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Stephenson v. Stephenson

Missouri Court of Appeals, Eastern District, Division Four
Feb 23, 1999
No. ED73874 (Mo. Ct. App. Feb. 23, 1999)


No. ED73874

January 26, 1999 [Corrected Opinion: February 23, 1999]

Appeal from Missouri Circuit Court of the St. Louis County; Hon. Louis M. Kohn, Judge.

John F. Padberg, 200 N. Broadway, Suite 700, Gregory T. Mueller (co-counsel), St. Louis, MO 63102, for appellant.

James Ray Hicks, (Dorothy Fortune Leslie), 333 S. Kirkwood Rd., Ste. 303, St. Louis, MO 63122-6161, David L. Zwart, (Est. of William J. Stephenson), 200 N. Broadway, Ste. 700, St. Louis, MO 63102-2730, William G. Jochens, 1800 Equitable Building, 10 S. Broadway, St. Louis, MO 63102, John W. Moticka (co-counsel), (Little Sisters of the Poor), 10 S. Broadway, Ste. 2000, St. Louis, MO 63102, Patricia Kurtz (pro se), 7327 Devonshire Ave., Shrewsbury, MO 63119, Martin Fortune (pro se), 140 Cottage Ave., Webster Groves, MO 63119, Frances Yashuk (pro se), 111 East Woodbine Ave., #404, Kirkwood, MO 63122, Sr. Suzanne Hornung (pro se), Sacta Marie e Ripa, Mother House, 320 East Ripa Ave., St. Louis, MO 63125, Mrs. Norma Stephenson, 3617 Diamond Head Drive, St. Louis, MO 63125, for respondents.

Mary K. Hoff, P.J., Mary Rhodes Russell, J., concurring, Gary M. Gaertner, J., (separate opinion) dissenting.

Norma Stephenson ("wife") appeals the order of the probate court denying her petition for declaratory judgment seeking to be declared an omitted spouse pursuant to section 474.235 RSMo 1994. We reverse.

All further statutory references are to RSMo 1994 unless otherwise indicated.

William Stephenson ("husband") executed a will on December 15, 1988. He had been a widower for 21 months and had not remarried. Therein, he bequeathed the following: $40,000 and a car to his "friend, Norma Weidman"; $15,000 to each a sister, a brother, two former sisters-in-law, and a former brother-in-law; $5,000 to another sister-in-law; $10,000 to a friend; and his personal effects to a charity. The residuary was to be divided among several other charities and similar organizations. Husband's attorney, David Zwart ("attorney"), and wife were named co-personal representatives. The total value of husband's estate was approximately $450,000 when he executed the will, but was inventoried at $1.1 million at his death.

Weidman is wife's former surname.

Eight years after writing the will, husband and wife married in May 1996. He made no changes to his will after his marriage to wife. Husband died of a heart attack three months after the marriage.

Wife filed her petition for declaratory judgment in probate court, seeking to be declared an omitted spouse. A hearing was held at which wife, husband's attorney, and two beneficiaries, who were relatives, testified. One other beneficiary gave an unsworn statement. The court, on the request of wife, declined to render a judgment for seven days in order to give the parties an opportunity to reach a settlement. During the interim, the charities filed objections to wife's petition. A hearing was held on these objections, but no additional witnesses testified. Two beneficiaries, however, gave unsworn statements. The probate court denied wife's petition, stating she had not met her burden of proof that the bequest to her was not made in contemplation of marriage. This appeal followed.

We note initially that wife had three options upon husband's death. First, she could take under the will, which would entitle her to $40,000, a car, and to serve as a co-personal representative. Second, she could elect to take against the will under section 474.160, which would entitle her to one-half of husband's estate. Finally, she could ask to be declared an omitted spouse under section 474.235.1, which would entitle her to one-half of husband's estate pursuant to intestate succession.

Section 474.235.1 provides:

If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received if the decedent left no will, unless it appears from the will that the omission was intentional or that the testator provided for the spouse by transfer outside the will, and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator, the amount of the transfer or other evidence.

The issue before us is whether husband's bequest provided for wife was in contemplation of her marriage to him as his future spouse. Estate of Groeper v. Groeper, 665 S.W.2d 367 (Mo.App. 1984). When a will executed before marriage contains a bequest for an individual who later becomes the testator's spouse, the surviving spouse has the burden of proving that the bequest was not made in contemplation of marriage. Id. at 369.

We will sustain the order of the court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Groeper, 665 S.W.2d at 369.

Wife bears the burden of proving that husband was not contemplating marriage to her when he executed his will in December 1988. Wife testified she and husband were not contemplating marriage in December 1988, and they first considered marriage in March 1996 when he proposed to her. Attorney testified that when he asked husband at the time of the will's execution whether he was planning to get married, husband answered, "No." There was no other substantial evidence regarding statements or actions of husband of his intent to marry wife.

Evidence presented by defendants intimated that wife had been romantically involved with husband at the time he executed the will, and therefore, they claim it must be inferred that marriage was being contemplated. We disagree. Many people become romantically involved without the slightest contemplation of marriage. Defendants also presented evidence that husband possessed a book on estate planning, arguing that it must therefore be inferred he was knowledgeable about Missouri probate law and inheritance rights of wife. There was no direct evidence, however, that he read the book or understood the law in this area.

Wife's evidence of husband's statements to his attorney and her were not contradicted by substantive evidence and, accordingly, we find wife has met her burden under Groeper.

Further, section 474.235 provides that if the testator provided for the spouse outside the will, the surviving spouse may not take an intestate share. Defendants failed to present any evidence that husband provided for wife with any transfer of assets outside the will.

We are aware that in its Order, the court expressed concerns with the credibility of wife, as well as attorney. While a reviewing court will defer to the findings of the trial court where credibility of a witness is involved, a reviewing court need not do so where the disputed question is not a matter of direct contradiction by different witnesses. Epperson v. Director of Revenue, 841 S.W.2d 252, 255 (Mo.App. 1992). In the instant case, no witnesses directly contradicted each other. Therefore, we decline to defer to the court's findings.

By our holding, we are following the legislative intent of section 474.235 to protect the surviving spouse. See Groeper, 665 S.W.2d at 369. The purpose of the omitted spouse law is to ensure that a decedent considered the surviving spouse as a spouse when making a will. Substantially different considerations underlie a testator's bequest to a friend or relative as opposed to providing for the well-being of his or her spouse. Id. at 368-69.

We find that wife's substantive evidence indicates husband did not intend her to be his future spouse when his will was executed, and she is an omitted spouse within the meaning of section 474.235. She was not provided for outside the will and is entitled to what she would have received under intestate succession.

Rule 84.14 allows us to finally dispose of this case unless justice otherwise requires. See Meiners v. Meiners, 858 S.W.2d 788, 791 (Mo.App. 1993). On review, we may dispense with the remand process and render the judgment that should have been rendered by the trial court. Id. We therefore reverse the order of the court and grant wife's petition for declaratory judgment.

________________________________ Mary Rhodes Russell, Judge

Mary K. Hoff, P. J., concurs.

Gary M. Gaertner, J., dissents in separate opinion.


I respectfully dissent. The majority cites Epperson v. Director of Revenue, 841 S.W.2d 252, 255 (Mo.App.W.D. 1992) for the proposition that we will not defer to the trial court's findings where a witness' credibility is involved where the disputed question is not a matter of direct contradiction by different witnesses. In my research of cases applying the aforementioned proposition, most of them involved cases submitted on the record or where all the facts were virtually admitted. In our case we have conflicting testimony of numerous witnesses. Further, I did not find one case applying this proposition wherein the trial court specifically stated it had a problem with the credibility of a key witness, as we have here. Therefore, I believe the majority's use of this very narrow exception, to the general rule that we defer to the trial court's opportunity to judge credibility, inappropriately expands said exception. [24] Further, the majority goes on to say, "no witnesses directly contradicted each other." I disagree. Wife's testimony was directly contradicted by numerous legatees on several different important points. The first point in contradiction was husband's health. The legislative intent of Section 474.235 is to protect the surviving spouse from inadvertent disinheritance.Estate of Groeper v. Groeper, 665 S.W.2d 367, 369 (Mo.App.E.D. 1984). (Emphasis ours). Critical to that finding is the question of whether husband had the opportunity to review his will. In the case at bar, wife's attorney said in his opening statement that because of husband's sudden and unexpected death, husband had inadvertently disinherited his wife. Wife, while on the stand, testified her husband had died "very suddenly" of a heart attack. However, the other legatees all testified husband had been ill with cancer and heart problems for many years. Specifically, one legatee testified she had visited husband a few days after his marriage to wife, and husband told her he had had congestive heart failure on a recent trip. He appeared unable to rise from his chair. In its order, the trial court stated it had a problem with wife's credibility partly because, "she would have had the court believe that [husband] died completely unexpectedly." I believe this reveals direct contradiction among the witnesses.

The legatees who testified were not represented by counsel.

Further, a second point of contradiction among the witnesses was the nature of husband and wife's relationship when the will was executed. I note, also critical to the question of whether husband was contemplating marriage to wife when he executed his will is the determination of the nature of husband's and wife's relationship at that time. When wife was asked whether she had a romantic relationship with husband in 1988, when the will was executed, wife replied, "I don't think so." However, other legatees testified that husband and wife traveled together on a long trip in a recreational vehicle shortly after the death of husband's first wife, Marian, in 1987 and before the will was executed. Further, one legatee, Marian's sister, testified husband and Marian had contemplated divorce due to an affair he was having with someone at work. Husband and wife both were employed at Proctor Gamble and it was intimated the affair was with wife. Again, I believe this reveals direct contradiction.

Further, the court found the attorney's testimony vague and contradictory in itself. Specifically, the trial court noted that at the hearing, attorney stated husband had told him he was not contemplating marriage to wife, but attorney went on to state that he then discussed a prenuptial agreement with husband. The court found attorney's testimony contradictory and wondered why he would suggest a prenuptial agreement if there were no talk of marriage.

One of the legatees noted to the court that the attorney who drafted the will for husband is in the same law firm as wife's trial attorney, who is now attacking the will.

Therefore, because we give great deference to the trial court's opportunity to judge the credibility of witnesses and as illustrated above, there were contradictions in the testimony of wife and the other legatees, I would affirm the trial court's decision on that ground alone.

See Estate of Munday, 887 S.W.2d 734, 735 (Mo.App.E.D. 1994).

I go on, however, to note that under Murphy v. Carron, 536 S.W.2d at 32, I do not believe the trial court's ruling was against the weight of the evidence nor does it erroneously declare or apply the law.

This case involves the so-called "omitted spouse" rule, RSMo section 474.235. Before this statute was enacted in 1981, Missouri followed the "statutory and common law doctrine which required revocation of a will upon a change of circumstances such as a subsequent marriage." Estate of Dennis, 714 S.W.2d 661, 666 (Mo.App.W.D. 1986). One criticism of this doctrine was that such a revocation interfered with other provisions in the will. Id. RSMo section 474.235, which mirrors the Uniform Probate Code ("UPC") section 2-301, was enacted to abrogate this common law doctrine.

Essentially, this law allows a surviving spouse who was omitted from the testator's will to invalidate the will, but under the more limited circumstances set out by the statute. This statute demonstrates a legislative intent to protect the surviving spouse from inadvertent disinheritance, and beneficiaries who would not be entitled to an intestate share of the estate and would otherwise lose their bequest. Estate of Groeper v. Groeper, 665 S.W.2d 367, 369 (Mo.App.E.D. 1984).

In our case, wife was specifically provided for in decedent's will. Therefore, under a plain reading of the statute, it would appear wife has no claim under the omitted spouse statute. However, Missouri courts have carved out an exception whereby a surviving spouse, although specifically provided for in the will, may invoke the statute. Id. at 369-70.

In Groeper, decedent executed a will on March 24, 1970, the day his first wife died. Id. at 368. In the will, decedent left a class gift to his siblings and siblings-in-law, which left them equal shares of his property. Included in this class was Melinda, who at that time was the widow of his first wife's brother. Id. Melinda and decedent married October 16, 1971. Decedent passed away on March 15, 1982, having not changed his original will. Melinda petitioned the court, claiming she was an omitted spouse under RSMo section 474.235. The trial court determined Melinda was an omitted spouse but found she was provided for by non-testamentary transfers. The court of appeals examined the omitted spouse statute in reaching its decision. Id. at 368-70. The court said the omitted spouse statute "clearly reflects the legislature's intent to protect a spouse from inadvertent disinheritance in addition to protecting beneficiaries who are not entitled to intestate distribution and would otherwise not receive their devise or bequest." Id. at 369. Following the lead of other jurisdictions faced with the issue of what to do when the will contains a provision to an individual who later becomes a testator's spouse, the court determined "the surviving spouse has the burden of proving the provision was not made in contemplation of marriage." Id. at 369, citing In re Livingston's Estate, 172 So.2d 619, 620-21 (Fla. 2d Dist.Ct.App. 1965). See also Estate of Ganier v. Estate of Ganier, 418 So.2d 256 (Fla. 1982) and In re Poisl's Estate, 280 P.2d 789, 792 (Cal. 1955).

In Groeper, the facts were stipulated to, and the exhibits were entered into evidence with both parties' consent. Id. at 368. In Groeper, the court examined the provisions in the will and from that determined Melinda was an omitted spouse. Id at 369-70. In our case, we have evidence in the form of testimony of the wife herself, the attorney who drafted the will, various legatees and the will itself. As Groeper is silent as to what evidence, beyond the will, the court is to consider, the court examines other jurisdictions for guidance.

Upon examination of other jurisdictions, two different interpretations of section 2-301 of the Uniform Probate Code emerge, one where the surviving spouse had the burden of proving the provision was not made in contemplation of marriage and one where the spouse has the burden of proving the testator failed to provide by will for his surviving spouse. In the latter approach, "[i]n order to satisfy [the] burden, the evidence must be sufficient to establish that the testamentary gift specified before the marriage could not reasonably represent [the] testator's effort 'to provide by will for his surviving spouse.'"Estate of Christensen, 655 P.2d 646, 650 (Utah 1982), quoting Utah Rev. Stats., section 75-2-301. Insofar as the evidence needed to satisfy the above burdens, other than the fact the contemplation of marriage test appears temporally limited to the time the will was executed, the evidence examined is similar. See Miles v. Miles, 440 S.E.2d 882, 883-84 (S.C. 1994) (stating decedent must consider "the surviving spouse in that capacity at the time the will was executed.") (emphasis in original). Generally, the evidence the courts have examined include the will itself and "evidence of the circumstances existing at the time of the will's execution. . . ." Ganier, 418 So.2d at 260. Specifically, courts have considered: 1) the alternative legatees under the will, 2) the monetary value of the bequest to the surviving spouse, 3) the fraction of the estate that bequest represents, 4) whether comparable gifts were made to others, 5) the length of time between execution of the will and the marriage, and 6) duration of the marriage. Estate of Christensen, 655 P.2d at 650 and Matter of Estate of Keeven, 716 P.2d at 1230.

Those applying the former "in contemplation of marriage" burden include: Estate of Ganier, supra, Miles v. Miles, 440 S.E.2d 882 (S.C. 1994), Groeper, supra. Those applying the latter burden include: Matter of Estate of Keeven, 716 P.2d 1224 (Idaho 1986) and Estate of Christensen v. Christensen, 655 P.2d 646 (Utah 1982), Estate of Herbach v. Herbach, 583 N.W.2d 541 (Mich.Ct.App. 1998). See also, The Problem of the "Un-omitted" Spouse Under Section 2-301 of the Uniform Probate Code, 52 U. Chi. L. Rev. 481 (1985).

As I have already addressed the issue of the credibility of wife's evidence, i.e, her testimony and that of the attorney, I won't be repetitious, but rather note the other evidence supports the trial court's decision as well. The will itself leaves the largest specific bequest to wife, which was approximately ten percent of the estate at the time of execution. No comparable specific bequest was made to any other person. The other legatees were former in-laws whom husband had remained close to throughout his life and charities, whom husband had given to his entire life. Further, I note that wife may elect to take against the will, entitling her to one-half of decedent's estate, a fact that, by inference, husband was aware of. This evidence lends credence to the trial court's finding that husband's will reflected his actual intent. Therefore, based on the foregoing, I would affirm the trial court's decision finding wife is not an omitted spouse.

________________________________ GARY M. GAERTNER, Judge

Summaries of

Stephenson v. Stephenson

Missouri Court of Appeals, Eastern District, Division Four
Feb 23, 1999
No. ED73874 (Mo. Ct. App. Feb. 23, 1999)
Case details for

Stephenson v. Stephenson

Case Details


Court:Missouri Court of Appeals, Eastern District, Division Four

Date published: Feb 23, 1999


No. ED73874 (Mo. Ct. App. Feb. 23, 1999)