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Kremer v. Bergfield

Court of Appeals of Iowa

January 23, 2014


Released for Publication April 14, 2014.

Editorial Note:

This decision has been referenced in a "Decisions Without Published Opinions" table in the North Western Reporter.

Appeal from the Iowa District Court for Jackson County, Mark J. Smith, Judge. Bernard Bergfeld and Larry Troester appeal a district court decision invalidating a will in its entirety.

Todd J. Locher of Locher & Locher, P.L.C., Farley, for appellants.

Werner Hellmer and Sheila O'Laughlin of Day & Hellmer, P.C., Dubuque, for appellees.

Considered by Vaitheswaran, P.J., Tabor, J., and Sackett, S.J.[*]



Appellants Bernard Bergfeld and Larry A. Troester (Proponents), two of the five nonrelative beneficiaries of decedent Allan Kremer's March 28, 2011 will, appeal from an adverse judgment in a will contest brought by Eugene H. Kremer, a brother of decedent, and Dennis Kremer, a nephew of decedent (Objectors). The proponents contend the district court erred in entering a judgment invalidating Allan's will after a jury found Allan competent to make the will and further found that neither Bergfeld nor Troester had exercised undue influence on Allan. Objectors argue the findings by the jury that the other three beneficiaries, James Gordon, Jean Gordon, and Kimberly M. Gordon, executed undue influence on Allan were sufficient to invalidate the entire will including the two separate articles of the will that made bequests to Bergfeld and Troester. We affirm in part, reverse in part, and remand.


A will contest is an action at law so we review for errors at law. In re Estate of Lachmich, 541 N.W.2d 543, 545 (Iowa Ct. App 1995). The jury's findings of facts are binding on us if supported by substantial evidence. Id.


Allan Kremer was born on August 15, 1922, and died on April 15, 2011. He never married and had no children. His estate consisted primarily of Iowa farmland, livestock, and the tools of farm husbandry. He executed prior wills in 1982 and in 2007 making provisions for siblings, nieces and nephews, religious organizations, and friends. The will prior to the one in question was executed on January 8, 2007. Glenn Bartelt, Allan's attorney for some years and the person who prepared the January 8, 2007 will, indicated Allan began talking of changing this will as early as the fall of 2007, although Allan said he was not settled as to how to do it.

Allan scheduled an appointment with Bartelt on March 16, 2011. Allan came to the appointment alone and told Bartelt he wanted to change his will. Allan indicated he wanted Bergfeld to have his home place, and if Bergfeld died before he did, then that property should go to Bergfeld's wife and children. Allan also related he wanted Troester to receive the residue of his estate and Bergfeld to be the executor of his estate, with Troester to be the successor executor. Allan also discussed with Bartelt bequests for the three Gordons. Bartelt told Allan because he was giving his property to nonrelatives the inheritance tax would exceed the residue of the estate. Allan told him he wanted Kimberly Gordon and Bergfeld to be responsible for their inheritance tax and provision should be made in the will to allow them to borrow against the real estate he would give them to pay the tax.

Bartelt mailed a proposed will to Allan on March 22, 2011. On March 28, 2011, Allan met with Bartelt in Bartelt's office. Apparently James Gordon drove him to Bartelt's office. Allan and Bartelt discussed the draft will, some changes were made to the draft, and Allan signed the will before two witnesses and Bartelt. Gordon was not a party to the discussion nor was he present when the will was signed.

The will Allan signed made separate specific provisions for persons he called friends, namely Bernard Bergfeld, Larry A. Troester, James Gordon, Jean Gordon, and Kimberly M. Gordon. He made specific bequests of real and/or personal property to Bergfeld and the three Gordons. He directed the rest, residue, and remainder of his estate go to Troester. Troester had been named as a residuary beneficiary with certain of Kremer's nieces and nephews in an earlier will.

Allan's will also contained the following paragraph:

I intentionally make no provision for my surviving siblings or my nieces or nephews, not because of any lack of regard for them, but instead I have chosen to leave my property to the people who have been close to me and helpful to me especially in the last years, especially since the death of my brother Francis.

Bartelt was to relate that he knew Allan for some thirty years and when Allan signed the will he was unchanged from how Bartelt had known Allan in the past. While Bartelt testified Allan had seemed a little old for his age in 1980, he stated that at the time he signed the will, Allan was hale and hardy and there were no signs of illness, and he seemed largely unchanged except for a complaint of pain. Bartelt also testified that Allan did not tell him about an apparent diagnosis of myeloma. Two weeks after signing the will Allan was dead at age eighty-eight.

The March 29, 2011 will was admitted to probate and Bergfeld, named as executor in the will, was appointed executor. An inventory of the estate filed in September of 2011 showed a value of approximately $2,400,000. An inheritance tax return prepared in late 2011 showed that for inheritance tax purposes under the 2011 will, James and Jean Gordon's share of the estate would be $6111.11; Kimberly Gordon's share would be $1,099,490; Bergfeld's share would be $977,854.32; and Troester's share would be $182,340.47.

Dennis Kramer, Allan's nephew and a beneficiary under a prior will, and Eugene H. Kremer, one of Allan's siblings, in May and August 2011 filed separate petitions to set aside the probate of the will, contending Allan did not have sufficient capacity to execute the will, and the will was the result of undue influence asserted upon him. Attorney Todd J. Locher representing all five ...

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