Summary 2011 WY 79

Summary of Decision May 9, 2011

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Kelly v. McNeel

Citation: 2011 WY 79

Docket Number: S-10-0179, S-10-0190

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462137

Appeal from the District Court of Sublette County, Honorable Norman E. Young, Judge

Representing Appellants in Case No. S-10-0179 (Plaintiffs) : Chris Edwards of Simpson, Kepler & Edwards, the Cody, Wyoming Division of Burg Simpson Eldredge Hersh & Jardine, Cody, Wyoming.

Representing Appellee in Case No. S-10-0179 (Defendants): Henry F. Bailey, Jr. and Lance T. Harmon of Bailey, Stock & Harmon.

Date of Decision: May 9, 2011

Facts: Following a bench trial, the district court concluded that Appellants had exercised undue influence over her father in the creation of his will and trust. Accordingly, the district court invalidated the trust and will in which his daughter was named as one of two beneficiaries in place of his son, the Appellee. In a separate proceeding, the district court granted Appellee’s motion to remove Appellant daughter as guardian and conservator, and appointed Appellee to replace her.

Issues: Whether the district court’s finding of undue influence and removal of a guardian and conservator were clearly erroneous.

Holdings: In order to establish undue influence, it must be shown that: 1) there was an opportunity for the party in question to control the testamentary act; 2) that the testator’s condition was such as to permit subversion of his freedom of will; 3) there was activity on the part of the for the party in question; and 4) that the party in question unduly profited as beneficiaries under the will and trust. The party contesting a will bears the burden of proving undue influence by presenting evidence clearly demonstrating that the testator’s free agency was destroyed and his volition was substituted for that of another. The record shows that Appellee presented evidence demonstrating each of the elements of undue influence.

Undue influence is seldom susceptible of direct proof and may be established by proof of facts from which it may be fairly and reasonably inferred. The fact that a testamentary act is unnatural, unreasonable or unjust is a circumstance to be considered along with other evidence bearing on the question whether it is the result of undue influence. In the present action, prior to developing dementia the testator and Appellee had been inseparable. A fair inference could be drawn that his act of disinheriting him after the Appellants moved in was an unnatural circumstance to be considered along with the other evidence.

The record fully supports the district court’s findings and, thus, its order invalidating the trust amendment and will was appropriate.

Pursuant to Wyo. Stat. 3-3-1101(a)(iv) (2009), the district court has the authority to remove a trustee upon determining the trustee was not acting in the trust beneficiary’s best interest. In its order removing Appellant daughter, the district court expressly found that she was not acting in her father’s best interest. The court incorporated by reference the findings and conclusions contained in its order and judgment after trial of the undue influence claim. Neither the findings, nor the evidence supporting them, were known when the district court approved Appellant’s expenditures. Once they came to light in the context of the undue influence trial, the district court properly considered them and relied upon them in removing Appellant and appointing Appellee as guardian and conservator.

The district court’s judgment and orders are affirmed.







C.J. Kite delivered the opinion for the court.