Estate of Dominic Orin Stevens, Sr., 55 IBIA 053 (2012)

INTERIOR BOARD OF INDIAN APPEALS Estate of Dominic Orin Stevens, Sr. 55 IBIA 53 (05/22/2012) Related Board case: 51 IBIA 252

United States Department of the Interior

OFFICE OF HEARINGS AND APPEALS INTERIOR BOARD OF INDIAN APPEALS 801 NORTH QUINCY STREET SUITE 300 ARLINGTON, VA 22203

ESTATE OF DOMINIC ORIN STEVENS, SR.

Order Affirming Denial of Rehearing Docket No. IBIA 10-015 May 22, 2012

Dominic Stevens, Jr. (Steve), Donna Stevens Dillon (Donna), and Jeffrey Stevens (collectively, Appellants) appeal to the Board of Indian Appeals (Board) from the October 16, 2009, Order Denying Rehearing by Indian Probate Judge Albert C. Jones (IPJ) in the estate of their father, Dominic Orin Stevens, Sr. (Decedent), Probate No. P000030919IP. The Order Denying Rehearing left intact the IPJ’s August 29, 2008, decision (Decision) in which he approved Decedent’s will, which left Decedent’s entire estate to his daughter, Lois Stevens (Lois).1 Facts A. Making of the Will Decedent, a Crow Indian, died testate on July 24, 2005, at the age of 77. At the time of his death, he was a widower survived by four children: Appellants and Lois.2 On July 27, 2004, Decedent executed his will (2004 will) at the Bureau of Indian Affairs’ (BIA) Crow Agency in Montana.1

take testimony regarding the Decedent’s [2004] will.” PR Tab 6 at 1. He specifically informed Appellants that they, “as the contesting parties, must attend the second supplemental hearing and be prepared to present evidence proving that the Decedent’s will is invalid and should not be honored.” Id. at 1-2 (emphasis added). He further advised them that [e]vidence may include medical and other records, testimony of witnesses, and anything else that would support the will contestants’ position that the [2004] will should be rendered invalid. To assist this process, I will subpoena the witnesses to the will, as well as the will scrivener, so that interested parties might take testimony from them. Id. at 2. At the second supplemental hearing on February 12, 2008, the parties informed the IPJ that they had renewed settlement discussions, and requested a 60-day continuance. The IPJ granted the request, but scheduled a final hearing for April 16, 2008. Letter from IPJ to parties, Mar. 19, 2008 (PR Tab 17). He informed the parties, In advance of the hearing, I will subpoena the will witnesses and scrivener, Sherry Kirschenmann, and [other BIA employees in connection with the gift deed applications]. I will take testimony from these people. However, this does not mean that I will bear the burden of establishing Decedent’s competency for those parties objecting to the will. Therefore, all interested parties need to appear and be ready to present their evidence, whether it be medical testimony, medical documentation, or other witness statements. In addition, interested parties may testify themselves. Should an interested party wish to have a particular witness subpoenaed, that party may contact my office in a timely fashion and I will cause such a subpoena to issue. Id. at 2. He further cautioned the parties that no further hearings would be held nor would he permit any further delays. Id. The parties failed to reach settlement, and the final supplemental hearing went forward as scheduled on April 16, 2008. The IPJ subpoenaed the will scrivener, Scott, as well as the will witnesses, Alfredine Snell and Carla Morning, and the notary, Janice Morning. According to the record, none of the parties requested the IPJ to issue subpoenas for any witnesses. The testimony concerning the making of the 2004 will and the recollections of the BIA employees involved in that process is recounted above at 53-56.

We focus here on the evidence produced by Appellants to show undue influence and lack of testamentary capacity. Harold Stanton, Esq., testified on behalf of Appellants that he observed in fall 2003 that Decedent “was just not with us sometimes and sometimes he was.” Tr., Apr. 26, 2008, at 116:2-8; see also id. at 119:4-7 (same). He also testified that he was asked to draft a will for Decedent when Decedent was in the hospital in March 2004. He declined to do so because, after visiting with Decedent, he did not believe Decedent was competent to execute a will at that time. Id. at 121:14-17.5 Stanton further testified that that visit with Decedent was the last time he saw Decedent alive. Id. at 121:18-21; 123:3-5. Appellants offered a notarized statement from Dr. Bunt, who wrote generally of Decedent’s medical condition during the period of February to July 2004. PR Tab 20.6 Dr. Bunt stated that Decedent was diagnosed with dementia relatively soon after Dr. Bunt began treating him in 1995. Between February and July 2004, Dr. Bunt noted that Decedent “was easily confused,” “his ability to reason was limited,” and he “had impairment of short term memory.” Statement of Clayton Bunt, M.D., at 3 (unnumbered) (PR Tab 20). Dr. Bunt opined that during this period, Decedent “was very susceptible to manipulation, and . . . he had little comprehension of any legal processes he might have entered into.” Id. at 4 (unnumbered). Also in the record are Decedent’s medical records of his visits with Dr. Bunt. The last medical entry prior to Decedent executing his will was made on July 14, 2004. Dr. Bunt saw Decedent that day and noted that Decedent was “still driving, but unable to focus on any work per daughter,” and his “Dementia [was] progressing.” Medical records, July 14, 2004 (PR Tab 35). The next medical note is dated September 13, 2004. Relative to Decedent’s dementia, Dr. Bunt noted that Decedent “appears spry today,” “drives short distances, hasn’t gotten lost,” and “memory varies day to5

Decedent as well as affidavits from Dr. Joseph D. Rich,7 Bill and Mary Sue Redfield, Terry Birdinground, Gary Graham, Merrille Mullenberg, Steve, and Donna.8 Finally, Appellants sought the opportunity to depose Dr. Bunt or otherwise present his testimony at a supplemental hearing. On October 16, 2009, the IPJ denied Appellants’ petition for rehearing. In his decision, the IPJ characterized Appellants’ petition as offering, for the most part, “newlydiscovered evidence.” Order Denying Rehearing at 2. He found good cause for the late production of the Redfields’ testimony and he agreed to consider their affidavits.9 He rejected the remainder of Appellants’ late-submitted evidence (or offers of evidence) on the grounds that no good cause existed for their late submission. In his Order Denying Rehearing, the IPJ acknowledged that his Decision could be read as misapplying the test for testamentary capacity because of his inadvertent use of the conjunctive “and,” rather than the disjunctive “or.” The IPJ clarified that testamentary incapacity could be established if the evidence showed an absence of any one of the three factors of testamentary capacity — i.e., that Decedent did not know the natural objects of his bounty, did not know the extent of his property, or was unable to articulate an intended distribution of his property. The IPJ reiterated that while he agreed with Appellants that Decedent had dementia, he concluded that Appellants did not “produce any evidence indicating the Decedent did not know his family members, did not know what property he owned or did not understand the distribution of his estate at the time he executed the will [in 2004].” Order Denying Rehearing at 9-10 (emphasis added). He expressly rejected Dr. Rich’s affidavit, finding it “interesting” that “Dr. Rich, who never met the Decedent, could firmly conclude that on the date the will was executed, the Decedent would have been completely incompetent under all three prongs of the testamentary capacity test.” Id. at 10.7

related to this claim,11 because Appellants failed to raise this issue before the IPJ in their rehearing petition. The IPJ squarely rejected the characterization of the 2005 document as a “will” in his Decision. See Decision at 18-19. Appellants had clear notice of the IPJ’s ruling on this document and could have addressed it in their rehearing petition, but apparently chose not to do so. Thus, this issue falls outside the scope of this appeal. 2. Exhibits Appellants seek a new hearing on various grounds concerning exhibits. We reject each of Appellants’ arguments because, once again, Appellants did not preserve any arguments concerning exhibits for the Board’s review by first raising them before the IPJ. Accordingly, these arguments are outside the scope of this appeal.12 3. Presumption of Undue Influence For the first time on appeal to the Board, Appellants argue that a confidential relationship existed between Lois and Decedent, that the elements to establish a presumption of undue influence existed, and that Lois failed to rebut the presumption. We decline to consider this argument as it is raised too late.1311

suggests that it was Decedent who controlled Lois, rather than the other way around, and that Lois was very attentive to their father. Second, Appellants claim that Lois is a healer and held influence over Decedent by virtue of this status. Appellants did not explain or provide any evidence concerning the status of healers among the Crow or, more specifically, how Lois’ status as a healer would lead her to have influence over her father nor do they do so on appeal. We reject any suggestion that an individual’s status as a healer ipso facto compels a finding as a matter of law that undue influence has been exerted, and thus find no basis to conclude that the IPJ erred in rejecting this argument as proof of undue influence. Finally, Appellants claim that Lois deliberately created a furor over the Pickett Memorandum to agitate Decedent, and accused her siblings of taking everything from their father and leaving nothing for either of them. After Decedent was agitated, Appellants claim that Lois told Decedent to walk out of the house and get in her car, but Decedent continued to stand there. Apparently, he eventually...

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