Harvey L. Moore, Appellant,
Maureen E. Miles, Kenneth L. Kollenbach, Bart A. Moore, Laurie Moore, and Ryan C. Moore, Appellees.
BY THE COURT
"amanuensis" is defined as "one who copies or
writes from the dictation of another." The amanuensis
rule provides that a person's signature to an instrument
may be written by the hand of another, at the request of that
person. This longstanding rule is not against Kansas public
Under the amanuensis rule, the person signing the
grantor's name at the grantor's request is not deemed
an agent of the grantor but is instead regarded as a mere
instrument of the grantor; thus the signature is deemed to be
that of the grantor.
Because of the potential for fraud or self-dealing, when the
signing of a grantor's name is done by an amanuensis who
will directly benefit from the transfer of title-that is, an
interested amanuensis-we presume that transfer is invalid.
The interested amanuensis bears the burden to show that the
signing of the grantor's name was a mechanical act in
that the grantor intended to sign the document using the
instrumentality of the amanuensis.
show undue influence, when a person is in a confidential and
fiduciary relationship with the grantor, and clear and
convincing evidence shows suspicious circumstances
surrounding the signing of the instrument, a presumption of
undue influence arises and shifts to that person the burden
to prove the absence of undue influence by a preponderance of
Kansas law presumes that every adult is fully competent to
enter into a contract until satisfactory proof to the
contrary is presented. The quality of evidence needed to
overcome the presumption of capacity for testators is clear
and convincing evidence. That same burden of proof applies in
determining an intestate's capacity to execute a
person is mentally competent to make a will when that person
is able to understand what property he or she has, how he or
she wants it to go at his or her death, and who are the
natural objects of his or her bounty. That same legal
standard applies in determining an intestate's mental
capacity to execute a transfer-on-death deed.
requirement for a valid transfer-on-death deed is that the
deed be signed by "the record owner" of the real
estate interest being transferred. K.S.A. 59-3501(a). That
requirement is met when one person signs as an amanuensis of
the record owner.
person who lacks authority to sign an instrument as an
attorney-in-fact may nonetheless have the authority to sign
that instrument as an amanuensis.
from Cowley District Court; James T. Pringle, judge.
P. Brewer, of Wilson & Brewer, P.A., of Arkansas City,
D. Oliver, of Foulston Siefkin LLP, of Overland Park, and
Sharon E. Rye, of the same firm, of Wichita, for appellee.
Gardner, P.J., Atcheson, J., and Stutzman, S.J.
appeal, Harvey L. Moore asks us to reverse the district
court's ruling which found his mother's
transfer-on-death deed valid, although it was signed not by
his mother but by his ex-wife at his mother's direction,
as an amanuensis- one who copies or writes from the dictation
of another. That transfer-on-death (TOD) deed left the real
estate in question to Harvey's ex-wife, Maureen, and had
the effect of disinheriting Harvey, who would have inherited
the real estate under the laws of intestate succession absent
a valid TOD deed. Finding no reversible error, we affirm.
and procedural background
Moore married Harvey Moore, Sr. and they had one child,
Harvey Moore, Jr. (Harvey). Roxie and Harvey Sr. made their
living primarily by ranching and farming, and over the years
acquired around 900 acres. When Roxie died, only 360 acres
located north and west of Cambridge, Kansas, remained. This
property was referred to as "the homeplace" and is
the subject matter of this litigation.
married Maureen Miles, and they had two sons: Bart A. Moore
and Ryan C. Moore. In the 1980s, Roxie and Harvey Sr. moved
from the homeplace to Burden, Kansas, to be closer to their
grandchildren, Bart and Ryan. Harvey Sr. passed away in 1985.
suffered a stroke in 1991 which greatly affected her speech,
but she continued to live in her home in Burden for the next
12 years. Several witnesses testified that although
Roxie's speech was impaired, one could communicate with
her if one was patient. However, if Roxie did not like
someone or became frustrated, she would not communicate.
December 1992, Harvey and Maureen divorced. Harvey moved in
with Roxie and stayed there for the next 11 years. Roxie and
Harvey had what was described as a "strained
relationship, " but Maureen and her sons maintained a
very close relationship with Roxie.
August 2003, Roxie fell in her home in Burden and was taken
to the hospital and then to Cumbernauld Village, an assisted
living facility in Winfield, Kansas. Maureen made the
arrangements to move Roxie to Cumbernauld. Over the next 6
years, approximately $265, 000 was spent on Roxie's
nursing care. Harvey was asked to help with the expense but
paid nothing. Maureen visited Roxie multiple times a week,
while Harvey never visited.
April 29, 2004, Roxie signed a general durable power of
attorney (DPOA) naming Maureen as her attorney-in-fact.
Shortly thereafter, Roxie asked Maureen to assist in
transferring the homeplace to her grandsons. Roxie wanted an
attorney to draft a TOD deed to Maureen, who would hold the
property until the grandsons were secure enough financially
to own it themselves. Soon thereafter, an attorney drafted
the TOD deed for Roxie which is the subject of this appeal.
facts relating to the execution of the TOD deed are not
disputed. On May 10, 2004, a notary public from the
attorney's office went to Cumbernauld Village to notarize
the TOD deed prepared by the attorney. The notary signed the
document, but she could not testify at trial as to any
particulars because she could not recall the event. Others
present during the execution of the TOD deed were Maureen,
Mildred Moore, Deborah Keely, Bart, and Ryan. Maureen
testified that Roxie was in her bed experiencing pain.
Maureen handed the TOD deed to Roxie, who read the document.
Maureen asked Roxie if they could get the staff to help her
out of bed, but Roxie refused and told Maureen, "I want
you to sign it." Maureen took the TOD deed and signed
Roxie A. Moore's name as grantor "by Maureen Miles,
Power of Atty."
and Ryan testified they were not visiting Roxie that day as
witnesses. They were there only because it was Mother's
Day. Both Bart and Ryan recalled the TOD deed being read out
loud. Ryan asked Roxie, "Are you sure this is what you
want to do, Grandma?" Roxie replied, "Yes."
Deborah Keely, Maureen's friend, testified that Roxie
told Maureen she was in a lot of pain and asked Maureen to
sign the deed. She also saw Roxie look at the document and
testified "something was read to her." The TOD deed
was recorded the same day it was signed, directly after the
general DPOA was recorded.
passed away intestate on September 15, 2009. Upon her death,
the ownership of the homeplace was transferred to Maureen by
operation of the TOD deed. Had the real estate transferred
pursuant to the laws of intestate succession and without a
TOD deed, Harvey would have owned the homeplace. In October
2009, Harvey expressed a desire to build a home on the
homeplace and learned from Bart that Maureen was the record
owner of the property. On November 3, 2009, Maureen and her
current husband executed a TOD deed naming Bart and Ryan as
the beneficiaries. Three years later, Maureen and her husband
signed a warranty deed conveying the homeplace outright to
Bart and Ryan.
later filed a petition for determination of descent of the
homeplace. Bart and Ryan subsequently filed written defenses,
claiming they were the legal owners of the homeplace, and
filed a separate petition to quiet title and for declaratory
judgment. After the two cases were consolidated, the parties
filed cross-motions for summary judgment. The argument and
the authorities cited in both motions focused almost
exclusively on Maureen's legal authority under the DPOA
to sign Roxie's name to the TOD deed.
district court granted, for the most part, Harvey's
motion for summary judgment, finding Maureen did not have
express authority pursuant to the DPOA to sign the TOD deed
as attorney-in-fact for Roxie. Bart and Ryan moved to
reconsider based upon a nonagency theory as to the validity
of the TOD deed-the amanuensis theory. The district court
granted the motion and set the matter for trial, limiting the
issues to the nonagency theory because Maureen's
authority under the DPOA had previously been decided.
a trial on the amanuensis theory, the district court found
that under Kansas law, a TOD deed may be signed by another.
The district court then found that because Maureen was an
interested amanuensis-one who would directly benefit from the
transfer of title-the TOD deed was presumed invalid.
Therefore, Maureen, Bart, and Ryan had the burden of proof to
show that "Maureen's signing of Roxie's name was
a mechanical act, in that Roxie intended to sign the TOD deed
using the instrumentality of the amanuensis." The
district court then addressed whether Roxie possessed the
necessary mental capacity to execute the TOD deed and found
that Harvey failed to meet his burden to show Roxie's
lack of capacity. Next, applying a two-prong test to
determine whether undue influence was exerted over Roxie, the
district court found: (1) Maureen was in a confidential and
fiduciary relationship with Roxie; and (2) suspicious
circumstances surrounded the making of the TOD deed. Thus,
undue influence was presumed. But the district court found
sufficient evidence had been presented to overcome this
presumption. The district court ultimately concluded that
Roxie intended to sign the TOD deed, Maureen's signature
was a mechanical act, and the presumption of invalidity of
the TOD deed was overcome. Harvey timely appeals.
The district court did not err in admitting evidence that
Roxie instructed Maureen to sign the TOD deed
first address Harvey's contention that the district court
erred by admitting parol evidence and hearsay that Roxie told
Maureen to sign the TOD deed for her.
contends that the district court erred by "permit[ing]
parol evidence to establish that Maureen signed the
transfer-on-death deed not as attorney-in-fact but as the
amanuensis of Roxie." Harvey apparently contends that
Maureen's signing Roxie A. Moore's name as grantor
"by Maureen Miles, Power of Atty." is part of the
deed and is contradicted by oral testimony that she signed
not as power of attorney, but in another capacity-as an
amanuensis rule provides that "[a] signature to an
instrument may be attached by . . . the hand of another, at
the request of a party . . . ." Kadota Fig
Ass'n. v. Case-Swayne Co., 73 Cal.App. 2d 815, 819,
167 P.2d 523 (1946). "The Oxford English Dictionary (2d
ed. 1989) defines 'amanuensis' as 'one who copies
or writes from the dictation of another.'"
Estate of Stephens, 28 Cal.4th 665, 671 n.1, 122
Cal.Rptr.2d 358, 49 P.3d 1093 (2002). Whether the district
court erred in admitting this evidence raises a question of
law which we review de novo. State v. Bowen, 299
Kan. 339, 348-49, 323 P.3d 853 (2014).
the parol evidence rule provides that oral testimony of a
prior agreement cannot be used to vary the terms of a written
instrument. See State v. Hood, 255 Kan. 228, 236,
873 P.2d 1355 (1994).
"'When a contract is complete, unambiguous and free
of uncertainty, parol evidence of a prior or contemporaneous
agreement or understanding, tending to vary or substitute a
new and different contract for the one evidenced by the
writing is inadmissible.'" Branstetter v.
Cox, 209 Kan. 332, 334, 496 P.2d 1345 (1972) (quoting
Thurman v. Trim, 206 Kan. 118, Syl. 2, 477 P.2d 579');">477 P.2d 579
rule is not a rule of evidence but of substantive law whose
applicability is for the court to determine. Phipps v.
Union Stock Yards Nat'l Bank, 140 Kan. 193, 197, 34
P.2d 561 (1934). Thus no contemporaneous objection is
parol evidence rule applies when parties to a contract
dispute the terms of the written agreement. See Waste
Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan.
943, Syl. ¶ 3, 298 P.3d 250 (2013) (when a court finds
the written contract language is ambiguous, parol evidence
may be introduced to ascertain the intent of the parties).
But Harvey was not a party to the TOD deed, and he has not
shown that the parol evidence rule operates to protect him, a
stranger to the transaction. Nor does he dispute the terms of
the TOD deed itself or claim that mutual mistake prevented
the formation of that deed.
extent Harvey contends that the DPOA itself precludes parol
evidence of subsequent oral authority, he errs, as the parol
evidence rule precludes only a "'prior or
contemporaneous oral agreement.'" See
Branstetter, 209 Kan. at 334.
"[T]he parol evidence rule prevents a party to a written
contract from attempting to vary its terms by relying on oral
representations, be they characterized as negotiations or
promises, made in discussions leading up to the agreement.
[Citation omitted.] A written contract, in most instances,
subsumes earlier oral discussions or agreements."
Bouton v. Byers, 50 Kan.App.2d 34, 46, 321 P.3d 780
(2014), rev. denied 301 Kan. 1045 (2015).
that Maureen signed the TOD deed as an amanuensis is not
evidence of an agreement prior to or contemporaneous with the
drafting of the TOD deed.
"there is a wide distinction between an attempt to
contradict the terms of a written instrument and to explain
the circumstances and conditions under which it was executed
and delivered." In re Estate of Goff, 191 Kan.
17, 29, 379 P.2d 225 (1963). "[T]he parol evidence rule
is not violated when the evidence tends to show the relation
of the parties and the circumstances under which the contract
was executed." Miles Excavating, Inc. v. Rutledge
Backhoe & Septic Tank Services, Inc., 23 Kan.App.2d
82, 84, 927 P.2d 517 (1996) (citing In re Estate of
Goff, 191 Kan. at 29.
the case here. Maureen's signature as "DPOA"
reflects her subjective belief that she was authorized to
sign the deed pursuant to her DPOA. Yet even assuming that
the Kansas Power of Attorney Act would not have authorized
Maureen's signature on this TOD deed, we find nothing in
that Act, in the TOD deed itself, or in the parties'
prior agreements to contradict or preclude Maureen's
signing as an amanuensis. In short, Harvey fails to show that
the challenged evidence is inadmissible parol evidence.
also mentions hearsay in his brief, but we are uncertain
whether he intends to raise this argument on appeal. Harvey
contends that he "asserted that the statements of Roxie
sought to be admitted by Maureen were hearsay pursuant to
K.S.A. 60-460." Those statements were apparently that
Roxie was in a lot of pain and therefore asked Maureen to
sign the TOD deed for her. To the extent Harvey intends to
raise hearsay as a separate issue on appeal, we find no error
for three reasons, which follow.
Harvey has not shown that he properly preserved this issue at
trial, as is necessary. The record shows that Harvey raised a
hearsay objection to this evidence during the initial summary
judgment motion related to the DPOA, and the district court
found a hearsay exception applied. But Harvey did not make a
contemporaneous objection to this evidence at the subsequent
trial on the issue of amanuensis, as is necessary. See
State v. Kelly, 295 Kan. 587, 590, 285 P.3d 1026
(2012) (explaining the contemporaneous objection rule and
finding that a pretrial ruling is not sufficient because the
materiality of the proposed evidence may not become apparent
until other evidence has been admitted); State v.
Bogguess, 293 Kan. 743, Syl. ¶ 1, 268 P.3d 481
(2012) (finding the exception to the contemporaneous
objection rule is explicitly limited to a bench trial on
stipulated facts). By not renewing his hearsay objection at
trial, Harvey waived it.
to the extent Harvey argues on appeal that this evidence was
inadmissible hearsay, this argument is raised only
incidentally in his brief and is neither argued nor supported
with pertinent authority. See Friedman v. Kansas State
Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d 287
even if we had addressed the hearsay issue on its merits,
Harvey would not have succeeded. Hearsay is an out-of-court
statement offered to prove the truth of the matter asserted.
K.S.A. 2016 Supp. 60-460. The trial court admitted the
challenged testimony (that Roxie told Maureen she was in a
lot of pain and asked Maureen to sign the TOD deed for her)
under the following exception to the hearsay rule: "a
statement of the declarant's  then existing state of
mind, emotion or physical sensation, including statements of
. . . bodily health . . . when such a . . . physical
condition is in issue or is relevant to prove or explain acts
or conduct of the declarant." K.S.A. 2016 Supp.
60-460(1). The court cited Laterra v. Treaster, 17
Kan.App.2d 714, 720-21, 844 P.2d 724 (1992), which affirmed
the admission of decedent's statements regarding his
intent and plans for his son's future as expressions of
his then-existing state of mind. Harvey's sole challenge
to the district court's ruling is to state that
Laterra is "not on point as there was no
writing by which the statements of Laterra were
being sought to interpret." Harvey's argument
appears to relate more to parol evidence than to hearsay and
fails to show error in the district court's analysis.
believe Roxie's direction for Maureen to sign the deed
for her is not hearsay, but is instead a verbal act.
"'A second kind of situation in which utterances are
not offered testimonially arises when the utterance
accompanies conduct to which it is desired to attach some
legal effect. The conduct or act has intrinsically no
definite significance, or only an ambiguous one, and its
whole legal purport or tenor is to be more precisely
ascertained by considering the words accompanying it. The
utterance thus enters merely as a verbal part of the act, or,
in the ...