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In re Estate of Van Ginkel

Court of Appeals of Iowa

October 9, 2019

IN THE MATTER OF THE ESTATE OF ELLEN P. VAN GINKEL, Deceased.
v.
JENNIE L. KRONTHAL, Defendant-Appellee. JOSEPH G. VAN GINKEL III and ELIZABETH A. WINTERHALTER, Plaintiffs-Appellants,

          Appeal from the Iowa District Court for Polk County, Craig E. Block, Associate Probate Judge.

         The plaintiffs appeal from the adverse summary judgment ruling in this will contest.

          Jason S. Rieper of Rieper Law, P.C., Des Moines, for appellants.

          Kevin J. Driscoll and Andrew T. Patton of Finley Law Firm, P.C., and Seth Ryan Delutri of Bradshaw, Fowler, Proctor & Fairgrave, PC, Des Moines, for appellee.

          Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.

          BOWER, JUDGE.

         Joseph G. Van Ginkel III ("Joe") and Elizabeth Winterhalter ("Elizabeth"), two of Ellen Van Ginkel's ("Ellen") six children, contested Ellen's will, asserting: (1) Ellen lacked testamentary capacity to make the November 13, 2013 fourth codicil to her will, and (2) the will was a result of the undue influence of their sibling, Jennie Kronthal ("Jennie"). The district court entered summary judgment dismissing their claims. Joe and Elizabeth (collectively "the plaintiffs") appeal, contending the district court abused its discretion in considering police reports and an untimely-disclosed letter. They also assert the court erred in concluding they failed to present sufficient evidence to go to a jury on the questions of Ellen's lack of testamentary capacity or undue influence. Finding summary judgment proper, we affirm.

         I. Background Facts.

         Ellen was married to her husband Joseph G. Van Ginkel Jr. ("Gerry") in 1950. Ellen and Gerry had six children: Joan, Valerie, Elizabeth, Joe, Tamara, and Jennie. On March 31, 1995, Ellen executed her original Last Will and Testament.

         Elizabeth "disengaged" from her family for several years beginning around 1996. Elizabeth did visit her parents in Iowa in 2005 (to help Ellen "with her hip") and in 2010 (to help Ellen "with her cancer").

         In July 2010 and early November 2011, police were called to Ellen and Gerry's home to investigate reports Joe assaulted Gerry.

         On November 16, 2011, Ellen executed a first codicil, removing Joe as the executor and replacing him with Jennie. Other than the change of executors, the first codicil ratified, confirmed, and republished Ellen's 1995 will.

         In August 2012, Ellen and Gerry were both in ill health and moved to Maryland. They lived with Jennie and her family for about two months and then moved into their own apartment near Jennie. Elizabeth lived in Arlington, Virginia, at the time.

         On December 18, 2012, Ellen executed a second codicil, which deleted the dispositive provisions from Ellen's 1995 will and, instead, included a new provision leaving her assets to the Ellen P. Van Ginkel Trust she had created in August 2012. The codicil also states: "As amended by this Codicil, I hereby ratify, confirm and republish my Last Will and Testament dated March 31, 1995 and my First Codicil to Last Will and Testament of Ellen P. Van Ginkel dated November 16, 2011."

         Gerry died in January 27, 2013.

         On March 6, 2013, Ellen executed the third codicil exercising her power of appointment granted to Ellen in Gerry's will, directing the assets from Gerry's Trust be paid into Ellen's Trust, to be administered according to its terms. Again, the codicil "ratif[ied], confirm[ed, ] and republish[ed]" Ellen's 1995 Will and the first and second codicils.

         On November 15, 2013, Ellen's primary care physician since October 2012, Dr. Veronica DiFresco, was asked to witness the execution of a fourth codicil. After a forty-five minute examination in which Dr. DiFresco confirmed Ellen was aware of her children and property and had knowledge of the effect of a will, Dr. DiFresco determined Ellen had testamentary competency on November 15, 2013, and that Ellen understood what she was signing. Ellen then executed the fourth codicil, by which she again exercised the power of appointment granted to her in Gerry's will and directing the following distributions: $50, 000 to granddaughter Carolyn Thomas; $25, 000 to grandson James Jae Brown; $25, 000 to grandson Andrew Allen Brown; and the balance to be divided equally between Tamara and Jennie. The fourth codicil ratified, confirmed, and republished Ellen's 1995 will and the first, second, and third codicils. This codicil effectively excluded Joe and Elizabeth from Ellen's will.

         Ellen died on January 9, 2016. On March 7, 2016, notice of probate, appointment of executor, and the last will and testament and trust documents were dispatched to all of Ellen's heirs. On July 8, 2016, the plaintiffs filed a petition to set aside the will, [1] alleging Jennie exercised undue influence on Ellen and that Ellen lacked testamentary capacity to execute the changes to her will.

         Jennie filed a motion for summary judgment, a statement of undisputed facts, and supporting documents. The plaintiffs resisted, relying on medical records and personal accounts from the period of 2011 to 2014. Jennie filed a reply brief and a response to plaintiffs' facts, which included Attachment DD, a three-page letter authored by attorney Jonathan Kramer on November 9, 2011, and addressed to Ellen and Gerry. The plaintiffs moved to strike the letter as untimely produced. They also argued the court should not consider the proffered police reports because they were hearsay.

         On October 3, the court granted summary judgment to Jennie. With respect to the claim that Ellen lacked testamentary capacity, the district court noted "direct evidence provided by a neutral medical practitioner [Dr. DiFresco] tending to show ...


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