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

Docket Number:IBIA 10-081
 
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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....

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