Estate of Theresa Underwood Dick, 50 IBIA 279 (2009)

Docket Number:IBIA 07-107

INTERIOR BOARD OF INDIAN APPEALS Estate of Theresa Underwood Dick 50 IBIA 279 (11/02/2009)

United States Department of the Interior



Order Affirming Decision Docket No. IBIA 07-107 November 2, 2009

Alfreda LaBonte (Appellant or Alfreda) appeals to the Board of Indian Appeals (Board) from a Final Decision on Rehearing (Final Decision) entered April 9, 2007, by Indian Probate Judge M.J. Stancampiano (Judge Stancampiano or IPJ), in the Estate of Theresa Underwood Dick (Theresa or Decedent), deceased Quinault Indian, Probate No. P000000368IP (formerly, No. IP SA 316 N 95). The Final Decision reversed a November 19, 2002, Order Approving Will and Decree of Distribution (2002 Order), entered by Administrative Law Judge William E. Hammett (Judge Hammett or ALJ), which distributed 100% of Decedent’s trust assets to Alfreda, who is one of Decedent’s grandchildren. On August 22, 2003, Judge Hammett issued an Interim Order on Rehearing (2003 Interim Order), in response to a Petition for Rehearing submitted by opponents of Theresa’s Last Will and Testament (Will). This order permitted the Will opponents to depose the will scrivener, and advised the parties that the ALJ would thereafter take further briefing on the Petition for Rehearing. In a November 4, 2003, Order Allowing Limited Supplemental Deposition and Granting Motion to Strike (2003 Order), Judge Hammett advised the parties, inter alia, that he would consider issues regarding witness credibility based on anticipated briefing on the Petition for Rehearing in a final decision on rehearing. Judge Hammett died before ordering briefing or issuing a final decision. The case was reassigned to the IPJ, who ordered briefing on the Petition for Rehearing and subsequently ordered a hearing de novo.1 Based on testimony and other evidence submitted in hearings conducted over four days in 2006, the IPJ reversed the 2002 Order approving Decedent’s Will. Final Decision, Apr. 9, 2007. The IPJ found that Decedent had been subjected to undue influence in the preparation of her Will and ordered her estate distributed to her heirs by intestacy.1

submitted a declaration of J.Y. Tomlinson, who declared that, as a BIA realty specialist and will scrivener, it was his consistent practice to ask testators to identify surviving children, and that he would name all surviving children in a will, even if they were excluded as beneficiaries. He remembered asking Alfreda to leave the room when Theresa’s Will was executed, but that Theresa objected. Tomlinson Declaration, Mar. 7, 2003. Recognizing that the Will opponents had reasonably anticipated both that he would secure Tomlinson for the hearing, and also would schedule post-hearing briefing, Judge Hammett issued his 2003 Interim Order allowing the parties to depose Tomlinson. 2003 Interim Order at 4, 8. The ALJ noted that the Will opponents’ reliance on his commitments at the 1997 and 1999 hearings to call Tomlinson as an indispensable witness was “justifiable.” Id. He denied the Will opponents’ request to present either the testimony of Dr. Worth or the videotape, and rejected any suggestion that he had deprived hearing participants of rights to present testimony or evidence. Id. at 9-15. Acknowledging that the Tomlinson Declaration revealed that Tomlinson “may clarify certain critical facts in this case,” id. at 8, he gave the parties 60 days to conduct the deposition, after which he promised to schedule briefing on the Petition for Rehearing. Id. at 15. Knodel and Brown deposed Tomlinson on September 17, 2003. Tomlinson testified that he had prepared hundreds of wills and that, in 1994, he asked testators about surviving children 100% of the time.6 Tomlinson Deposition Tr., Sept. 17, 2003, at 11-12. His consistent practice was to include the names of all surviving children in wills, with express avowals as to a testator’s desire to disinherit children, so as to avoid will contests. Id. at 14, 69. He denied that he was aware of the existence of Theresa’s sole surviving child, Mabel, at either the February or April 1994 meetings with Theresa, Alfreda, and Lott. Id. at 61-62. Based on the fact that Mabel was not mentioned in the Will, he asserted his belief that Theresa had been either unaware of Mabel’s existence or unaware that Mabel remained alive. Id. at 70. He stated that, had he known of Mabel’s existence, he would not have considered Theresa to be competent. Id. Theresa’s insistence that Alfreda stay in the room against his advice was unique in his experience and thus memorable. Id. at 30, 51. He stated that Alfreda was in the room during the entire will-drafting process; she “was there the entire time and understood everything about it because we discussed it openly.” Id. at 33, 36. He confirmed two visits by Alfreda, Lott, and Theresa to his office, and stated that Alfreda’s testimony to the contrary was “untrue.” Id. at 32-34. On September 26, 2003, Tomlinson signed a second declaration to oppose Brown’s insistence, during the deposition, that Tomlinson’s testimony was tainted by his having read the transcript of the prior6

VIII. Notice of Appeal and the Partial Settlement. Alfreda submitted a timely Notice of Appeal to this Board. Thereafter, the parties submitted a settlement agreement. The presiding ALJ, Thomas F. Gordon, requested that the Board grant him limited jurisdiction to entertain a settlement proposal. On July 30, 2007, the Board granted that motion. On November 28, 2007, Judge Gordon entered a Recommended Decision on Partial Settlement, Final Decision on Attorney Fees, which covered all issues, including accrued attorneys fees and costs, except the Youcktons’ and Vitalis’s share of the estate should the Final Decision be upheld. No opposition having been filed, on April 9, 2008, the Board entered an Order Adopting Recommended Decision and Approving Partial Settlement. Thereafter, the Board set a schedule for briefing by Appellant (Alfreda, represented by Brown) and the remaining Will opponents (the Youcktons, represented by family member Jessica Goddard).8 In her Opening Brief, Alfreda contends that Judge Stancampiano erred in ordering a de novo hearing and that this Board must reverse that conclusion (and the Final Decision) and reinstate Judge Hammett’s 2002 Order. Appellant characterizes Judge Hammett’s intentions in issuing his 2003 orders as administrative clean up in furtherance of a plan she imputes to him of reasserting his 2002 Order, which she presumes to have been final. She claims that Judge Hammett permitted the Tomlinson testimony only as “one single ‘loose end’.” Opening Brief, Aug. 1, 2008, at 3. She accuses Knodel of supplying Tomlinson with “materials” to influence his testimony, and thereby characterizes Judge Hammett’s assertion in his 2003 Order that he intended to consider anew the credibility of witness testimony as based only on those “shocking events” related to Tomlinson’s deposition. Id. at 3. Alfreda presents a list of “facts” she claims to be “undisputed and [which] should be treated as verities on appeal.” Id. at 6. One such “verity” is that Theresa was competent to make a will. Id. Alfreda contends that the IPJ was legally bound to deny the Petition for Rehearing and adopt the 2002 Order, because otherwise “all of the meticulous work of [Judge] Hammett was lost, including his extensive evaluations of the credibility of the witnesses and their candor.” Opening Brief at 15.9 She claims that the 2002 Order should “trump the concerns of credibility.” Id.

Though Vitalis has been served with all relevant documents, he has not participated in any of the proceedings before the ALJ, IPJ, or this Board. In fact, however, Appellant’s argument relates only to the IPJ’s decision to grant a hearing “de novo.” Opening Brief at 8-15. She does not actually argue that he erred in granting the Petition for Rehearing. 50 IBIA 2898

affirmation of the 2002 Order assumed by Appellant would not necessarily result from application of law to the record when the IPJ acquired it, we address below: (1) the test for testamentary capacity; (2) the record available at the time of the 2002 Order; (3) the 2002 Order’s construction of that record evidence; and (4) the subsequent changes in record information generated by Judge Hammett’s 2003 orders. (1) The Test. The “correct standard of proof for determining issues related to testamentary capacity is preponderance of the evidence.” Estate of Rose Medicine Elk, 39 IBIA 167, 171 (2003). In Estate of Adams, 39 IBIA at 33, we explained: The burden of proof as to testamentary incapacity in Indian probate proceedings is on those contesting the will. Estate of Leon Levi Harney, 16 IBIA 18, 20 (1987). To invalidate a will for lack of testamentary capacity, a will contestant must show that the testator did not know the natural object of her bounty, the extent of her property, or the desired distribution. Further, the condition must be shown to exist at the time of execution of the will. Estate of Fannie Pandoah Fisher Silver, 16 IBIA 26, 28 (1988); Estate of Samuel Tsoodle, 11 IBIA 163, 166 (1983). . . . See also Estate of Sallie Fawbush, 34 IBIA 254, 258 (2000). The “natural objects of [one’s] bounty” are the decedent’s “subsequent-born children.” Estate of Ronald Richard Saubel, 9 IBIA 94, 106 (1981). A “will that disinherits the natural object of the testator’s bounty should be scrutinized closely.” Id. at 105. “[T]he testator’s disinheritance of his heirs and blood relatives is not unnatural per se.” Estate of Joseph Red Eagle, 4 IBIA 52, 60 (1975). But, the testatrix had to know without prompting not only who were the natural objects of her bounty but also the nature and extent of the property of which she was about to dispose, and the consequences of the dispositions . . . . The requisite mental capacity which...

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