In re the Will of Louis Claremore Walker, 54 IBIA 095 (2011)

INTERIOR BOARD OF INDIAN APPEALS In re the Will of Louis Claremore Walker 54 IBIA 95 (10/13/2011) Related Board case: 43 IBIA 5

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 RE THE WILL OF LOUIS CLAREMORE WALKER

Order Affirming Decision (No. IBIA 09-074) and Dismissing Appeal (No. IBIA 09-080) Docket Nos. IBIA 09-074 09-080 October 13, 2011

Louis Claremore Walker (Decedent), Osage Indian, died in 2004 possessed of an Osage headright.1 Decedent wrote two wills, and a codicil to the first will. In an Amended Order Approving Will, dated June 15, 2009 (Amended Order), the Superintendent of the Osage Agency (Superintendent), Bureau of Indian Affairs (BIA), approved all three testamentary instruments. One of Decedent’s sons, Clifton Fred Walker (Appellant), appealed to the Board of Indian Appeals (Board) from the Superintendent’s decision to approve Decedent’s last will, executed in 1993 (Docket No. IBIA 09-074); Charles Lohah (Lohah), a cousin of Decedent, also filed an appeal challenging the earlier will and codicil (Docket No. IBIA 09-080), apparently in the belief that his challenge to those documents somehow protects his own rights. We affirm the Superintendent’s Amended Order with respect to Decedent’s 1993 will. We conclude, in response to Appellant’s arguments, that Appellant properly bore the burden of showing lack of testamentary capacity and did not1

1. Standard of Review We review questions of law and the sufficiency of the evidence de novo. Seminole Tribe of Florida v. Eastern Regional Director, 53 IBIA 195, 210 (2011). We will affirm the Regional Director’s decision if it is supported by the evidence. See Estate of Samuel Johnson (John) Aimsback, 45 IBIA 298, 303 (2007). Appellant bears the burden of showing error in the Superintendent’s decision, see In the Matter of the Will of Margaret L. Slankard, 40 IBIA 235, 235 (2005), and is charged with providing support for his arguments, see Estate of George Fishbird, 40 IBIA 167, 173 (2004). 2. The Superintendent Properly Allocated the Burden of Proof Appellant, citing In re Estate of Allen, 1998 OK Civ. App. 64, ¶ 4, 964 P.2d 922, 923, claims that the Special Attorney and Superintendent erred as a matter of law in placing the burden on him to prove Decedent’s lack of testamentary capacity without first requiring the will proponent to make a prima facie showing that he had the requisite capacity. We conclude otherwise because once the will was shown to be executed in accordance with Oklahoma law, the law presumes the testator to be competent, and the will challenger then bears the burden of rebutting the presumption.17 Under Oklahoma law as well as Department law, where a will is contested, the proponent of the will has the burden of making a prima facie case that the will is entitled to probate. In re Estate of Speers, 2008 OK 16, ¶ 9, 179 P.3d 1265, 1269; In re Free’s Estate, 1937 OK 708, 75 P.2d 476, 477; Estate of Margerate Arline Glenn, 50 IBIA 5, 27 (2009). That burden is to show that the will conformed to the statutory requirements, which in this case are set forth in 84 Okla. Stat. § 55(1)-(4), and that the testator was competent to make his will. Estate of Speers, 2008 OK 16, ¶ 9, 179 P.3d at 1269; 43 C.F.R. § 30.229(b)(2).17

through the 1993 will are in no way dependent upon disapproval of the 1986 will or the 1987 codicil. Consequently, for this additional reason, we would dismiss Lohah’s appeal. Conclusion Appellant has not met his burden of showing error in the Superintendent’s decision. Assuming that there was a dispute concerning the will proponents’ prima facie burden, Appellant waived any objection when he commenced his direct examination of the first witness, who in any event, established a prima facie case supporting the validity of the will. In addition, we conclude that the evidence in the record supports the Superintendent’s conclusion that Decedent possessed testamentary capacity at the time he executed his 1993 will. Finally, Appellant cites no support for his argument that the 1993 will should be disapproved because it omits him as one of Decedent’s intended devisees. Moreover, the evidence is insufficient to convince us that the will did not reflect Decedent’s ultimate wishes, especially since he had 11 years between the execution of his 1993 will and his death in which to make any changes. Given our disposition of Appellant’s appeal, we dismiss Lohah’s appeal as moot. Therefore, pursuant to the authority delegated to the Board of Indian Appeals by the Secretary of the Interior, 212 DM § 13.4(c) (Feb. 26, 2009),19 we affirm the Superintendent’s Amended Order Approving Will, dated June 15, 2009. I concur:

// original signed Debora G. Luther Administrative Judge

// original signed Steven K. Linscheid Chief Administrative Judge

At the time Appellant filed his appeal, this delegation to the Board was found in 212 DM § 13.5(c) (Mar. 1, 2005). 54 IBIA 107

[1]. As we explained in Pappin v. Eastern Oklahoma Regional Director, 50 IBIA 238, 238 n.1 (2009), [t]he term “Osage headright” means an individual right to share in the income from an Osage tribal mineral estate and, sometimes, in other tribal income as well. See, e.g., Act of Oct. 21, 1978, 92 Stat. 1660, 1663, 25 U.S.C. § 331 note (1978 Act), § 8(a); Redleaf v. Muskogee Area Director, 18 IBIA 268 n.1 (1990); Estate of Vivian M. Rogers v. Acting Muskogee Area Director, 14 IBIA 217 (1986). A brief history of Osage headrights is found at Smith v. Muskogee Area Director, 16 IBIA 153, 157-58 (1988). 54 IBIA 95

meet his burden. Given our disposition with respect to Decedent’s 1993 will, we dismiss Lohah’s appeal on mootness grounds, and thus do not reach the merits of the 1986 will and the codicil thereto.2 Background A. Events Up Through the Board’s Decision in Walker I3 According to ProTrac,4 Decedent was born on April 28, 1927, and died on April 8, 2004. At the time of his death, the Superintendent reported that Decedent’s sole trust asset was a 1.6666 Osage headright interest.5 Decedent was unmarried when he died.6 During his lifetime, he had two sons, Appellant and Robert Louis Walker (Robert). In 1986, Decedent executed a will in which he left a life estate in his Osage headright to his then-wife, Mary Louise Walker. The remainder of his estate, including the remainder interest in Decedent’s headright, was to go to his two sons in equal shares. In 1987, Decedent executed a codicil, in which he left $1.00 to Mary Louise, and devised his entire estate to his two sons in equal shares. In 1993, Decedent executed a second will in which he revoked all previous wills and codicils. In the will, Decedent identified his parents, and stated that he wished to be buried with them. He named his two sons, and left them his love but no property. Instead, he devised a life estate in one-third of his headright to Lila Gritts (Gritts). He devised the remainder of his estate, including the remainder interest in Decedent’s headright, in equal shares to his cousins Shirley Howell (Howell) and Hazel Lohah Harper (Harper). The will

2

The 1993 will revoked all prior wills and testamentary instruments, and therefore the Superintendent’s “approval” of the 1986 will and 1987 codicil was, in effect, an alternate decision to her approval of the 1993 will.

3

In re the Will of Louis Claremore Walker, 43 IBIA 5 (2006) (Walker I).

“ProTrac” is the electronic probate tracking system utilized by BIA and the Office of Hearings and Appeals to record information relating to Indian decedents and their heirs.

5

4

There was testimony to the effect that Decedent made inter vivos transfers of other trust interests to his two sons, including a one-half Osage headright interest to each son.

6

Decedent’s first will names Mary Louise Walker as his spouse. Decedent and Mary divorced prior to his death. Petition for Approval of [1993] Will, at 3. 54 IBIA 96

was signed by Decedent and witnessed by George Standing Bear and Stephen Lamirand. At the same time, Decedent and his two witnesses also signed a separate “Acknowledgment of Will Execution.” Helen Auschwitz, a notary public, signed the Acknowledgment as the “undersigned authority,” and affixed her seal to the document.7 Testimony confirms that both Harper and Robert died shortly after Decedent executed the 1993 will.8 No other wills or codicils have been produced. In the wake of Decedent’s death, two petitions were submitted to the Superintendent in 2004 for the approval of Decedent’s two wills and the codicil. Appellant challenged the 1993 will; apart from arguing that the 1993 will revoked all prior wills, there was no contest presented to the approval of the 1986 will or 1987 codicil. On March 22, 2005, the Superintendent approved a settlement of the will contests, which was executed only by Appellant and Howell. Under the terms of the settlement, one half of Decedent’s estate would be distributed pursuant to the 1987 codicil and one half would be distributed pursuant to the 1993 will. Neither Harper’s heirs nor Gritts signed the settlement agreement. Lohah, one of Harper’s heirs, appealed the Superintendent’s approval of the settlement to the Board on the grounds that he was not a party to the settlement agreement which, by its terms, would affect his rights. We agreed, vacated the Superintendent’s decision, and remanded the matter for further proceedings. Walker I. B. Events Subsequent to Walker I Following the Board’s remand, the Special Attorney9 held two hearings at which testimonial evidence was received concerning the testamentary capacity and intent of Decedent at the time that he executed the 1993 will. Testimony was first received on

7

The will complied with the formalities required of a self-proved will. See 84 Okla. Stat. § 55 (1991).

8

ProTrac shows that Harper died in 1994.

Pursuant to 25 C.F.R. §§ 17.1 and 17.3, the “special...