In re Guardianship and Conservatorship of Radda, 021921 IWSC, 19-2088

Docket Nº19-2088
Opinion JudgeWATERMAN, JUSTICE
Party NameIN THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP OF VERNON D. RADDA v. WASHINGTON STATE BANK, as Conservator for Vernon D. Radda, Appellee. KEVIN KIENE and BARBARA KIENE, Appellants,
AttorneySiobhan Briley (argued) of Pugh Hagan Prahm PLC, Coralville, for appellants. R. Ronald Pogge and Chandler M. Surrency (argued) of Hopkins & Huebner, P.C., Des Moines, for appellee Washington State Bank, as conservator for Verdon D. Radda.
Case DateFebruary 19, 2021
CourtSupreme Court of Iowa

IN THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP OF VERNON D. RADDA

KEVIN KIENE and BARBARA KIENE, Appellants,

v.

WASHINGTON STATE BANK, as Conservator for Vernon D. Radda, Appellee.

No. 19-2088

Supreme Court of Iowa

February 19, 2021

Submitted January 21, 2021

Appeal from the Iowa District Court for Washington County, Crystal S. Cronk, Judge.

Family members appeal ruling on declaratory judgment declining to adjudicate validity of wills while the ward is still alive, and requiring challengers to pay the conservator's attorney fees.

Siobhan Briley (argued) of Pugh Hagan Prahm PLC, Coralville, for appellants.

R. Ronald Pogge and Chandler M. Surrency (argued) of Hopkins & Huebner, P.C., Des Moines, for appellee Washington State Bank, as conservator for Verdon D. Radda.

OPINION

WATERMAN, JUSTICE

In this interlocutory appeal, we must decide whether a prospective heir can bring a declaratory judgment action under Iowa Code section 633.637 (2019) to determine the validity of wills before the testator dies. The ward executed wills in 1992 and 2015 while he was in a voluntary conservatorship and without any contemporaneous judicial determination of his testamentary capacity. The ward's sister and her husband brought this declaratory judgment action in 2019 to determine the validity of those wills. The conservator bank filed a motion to dismiss the action, arguing the petitioners' claims were not ripe and they lacked standing to challenge the wills while the testator remained alive. The district court denied the motion to dismiss, but in response to the conservator's motion to enlarge, then limited the scope of the action to a determination of the ward's present testamentary capacity and required the petitioners to pay the conservator's attorney fees. We granted the petitioners' application for interlocutory appeal and retained the case.

On our review, we hold that neither section 633.637 nor other provisions of the Probate Code permit a challenge to the validity of a will executed by a testator who is still living. This legislative choice to avoid predeath will contests makes sense, because the testator might execute a new will or the beneficiaries might predecease the testator, wills are confidential while the testator remains alive, and a postdeath challenge to a will in probate would include notice to all potentially affected parties with trial by jury. For the reasons elaborated below, we affirm the district court's ruling declining to adjudicate the validity of the ward's 1992 or 2015 wills. The district court erred, however, by allowing the action to proceed for a determination of the ward's present testamentary capacity and by requiring the petitioners to pay the conservator's legal fees. We reverse those rulings. No relevant fee-shifting statute applies, and the petitioners' claims were not frivolous.

I. Background Facts and Proceedings.

Vernon D. Radda, now age fifty-nine, suffers from schizoaffective disorder and severe autism spectrum disorder. He resides at the Pearl Valley care facility in Washington, Iowa. Until 1991, his mother, Betty Jean Radda, cared for him. In June of that year, a guardianship and conservatorship was set up for Betty Jean because she had suffered a stroke and was unable to care for herself. Vernon agreed to a separate guardianship and conservatorship established for him that has remained in place since 1991. His sister, Julie Zieser, was appointed his guardian, and Washington State Bank his conservator. After Julie died, her husband and son, Wayne and David Zieser, were appointed Vernon's coguardians.

In 2017, Radda told another sister, Barbara Kiene, that he had recently signed some documents. Barbara asked what documents he had signed, and whether it was a will. Radda responded that he did not know. Barbara and her husband, Kevin Kiene, investigated and discovered Radda had executed two wills, one in 1992 and another in 2015. The attorney who prepared the 1992 will filed an affidavit regarding compensation, stating that he met with Radda twice, including a conference to sign the will. Julie filed an accompanying "itemized time" list to support her compensation. Julie's list indicated that she took Radda to the attorney's office on the date the will was executed but does not include the initial conference. The 2015 will was also prepared by an attorney. The 1992 will was deposited with the court and was later replaced by the 2015 will. Neither will is found in the record on this appeal. Radda, as of the conservator's 2018 annual report, had assets including investments and real property with a total value exceeding $1.9 million.

On May 13, 2019, the Kienes filed a petition to commence this declaratory judgment action seeking a judicial determination of whether Radda had the testamentary capacity to execute either will, and if not, to declare the will null and void. On August 1, the conservator filed a preanswer motion to dismiss the petition, arguing that the claims were not ripe because Radda was still alive and probate had not been filed (and could not be filed). The conservator argued that the Kienes lacked standing to bring the action before Radda's death because they had no vested interest in his estate. Finally, the conservator requested the court sanction the Kienes under Iowa Rule of Civil Procedure 1.413 by ordering them to pay the conservator's attorney fees.

The Kienes resisted, arguing that they were not asking the court to probate the wills, but rather were seeking a judicial determination whether Radda had testamentary capacity when he executed them because, as they contended, both wills were presumptively invalid under Iowa Code section 633.637. The conservator replied, arguing that section 633.637 does not allow third parties to petition the court for a determination of testamentary capacity. The conservator also disputed the presumption of incompetency and reiterated that the issue was not ripe while Radda remained alive.

On September 6, the court denied the conservator's motion to dismiss, ruling that Radda's right to execute a will was "uncertain and appropriate for declaratory judgment." The conservator filed a motion to enlarge, asking the court to clarify: (1) whether the action involved a determination of Radda's present capacity to execute a will or past capacity to execute the 1992 or 2015 will; (2) whether the determination would bind all heirs or just the Kienes; and (3) whether Radda would be responsible for the costs of the action. The Kienes resisted, arguing that the petition itself clarified that the requested determination regarded Radda's capacity to execute the 2015 will and, if invalid, the 1992 will. They also argued that the court had to determine whether the will was valid before it determined who would be bound by the court's ruling. Finally, the Kienes contended that the parties should pay their own attorney fees.

On November 14, the conservator's counsel contacted counsel for the Kienes, stating that it had been "quite a while" since the motion to enlarge had been filed, and that when he inquired with the court administrator, he was told to submit a proposed order. Counsel attached a copy of the proposed order in his letter to the Kienes. This order, adopted by the court five days later, stated that the declaratory judgment would only involve a determination of Radda's present testamentary capacity, would bind Radda "as to his current ability" but not "affect his competency at other times," and that the Kienes would be responsible for the costs of the action including the conservator's attorney fees.

The Kienes filed an application for interlocutory appeal and motion to stay, arguing the ruling was outcome determinative. The conservator resisted. We granted the application and retained the appeal.

II. Standard of Review.

"We review a district court's ruling on a motion to dismiss for the correction of errors at law." Benskin, Inc. v. W. Bank, 952 N.W.2d 292, 298 (Iowa 2020) (quoting Shumate v. Drake Univ., 846 N.W.2d 503, 507 (Iowa 2014)). "We review the probate court's interpretation of statutory provisions for corrections of errors at law." In re Est. of Whalen, 827 N.W.2d 184, 187 (Iowa 2013).

The Kienes complain that the order we are reviewing was prepared by the conservator's counsel. We do not apply "a higher standard of review" when the court adopts verbatim a proposed ruling drafted by a prevailing litigant. NevadaCare, Inc. v. Dep't of Hum. Servs., 783 N.W.2d 459, 465 (Iowa 2010). But "we will scrutinize the record more closely and carefully when performing our appellate review." Id.1 The Kienes correctly state that we need not decide whether this is an action at law or in equity because we are reviewing the district court's legal conclusions that are not binding on the appellate court. See id. ("The trial court's 'legal conclusions and application of legal principles are not binding on the appellate court.'" (quoting EnviroGas, L.P. v. Cedar Rapids/Linn Cnty. Solid Waste Agency, 641 N.W.2d 776, 781 (Iowa 2002))).

We review de novo the district court's ruling allowing an award of attorney fees for defending litigation under the Probate Code. See In re Est. of Bockwoldt, 814 N.W.2d 215, 221-22 (Iowa 2012). We review de novo an award of attorney fees allowed under the court's equitable powers. Hockenberg Equip. Co. v. Hockenberg's Equip. & Supply Co. of Des Moines, 510 N.W.2d 153, 158 (Iowa 1993).

III. Analysis.

We first address whether the Probate Code, and specifically Iowa Code section 633.637, permits the Kienes to challenge the validity of Radda's wills while he remains alive. We hold that will contests must await the testator's death, and the Code does not allow this declaratory...

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