In re Estate of Moore – Gardner – Affirmed – Cowley
390 P.3d 551
| Kan. Ct. App. | 2017Background
- Roxie A. Moore (the record owner) lived in assisted care after a 1991 stroke; in April 2004 she executed a general durable power of attorney naming Maureen Miles as attorney-in-fact and shortly after asked Maureen to arrange a transfer-on-death (TOD) deed so Maureen could hold the “homeplace” for Roxie’s grandsons.
- An attorney prepared a TOD deed; on May 10, 2004, at Cumbernauld Village, Roxie (in pain and with impaired speech) told Maureen to sign the deed for her; Maureen signed Roxie’s name as “by Maureen Miles, Power of Atty.” and a notary acknowledged the deed the same day.
- Roxie died intestate in 2009; the TOD deed, as recorded, passed the property to Maureen, who later conveyed it to the grandsons. Harvey (Roxie’s son) sued to challenge the deed.
- The district court ruled Maureen lacked express DPOA authority to sign the TOD deed but found she signed as an amanuensis; because Maureen was an interested amanuensis the court applied a presumption of invalidity, which Maureen overcame by proving Roxie intended her to sign and had capacity and no undue influence.
- On appeal, Harvey argued evidentiary errors (parol/hearsay), that the amanuensis rule should not apply, that respondents bore an improper burden to rebut undue influence, that Roxie lacked capacity, and that statutory TOD formalities were unmet; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument (Moore) | Defendant's Argument (Miles/Respondents) | Held |
|---|---|---|---|
| Admissibility of testimony that Roxie instructed Maureen to sign (parol/hearsay) | Parol evidence and hearsay should be excluded; Maureen’s inscription on deed controls. | Testimony explains execution circumstances; Roxie’s instruction is a verbal act and/or fits state-of-mind/physical-sensation hearsay exception. | Admitted: parol rule inapplicable (Moore is not party); statements treated as verbal acts or admissible under exception. |
| Validity/applicability of amanuensis rule in Kansas | Amanuensis rule either invalid or inapplicable to interested signatory. | Kansas recognizes amanuensis doctrine; where used by an interested beneficiary, presumption of invalidity applies but is rebuttable. | Kansas law recognizes amanuensis; following Estate of Stephens, an interested amanuensis triggers presumptive invalidity burdened on the amanuensis to prove mechanical signing. |
| Burden to rebut presumption of undue influence and standard to prove mental capacity | Respondent should have to disprove undue influence by clear and convincing evidence; TOD requires contractual capacity (higher standard). | Apply Bennett/Cresto framework: show confidential relationship and suspicious circumstances to shift burden; rebuttal by preponderance; capacity standard aligns with testamentary capacity (clear and convincing to prove lack). | Court correctly applied Bennett/Cresto: respondents bore preponderance to rebut presumption of undue influence; Harvey bore clear and convincing burden to prove Roxie lacked capacity. Any lesser-burden error would be harmless on this record. |
| Statutory formality for TOD deed (signature and acknowledgment) | TOD statute requires the record owner’s signature and proper acknowledgement; Maureen’s signing as DPOA or agent failed statutory test. | As amanuensis Maureen’s signing is legally Roxie’s signature; acknowledgement by notary was proper because signature was effectively Roxie’s act. | Valid: amanuensis signature counts as owner’s signature and acknowledgment met statutory requirements. |
Key Cases Cited
- Estate of Stephens, 28 Cal. 4th 665 (Cal. 2002) (interested amanuensis presumed invalid; must show mechanical signing to rebut)
- Cresto v. Cresto, 302 Kan. 820 (Kan. 2015) (undue influence framework and burden-shifting in testamentary challenges)
- In re Estate of Bennett, 19 Kan. App. 2d 154 (Kan. Ct. App. 1993) (two-prong test: confidential/fiduciary relationship plus suspicious circumstances creates presumption of undue influence)
- Stanhope v. Rural Highschool Dist., 110 Kan. 739 (Kan. 1922) (signature by another at direction in presence of signer is the signer’s own)
- Schnee v. Schnee, 61 Kan. 643 (Kan. 1900) (name written by another at witness’s request can validate attestation; instrumentality of signature not dispositive)