                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-2010
                              Filed March 6, 2019


IN THE MATTER OF THE ESTATE OF JEAN PEAK HADSALL, Deceased.

JOHN D. HADSALL,
     Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Warren County, Jeffrey D. Farrell,

Judge.



      John Hadsall appeals the probate court’s judgment ordering him to return

$383,595.63 to his mother’s estate. AFFIRMED.




      Anthony Zane Blessum and Susan R. Stockdale, Winterset, for appellant.

      Nicholas A. Carda and Ryan Ellis of Ellis Law Offices, P.C., Indianola, for

appellee.



      Heard by Doyle, P.J., and Mullins and McDonald, JJ.
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DOYLE, Presiding Judge.

         Attorney John Hadsall, son of decedent Jean Hadsall, appeals the probate

court’s judgment ordering him to return $383,595.63 to his mother’s estate. The

court determined John had a confidential relationship with Jean and transferred

essentially all of her assets into accounts owned by him, contrary to Jean’s wishes.

Because John failed to establish he acted in good faith while making the transfers

or that Jean acted freely, intelligently, and voluntarily in gifting him money from her

accounts, the court ordered John to return money to the estate. Upon our review,

we affirm.

         I. Background Facts and Proceedings.

         In 1990, as part of their estate plans, Jean and Robert Hadsall established

the revocable “Robert C. Hadsall and/or Jean A. Hadsall Trust.” Jean and Robert

transferred their farmland into the trust. Upon the death of the surviving spouse,

the trust provided that any trust property “shall be equally divided” between their

four children, per stirpes. In accordance with the trust, Jean also executed a last

will and testament bequeathing any property not held by the trust to the trust upon

her death.1 Both instruments identified Jean and Robert’s four children, including

their sons John and Bruce.

         Robert Hadsall passed away in December 2007. In January 2008, John,

an attorney licensed to practice law in Florida, drafted for Jean a document titled

“Voluntary Appointment of Durable Power of Attorney/Healthcare Surrogate.”

Jean designated John as her power of attorney, and she executed the document



1
    Jean later amended her will, but the substance was not changed in relative parts.
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before a notary. John thereafter regularly assisted Jean with her financial affairs.

         Jean subsequently sold the farm in two parcels; the first in January 2008

and the second in February 2008. The farm machinery was sold in June 2008.

The funds she received from those sales were not deposited in accounts owned

by the trust. Neither were other monies Jean received, such as life insurance

proceeds relating to Robert’s death. Rather, the funds were deposited into mostly

new accounts in Jean’s name, wherein John was generally named as a joint

owner.

         At some point, John’s siblings questioned what was happening with Jean’s

assets. In 2010 and 2013, John wrote letters to his siblings on Jean’s behalf to

advise them of Jean’s “wishes and to stop wrongful and false accusations.” John’s

2010 letter, addressed to his three siblings, stated:

         With this year’s gift, Mom has given us all $40,000 in the past 4 years
         for a total of $160,000 out of her’s and Dad’s estate, the remainder
         in certificates of deposit in hers and our names to be given upon her
         death to her surviving children with a further distribution after
         payment of her bills and taxes from the sale of the farm; please join
         me in hoping her good health remains for many, many years.

John’s 2013 correspondence—“An Open Letter to [Each of My Siblings] from their

brother John”—stated:

                For almost the past month I’ve heard from family, friends and
         colleagues that I’ve been accused of embezzlement and [am]
         facing . . . years in prison for ripping our Mother off of her estate
         based upon the review of four (4) of her personal bank savings
         account statements, three (3) of which contain identical amounts and
         although not stated on the statements for whatever reason that only
         the bank knows are held in trust for immediate initial distribution upon
         her death to you three equally. The other account containing less
         than one-third of the aforementioned accounts was specifically
         stated to be in trust for me, and since it was less than the other three,
         it was assumed I must have raided it; actually it was the operating
         account from which the $40,000 . . . we’ve all already received came
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       from. The most important missing aspect of these accusations is the
       fact our Mother also has an additional checking account and two (2)
       additional savings accounts which not only contains any and all of
       the funds in question alleged to have been embezzled but additional
       amounts from Dad’s accidental death life insurance policies payable
       to Mom albeit taxes, etc. will be deducted.
              I’m glad I’ve been in the position I’ve been in regards to the
       farm and parents. I’ve not spent our Mother’s estate, it’s all there,
       and quite frankly, she can do with it as she pleases as long as she’s
       of sound mind, just as you and I can do with our estates without
       unwarranted oversight.

This letter was signed by John and by Jean.

       Jean passed away in 2016. For a short period of time prior thereto, Jean

lived in a nursing home. Both John and Bruce agreed their mother was of sound

mind until that time. At the time of her death, Jean’s main bank account held only

$819.53.    On the basis of that balance, John helped his mother fill out the

application for state medical assistance.       The “No” box was selected on the

application in answer to the question, “Did anyone in your home sell or give away

anything of value for less than its value within the last five years?”

       After Jean’s death, Bruce could not locate any of his mother’s estate

documents. He then filed a petition before the probate court seeking to open an

estate, and Bruce asked to be appointed the administrator. John subsequently

filed a motion to dismiss the petition, stating Jean “did not die intestate” and had

died “with a valid living trust known to all of her children for years.” The petition for

administration was set for hearing. The probate court thereafter granted the

petition and appointed Bruce administrator.          John then filed a “Motion for

Assessment of Fees and Costs,” asserting Jean’s estate planning documents were

easily accessible at the recorder’s office, listing the date and page of the

document’s recording information. He again requested the matter be dismissed
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since it was not an intestate matter, and he requested fees be assessed against

the proponents of the action. John’s motion was denied, but he was allowed to file

his request as a claim against the estate.

       Bruce located a copy of Jean’s 1990 will filed with the recorder’s office. The

estate filed a motion for hearing on the will. John resisted. The estate filed a

motion to construe John’s conduct as Jean’s power of attorney pursuant to Iowa

code chapter 633B. A rocky discovery process followed. Ultimately, a trial was

held on the matters in 2017.

       Bruce and John each testified. Bruce, on behalf of the estate, produced

numerous bank documents showing monies transferred from Jean’s account into

John’s accounts. John admitted the transfers were made. He maintained he made

every transfer at his mother’s direction, stating Jean gave him gifts over the years.

He testified his siblings were jealous she chose to give him more than them. Bruce

had a different take, testifying he believed his mother “had full trust in John [but

was] unknowing of what was going on.           She . . . wasn’t getting her banking

accounts [statements]. After a certain point in time they were going to [John’s]

address. I don’t think she had a clue if she had any money.”

       Following the trial, the probate court entered its order finding in favor of the

estate. In a thorough and well-written ruling, the court concluded John had a

confidential relationship with Jean, during which John transferred to himself Jean’s

assets and could not show he acted in good faith or with Jean’s free, intelligent,

and voluntary assent. Consequently, the court concluded John’s actions were the

result of his undue influence. The court ordered John to return $383,595.63 to his

mother’s estate. Other facts will be discussed as necessary below.
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       John now appeals.

       II. Standard of Review.

       The parties agree the case was tried in equity and our review is de novo.

See Iowa Code § 633.33 (2017); Iowa R. App. P. 6.907; Jackson v. Schrader, 676

N.W.2d 599, 603 (Iowa 2003). “In a de novo review, the appellate court examines

the facts as well as the law and decides the issues anew.” Brede v. Koop, 706

N.W.2d 824, 826 (Iowa 2005). “When reviewing factual findings, particularly on

the credibility of witnesses, we give weight to the probate court’s findings, but we

are not bound by them.” In re Tr. No. T-1 of Trimble, 826 N.W.2d 474, 482 (Iowa

2013); see also Iowa R. App. P. 6.904(3)(g). “As difficult as it is to assess credibility

of live testimony, it is more difficult to assess credibility from a cold transcript.”

Zaerr v. Zaerr, 222 N.W.2d 476, 477 (Iowa 1974); see also Trimble, 826 N.W.2d

at 493 (“The probate court heard the live testimony . . . while we must rely on a

cold transcript.”). These principles also apply to the review of the probate court’s

finding of the existence of a confidential relationship. See In re Estate of Herm,

284 N.W.2d 191, 199 (Iowa 1979).

       III. Discussion.

       On appeal, John contends the probate court erred in three respects. First,

he argues he did not have a confidential relationship with his mother. On that

basis, John next asserts the court incorrectly found he had the burden to show he

acted in good faith and with Jean’s assent and the estate failed to establish the

transfers were the result of John’s undue influence over Jean. Finally, John offers

the alternative argument that, should we agree with the probate court that he had

a confidential relationship with his mother and did not meet his burden to show
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there was not undue influence on his part, the court erred in its overall calculation

of the amount he allegedly owes. For the following reasons, we disagree.

       A. Confidential Relationship.

       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.” Oehler v. Hoffman, 113 N.W.2d 254, 256 (Iowa 1962). Such a relationship

       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.”

Dibel v. Meredith, 10 N.W.2d 28, 30 (Iowa 1943). Neither a fiduciary relationship

nor a blood relationship is required to have a confidential relationship, though those

conditions may increase the likelihood of such a relationship. See Mendenhall v.

Judy, 671 N.W.2d 452, 455 (Iowa 2003); Oehler, 113 N.W.2d at 256. “That a

person by kind and considerate treatment induces an affectionate regard on the

part of another raises no presumption of confidential relation . . . in the absence of

some showing that by this means a dominant influence was obtained over the

other.” Oehler, 113 N.W.2d at 256.

       If a gift is “obtained by a person standing in a confidential, or a fiduciary

relation to the donor,” the “gift” is “presumptively fraudulent.” Marron v. Bowen, 16

N.W.2d 14, 16 (Iowa 1944). Put another way, where “a confidential relationship

exists, a transaction by which the one having the advantage profits at the expense
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of the other will be held presumptively fraudulent and voidable.” Herm, 284 N.W.2d

at 200. The purpose of this general principle is “to defeat and correct betrayals of

trust and abuses of confidence.” Oehler, 113 N.W.2d at 256.

        On appeal, John essentially takes issue with court’s factual findings.

Though he asserts the probate court “ignored the evidence regarding Jean’s

mental capacity,” the court clearly found Jean was competent. The court simply

found that her competency did not rule out the existence of a confidential

relationship between Jean and John. While a person’s diminished mental capacity

could be a factor in determining whether a confidential relationship exists, we, like

the probate court, believe a confidential relationship can exist between a mentally

sound donor and a trusted donee, when the donor places trust and ability in

another to act on the donor’s behalf in the donor’s best interests and complicit with

the donor’s interests.

        At trial, John did not dispute that Jean put her trust in him to assist in her

financial matters. She relied upon his advice, as her son, who was an attorney

that handled numerous legal matters for her and her husband. She even permitted

John to receive her bank statements. That Jean could have been more active in

her financial affairs does not prohibit a finding of the existence of a confidential

relationship. Upon our de novo review, we agree with the probate court that the

record clearly evidences a confidential relationship existed between Jean and

John.

        B. Undue Influence.

        The existence of a confidential relationship triggers a presumption of undue

influence. Mendenhall, 671 N.W.2d at 454. Because there was a confidential
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relationship between Jean and John, the burden was on John to show he acted in

good faith or with Jean’s voluntary and knowing assent. See Jackson, 676 N.W.2d

at 605. John’s testimony is the only evidence he offered to support his actions.

However, the court did not find John’s testimony credible, and we find no reason

to disagree with the court’s finding upon our de novo review of this record.

       Of particular significance are the two letters written by John to his siblings.

John argues Jean could have fully funded her trust at any time prior to her death

and her lack of action evidences her intent. But the two letters clearly implied Jean

intended to divide all of her assets equally between the four children. And, as the

probate court pointed out, the 2013 letter specifically stated “that Jean had

accounts which contain[ed] ‘all funds in question’ plus proceeds from [his father’s]

insurance policies.” However, the evidence shows “all the funds in question” were

not, at that time, in Jean’s accounts.          Rather, substantial funds had been

transferred from Jean’s accounts to John and his wife’s accounts, where Jean had

no ownership over the assets. John “asserted that he had not spent Jean’s estate

and that ‘it’s all there,’” but it was not. The court found Jean’s signature on the

letter showed “she continued to follow her plan to give to all of her children equally.”

Moreover, why write the letter at all if she had no intent to distribute all of her assets

equally? Similarly, why not ask John to draw up a new will? Jean was clearly a

woman of action. We believe her lack of action combined with John’s letters

without any mention that there were no funds in the trust or that Jean had given

substantial assets to John demonstrates she was not aware of the circumstances

regarding her finances. Ultimately, we agree with the probate court that John failed

to meet his burden that the numerous transfers of assets from Jean’s accounts to
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his accounts during her lifetime were made in good faith and at Jean’s direction or

with Jean’s understanding or assent. His failure to meet his burden establishes

his actions were the result of his undue influence upon Jean. Consequently, we

agree with the probate court’s conclusion that John was required to refund “gifts”

from Jean to the estate.

       C. Amount of Money Owed to Estate.

       Finally, John asserts the amount the probate court determined he was to

return to the estate was unsupported by the evidence. He seems to argue that

had he not placed the funds in his accounts, Jean would have spent some of the

money, so the amount calculated should be lower. He does not explain what he

believes that amount should be.

       The amount of an award is generally an issue for the trier of fact, and

appellate courts will not disturb the award when it is within a reasonable range of

evidence. See Stender v. Blessum, 897 N.W.2d 491, 517 (Iowa 2017). Upon our

de novo review of the record, we find no reason to disturb the probate court’s

calculation of the amount of money John is to return to the estate.

       IV. Conclusion.

       Because John was in a confidential relationship with Jean, and because he

failed to show that his transfers of substantial amounts of Jean’s assets from her

accounts to his were made in good faith or at the direction of or with the assent of

Jean, we agree with the probate court that John must return the “gifted” assets to

Jean’s estate. Additionally, the amount calculated by the probate court to be

returned was within the permissible range of evidence, and we find no reason to
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disturb the calculation.   We therefore affirm the probate court’s ruling in all

respects.

      AFFIRMED.
