Family feud contestants seek in excess of $60k in damages

Kelly Holleran Jan. 7, 2009, 5:42am




A family fighting over an elder member's will has taken their battle to St. Clair County Circuit Court.

The child and grandchildren of James D. McDaniel argue his other child and grandchildren changed parts of the elder's will and forced McDaniel to make a will while he was not in the right mind capacity to do so.

In their suit, David McDaniel, James McDaniel's son, and grandchildren Jennifer Kay Emery and Melissa Mary McDaniel, also claim that Anita Metzker, James McDaniel's daughter, took $60,000 from his account before his death.

When James McDaniel died on Jan. 26, he was 79 years old and suffering from Alzheimer's, according to the complaint filed Jan. 5.

Before his death, James McDaniel executed a will on Dec. 1, 2003, and discussed his wishes to provide for both of his children equally with his son, daughter, grandchildren and other family members, the suit states.

"The terms of the Will make a specific bequest to Decedent's grandchildren, Jennifer Kay Emery, Melissa Mary McDaniel, Sarah Elizabeth Hendricks and Joshua David Hendricks of the Decedent's checking account at Carter County State Bank," the suit states.

Metzker was named the sole beneficiary of any remaining property and is named as personal representative, David McDaniel and his children claim.

David McDaniel in named as successor personal representative, according to the complaint.

However, James McDaniel was not "of sound mind and lacked the requisite mental capacity to make and execute the will" at the time he signed it, the suit states.

There were numerous incidents that led David McDaniel and his children to this belief, such as James McDaniel's inability to remember and know where, when and what to eat and his inability to remember and know how and when to groom himself, they claim.

"On information and belief, prior to and up to the date the Will was executed, the Decedent was unable to fully understand the ordinary affairs of life, unable to understand the natural objects of his bounty, unable to understand the transaction of making the Will and unable to understand the extent, nature, and value of his property," the suit states.

Metzker also influenced James McDaniel in his signing and execution of the will, according to the complaint.

"The Decedent's relationship with Defendant permitted her to influence the Decedent in the making of the Will and Power of Attorney that was contrary to his true wishes and intentions," the suit states.

David McDaniel and his children also allege Metzker changed parts of James McDaniel's will to designate herself as the sole beneficiary of any remaining assets.

"Paragraph 3 of Article II, in its altered state as it now exists in the Will, allegedly disinherits Plaintiff; yet, the Decedent still trusted Plaintiff enough to name Plaintiff as his successor personal representative," the suit states.

When David McDaniel asked to see a copy of the will, Metzker told him the original will no longer existed, according to the complaint.

Instead, she produced a copy of the will, in which David McDaniel claims the fraudulent statement was inserted.

Then, on March 3, 2007, James McDaniel signed a general durable power of attorney, designating Metzker as his attorney-in-fact, the suit states.

David McDaniel claims Metzker said she drafted the power of attorney because she lost the previous one.

"Defendant has not produced any prior power of attorney instruments in spite of repeated demands from Plaintiff," the suit states.

So, on Jan. 9, David McDaniel filed a motion to terminate Metzker from her duties as attorney-in-fact because she was not acting for James McDaniel's benefit in accordance with the terms of the agency, she had taken action which caused or threatened substantial harm to James McDaniel's property in a manner he did not authorize and because James McDaniel had been hospitalized because of a lack of proper care Metzker provided, according to the complaint.

The court then rescinded all powers of attorney over James McDaniel, David McDaniel claims.

The court also appointed David McDaniel temporary guardian of his father and his father's estate, according to the complaint.

Because of Metzker's influence over James McDaniel in executing the will and the power of attorney, she obtained control over his property, the suit states.

But once Metzker discovered the court terminated her as James McDaniel's attorney-in-fact, she transferred $60,000 from his bank account into her own bank account, David McDaniel claims.

Then, after James McDaniel died, Metzker withdrew the remaining $277.38 from his bank account and closed the account, according to the suit.

David McDaniel and his children allege Metzker, Sarah E. Hendricks and Joshua D. Hendricks breached their fiduciary duties to them by failing to act in good faith, by failing to act in the best interests of James McDaniel, by failing to perform their duties, by taking action which caused harm to James McDaniel's person or property, by not providing James McDaniel proper care and by converting assets of James McDaniel's account after Metzker's power of attorney was terminated.

In addition, they breached their duties by failing to submit the will to probate in a timely manner, by probating the altered will and by converting the assets prior to the will being filed, according to the complaint.

In the seven-count suit, David McDaniel, Jennifer Kay Emery and Melissa Mary McDaniel are asking the court insert David McDaniel's name back into paragraph 3 of article II of the will and divide any remaining property between James McDaniel's children, to grant their request for determination of property and discovery of assets for James McDaniel's assets from two years prior to the execution of the will, to enter a judgment and decree that a constructive trust be place upon all assets of Metzker, or on such assets that were derived from assets wrongfully converted from James McDaniel and to grant a mandatory injunction against Metzker to compel her to return all of James McDaniel's estate's assets to the estate.

They are seeking the court reject the admission of the will to probate, invalidate the will, allow for James McDaniel's property to pass intestate equally to them and Metzker and her children, plus attorney's fees, costs and other relief the court deems appropriate.

They are also seeking actual damages in excess of $60,000 and unspecified punitive damages.

Bhavik R. Patel, Martin L. Daesch and Natlie J. Kussart of Sandberg, Phoenix, and von Gontard in St. Louis will be representing them.

St. Clair County Circuit Court case number: 09-L-2.

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