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December 30, 1993.

In the Matter of the Estate of LUCILLE S. BENNETT.

The contestants of the last will and testament of Lucille S. Bennett, deceased, appeal from the decision of the trial court admitting her will to probate.

The trial in this matter was lengthy, complex, and well conducted by all parties. The estate has a value in excess of $50 million.

Lucille and Henry Bennett were married in 1943. The marriage was the first and last for each and was childless. Lucille had two sisters and two brothers, all of whom predeceased her. Henry had two brothers and two sisters. None of Henry's siblings survived Lucille.

  During their marriage, Lucille and Henry lived very simply and very frugally. Theirs was an old-fashioned type of relationship

[19 Kan. App. 2d 156]

      in which Lucille apparently paid no attention to financial matters and was led to believe that she and Henry were living on very limited assets. Henry apparently encouraged Lucille to believe that the parties were "hard up" and were barely eking out an existence on his meager earnings. They lived in an unpretentious home, drove an old car, and apparently counted their pennies in their day-to-day existence.

  Unbeknownst to Lucille, Henry was building a rather large fortune in his business endeavors. He made a great deal of money in the oil business and, thereafter, invested wisely in stocks, bonds, and securities.

  In 1979, Lucille suffered a stroke that paralyzed a good portion of her left side. When Henry brought her home from the hospital, he arranged for her to have 24-hour nursing care. From this time to the time of her death, Lucille was a semi-invalid and continued to have 24-hour nursing care. Despite her physical problems, Lucille appears to have maintained her mental faculties. Although the evidence on the issue is sharply conflicting, the trial court found that she suffered from no memory loss, disorientation, or dementia as a result of her stroke.

  Shortly before he died, Henry told Lucille that he had suffered some business losses and that he feared that he might not be able to afford to continue her 24-hour nursing care. Lucille greatly feared being sent to a care home and did not want to be alone. To the end of her life, she feared losing her 24-hour nursing staff and being sent to a care home.

  In December 1982, Henry was about to leave for work when he fell down the basement stairway at his home. As a result of his injuries, Henry died at the hospital later that day at the age of 89.

  At the time of Henry's death, neither Henry nor Lucille had any living siblings. Their only heirs were various nieces and nephews on both sides of the family. Henry did not leave a will, and his entire estate passed to Lucille under the laws of intestate succession.

  Lucille had executed a will in 1976. The appellants, whom we shall collectively refer to as the contestants, are from Lucille's side of the family and would have shared in her 1976 will. They are: Leonard Lebow, her great nephew; Wendy Lebow and

[19 Kan. App. 2d 157]

      Heather Lebow, her great nieces; and Shirley Hellman, the widow of her nephew Bert Lebow.

  The proponents of the will are the appellees, and we shall collectively refer to them as proponents. They are all the devisees and legatees under Lucille's 1982 will. It is this will which is being attacked by the contestants and which was admitted to probate. The proponents are all from Henry's side of the family. They are: Sonya Ropfogel, Henry's niece; Leonard Ropfogel, the husband of Sonya and the named executor in the 1982 will; the three children of Sonya and Leonard, Susan Ropfogel Poppelwell, Terry Ropfogel Mueller, and Linda Ropfogel; Joyce Weingarden, the daughter of Henry's brother Abner; and Paul Weingarden, Robert Weingarden, and Phillip Weingarden, the surviving children of Henry's sister, Gertrude Weingarden.

  Thus, the battle was joined. The proponents sought to admit the 1982 will of Lucille to probate. The contestants sought to deny probate of that will on the grounds that it was a product of undue influence, that Lucille lacked testamentary capacity, and that the will should be denied probate under K.S.A. 59-605.

  The principal actors in the combat taking place are Leonard and Sonya. It is they whom the contestants brand as villains. It is Sonya and Leonard who are accused of exerting undue influence, and it is Sonya whom the contestants assert actually prepared Lucille's 1982 will. Leonard and Sonya, on the other hand, argue that they only sought to aid, assist, and comfort an aging, sick, and lonesome Lucille. They came to her aid on the day of Henry's death, and they continued to provide her with aid, comfort, and assistance to her dying day.

  The evidence in this case is, at times, sharply conflicting. In the final analysis, the trial court chose to believe the evidence submitted by the proponents of the will and chose to disbelieve the evidence of the contestants. Our task is to determine whether the trial court erred in choosing this course of action.

  A complete recital of the facts would greatly extend this opinion. We shall attempt to sketch those facts as they apply to the issues raised. We note that the essential issue on appeal is the validity of Lucille's 1982 will, and we concentrate on the facts which relate to that question.

[19 Kan. App. 2d 158]


  After Henry's death, various individuals came to the aid and assistance of Lucille. Among those responding were Leonard and Sonya. Among the issues discussed was whether Henry had left a will.

  Apparently, Henry and Lucille had done a good deal of their past legal work with Arthur Skaer, of Wichita, who had written Lucille's 1976 will. However, Leonard's attorney was Tom Triplett, also of Wichita. On the day of Henry's death, Leonard called Triplett and asked him about the effect of Henry's apparent intestacy. Triplett advised Leonard of the law, and the parties discussed the need to administer Henry's estate. Later that same day, Leonard called Triplett and told him that Lucille wanted Leonard to serve as administrator of Henry's estate and instructed Triplett to draw up the necessary pleadings to get this accomplished.

  Pursuant to instructions from Leonard, Triplett drew the necessary documents and took them to Lucille's home that evening on his way home from work. Triplett testified that Lucille seemed alert and told him she had great confidence in Leonard and wanted him to serve as administrator of Henry's estate. While at Lucille's home, Triplett was advised by an accountant for Henry that Henry's estate would be valued at somewhere between $40 million and $50 million.

  Upon learning of the value of Henry's estate, Triplett advised Lucille, who was very surprised but relieved that she could apparently afford to keep her 24-hour nursing staff. It is to be noted that Lucille, at times, expressed some dissatisfaction with the fact that Henry had hidden their wealth from her all of the years of their marriage. She indicated some resentment over the manner in which they had lived while she labored under the belief they were nearly penniless.

  Ultimately, Leonard was appointed administrator of Henry's estate. The problem of posting a very large and costly bond was solved by having Lucille sign the surety bond for Leonard.

  We note at this point that Henry died on December 1, 1982. The will in question was executed on December 21, 1982. As a result, the events which we relate took place over a rather short time frame.

[19 Kan. App. 2d 159]


  A few days after Henry's death, Leonard discovered that Henry had a lock box at a local bank. No key could be located, and Leonard made the necessary arrangements to have the box drilled. The box was opened in the presence of Leonard and Triplett. In looking through the box, the two discovered Lucille's 1976 will, along with certain other documents and a diamond ring. The box was then rekeyed in the names of Lucille and Leonard, and the 1976 will was placed back in the box. Triplett advised Leonard to tell Lucille they had found her will. Leonard did so advise Lucille and, a few days later, called Triplett and told him that Lucille wanted a copy of her will. Triplett and Leonard then removed the will from the lock box and made a copy for Lucille. The original will was placed in a safe at Triplett's law office.

  In time, Triplett went to Lucille's house with the copy of her 1976 will. Lucille advised Triplett that, at the time she executed the 1976 will, she did not think that she had any money or property. She told Triplett that, since all of her newly acquired wealth came from Henry, she wanted to change her 1976 will to leave her entire estate to Henry's side of the family. Lucille advised Triplett that this is what she believed Henry would want her to do.

  Several days later, Triplett got a telephone call from one of Lucille's nurses, telling him that Lucille was ready to change her will. Triplett went to Lucille's home and discussed with her the terms of her proposed will. The record indicates that the parties were alone in the room at the time the terms of Lucille's proposed will were discussed. Lucille instructed Triplett to draw a will, leaving the estate to persons on Henry's side of the family.

  According to Triplett, during the meeting to discuss the details of her will, Lucille was clear and direct. He thought she might have had a piece of paper in her hand while she was telling him what she wanted in her will. However, Triplett could not remember whether Lucille looked at or referred to this piece of paper in giving him instructions.

  In any event, Triplett drew the will as directed by Lucille and returned to her home the next day. He brought with him two individuals from his law office to serve as witnesses. Triplett began to read the will to Lucille, and, at one point, she stopped his

[19 Kan. App. 2d 160]

      recitation, telling him that she wanted to leave her engagement ring to Sonya. Triplett made this change on the will, and Lucille executed the will. As indicated above, this will was executed on December 21, 1982.

  According to Triplett, after the 1982 will was executed, he thought that he had torn up her 1976 will and tossed it in the trash can. Triplett took the new will and placed it in the safety deposit box, which was in the name of Leonard and Lucille. Lucille died on October 23, 1989, and her 1982 will remained in full force and effect from the date of its execution to the date of her death.

  The 1982 will, which was admitted to probate, distributes Lucille's estate as follows:
(a) Lucille's engagement ring and residence to Sonya.
(b) The sum of $1,000 to Susan Ropfogel.
(c) The sum of $1,000 to Terry Mueller.
(d) The sum of $1,000 to Linda Ropfogel.
(e) The sum of $5,000 to the Hebrew Congregation Synagogue of Wichita.
(f) The rest and residue of Lucille's estate was devised and bequeathed as follows:
(1) An undivided one-third of the rest and residue to her brother-in-law, Abner Weingarden, and if he did not survive her, his share was to be paid to his daughter, if she was living at the time of Lucille's death.
(2) An undivided one-third interest of the rest and residue to her sister-in-law, Gertrude Weingarden, or in the event Gertrude Weingarden was not living at the time of her death, then to the children of Gertrude Weingarden living at the time of Lucille's death.
(3) An undivided one-third interest in the rest and residue to her niece, Sonya, or to the children of Sonya if Sonya was not living at the time of Lucille's death.
  Additional facts will be discussed when necessary to deal with the issues.


  The trial court, in conclusion of law No. 2, ruled:

[19 Kan. App. 2d 161]


"Where proponents of a will establish a prima facie case of due execution and capacity, the burden shifts to those contesting such will to prove their defenses of undue influence and lack of testamentary capacity by clear and convincing evidence." (Emphasis added.)
  The contestants argue that this conclusion of law is erroneous. They do not dispute that they have the burden of proving undue influence but argue that their burden is to prove it only by a preponderance of the evidence. It is the contention of the contestants that the trial court committed reversible error in requiring their proof to reach a clear and convincing standard.

  The question is not as easily resolved as might be imagined. We recognize the theoretical seriousness of the contestants' argument. As a practical matter, when trial is to the court, the weighing of evidence is largely a matter left to the "eye of the beholder." We doubt very much that an experienced trial judge is much bothered by euphemisms such as clear and convincing or preponderance of the evidence. The process of fact finding is entirely subjective, and it is highly unlikely that the decision in this case would have been any different if the evidence had been weighed by a higher standard. Still, we agree that, if the trial court erred in its conclusion as to the required standard of proof, such error would be reversible error.

  This court held in the recent decision of In re Estate of Koch, 18 Kan. App. 2d 188, Syl. ¶ 16, 849 P.2d 977 (1993):
"When a will is offered for probate, the proponent has the burden of proof in the first instance to present a prima facie case showing due execution of the will. Once this prima facie showing has been made, the burden of proof shifts to the contestant to overcome that showing by clear, satisfactory, and convincing evidence."
  We made this statement in the context of placing the burden of proof on an issue of undue influence. We believe that to be the correct standard of proof in such cases. We conclude, however, that we cannot simply rest our decision on Koch without further comment.

  The contestants base their argument in this appeal on two Supreme Court cases which clearly support that argument. In Colvin v. Colvin, 128 Kan. 691, 280 P. 763 (1929), the Supreme Court was ...

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