Pawnee, Jesse, Estate of, 15 IBIA 64 (1986)

Appeal from an order after remand issued by Administrative Law Judge William E. Hammett in Indian Probate No. IP TU 181P 82.

Affirmed and remanded.

  1. Indian Probate: Wills: Undue Influence

    When the evidence shows that the principal beneficiary under an Indian will was in a confidential relationship with the testator and actively participated in the preparation of the will, a rebuttable presumption of undue influence is raised, and the burden of rebutting the presumption is on the will proponent.

  2. Indian Probate: Wills: Undue Influence

    In order to rebut the presumption of undue influence arising from the existence of a special confidential relationship between an Indian testator and the principal beneficiary under the will, the will proponent must show that the effects of the will were thoroughly discussed with the testator by an objective, independent person.

    The estate of Jesse Pawnee (decedent) is before the Board of Indian Appeals (Board) for the second time. On June 11, 1984, the Board vacated a July 15, 1983, order denying rehearing entered in this estate by Administrative Law Judge William E. Hammett, and remanded the case for further consideration. Estate of Jesse Pawnee, 12 IBIA 277 (1984). By order dated October 8, 1985, Judge Hammett reversed his December 17, 1982, order approving decedent's February 11, 1982, will. For the reasons discussed below, the Board affirms that order, and remands the case to Administrative Law Judge Sam E. Taylor for consideration of decedent's prior February 10, 1962, will.

    IBIA 86-15

    Background

    The relevant factual and procedural history of this case was set forth fully in the Board's initial decision. 12 IBIA at 277-79. Only a brief recitation of that background will be given here.

    Decedent, an unallotted Cheyenne Indian, was born January 9, 1899, and died in San Mateo, California, on February 11, 1982. Decedent had no surviving spouse or children. Jean Ann Pawnee Vaitai (present appellant) and Maggie Bullcoming Domke (present appellee) are decedent's nieces. 1/

    Decedent spent all but the last few weeks of his life in Oklahoma. He had a one-room house on the same lot as appellee's house. In the winter months he frequently moved in with appellee because her house had a better heating system. Decedent and appellee, who were close to each other in age, were both in ill health and provided each other with financial and emotional support.

    Appellant is considerably younger than decedent and appellee. She was born in Oklahoma, but moved away at age 16, when she married. Except for short visits, she never returned to Oklahoma.

    Appellant was in Oklahoma to conduct some business in February 1982. She found decedent in need of medical attention and took him to the hospital. Upon his release, decedent was advised to enter a nursing home. He was opposed to this idea, but agreed to accompany appellant to her home in California. Appellant and decedent traveled to California via Nebraska, where they stopped to see appellant's children. Shortly after arriving in California, decedent was admitted to Mills Memorial Hospital after being treated in the emergency room. He died the next day.

    At some time after he was admitted to the hospital, decedent apparently asked about doing something so that his bills could be paid. Appellant's husband obtained the name of an attorney, who prepared a standard form power-of-attorney from decedent to appellant. The power-of-attorney was signed at 2:26 p.m. on February 11, 1982. 2/ After learning of the terminal nature of decedent's condition and in the belief that appellant was decedent's sole heir, the attorney advised appellant that the power-of-attorney would expire ___________________________________ 1/ Because of Judge Hammett's decision on remand, the appellate roles of Jean Ann Vaitai and Maggie Domke have been reversed.

    Appellant disputes the Board's statement of the relationship between decedent and appellee. Even if there were no blood relationship between decedent and appellee, this fact would not avail appellant, because there is no rule in Indian law requiring a testator to leave property only to blood relatives. Nevertheless, because of the Board's disposition of this case, any previous statements concerning decedent's family relationships will be subject to modification on remand, if necessary.

    2/ The time of execution of the power-of-attorney is so precise because of the entry in the notary public's activity log.

    IBIA 86-15

    upon decedent's death, and that they should probably prepare a will naming her as sole beneficiary. A will was subsequently prepared and executed on February 11, 1982, only a few hours before decedent's death.

    The hearing in this estate was complicated because the witnesses to, and the beneficiary under, the 1982 will resided in California, while appellee, the will contestant, was essentially confined to bed in Oklahoma. Consequently, Judge Hammett enlisted the assistance of Judge Taylor, who is stationed in Oklahoma, to take appellee's testimony and other evidence. After considering the testimony presented in California and Oklahoma, Judge Hammett initially approved the will by order dated December 17, 1982.

    In response to appellee's request for rehearing, Judge Hammett issued a show-cause order to appellant. Believing that appellee had received a copy of appellant's response, but had declined to reply, Judge Hammett denied rehearing. On appeal, appellee denied receiving a copy of appellant's reply to the show-cause order. Because appellant could not show proof of service, the Board vacated Judge Hammett's July 15, 1983, order denying rehearing, and remanded the case so appellee could respond.

    Judge Hammett correctly understood the Board's remand order as reinvesting him with full authority to rehear the estate. He properly considered appellee's response and reviewed the entire record. As a result of this further consideration, the Judge determined that the will should not have been approved. Accordingly, by order dated October 8, 1985, Judge Hammett disapproved decedent's 1982 will.

    The Board received appellant's appeal from this order on November 25, 1985. Both appellant and appellee filed briefs on appeal.

    Discussion and Conclusions

    On appeal, appellant raises two primary arguments: (1) in determining decedent's testamentary capacity, the Judge placed too much reliance on the testimony of appellee's medical expert witness who did not attend decedent during his last illness; and (2) the law concerning...

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