In re Evensen
| Citation | 531 P.3d 969 |
| Docket Number | Supreme Court No. S-18378 |
| Decision Date | 30 June 2023 |
| Parties | In the MATTER OF the ESTATE OF Janice V. EVENSEN. Alaska Society for the Prevention of Cruelty To Animals, Appellant, v. Stephen Osterberg, Personal Representative of the Estate of Ragni Osterberg, Appellee. |
| Court | Alaska Supreme Court |
David G. Shaftel, Shaftel Delman, LLC, Anchorage, for Appellant.
Alexandra G. Foote-Jones, Durrell Law Group, P.C., Anchorage, for Appellee.
Before: Winfree, Chief Justice, Maassen, Carney, Borghesan, and Henderson, Justices.
A holographic will is one that does not meet the usual requirements of a valid will — i.e., that it be in writing, signed by the testator, and properly witnessed1 — but is nonetheless deemed sufficient to demonstrate the testator's intentions because "the signature and material portions of the document are in the testator's handwriting."2 In this appeal we address the argument that one or both of two will documents constitute a valid holographic will. Both of them are signed by the testator, but neither was properly witnessed.
We conclude that one will, first signed in 1994 and subsequently modified several times by the testator, meets the statutory requirements for a valid holographic will, and we therefore reverse the superior court's contrary conclusion. We also conclude, however, that the superior court correctly determined that a later will, signed in 2007, was presumptively revoked because the original document was never found, and that the later will's proponent failed to overcome the presumption. We affirm the court's rejection of the 2007 will. We remand the case for further proceedings consistent with this opinion.
Janice Evensen was born in 1939 to Vernon and Ragni Osterberg. She grew up in Washington and had one sibling, Stephen, eight years her junior. She married James Roan in 1956, and they had a daughter named Susan. After the couple's divorce a few years later, Janice and Susan moved in with Janice's parents, who supported them while Janice returned to school to learn to be a court reporter. In 1962 Janice and Susan moved to Alaska, where Janice again married and divorced. She worked as a court reporter and later as a secretary.
Janice suffered from bipolar disorder
and manic depression. According to Janice's brother Stephen, Janice declined to take medication for her mental illness, resolving to treat it instead with witchcraft. Stephen would later testify that Janice's relationships with other members of the family essentially ended after their mother Ragni's 1991 visit to Alaska. One night, as Stephen recalled it, Janice drove Ragni into the mountains to see "[i]nvisible people." Disturbed, Ragni flew home the next day. Janice abruptly broke off relations with her and asked other family members, including Stephen, to do the same. When they refused, Janice cut ties with them as well. Her relationship with her daughter, Susan, had been rocky while Susan was growing up, and when Susan later tried to mend it Janice rejected her efforts. Susan died in 2014.
Janice lived in the same neighborhood in Anchorage for much of her later life. According to her neighbor, David Kranich, the community found her "hard to deal with," but nevertheless several neighbors helped her out with various tasks as she got older.
In 2013 Janice spoke with the executive director of the Alaska Society for the Prevention of Cruelty to Animals (Alaska SPCA) about her will. She told him she did not want her relatives to be involved or notified. She followed up on the conversation with a letter, in which she wrote, "Enclosed is a copy of My Last Will and Testament that I've been meaning to update with more specific information." Accompanying the letter was a will document, the "2007 Will." The document is a scanned copy; the original was never found.
Darryl Waters, a general contractor and real estate investor, met Janice in 2018. She owned a rental property that "was rundown and in bad shape"; people were squatting in it and refusing to pay rent or leave. Waters agreed to help Janice resolve the problem, eventually buying the building himself. He and Janice became friends, and he helped her maintain her yard and occasionally brought her food.
At some point in 2019, Janice sent a letter to the Alaska Humane Society about her will. The record does not include a copy of her letter, but the Alaska Humane Society replied, thanking her for considering it while "finalizing [her] will."
In late 2019 Janice became very ill. Kranich visited her in the hospital and agreed to watch her cat and try to locate her next of kin. She died on November 20 at 80 years old. Ragni outlived her, dying in December 2021.
After Janice's death the Kranichs entered her home looking for information on her next of kin. In the living room they found a will file and boxes of documents, including news clippings about animals and how to make a will. In the will file was an original will document, the "1994 Will."
The Kranichs were appointed special administrators of Janice's estate. They petitioned for a hearing to identify her heirs, attaching a copy of the 1994 Will (though without one handwritten page). The Alaska SPCA filed its own petition, seeking formal probate. It attached the 2007 Will it had found in its records and asserted that it was "a valid holographic will." It later adjusted its position to rely on both the 1994 Will and the 2007 Will, arguing that the two documents together "form[ed] one valid holographic [w]ill."
The parties stipulated that the handwriting on both the 1994 Will and the 2007 Will belonged to Janice, and there is no dispute about what the handwriting says. The majority of the 1994 Will — the one the Kranichs found in Janice's house — is typewritten, although it has a number of handwritten alterations and additions. The document is not just a generic template; the typewritten portions are tailored to Janice's own circumstances. The first paragraph states:
I, Janice V. Evensen, a legal resident of the State of Alaska, being of sound and disposing mind and memory, of legal age, and free from duress and undue influence, do make, publish and declare this instrument as and for my Last Will and Testament, intending hereby to dispose of all my worldly estate and possessions, hereby revoking and annulling any and all wills and codicils at any time heretofore made by me.
What follows are eight substantive paragraphs, called "Items."
Item I dictates how Janice's bills and expenses should be paid; Item II provides for the care of her pets; Item III sets out her wishes regarding cremation; Item IV lists the organizations that should inherit her property, including the Alaska SPCA; Item V expressly disinherits her family members, "with the exception of $1.00 to make this item legal"; Item VI appoints an executor for her estate; Item VII authorizes her executors to take certain actions; and Item VIII provides for grammatical flexibility in interpretation. Janice signed the document and dated it November 25, 1994; however, the next page, which contains signature lines for three witnesses, is not completed.
Janice edited and added to the 1994 Will by hand. Under Item I she added her individual retirement account (IRA) to the list of resources that could be used to pay off her debts. Under Item IV she crossed out the typewritten list of beneficiaries3 and wrote "To be deleted." In Item V, which stated Janice's "express intention that [her] daughter, [her] mother, and [her] brother along with any other relatives" not benefit from her will, she inserted her daughter's name; at the end of the Item she added, 4 In Item VI Janice crossed out the typewritten list of executors5 and substituted the phrase "my beneficiaries, to share and share alike."
Janice added more handwritten text on the back of the will's third page, part of which was later crossed out. She wrote, "I have discussed this will with my friend, Joyce Congdon, ... and she understands my intentions if I don't get to actually writing it down or taping." She then wrote:
Janice signed this handwritten paragraph and dated it November 25, 1994. A separately initialed postscript read: "Joyce Congdon should get my computer, typewriter [and] other electronic equipment she wants for her friendship & trouble." But both this postscript and the paragraph's first sentence, also referring to Congdon, were later crossed out, with the deletion dated six years later — October 15, 2000.7
The 2007 Will is the copy found in the Alaska SPCA's files. The document's typewritten content is the same as that of the 1994 Will, but the handwritten amendments differ. Notably, in Item IV, this version has lines through the typewritten names of all beneficiaries except the Alaska SPCA. Janice signed the document and dated it August 6, 2007. On the third page, following her signature, she handwrote the following:
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