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IN THE COURT OF APPEALS OF IOWA No. 2-265 / 11-1110 Filed June 27, 2012

IN THE MATTER OF THE ESTATE OF LENORA L. BURESH, Deceased WESLEY L. BURESH and BENJAMIN W. BURESH, Plaintiffs-Appellants, vs. SHARON PFAB and GLEN A. BURESH, Individually and As Executor of the Estate of Lenora L. Buresh, Defendants-Appellees. ________________________________________________________________ Appeal from the Iowa District Court for Linn County, Nancy A. Baumgartner, Judge. Wesley Buresh and Benjamin Buresh appeal from the district court's overruling their motion for directed verdict, motion for judgment notwithstanding the verdict, and motion for new trial. AFFIRMED. Guy P. Booth, Cedar Rapids, for appellants. Peter C. Riley of Tom Riley Law Firm, P.L.C., Cedar Rapids, for appellee Buresh. Matthew D. Piersall of Piersall Law Firm, Cedar Rapids, for Estate of Buresh. Kenneth F. Dolezal of Dolezal Law Office, for appellee Pfab. Heard by Vogel, P.J., and Tabor and Bower, JJ.

2 VOGEL, P.J. Wesley (Wes) Buresh Jr. and Benjamin (Ben) Buresh appeal from the district court's various rulings all related to the jury's verdict that Lenora Buresh's will should not be set aside. The jury found Lenora had the mental ability to make a will, that it was not procured by undue influence, and that it was duly executed. The district court noted "there were unusual circumstances in the preparation and execution of the will," but nonetheless, allowed the verdict to stand as it was not inconsistent with or against the weight of the evidence. We agree and therefore affirm. I. Background Facts and Proceedings This case surfaces from a long history of conflict within a family. Wesley and Lenora were the parents of four children: Glenn, Ben, and twins Sharon and Wes. Upon Wesley's retirement in 1971, the three sons formed a partnership to operate the farm owned by Wesley and Lenora. In 1981, the partnership

dissolved after many disagreements among the brothers. In the following years, Glenn believed Ben and Wes were not paying enough rent on some of the land they continued to farm; Sharon expressed similar dissatisfaction. In January 2004, Glenn sent a series of four letters to Wesley and Lenora, as well as to Ben, Wes, and Sharon, expressing his concern regarding "family issues," namely the "gains" Ben and Wes received by "not paying the normal average rent rate" for twenty-two years. It is clear, however, that Wesley and Lenora did not share Glenn's concerns. An undated, handwritten letter,1 signed

1

At trial, Ben testified that as a result of Glenn's "threatening" letters, he and Wes "figured we better get some evidence that shows [the rents] were satisfied" and that this

3 by Wesley and Lenora, stated: "We Wesley and Lenora L Buresh, are

completely satisfied with the rent money paid us on the farm ground and buildings from 1981 to 2002 crop yrs. Wes Jr. and Ben Buresh are paid up in full." In February 2004, Wesley and Lenora each executed a will, drafted by David Marner, their attorney for more than thirty years. In their respective wills, Wesley and Lenora directed that upon the death of the surviving spouse, the property be divided into equal shares for each of the four children, with Solon State Bank nominated to serve as executor. Until this point, there is no evidence of any preferential treatment to either Wes or Ben. Following the execution of the wills in February 2004, Wesley and Lenora each struggled with a series of health issues and lived in a nursing home for approximately one year.2 While in the nursing home, one of Lenora's friends, Dorothy Krivanek, wrote a will for Lenora. Dorothy brought the will to Lenora so she could read it and sign it. Sharon happened to stop by when Dorothy was there and wanted to read the will before Lenora signed it. Dorothy left with the unsigned will before Sharon could read it; she then sent a copy of the will to attorney Ken Dolezal. In April 2005, Wesley and Lenora returned home, where they required twenty-four hour in-home healthcare. On June 23, 2006, Lenora told Sharon she

letter, entered as Exhibit C, was prepared to demonstrate the rents were paid in full. Ben, however, did not recall when the letter was written--he suggested it may have been in 2004, in response to Glenn's letters, but maybe 2002 based on its reference t o the rent from 1981 to 2002. Glenn also testified that he recognized the handwriting of the letter as that of Lenora. 2 At trial, Marner testified that when he visited Wesley and Lenora in the nursing home following the execution of the February 2004 wills, they may have discussed making some changes in what they were doing in the wills and that "there was some disharmony between [Wesley and Lenora] about what to do."

4 was going to "make a will." Attorney Dolezal3 and two witnesses came to Wesley and Lenora's house. According to Sharon, attorney Dolezal felt that Lenora

would be more comfortable with Sharon explaining the will to her and what was transpiring. The others left the room, leaving Sharon alone with Lenora. Sharon then read the will to her mother, explained it to her, told her she could not "sway" her, and asked her if she had any questions. After fifteen to twenty minutes, and having confirmation from her mother that the will was as she wanted it to be, Sharon called the others back to the room, then left them alone with Lenora. Attorney Dolezal leafed through the will page-by-page, asking if Lenora had questions. Lenora then signed the new will in the presence of attorney Dolezal and the two witnesses.4 The June 2006 will nominated Sharon, Glenn, and Ben to serve as coexecutors, with decision making by majority vote. The will also stated that all property was to be divided among the children in equal shares, provided the conditions of Article IV were met. Article IV provided: My executors shall establish and determine all unpaid debts, gifts, criminal activity, and forgivenesses plus average compounded interest. This shall be based on all payments, monetary gifts, equipment, average land and building rent, and property sold to each child from my husband, Wesley F. Buresh, and myself since April 3, 1981. I request each child's share of debt, forgiveness, or gift with interest be deducted from his share of the estate. The remaining net amount to be divided equally to all deserving children. If any one child does not comply with my requests and/or contests this will he shall be excluded from receiving any part of my estate except for one dollar. My executors may use any reasonable means necessary to determine the indebtedness. The gift of $104,000 to Sharon Pfab dated December, 2004 is in
3

Prior to representing Lenora in the execution of this will, attorney Dolezal represented Sharon in a petition for voluntary guardianship of Lenora. 4 The record is silent as to where Wesley was when this occurred.

5 consideration for her share of land (26.7A) sold to each of her three brothers in 1976 and shall be excluded from her share owed. My wish is to balance the bottom line to each child. The consequence of this Article is that it could result in a deduction to Ben and Wes's respective shares for any rent paid from 1981 to 2002 that was not the equivalent of the "average land and building rent" during that period , even though Wesley and Lenora acknowledged a few years earlier that they were "completely satisfied" with the rents received from those crop years. Wesley died on September 25, 2007, and Lenora died on March 4, 2008. A petition for probate of Lenora's will was filed by Sharon and Glenn on May 9, 2008.5 On August 22, 2008, Wes filed a petition to set aside the probate of Lenora's will pursuant to Iowa Code section 633.308 (2007). An amended

petition was filed on March 23, 2009, joining Ben as a party to the proceeding. Ben and Wes alleged the will should be set aside for lack of due execution, lack of testamentary capacity, and undue influence.6 A jury trial was held from April 18 to 21, 2011. On April 22, 2011, the jury returned the following verdict:

(1) Lenora's will was duly executed; (2) Lenora had the mental ability to make the will; and (3) the will was not procured by undue influence. Ben and Wes filed a post-trial motion for judgment notwithstanding the verdict and a motion for new trial. Sharon and Glenn resisted. The district court denied both motions. Ben and Wes appeal.

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Ben declined to serve as an executor of the estate. Although fraud was included among the initial allegations, there were no jury instructions as to or defining fraud, nor was the jury asked to decide the question of fraud. Wes and Ben do not appeal asserting grounds of fraud.

6 II. Standard of Review We review a district's ruling on a motion for directed verdict for correction of errors at law. Pavone v. Kirke, 801 N.W.2d 477, 486

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