2d 452, 454 (Iowa

2003) (reviewing an action to set aside an inter vivos transfer of property under a

de novo standard). We review an equitable action de novo. Iowa R. App. P. 6.907.

      Mary correctly notes that a review of a ruling on an intentional-interference-

with-a-bequest claim is typically for correction of errors at law. See Frohwein v.

Haesemeyer, 264 N.W.2d 792, 795 (Iowa 1978) (considering a will beneficiary’s

intentional-interference claim, which was filed as a separate action at law); see
                                          7

also Huffey v. Lea, 491 N.W.2d 518, 521 (Iowa 1992) (distinguishing between a

will contest and an action for intentional interference with inheritance).

        However, both issues in in this case were tried as probate matters. With

certain exceptions not applicable here, probate actions are tried in equity. See

Iowa Code § 633.33 (2017). The parties pursued all claims in the probate case as

no one sought to bifurcate the undue-influence and intentional-interference claims.

Finally, no party requested or urged an at-law determination in the district court.

See In re Estate of Todd, 585 N.W.2d 273, 275 (Iowa 1998) (finding a single

standard of review applied to multiple claims tried in probate and “any objection to

error in the forum having been waived”); see also Cich v. McLeish, No. 18–0069,

2019 WL 1056804, at *2–3 (Iowa Ct. App. Mar. 6, 2019) (performing a de novo

review of confidential-relationship and interference-with-inheritance claims). Thus,

we review the claims de novo.

        III. Analysis.

        Tom challenges the probate court’s rulings on his undue-influence and

intentional-interference-with-inheritance claims. We will consider each claim in

turn.

        A. Confidential Relationship and Undue Influence. Generally, a party

seeking to set aside an inter vivos transfer due to undue influence has the burden

to “show ‘such persuasion as results in overpowering the will of the [grantor] or

prevents him from acting intelligently, understandingly, and voluntarily—such

influence as destroys the free agency of the grantor and substitutes the will of

another person for his own.’” Mendenhall, 671 N.W.2d at 454 (quoting Leonard v.

Leonard, 12 N.W.2d 899, 903 (Iowa 1944)). However, if the party challenging the
                                           8


transfer can show a confidential relationship between the grantee and grantor

existed at the time of the transfer, the transfer “is presumptively fraudulent and

therefore presumptively the product of undue influence.” Id.

       Once plaintiff establishes a confidential relationship existed, “the burden of

proof shifts to the grantee to negate a presumption of undue influence by clear,

convincing, and satisfactory evidence.” Id. at 454–55. The grantee must show

“that the grantee acted in good faith throughout the transaction and the grantor

acted freely, intelligently, and voluntarily.” Jackson v. Schrader, 676 N.W.2d 599,

605 (Iowa 2003). “Evidence is clear, convincing, and satisfactory when there is no

serious or substantial uncertainty about the conclusion to be drawn from it.”

Mendenhall, 671 N.W.2d at 454.

       “[T]his [burden-shifting] ‘rule is particularly applicable where one of the

parties has a dominating influence over the other by reason of the affection, trust,

and confidence of the latter in the former.’” Id. at 455 (quoting In re Estate of Herm,

284 N.W.2d 191, 200 (Iowa 1979)); see also Oehler v. Hoffman, 113 N.W.2d 254,

256 (Iowa 1962) (noting that a confidential relationship “exists when one person

has gained the confidence of another and purports to act or advise with the other’s

interest in mind”). This “dominating influence” test is not viewed in a negative

context, such as the analysis related to a showing of undue influence, but such

review seeks to confirm the extent of the close and trusted relationship. See

Mendenhall, 671 N.W.2d at 454 (stating the elements of an undue-influence claim).

Instead, we look to whether the facts establish that one has “come to rely on and

trust another in his important affairs.” Id. The “[p]urpose of the doctrine is to defeat

and correct betrayals of trust and abuses of confidence.” Oehler, 113 N.W.2d at
                                          9


256. “[C]ourts must scrutinize with jealous vigilance transactions between persons

sustaining relations of trust and confidence, to the end that the dominating member

shall conduct himself with . . . the utmost good faith.” First Nat’l Bank v. Curran,

206 N.W.2d 317, 323 (Iowa 1973); see also Curtis v. Armagast, 138 N.W. 873,

878 (Iowa 1912) (requiring individual in confidential relationship to prove “entire

good faith on his part and free, voluntary, and intelligent action on the part of the

grantor”).

       1. Whether a confidential relationship existed between Mary and Charles.

The Iowa Supreme Court has set forth several principles to determine whether a

confidential relationship exists:

               Confidential relationship is a very broad term and is not at all
       confined to any specific association of the parties to it. In law it has
       been defined or described as any relation existing between parties
       to a transaction wherein one of the parties is duty bound to act with
       the utmost good faith for the benefit of the other party. In its broadest
       connotation the phrase embraces those multiform positions in life
       wherein one comes to rely on and trust another in his important
       affairs.
               A confidential relationship arises whenever a continuous trust
       is reposed by one person in the skill and integrity of another, and so
       it has been said that all the variety of relations in which dominion may
       be exercised by one person fall within the general term “confidential
       relation.”

Herm, 284 N.W.2d at 199 (quoting Dibel v. Meredith, 10 N.W.2d 28, 30 (Iowa

1943)).

       A confidential relationship “is particularly likely to exist where there is a

family relationship,” but not every family relationship creates a confidential

relationship. Mendenhall, 671 N.W.2d at 455; see also In re Estate of Clark, 357

N.W.2d 34, 37 (Iowa Ct. App. 1984). “Moreover, a confidential relationship may

exist although there is no fiduciary relationship.” Mendenhall, 671 N.W.2d at 455.
                                           10


       We have held that a confidential relationship existed when an aging father

“relied upon [his daughter] for his transportation, to assist with his financial affairs,

and to perform day-to-day chores.” Stalzer v. Smith, No. 15–1739, 2016 WL

4384184 (Iowa Ct. App. Aug. 17, 2016); see also Mendenhall, 671 N.W.2d at 460

(finding a confidential relationship existed where mother and daughter had “[a] very

close, loving” relationship; daughter “managed [mother’s] business interests, in

one degree or another, in an increasingly dominant manner” for the eight years

prior to mother’s death; and daughter “either personally took care of or saw that

[mother’s] daily physical needs were met”); Curran, 206 N.W.2d at 319–20, 322

(finding a confidential relationship existed where a nonrelative of the grantor began

handling more and more of the grantor’s business until the nonrelative was

handling all of the business affairs and the grantor was over ninety years old, nearly

blind, and homebound); Curtis, 138 N.W. at 880 (finding a confidential relationship

existed where the grantee acted as the grantor’s agent, managed the grantor’s

property for almost twenty years, lived in the same house as the grantor, and held

the grantor’s property out as his own); Cich, 2019 WL 1056804, at *3 (finding

continuous trust in son for assistance, advice, and financial management created

a confidential relationship between son and mother); In re Estate of Hadsall, No.

17–2010, 2019 WL 1056803, at * 4 (Iowa Ct. App. Mar. 6, 2019) (finding a

confidential relationship existed between son who handled his mother’s financial

affairs, including receiving her bank statements, even though mother was

competent and “could have been more active in her financial affairs”).

       Mary argues no confidential relationship existed, she did not exert a

dominant influence over Charles, and she was only taking care of her ailing father
                                          11


and helping him carry out his wishes. The probate court agreed with Mary. In its

ruling, the probate court emphasized Tom chose “to let Mary be involved” in

Charles’s final years and Tom could “have done the same.” However, the question

is not whether Tom could have been as involved as Mary in managing Charles’s

affairs.   Instead, the relevant inquiry is whether Tom has shown Mary had

Charles’s trust and confidence so that she could have exercised control over their

father. We conclude Tom has shown such a confidential relationship.

       From 2012 until Charles died in November 2016, Mary increasingly took on

the role of helping Charles.3 As a joint account owner, she had full access to all of

his bank accounts. She wrote checks for him to sign, paid his bills, and read him

documents so that he could understand them. She also had a credit card in her

name to charge purchases to his credit card account. She received all of his bank

and credit card statements at her house. According to Mary, Charles told her, “You

take it over and take care of everything.”

       Along with managing his finances, Mary accompanied Charles to his

appointments, including appointments with his doctors and attorneys.              She

attended Charles’s monthly or quarterly nursing assessments. She was present

and provided input during Charles’s evaluations for long-term care benefits. While

other family members also helped with his medical care, Mary testified her office

manager recommended she take family medical leave because of her extensive

commitment to Charles’s care.




3
 The naming of Mary as power of attorney evidences Charles’s trust in her for financial
and healthcare decisions.
                                        12


      Based on these facts, without regard to any improper intent or motive, we

conclude that Tom established a confidential relationship existed between Mary

and Charles. For that reason, the burden shifts to Mary to negate the presumption

of undue influence by providing clear, convincing, and satisfactory evidence that

she acted in good faith throughout the transaction and that Charles acted freely,

intelligently, and voluntarily. See Jackson, 676 N.W.2d at 605.

      2. Whether Mary acted in good faith. Mary rationalized Charles’s 2014

account transfers with a suspect story. Mary testified,

             My brother had made my dad upset for presenting him back
      in 2012 a power-of-attorney paper. And my dad brought that over to
      me and asked me to re-read what he already had said. And—or
      what he’d already had read. And that really upset my father. And he
      tore that up, and he told me—I said, “Yes, that is exactly what this is.
      And so Tom is asking for all power of attorneyship to you, and you
      would not be able to have any ownership to your own belongings or
      be able to write checks or anything like that upon your own behalf.”
             So upon that knowledge, he turned around and he made the
      statement to me in my home, he said, “Well, Mr. Kline is not going to
      get what he wants.”

      Tom acknowledged he discussed a power of attorney with his father in 2012

before Charles moved to the assisted living facility. Tom did not believe Charles

was angry after their conversation. Charles did not transfer the accounts to Mary

until two years later. Oddly, at the time Charles allegedly threatened to disinherit

Tom, a power of attorney document naming Tom as one of Charles’s attorneys-in-

fact had been in effect since 2004, though Mary testified she was not aware of this

earlier document until this proceeding. After these discussions, Charles executed

a new power of attorney in January 2015 that named Tom as the successor.

      Along with the power-of-attorney quagmire, the terms of Charles’s will and

the December 17, 2014 letter he sent to Mary and Tom cast doubt on Mary’s
                                         13


testimony about Charles’s intent to disinherit Tom.         Smith, Charles’s estate

planning attorney, testified certain terms in the 2015 will were largely unnecessary

if Charles intended to give all of his money to Mary through joint accounts. First,

Smith agreed “it makes no sense to provide [Mary] investment income on funds in

her care if she had absolute ownership of both the principal and the interest” as

the will directed for executor fees. Second, Smith saw “[l]ittle or no reason” for

Charles to redo his will in 2015 if he had already transferred almost all of his money

to Mary. Furthermore, Smith testified he did not know little to no property would

pass under the 2015 will, Charles never indicated he had already transferred most

of his assets to Mary, and he did not remember Charles being angry or displeased

with Tom.

       We also note that in the December 17, 2014 letter, Charles directed Mary

to assist Joyce using her “inheritance” from him instead of using the joint accounts

already transferred to her. Mary testified she understood at the time of the will’s

execution that Charles wanted her to help Joyce with her two-thirds inheritance,

but she never expressed confusion or sought clarity as to how this meager

inheritance could help Joyce when almost all of his money was already in the

jointly-owned accounts.

       Finally, Mary’s other actions suggest a lack of candor and good faith.

Despite Tom’s expectation in his August 2012 email that the siblings communicate

about Charles’s affairs, Mary testified she did not share details about the financial

accounts “because that was particularly [Charles’s] business.” She testified she

used the secondary State Farm Credit card in her name with Charles’s permission

and with the understanding that she would pay back the charges; yet Mary made
                                           14


thousands of dollars’ worth of charges on the credit card, incurred late fees, and

acknowledged she used funds from Charles’s other accounts to pay down the

credit card balance. She initially claimed she directly paid State Farm for her

charges, but at trial she testified she paid Charles for her purchases in cash even

though he had twenty dollars in cash at the time of death. She also acknowledged

she wrote checks to herself from Charles’s accounts with his knowledge, but

nothing in the record corroborates her claims that he consented to or even knew

about these checks.

       We conclude that Mary has not met her burden to provide clear,

satisfactory, and convincing evidence she acted in good faith during the account

transfers. Regardless, we will next consider whether Mary met her burden to show

Charles acted voluntarily and intelligently.

       3. Whether Charles acted freely. For proof of Charles’s voluntary transfer

of the accounts, Mary asserts Charles was in control, did what he wanted, and

handled his own affairs with his bank and his lawyer. Statements such as these

do not meet the clear, satisfactory, and convincing burden of proof. See Johnson

v. Johnson, 191 N.W. 353, 355 (Iowa 1923) (“The burden is not met by showing

simply that at the time of the execution [the grantor] said that it was all right or that

he was glad of it. The same influence which induced the execution would likewise

induce just such remarks.”).

       Mary referenced previous older account statements showing joint

ownership with various family members. Our review encompasses the timeframe

of the confidential relationship, which covered the years 2012 until Charles’s death

in 2016. As of 2012, most of Charles’s accounts list Tom, along with his sisters,
                                         15


as beneficiaries with an interest payable on death. The relevance of account

ownership before that time is minimal. To the extent earlier ownership is relevant,

Tom testified his father used joint owners to assist him with his finances and did

not intend for the joint owner to have the money.

       There are considerable differences in how the parties characterized

Charles’s mental capabilities when he transferred his accounts and updated his

estate plan. His medical records are similarly conflicting but show at least some

mental decline over this time. Additionally, while other witnesses related stories

about Charles’s mental state, none had direct evidence of his understanding of his

finances or the implications of the account transfers. Because a confidential

relationship can exist between a mentally sound grantor and the trusted grantee,

these general witness accounts, not specific to the time of transfer, do not provide

evidence that Charles acted freely in transferring the accounts. See, e.g., Hadsall,

2019 WL 1056803, at *4 (noting that competency does “not rule out the existence

of a confidential relationship” or undue influence).

       It is also noteworthy that there is no evidence in the record that Charles had

the benefit of proper independent advice before the transfer of the accounts.

       “Independent advice” in this connection means the showing that the
       donor had the benefit of conferring fully and privately upon the
       subject of his intended gift with a person who was not only competent
       to inform him correctly as to its legal effect, but who was furthermore
       so disassociated from the interests of the donee as to be in a position
       to advise the donor impartially and confidentially as to the
       consequences to himself and of his proposed benefaction.

Curran, 206 N.W.2d at 323 (quoting Dibel, 10 N.W.2d at 31). A lack of independent

advice from someone disassociated with the interests of the donee is sometimes

sufficient to set aside a transfer of an account. See Marron v. Brown, 16 N.W.2d
                                         16


14, 17 (Iowa 1944) (noting a lack of independent advice “alone has often been held

sufficient to set aside deeds and contracts” executed upon the grantor’s sick bed).

       As the probate court noted, no one from the bank testified about the

voluntariness of Charles’s acts at the time of the account transfers. Mary testified

no one from the bank explained to Charles the effect of the account transfers when

he executed the changes. Attorney Smith testified he was not aware of the account

transfers or Charles’s overall financial situation at the time of the will execution,

and he could not have provided independent advice.

       After considering all of the evidence presented in our de novo review, we

conclude Mary has not met her burden of rebutting the presumption of an invalid

transfer by clear, convincing, and satisfactory evidence that she acted in good faith

and that Charles acted knowingly and voluntarily. Because Mary has failed to

rebut the presumption of undue influence based on her confidential relationship

with Charles, the monies transferred to Mary in 2014 must be considered estate

assets handled pursuant to the distribution plan under the will.

       B.   Intentional Interference with Inheritance.        Iowa recognizes “an

independent cause of action for the wrongful interference with a bequest.”

Frohwein, 264 N.W.2d at 795. “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.” Huffey, 491 N.W.2d at 521.

“[I]n an intentional interference case, the wrongdoer’s unlawful intent to prevent

another from receiving an inheritance is the key issue.” Id. A claim of intentional
                                         17


interference differs from a claim of undue influence where “the required proof

focuses on the testator’s mental strength and intent.” Id.

         Along with the confidential-relationship question, the court rejected Tom’s

intentional-interference claim, finding he “has not introduced any convincing

testimony that Mary had any part in Tom being excluded” from any inheritance.

While Mary had the burden to prove her confidential relationship with Charles did

not result in undue influence, Tom has the burden to prove his intentional-

interference claim. He must do so by a preponderance of the evidence, not the

clear and convincing evidence as the trial court found. See Willey v. Riley, 541

N.W.2d 521, 527 (Iowa 1995) (stating the plaintiff has the burden to prove the

elements of an intentional-interference claim by a preponderance of the evidence).

Directed by this standard, we view the evidence as the probate court did and in the

light most favorable to Mary. In re Estate of Bayer, 574 N.W.2d 667, 670 (Iowa

1998).

         To establish intentional interference with Tom’s inheritance, he must show:

(1) he expected to receive an inheritance from Charles; (2) Mary knew of Tom’s

expected inheritance; (3) Mary intentionally and improperly interfered with Tom’s

expected inheritance through undue influence or other tortious means; (4) there

was a reasonable certainty that Tom would have received an inheritance but for

Mary’s interference; and (5) Tom suffered damages as a result of this interference.

See In re Estate of Arnold, No. 18–1460, 2019 WL 3317381, at *4 (Iowa Ct. App.

July 24, 2019); Estate of Boman, 2017 WL 512493, at *10.

         As to the first element, it is clear Tom expected to receive an inheritance

from his father. There were discussions about Charles’s assets over the years
                                         18


between the family members before Charles’s death, including Charles’s

confirmation of his intent about the distribution of his assets after Joyce died. As

for the second element, Mary knew that Charles’s will referenced an equal share

in the estate for Tom and was aware from Tom’s 2012 email that he believed that,

at some future date, the siblings would split Charles’s accounts equally. The

record supports Mary’s knowledge about Tom’s expectation.

       The third element requires proof of Mary’s intentional and improper

interference with Tom’s inheritance expectation. Cich, 2019 WL 1056804, at *3–

*4; Estate of Arnold, 2019 WL 3371381, at *4. Often tortious intent is established

by circumstantial evidence. See, e.g., Harsha v. State Sav. Bank, 346 N.W.2d

791, 800 (Iowa 1984) (noting a plaintiff can show intentional interference by

circumstantial evidence). Because Mary failed to overcome the presumption of

undue influence this element of proof is satisfied.

       The fourth element is whether there is a reasonable certainty that Tom

would have received his share but for Mary’s wrongful acts. Cich, 2019 WL

1056804, at *3–4; Estate of Arnold, 2019 WL 3371381, at *4. Tom’s share was

established under the terms of the existing will at the time of Charles’ death. Thus,

after considering the facts and circumstances of this case, as discussed above,

we conclude that Mary wrongfully and intentionally interfered with Tom’s

inheritance and but for the interference Tom would have received his share as

referenced in the will. As to the final element, Tom proved he has sustained
                                            19

damages, which are reasonable attorney fees and costs.4 Huffey, 491 N.W.2d at

522 (finding remedies for an intentional-interference claim “include recovery of

damages for pecuniary loss, consequential loss and emotional distress”).

       In his petition, Tom also requested an award of emotional distress and

punitive damages. Tom presented no evidence of emotional distress damages at

trial, and he did not argue for emotional distress damages in his post-trial briefing.

For that reason, Tom is not entitled to an award of emotional distress damages.

       Tom does argue, however, that he is entitled to an award of punitive

damages “because Mary’s clandestine and selfish actions were directed at

harming [him].” Punitive damages are intended to “punish bad behavior and deter

future bad conduct.” Miranda v. Said, 836 N.W.2d 8, 34 (Iowa 2013). “Punitive

damages, however, are not available for conduct that is ‘merely objectionable.’”

Id. (quoting Coster v. Crookham, 468 N.W.2d 802, 811 (Iowa 1991)). Tom must

show “by a preponderance of clear, convincing, and satisfactory evidence” that

Mary’s actions “constituted willful and wanton disregard” for his rights. Iowa Code

§ 668A.1(a). The Iowa Supreme Court has stated that an individual’s conduct is

“willful and wanton” if

       “[t]he actor has intentionally done an act of unreasonable character
       in disregard of a known or obvious risk that was so great as to make
       it highly probable that harm would follow, and which thus is usually
       accompanied by a conscious indifference to the consequences.”

4
  The Huffey court seems to be authority for an award of attorney fees, providing: “[w]e
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 protection of his or her
interest by bringing or defending an action against a third party.” 491 N.W.2d at 522
(emphasis added); see also Kimmel v. Iowa Realty Co., Inc., 339 N.W.2d 374, 380 (Iowa
1983) (sellers sued realty agency for fraud and breach of fiduciary duty based on agent’s
dual relationship in handling the purchase of properties). And our court has allowed
appellate attorney fees in a case between beneficiaries for interference with an inheritance
from a parent. Cich, 2019 WL 1056804, at *1.
                                         20



Wilson v. Vanden Berg, 687 N.W.2d 575, 586 (Iowa 2004) (quoting McClure v.

Walgreen Co., 613 N.W.2d 225, 230 (Iowa 2000)). We do not find under the facts

presented at trial that punitive damages are warranted.

      IV. Disposition.

      For the foregoing reason, we reverse the probate court’s ruling and remand

for further proceedings.

      REVERSED AND REMANDED.

      Mullins, J., concurs; Potterfield, P.J., concurs specially.
                                            21


POTTERFIELD, Presiding Judge (concurring specially).

       I agree with the majority’s conclusion on the substantive issues presented

here, but I write separately to quarrel with the formulation of the standard of review

on the claim of intentional interference with an inheritance. The majority opinion

correctly notes that the standard of review for this intentional tort “typically” is errors

at law. See Frohwein v. Haesemeyer, 264 N.W.2d 792, 795 (Iowa 1978). Nor is

there any question that the district court ruled on objections in the trial of this claim.

Yet the majority relies on a characterization of this claim as a “probate matter” tried

to the “probate court” to review the intentional-interference-with-an-inheritance

claim de novo; I disagree. The claim of intentional interference was tried to the

district court along with the undue-influence claim.           The court was able to

distinguish between the nature of the two claims; as are we. I would not like to

give our district court judges or lawyers the suggestion that a motion to bifurcate

was necessary or useful in these circumstances.
