In the Matter of the Will of Anna Pitts, 55 IBIA 121 (2012)

• Court: Interior Board of Indian Appeals

INTERIOR BOARD OF INDIAN APPEALS In the Matter of the Will of Anna Pitts 55 IBIA 121 (06/20/2012)

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

IN THE MATTER OF THE WILL OF ANNA PITTS

Order Affirming Decision Docket No. IBIA 10-081 June 20, 2012

The Board of Indian Appeals (Board) affirms the February 10, 2010, decision of the Superintendent of the Osage Agency (Superintendent), Bureau of Indian Affairs (BIA), in which she approved the last known will of Anna Pitts (Decedent), deceased Osage. Decedent died in 2008 possessing an Osage headright interest.1 Two of Decedent’s biological relatives, Laura Lou Pitts (Laura) and Olivia Bristow (Olivia) (collectively, Appellants), appealed the Superintendent’s approval to the Board, claiming that the will was the product of undue influence. Appellants argue that a confidential relationship existed that gave rise to a presumption of undue influence that the will proponents failed to rebut. Appellants also assert that, even in the absence of the presumption, they have proven that Decedent’s 1996 will was the product of undue influence. The Board concludes that the presumption does not apply because Appellants have not established that a confidential relationship existed, much less have they shown that a party in confidence participated in the will drafting. Nor have Appellants established the elements of undue influence. Therefore, they have failed to present any evidence to support a finding of undue influence. Background I. Factual Background

Decedent was born in or about 1911 or 1912. Decedent’s biological parents died when she was young, and she and her sister were taken in by their paternal uncle, George Pitts, and his family. Soon after, another Osage couple, Fred Penn and Edith Patterson Penn (Edith), removed Decedent and her sister from the Pitts house and raised them in See Smith v. Muskogee Area Director, 16 IBIA 153, 157-58 (1988), for a discussion of Osage headright interests. 55 IBIA 1211

[1]. their own home. Aside from Decedent and her sister, Edith and Fred Penn also had at least two biological children and they raised another child, Lucille Agliano. The Penn household eventually moved to Arizona, where Decedent lived until her death. Decedent kept occasional contact with her biological relatives via mail, telephone, and trips to Oklahoma. Appellants assert that Decedent’s visits with her biological relatives in Oklahoma were usually brief and that she was always accompanied by members of the Penn-Kelton family.2 Laura, a biological first cousin of Decedent, visited Decedent once in Arizona in 1973. Laura last remembers seeing Decedent some time in the 1980s when Decedent “c[a]me to the dances and we said hello and that’s it.” Hearing Transcript (Tr.), 59:14-16. Laura explained that Decedent would come to Oklahoma to visit Laura’s sister, “[a]nd so, I never attempted to contact [Decedent].” Tr., 56:19-57:1. Olivia apparently last saw Decedent in the 1950s. Tr., 44:14-17, 53:23-24, 61:22-23 (Olivia last saw Decedent with Edith; Edith died in 1955 or 1956). Decedent was very close with the Penn-Kelton family and was treated as a member of the family, although she was never adopted by them. Laura conceded that Decedent was especially close with the youngest family members, Josette and David. See Tr., 59:23-25. Decedent apparently lived alone or with David until 2006 or 2007, when she moved to a nursing home. Tr., 28:4-11, 29:11-20. She never married and did not bear or adopt any children. Attorney John Heskett (Heskett) drafted Decedent’s 1996 will, Tr. at 5:22-6:15, which superseded an earlier will and codicil that were also drafted by Heskett’s office and which contained terms similar to the 1996 will, Tr. at 7:3-8:2, 10:7-10.3 Heskett testified that Decedent “knew exactly what she wanted,” she asserted strong opinions about how she wanted to dispose of her property, she had testamentary capacity, and she was free of undue

The “Penn-Kelton family” refers to the descendants of Edith and Fred Penn, including Dorothy Penn Kelton (Dorothy), Barbara Kelton Wicksham, Carolyn Kelton Liff (Carolyn), David Kelton (David), and Josette Kelton Cissell (Josette).

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Under the terms of Decedent’s 1996 will, David and Josette each inherit one third of Decedent’s headright interest. A life estate in the remaining one-third interest is reposed in Carolyn and, upon her death, this interest is to be divided equally between David and Josette. All other trust real property owned by Decedent, if any, passes to David pursuant to the will’s residuary clause, as do any funds that Decedent had or was entitled to have in her Individual Indian Money account on the date of her death, after the payment of specific bequests in the will. 55 IBIA 122

influence when she met with Heskett to draft the will. Tr., 7:8-11:8. He noted that no one aside from Decedent and employees of the law office were present when Decedent discussed and signed the will. Tr., 9:2-16, 11:14-12:5. Heskett served as a will witness along with Debra Crain (Crain), an employee of the law office. Crain also testified about the execution of the 1996 will and corroborated Heskett’s statements. Tr., 15:21-18:13. Laura opined that the Penn-Kelton family “exerted some kind of influence” over Decedent, Tr. at 56:8-11, but at the time Decedent executed the 1996 will, Laura had not seen Decedent in at least 7 years. Olivia agreed that the Penn-Kelton family “exerted pressure” on Decedent, but her opinion was based on encounters at least 40 years prior to the will drafting. Tr., 40:7-12. Carolyn testified that Decedent was strong-willed, had testamentary capacity at the time the 1996 will was drafted, and maintained her mental faculties until her death in 2008. Tr., 25:8-26:19. In 2008, Josette petitioned BIA for approval of the will. Appellants objected to the will on the grounds that the beneficiaries were not biologically related to Decedent, that Decedent did not have testamentary capacity, and that Decedent was acting under coercion, undue influence, and duress when she executed the will. Pursuant to 25 C.F.R. Part 17, a hearing to determine the will’s validity was held in Oklahoma on June 26, 2008. Based on testimony taken at the hearing, the Special Attorney4 found no evidence of...