In re Estate of Whalen

• Decision Date: 08 March 2013
• Docket Number: No. 12–1927.,12–1927.
• Citation: In re Estate of Whalen, 827 N.W.2d 184 (Iowa 2013)
• Parties: In the Matter of the ESTATE OF Mary Florence WHALEN, Deceased. Michael Whalen, Appellant.
• Court: Iowa Supreme Court

827 N.W.2d 184

In the Matter of the ESTATE OF Mary Florence WHALEN, Deceased. Michael Whalen, Appellant.

No. 12–1927.

Supreme Court of Iowa.

Feb. 22, 2013.

Rehearing Denied March 8, 2013.

Chad D. Brakhahn and Larry G. Gutz of Simmons Perrine Moyer Bergman, PLC, Cedar Rapids, for appellant (until withdrawal).

Michael J. Whalen, Anamosa, pro se.

Brad J. Brady, Robert J. O'Shea, and Ann E. Brown–Graff of Brady & O'Shea PC, Cedar Rapids, for appellee.

WATERMAN, Justice.

This expedited appeal requires our court to decide whether the Final Disposition Act, Iowa Code chapter 144C (2011), allows the surviving spouse to disregard his wife's written instructions on where to bury her remains. The decedent's last will and testament and her correspondence with family members included specific directions to bury her in a plot she had already purchased at a cemetery in Billings, Montana. Her surviving husband instead seeks to bury her in Iowa and claims the sole right to decide because decedent had never executed a declaration under chapter 144C designating anyone else to make that decision. The probate court granted a resisted motion by the executor of the estate (decedent's sister) compelling burial in Montana. We reverse because the operative statutory language, as enacted in 2008, requires enforcement of the surviving spouse's decision. We may not rewrite the statute to second-guess the policy choices codified by our legislature.

I. Background Facts and Proceedings.

Mary Florence Whalen (Flo) died on June 9, 2012, in Anamosa, Iowa, survived by her husband, Michael Whalen, and ten adult children. Flo had lawfully executed her last will and testament in New Mexico on October 29, 2009, in front of two witnesses whose signatures were notarized. Flo's will disposed of all of her property, named her sister, Mary Ann McCluskey, as her personal representative and executor, and provided instructions for the disposition of her body as follows:

I direct that my bodily remains be buried in a moderately priced wooden coffin in Grave 1, Lot 3302, Section A, in the Holy Cross Cemetery, Billings, Montana. I further direct that my funeral mass be celebrated at Saint Patrick's Co–Cathedral in Billings, Montana, no matter where I die.

Flo had purchased that burial plot three years earlier. Flo repeatedly had expressed her desire to be buried in Billings in conversations and correspondence with her children, sister, and husband, and in her previous wills.

Flo and Michael were married in 1952 and moved from Anamosa, Iowa, to Billings, Montana, in 1953. From 1953 until 1996, Flo and Michael lived together in Billings and raised ten children. In 1996, Michael and Flo separated, and Michael moved back to Anamosa, Iowa. Michael and Flo never divorced or legally separated.¹ Flo remained in Billings until 2004, when she moved to Santa Fe, New Mexico, where one of her daughters resided. Flo lived alone in a condominium in Santa Fe until December 2011 when she visited Iowa and became so ill she was unable to leave. Flo lived with Michael at his house in Anamosa until her death six months later. During that time, she registered to vote in Iowa.

Two months before her death, on April 10, 2012, Flo wrote a letter in the presence of her son, Jerry Whalen, reiterating her wish to be buried in Billings. In this letter to Michael, all ten of her children, and her sister, Flo wrote:

I am writing this letter to all of you to let you know what I wish done with my earthly remains after my soul has gone hopefully upwards.

I wish to be buried in Billings, Montana which I considered my home when on earth. I spent 51 years of my life in Billings and with the help of my dear husband, raised 10 beautiful children there. I bought a plot many years ago in Holy Cross Cemetery in Billings, in which to be buried and have paid for the opening and closing of my grave. I also have bought a casket made by the [Trappist] Monks in Peosta, Iowa, and they will ship it wherever they are asked at the time they are informed to do so.

I know that you all love me and want to honor my final requests, and that is why I am writing this to you. I just want all of you to know that this is very important to me and because you all love and respect me I know that you will see that my wishes are carried out.

At Flo's request, Jerry sent the letter to Flo's sister, Mary Ann, who was also her personal representative. On May 26, Mary Ann mailed a copy of this letter to each of Flo's ten children and to Flo's husband, Michael.

Mary Ann later spoke with John Scranton, the funeral director at the Goettsch Funeral Home in Anamosa, at Flo's request. Mary Ann provided him with Flo's April 2012 letter. Scranton was unaware of chapter 144C, which would have allowed Flo to designate someone who would have the right to control the disposition of Flo's remains. Scranton erroneously informed Mary Ann that Flo's husband, Michael, was the only person who could decide where Flo should be buried. Flo and her daughter, Annie–Laurie, went to the Goettsch Funeral Home on May 31 to speak with Scranton. Scranton again mistakenly stated that Michael would have the final say regarding the burial of her remains upon her death and that there was nothing Flo could do to change that.

After Flo's death, Mary Ann asked Scranton to have Flo's remains transported to Billings, Montana, in accordance with Flo's express wishes. Michael, however, directed that Flo's remains be buried in Anamosa. Scranton agreed to keep Flo's remains at the Goettsch Funeral Home until a final court order resolves where Flo's body is to be buried.

The Jones County probate court admitted Flo's will to probate and appointed Mary Ann to act as the executor of the estate on June 22. The same day, Mary Ann moved for an order directing that Flo's remains be transported to Billings, Montana, as provided in her will. Mary Ann argued that Iowa Code section 144C.5 is inoperative because Flo had stated her “wishes regarding the method and location of burial and [chapter 144C] does not displace the common law that individuals have the right to direct where [their] remains will be buried.” Consequently, Mary Ann argued that because section 144C.5 is inoperative, Michael, as Flo's surviving spouse, has no authority to make decisions regarding the disposition of Flo's remains. Michael opposed Mary Ann's motion and requested a ruling that he, as Flo's surviving spouse, has the right to control the final disposition of Flo's remains under the plain language of section 144C.5.

The probate court held an evidentiary hearing on July 30 during which four witnesses testified. On October 30, the probate court ruled against Michael:

[T]he Court concludes the legislature's use of “devolves upon” in § 144C.5 was intended for a decision regarding disposition of remains to be made by an individual delineated in § 144C.5 only if a decision had not been made by a decedent. In this case, all evidence convincinglyestablishes that Mary Florence Whalen made the decision to have her remains buried in Billings, Montana, and she did not intend for anyone else to make that decision for her. Her intent could not be clearer. The Court's statutory interpretation, when combined with the Court's duty to see that Mary Florence Whalen's wishes are carried out as to her final resting place and the Court's deference to the testator's wishes regarding the method and location of burial, supports a conclusion that the Executor's Motion should be granted.

On the basis of this analysis, the probate court ordered “Mary Florence Whalen's remains ... be transported to and buried in Billings, Montana, in accordance with the directions given in her Last Will and Testament.”

Michael appealed. We retained the appeal and granted expedited review.

II. Scope of Review.

Probate actions are tried in equity, except in specific delineated circumstances not applicable here. SeeIowa Code § 633.33 (listing matters that are to be tried as law actions and noting that “all other matters triable in probate shall be tried by the probate court as a proceeding in equity”). Cases tried in equity are reviewed de novo. In re Estate of Myers, 825 N.W.2d 1, 4 (Iowa 2012) (citing Iowa R.App. P. 6.907). We give weight to the probate court's factual findings, particularly on the credibility of witnesses, but are not bound by them. In re Trust No. T–1 of Trimble, 826 N.W.2d 474, 482 (Iowa 2013). We review the probate court's interpretation of statutory provisions for corrections of errors at law. In re Estate of Myers, 825 N.W.2d at 3–4.

III. Analysis.

The dispute in this case turns on whether Iowa's Final Disposition Act allows a surviving spouse to disregard the decedent's will directing disposition of her bodily remains. This case presents our first opportunity to interpret and apply this statute enacted in 2008. The executor argues, and the probate court agreed, that the Final Disposition Act leaves intact a person's common law right to decide where to be buried, with the statute to be applied only when a decedent failed to leave instructions regarding burial. Alternatively, the executor argues that, even if the statute preempts the common law, Flo's will effectively serves as a declaration under the Act designating her sister to decide her burial location. Michael disagrees. He contends the general assembly intended the Final Disposition Act to comprehensively govern who has the right to control the final disposition of a decedent's remains and to supersede any common law right of the decedent to control that decision. We conclude Michael's interpretation is correct and that Flo's will does not comply with the statutory requirements for a declaration.

We begin our analysis by examining the operative language and history of the statutory enactment. We then consider the executor's argument that Flo's will satisfies the statutory requirements for a declaration under the Final Disposition Act.

A. Iowa's Final...