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Kibbee v. First Interstate Bank

November 5, 2010

PETER B. KIBBEE, APPELLANT (PLAINTIFF),
v.
FIRST INTERSTATE BANK, SHERIDAN, WYOMING, AS TRUSTEE OF THE CHANDLER H. KIBBEE TRUST AGREEMENT DATED MAY 26, 1987, AND THE MERCEDES K. KIBBEE TRUST AGREEMENT DATED MAY 26, 1987, AS AMENDED MARCH 15, 1996, AND ANY SUBSEQUENT AMENDMENTS THERETO, THE SHARON K. LOBO CHARITABLE REMAINDER ANNUITY TRUST DATED SEPTEMBER 10, 2006, THE JOSHUA KIBBEE LOBO CHARITABLE LEAD UNITRUST DATED NOVEMBER 2, 2006, THE AURORA LOBO CHARITABLE LEAD UNITRUST DATED NOVEMBER 2, 2006, THE PETER B. KIBBEE CHARITABLE REMAINDER ANNUITY TRUST DATED NOVEMBER 2, 2006, AND AS CO-PERSONAL REPRESENTATIVE OF THE ESTATE OF MERCEDES K. KIBBEE, DECEASED; ROBERT FERRIL, TRUSTEE OF THE CHANDLER H. KIBBEE TRUST AGREEMENT DATED MAY 26, 1987, AND THE MERCEDES K. KIBBEE TRUST AGREEMENT DATED MAY 26, 1987, AS AMENDED MARCH 15, 1996, AND ANY SUBSEQUENT AMENDMENTS THERETO; CHANDLER H. KIBBEE AND MERCEDES K. KIBBEE FOUNDATION FOR CHILDREN; SHERIDAN COUNTY YOUNG MEN'S CHRISTIAN ASSOCIATION; SHARON K. DELOBO, INDIVIDUALLY, AND AS CO-PERSONAL REPRESENTATIVE OF THE ESTATE OF MERCEDES K. KIBBEE, DECEASED; AURORA LOBO; JOSHUA KIBBEE LOBO; LAURA GALLOWAY; DARRYL KURTZ, SR.; DARRYL KURTZ, JR.; SCOTT STEWART; NADEEN IOTT; HAROLD JOHNSON; AND MARY SENE; APPELLEES (DEFENDANTS).



Appeal from the District Court of Sheridan County The Honorable Dan Spangler, Judge.

The opinion of the court was delivered by: Voigt, Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT*fn1, and BURKE, JJ.

[¶1] This is an appeal from the granting of multiple summary judgments arising out of a challenge by the appellant, Peter B. Kibbee, to changes made to the estate plan of his step-mother, Mercedes Kibbee. Peter asserts that documents that significantly modified Mercedes' estate plan are invalid because Mercedes lacked the requisite mental capacity, that she was unduly influenced by her previously-estranged daughter, Sharon de Lobo, and that Sharon was guilty of the tort of intentional interference with an inheritance expectancy. Finding no disputed questions of fact surrounding any of the above claims, and finding that the appellees are entitled to judgment as a matter of law, we will affirm.

ISSUES

[¶2] 1. Are there disputed questions of fact regarding the decedent's mental capacity at the time she executed the documents in question?

2. Are there disputed questions of fact regarding any activity by the decedent's daughter unduly influencing the decedent?

3. Should the affidavits of expert witnesses have been stricken for failure to attach the documents referenced therein and relied upon in reaching their conclusions?

4. Are there disputed questions of fact regarding whether the decedent's daughter was guilty of the tort of intentional interference with an inheritance expectancy?

FACTS

[¶3] Mercedes and Chandler Kibbee were married in 1947. Both Mercedes and Chandler had been married previously. Chandler had a successful career in business, rising to become the Chief Financial Officer of Philip Morris in that company's New York City office. When Chandler retired, he and Mercedes bought land near and moved to Sheridan, Wyoming. Over the years, the Kibbees amassed a substantial estate valued at approximately $32,000,000.00. Chandler died in 1992.

[¶4] The appellant, Peter Kibbee, is Chandler's adopted son. Peter was raised primarily by his adoptive mother and her new husband in California, and then attended boarding school. Peter worked in Washington, D.C., but came to Wyoming almost every summer. One of the appellees, Sharon de Lobo, is Mercedes' daughter from her previous marriage. Sharon went to finishing school in Switzerland from 1955 to 1960, and then married and lived in Spain for a time but ultimately settled in New York. Although Sharon went long periods of time without visiting Wyoming, her daughter, Aurora, spent significant time at the family ranch.

[¶5] After Chandler's death, Mercedes established a revocable trust in 1996 ("1996 Trust"), which trust provided that upon her death: 1) the trust would pay Sharon $50,000 per year; 2) one-half of the remainder of the trust property was to go to Peter; and 3) the other one-half was to be held in trust for Sharon's daughter, Aurora.

[¶6] On May 18, 2000, Mercedes gave a durable power of attorney for health care to Peter and Aurora. On July 4, 2005, Mercedes fell and broke her hip and was admitted to Westview Health Care Center, a nursing home in Sheridan, Wyoming. On October 27, 2005, after Mercedes had been in the nursing home for nearly four months, her primary physician, Dr. Thomas Niethammer, noted that there was no medical reason to keep her in the nursing home, stating:

Mercedes has been in the nursing home for several months after her severe hip fracture. Rather surprisingly she has done very well. She has had no pulmonary difficulty, no exacerbation of or congestive heart failure. Recent films demonstrate at least some healing of the fracture. She is able to now stand with assistance and no weight bearing and really gone up to much discomfort.

At this point she really wants to go home. [Aurora] does not want her to go home for fear she will fall or have other trouble. . . ..

At this point I have no medical reason to keep her in the nursing home environment as the care being provided can certainly be done in a home environment with the resources that she has available to her. [Mercedes] certainly has the resources to be cared for at home. [Aurora] does not want her at home but I do feel from a medical-legal standpoint that the patient has the right to go home and fail as long as she understands that risk which I think she does.

At this point I feel that I am in the middle of a family dispute. The patient's attorney will be a[d]dressing this issue. I do have to state that from a medical standpoint she can certainly return home with adequate caregivers.

[¶7] As the settlor and trustee for the 1996 Trust, Mercedes was responsible for making all decision regarding trust property. However, the 1996 Trust also provided that if two physicians certified that Mercedes had become incapable of managing her trust affairs, then she would cease to be trustee and Peter and two other individuals would act as successor trustees. On December 22, 2005, Aurora and Peter came to Dr. Niethammer's office without an appointment and insisted that he sign an affidavit certifying that Mercedes was incapable of managing her own financial affairs. Although Dr. Niethammer signed the document, he later expressed regret, stating that it was an "intimidating situation" and indicated that he felt that he signed "under significant duress." The same day Dr. Niethammer signed the affidavit, Aurora fired him as Mercedes' physician. A second affidavit certifying that Mercedes was unable to manage her financial affairs was signed by Dr. Michele Bennett, who had not seen Mercedes since 2004, when Dr. Niethammer took over her care.

[¶8] A few months later, Laura Galloway, Mercedes' long-time secretary and bookkeeper visited Mercedes in the nursing home. During that visit, Mercedes asked Ms. Galloway how she could get her out of the nursing home. Ms. Galloway told Mercedes that she needed an attorney and Mercedes asked for recommendations. Ms. Galloway first recommended the attorney who assisted in administration of the 1996 Trust. Mercedes rejected this recommendation stating that she wanted her own attorney. Ms. Galloway then suggested a local attorney, Deb Wendtland. Mercedes immediately called Ms. Wendtland and left a message saying she would like to speak with her.

[¶9] On April 5, 2006, Ms. Wendtland answered Mercedes' second telephone call. At that time, Mercedes told Ms. Wendtland that she needed help getting out of the nursing home and that her granddaughter was forcing her to stay there. Ms. Wendtland agreed to meet with Mercedes. They met that same day and Mercedes explained that she had given Aurora a medical power of attorney, that her doctor had said she could go home with help, but that Aurora had told her she could not afford to go home, and that she wanted to hire Ms. Wendtland to get her out of the nursing home. Mercedes explained that she had plenty of money to hire help to assist her at home and while she loved Aurora, she had grown to fear her and that she had to beg Aurora to hire caregivers to be with her at the nursing home. Mercedes said that Aurora required the staff at the nursing home and her caregivers to report to her if Mercedes had any visitors and who they were. Mercedes also expressed anger that she was not allowed to even have money to take friends to lunch.

[¶10] Ms. Wendtland explained that getting Mercedes out of the nursing home might damage her relationship with Aurora. Mercedes acknowledged the risk and said that she was to have lunch with Aurora the next day and would discuss her desire to leave the nursing home and give Aurora another chance to allow her to go home. Finally, Ms. Wendtland explained that Mercedes would have to revoke the medical power of attorney and indicated that it would be helpful if Mercedes had a medical checkup to confirm her mental state. Ms. Wendtland suggested Dr. Hugh K. Batty to assist her with this, and Mercedes said she would contact him and request that he meet with her.

[¶11] On April 8, 2006, Mercedes called Ms. Wendtland and said that Aurora had not shown up for lunch and asked Ms. Wendtland to meet with her and "bring the papers." That same day, Ms. Wendtland visited Mercedes and Mercedes signed a Revocation of Power of Attorney, terminating Peter and Aurora's power of attorney, and a Representation Agreement, retaining Ms. Wendtland as her attorney. The next day, Mercedes informed Ms. Wendtland that she had contacted Dr. Batty, who had agreed to examine her that day. Ms. Wendtland spoke to Dr. Batty who informed her that he had concluded that Mercedes was mentally competent and should be allowed to go home. Dr. Batty and another doctor, Dr. Michael J. Strahan, provided affidavits attesting to Mercedes' mental capacity and ability to manage her financial affairs.

[¶12] On April 10, 2006, Ms. Wendtland sent Dan Riggs, the attorney who she believed represented Peter and Aurora, a letter informing him of Mercedes' actions and Dr. Batty's examination. On April 17, 2006, Ms. Wendtland attended a meeting at Mr. Riggs' office where Aurora and Peter were present, and their attorney, Tom Hogan, participated by telephone. Following that meeting, Mr. Hogan sent a letter indicating Peter and Aurora's consent to the Revocation of Power of Attorney, stating: "Both Aurora and Peter are in agreement with Mercedes that she is entitled to make her own health care decisions and to exercise control over the Family Trust and neither of my clients wishes to disturb her decisions."

[¶13] As she prepared to return home, Mercedes indicated to Ms. Wendtland that while she wanted to be in charge, she did not want to deal with bill paying and investments. Following Ms. Wendtland's suggestion, Mercedes agreed to meet with a trust officer at First Interstate Bank (First Interstate), where she was currently a customer, who could explain the services the bank could provide. After this meeting, Mercedes signed Amendment No. 3 to her revocable trust, which amendment added First Interstate as co-trustee with her during her life and provided that upon her death First Interstate and Robert Ferril would serve as successor co-trustees.

[¶14] As co-trustee, First Interstate was charged with gathering all of Mercedes' assets to determine the extent of her estate. On May 15, 2006, Jerry Pilch, a trust officer at First Interstate, and Ms. Wendtland met with Mercedes at her home. Mr. Pilch explained that First Interstate was beginning to understand the significant extent of her assets and was working to collect them. Ms. Wendtland stated, "I believe it was on this date that [Mr. Pilch] first raised the issue of potential tax issues and estate planning." Ms. Wendtland's notes regarding a meeting with Mercedes the following day read, in part: "Discussed problem of large estate tax due at her death. She was very upset nothing had been done. I assured her we could still fix it. I suggested we hire an attorney experienced in estate planning for large estates. She authorized me to find one." Another officer at First Interstate recommended Robert Leonard, an estate planning attorney located in Laramie, Wyoming. On June 12, 2006, Ms. Wendtland had a telephone conference with Mr. Leonard and Mr. Pilch concerning Mr. Leonard's willingness to assist with Mercedes' estate planning, and Mr. Leonard was hired a few days later. In his representation letter, Mr. Leonard stated that he would provide "estate planning techniques or documents that may reduce your estate tax burden," which recommendations would include both "charitable and non-charitable estate planning options."

[¶15] After being released from the nursing home, Mercedes asked Ms. Wendtland to contact her daughter Sharon and ask that she come to visit. After Ms. Wendtland was unsuccessful in reaching Sharon, Mercedes called Sharon herself and asked her to come visit. On June 24, 2006, Ms. Wendtland picked up Sharon in Billings, Montana, and brought her to Sheridan, Wyoming.

[¶16] On June 28, 2006, Mercedes met with Mr. Pilch and Ms. Wendtland to discuss estate planning options. At that time, Mercedes told them that her priorities were to provide for Peter, Aurora, Sharon and Joshua (Aurora's son). She also indicated that she wanted to reduce her estate tax and liked the idea of benefitting a charity and was going to give some thought to the kind of charity she wanted to benefit. On July 5, 2006, Ms. Wendtland met with Mercedes again to ask about possible local charities she might want to benefit. Ms. Wendtland suggested the Sheridan County Dog and Cat Shelter as a possible option, and Mercedes asked for other suggestions. On July 10, 2006, Ms. Wendtland and Mercedes met again, and Mercedes indicated that she was anxious to talk to Mr. Leonard about trust changes and ways to save taxes. On July 24, 2006, Mr. Leonard, Mr. Pilch and Ms. Wendtland met in Ms. Wendtland's office to discuss Mr. Leonard's suggested estate planning options. The three then went to Mercedes' home, where Mr. Leonard presented his recommendations to Mercedes. During that meeting, Mr. Leonard explained different estate planning options, specifically addressing charitable possibilities and trust options. Mr. Leonard described the discussion with Mercedes in detail:

Q: Okay. And tell me what you recall about that discussion with [Mercedes] on July 24th, 2006.

A: Well, it was kind of a general discussion of options to change her estate plan, and we talked about charitable possibilities. We talked about charitable remainder trusts, we talked about charitable lead trusts, and I discussed the differences between the two of them, as to what they do.

We -- She expressed the desire that her plan benefit charities. She mentioned the Sheridan YMCA. She also mentioned a dog and cat shelter in Sheridan. We talked about a charitable remainder trust specifically for Sharon because she was concerned that Sharon was going to return to New York City, and the cost of living there was pretty high, and she wanted her to have some assured level of income on an annual basis. And we thought a charitable remainder trust would take care of really two things. It would provide that income for Sharon, and benefit a charity, because what happens with a charitable remainder trust after the income interest is up, the remainder goes to charity.

We also discussed the possibility of a charitable remainder trust for Peter at that point, but there was no decision made that I took at that point. And we discussed the possibility of Peter having input as to who the charitable beneficiary might be, the remainder.

Q: Who would receive the principal at the end of the series of payments, correct?

A: That's right, the charitable beneficiary, remainder beneficiary.

Q: You said there was no decision made at that time. What do you mean by that?

A: I came away from that with the idea that she wanted a charitable remainder trust drafted for Sharon, that she made that decision but no decision was made as to whether one should be done for Peter.

Q: Okay.

A: We also talked about a lead trust for Joshua because she expressed a concern that Joshua have funding for education, for his health into the future, and we talked about having a charitable lead trust that at some point in the future gave him the remainder after paying the charity for a period of time.

Q: Okay. What else do you recall discussing in that July 24th, 2006 meeting?

A: We did talk about doing the donor advised fund for the Sheridan YMCA, and I don't think we made a decision on that because she was still up in the air as to whether the Sheridan YMCA should be the primary beneficiary of the charitable activities or maybe whether other children's activities in Sheridan might be involved in that.

According to Mr. Leonard, Mercedes was alert and understood and participated in the discussion. He explained:

A: . . . We talked about the differences between charitable lead and charitable remainder trust, which is not actually a simple thing for people to understand who are lay people, but she understood the differences between the two trusts.

It was my impression that she understood what we were talking about. She participated in the conversation. She asked questions and indicated that she understood what I said, and wanted to know more about what I was saying.

[¶17] Following this meeting, during the months of July and August, a number of other meetings occurred between Mercedes and Ms. Wendtland to discuss and refine her wishes with respect to how the estate would pass to family members, friends, and various charitable organizations. In one of those meetings, Ms. Wendtland asked if Mercedes would authorize her to discuss the estate planning with Peter and Aurora. Mercedes responded, "Hell no. It is none of their business. Just once I wish they would be interested in me for me and not for my money. Tell them nothing."

[¶18] On August 13, 2006, Sharon had a conversation with Mercedes which was tape recorded. Peter repeatedly refers to this meeting as a pivotal event showing that Sharon exercised undue influence over Mercedes. The details of this meeting will be outlined and discussed in more detail in the undue influence section of the discussion below. See infra ¶¶ 51-52.

[¶19] During July and August, Mercedes had the opportunity to gain a greater understanding of the YMCA and its function. On July 16, 2006, with the help of the YMCA and another local children's group, a number of children visited Mercedes' ranch and spent the day swimming and had a cookout on the terrace. Ms. Wendtland attended this event and explained that Mercedes spent four hours on the terrace in her wheelchair watching and talking to the children. At the conclusion of this event, Mercedes asked to have arrangements made for the children to come back the next weekend. On August 14, 2006, Mercedes met with the executive director of the YMCA and told him that her husband had been involved with the YMCA and thought highly of it and said she would like to take a tour of the facilities.

[¶20] On August 30, 2006, Mercedes again met with Mr. Pilch and Ms. Wendtland. At that meeting, Mercedes approved the declaration of gift to the YMCA and confirmed that she wanted to create a charitable remainder trust for Sharon, but was undecided about what to do with Peter and Aurora and wanted to give it more thought. Following this meeting, on September 7, 2006, Ms. Wendtland met with Mercedes and reviewed a Declaration of Gift to the YMCA that had been prepared by Mr. Leonard. Following Ms. Wendtland's explanation of the document, Mercedes signed the Declaration of Gift. At the conclusion of that meeting, Ms. Wendtland left Mercedes a copy of a letter drafted by Mr. Leonard discussing the charitable remainder trust he had prepared for Sharon, as well as other charitable estate planning options. On September 10, 2006, Ms. Wendtland again met with Mercedes and read to her the entire charitable remainder trust for Sharon. Sharon's trust was to be funded with $5,000,000 and would pay Sharon 5% of the initial amount for the rest of her life resulting in an annual benefit of $250,000. After reading the document, Mercedes signed it and Ms. Wendtland notarized her signature. Mercedes then indicated that she wanted to do the same thing for the rest of the family.

[¶21] Ms. Wendtland contacted Mr. Leonard and conveyed that Mercedes had decided to provide a similar trust for Peter and Aurora as she had for Sharon. On September 15, 2006, Mr. Leonard sent Mercedes a charitable remainder trust for Peter. Peter's trust, to be funded at $3,000,000, would pay Peter 5% per year for an annual benefit of $150,000. On October 3, 2006, Mr. Leonard sent Mercedes a proposed charitable lead trust for Joshua Lobo. Like Sharon's trust, Joshua's trust was funded at $5,000,000; however, it was to pay 7% annually to the charity with an expected remainder payment to Joshua of $8,203,000 after 25 years. Finally, on October 31, 2006, Mr. Leonard sent Mercedes a proposed charitable lead trust for Aurora. Aurora's trust was funded with $3,000,000 and would pay 8% of its annual value to charity for ten years, at which time Aurora would receive the expected remainder of $3,550,837.

[¶22] In late October through mid-November 2006, Mercedes was hospitalized for pneumonia and congestive heart failure. At this point Peter, Aurora, and Joshua's respective trusts had not been executed. On November 2, 2006, Mercedes contacted Ms. Wendtland and asked her to come to the hospital to see her. Mercedes told Ms. Wendtland that she wanted to sign the documents Mr. Leonard had prepared. Ms. Wendtland went to the hospital to see Mercedes and showed her each of the trusts and discussed their basic provisions. After discussing the documents with Ms. Wendtland, Mercedes signed each of them.

[¶23] The next day, Ms. Wendtland went back to the hospital to visit Mercedes. After a brief conversation, Ms. Wendtland asked Mercedes if she was "up to" signing three more documents and she said yes. Mercedes then signed Amendment No. 4 to the 1996 Trust, placing $2,000,000 into a health and education trust for the benefit of Sharon, Aurora and Joshua. Amendment No. 4 also created the Chandler H. Kibbee and Mercedes K. Kibbee Foundation for Children, which foundation was to receive all of the residual assets. Mercedes also signed a Codicil to the Will and a letter directing First Interstate to fund Peter, Aurora and Joshua's trusts.

[¶24] Mercedes was released from the hospital on November 14, 2006. The next day, Mr. Leonard came to Sheridan to meet with Mercedes and review all of the trust documents she had signed and the estate plan which had now been implemented. Besides Mr. Leonard, Ms. Wendtland and Mr. Pilch were present in the meeting. That same day, Ms. Wendtland and Mr. Leonard sent a letter to Peter and Aurora and their attorney explaining the estate planning work that had been done. The letter described the estate plan which Mercedes had adopted and explained that Mercedes' estate had been in danger of paying 46% of its total value to the federal government and that to save several million dollars in estate taxes and leave a lasting legacy to honor the Kibbee family in the community, Mercedes had adopted the described estate plan. Peter immediately responded by letter, on November 17, 2006, writing, "I've received all the papers about the Foundation, trusts and the Ranch, and I thank you for the considerable financial package I am to receive." While expressing gratitude for Mercedes' generosity, Peter also indicated concern that the ranch was not remaining with the family:

I recognize the good intentions in establishing the Foundation, but ask you to include the possibility of the Foundation selling the property to us (I believe it's called right of first refusal). The YMCA would get a sizable financial reward and the C Lazy M could remain in the Family, as planned.

On November 17, 2006, Ms. Wendtland signed and filed with the Wyoming Secretary of State the Articles of Incorporation of the Chandler H. Kibbee and Mercedes K. Kibbee Foundation for Children.

[¶25] On February 9, 2007, Peter filed his complaint in the present case alleging that the estate planning documents signed by Mercedes in 2006 should be cancelled because they were signed while she was incompetent and subject to undue influence. The complaint was later amended to include a claim that Sharon owed him damages for intentional interference with an inheritance expectancy. Also, Peter filed a petition to have Mercedes declared incompetent and to have Aurora appointed as her guardian and conservator. Mercedes responded to the petition and submitted physician affidavits stating that she was competent. That petition, however, was never resolved because Mercedes passed away on April 15, 2007.

[ΒΆ26] On April 29, 2009, Sharon filed a motion for partial summary judgment on the intentional interference with an inheritance expectancy claim. The district court found in Sharon's favor and dismissed that claim on June 29, 2009. Summary judgment motions for the remaining issues (incompetence and undue influence) were then filed. In an effort to oppose the motions, Peter submitted the affidavits of Bruce Kahn, a psychiatrist, and Jeffrey Wallace, a physician. Both doctors opined that based on their review of certain medical records, Mercedes was incompetent at the time she executed certain of the estate planning documents. However, the medical records upon which the doctors relied in formulating their opinions were not attached to their affidavits, therefore, the district court struck the affidavits for failure to comply with W.R.C.P. 56(e). The court then addressed ...


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