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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Estate of Joel W. Kottke v. Parker (7/28/00) sp-5299

In Re Estate of Joel W. Kottke v. Parker (7/28/00) sp-5299

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


In the Matter of the Estate of)
JOEL W. KOTTKE,               )
                              )
IRIS ENDERS and RALPH KOTTKE, )
                              )    Supreme Court No. S-8932
             Appellants,      )
                              )    Superior Court No.
     v.                       )    3AN-97-1124 PR
                              )
CONNIE PARKER, Personal       )    O P I N I O N
Representative of the Estate  )
of Joel W. Kottke,            )    [No. 5299 - July 28, 2000]
                              )
             Appellee.        )    
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                        Sen K. Tan, Judge.


          Appearances: Timothy R. Byrnes, Hughes
          Thorsness Powell Huddleston & Bauman LLC,
Anchorage, for Appellants.  C. James Mathis, Davis & Davis, P.C.,
Anchorage, for Appellee.


          Before:   Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  


          CARPENETI, Justice.


I.   INTRODUCTION
          Joel Kottke's deceased wife's adult children and his
sibling challenge his will, which left the vast majority of his
present estate to the woman who cared for him and with whom he
lived as he died of cancer.  They challenge the will under theories
of undue influence and insane delusions.  The superior court denied
both theories after a seven-day trial.  Because the superior court
did not err in its findings of fact or in its conclusions of law,
we affirm the judgment admitting the will to formal probate.
II.  FACTS AND PROCEEDINGS
          Joel Kottke married late and outlived his first wife,
Martha.  She already had adult children by a deceased first husband
when they married in 1958.  Joel treated her children much as he
would have if they were his own.   
          Throughout their lives together, Joel and Martha managed
to accumulate a modest estate.  In 1983 they had wills drawn up
contemporaneously, each leaving the entire estate to the surviving
spouse.  The residual estate was to pass one-half to Martha's
children and one-half to Joel's siblings upon the death of the
surviving spouse.   
          Martha died in 1991.  Martha's children, particularly
Iris Enders, divided some of the personal effects of their mother
immediately after her death.  This division of Martha's possessions
during the grieving period upset Joel.  Additionally, Joel later
concluded that the original copy of the 1983 will had disappeared
from a fire-proof box or safe he kept hidden in his basement.  Joel
was apparently wrong in his belief that the will was stolen because
it was later found in the house; it was probable that Iris did not
take it.  Despite these events and the suspicions connected with
them, Joel's relations with Martha's children remained fair for
some time. 
          In 1992 or 1993, following Martha's death, Joel started
spending more time with Connie Parker, a long-time acquaintance. 
By all accounts, Martha's children and Connie did not get along;
familial relations between Joel and Martha's children became
strained as Joel and Connie spent more time together. 
          Joel and Connie had been living together for three years 
by the time he was diagnosed with prostate cancer in September
1996.  The day after the diagnosis, Joel started pursuing a
reworking of his will with a visit to Connie's friend, attorney Max
Gruenberg.  Gruenberg referred Joel to his own estate planner,
attorney Trigg Davis.  Over the course of nine months, Joel
carefully reworked his will through the law offices of Davis &
Davis.   
          Connie was present at some of the will-planning sessions,
but her exact role was unclear.  She also performed administrative
functions of the will-making process, such as writing checks for
the legal fees and dropping off requested documents at the Davis &
Davis office.  She did not actively participate in substantive
aspects of the will planning or execution.  Iris and the other
beneficiaries under Joel's 1983 will were not aware that he was
changing his will in a manner that effectively cut them out.  Joel
executed a new will on June 10, 1997, in a ceremony at which Connie
was absent. 
          Joel was receiving medical treatment throughout this
period.  Connie was the primary care giver and was present for all
of his medical procedures.  She also provided his necessary home
health care.   
          Relations with Iris and Martha's other relatives
continued to sour.  In August 1997 Iris learned that Joel had
changed his will.  In September Iris reported to the State Division
of Senior Services that Joel was receiving substandard care from
Connie and that Connie was taking his money and had coerced him to
change his will.  The state investigation revealed no evidence to
support the allegations.  Joel died on October 1, 1997. 
          Connie was nominated as the personal representative under
the 1997 will and filed to have it formally admitted to probate. 
The 1997 will left Iris an interest in Joel's property in Kenai and
left the remaining estate to Connie under a trust system that was
effectively a life estate. 
          Iris and the other beneficiaries under the 1983 will
filed a petition to set aside the 1997 will on October 29, 1997. 
The primary theories they advanced were that Connie had an undue
influence on Joel in his waning days and that Joel was suffering
from insane delusions when he redrafted his will.  On September 24,
1998, the superior court made extensive findings of fact and
conclusions of law.  The court held that the facts were inadequate
to justify invalidating Joel's 1997 will under either the doctrine
of undue influence or the doctrine of insane delusions.  This
appeal followed.
III. DISCUSSION
     A.   Standard of Review
          This appeal involves issues of both law and fact.  In
reviewing questions of law, we "adopt the rule of law that is most
persuasive in light of precedent, reason, and policy." [Fn. 1]  We
will not set aside the trial court's findings of fact unless they
are clearly erroneous. [Fn. 2]  A finding of fact is clearly
erroneous if we are left with "a definite and firm conviction on
the entire record that a mistake has been made, although there may
be evidence to support the finding." [Fn. 3]  In making this
determination, we view the evidence in the light most favorable to
the prevailing party below. [Fn. 4]
     B.   Connie Parker Did Not Exert Influence on Joel Kottke
Sufficient to Justify Invalidating the Will.

          The superior court made extensive findings of fact after
a seven-day trial regarding whether Connie unduly influenced Joel
in the making of his 1997 will.  We have reviewed those findings
and detect no error.  In fact, the trial court made an exemplary
inquiry and specifically addressed each factual contention raised
by Iris. [Fn. 5]  The trial court's findings and conclusions on
this issue are more than sufficient and we will not disturb them
here.     C.   Joel Kottke Was Not Suffering from Insane Delusions
When He Drafted and Executed His Will.

          We have not previously addressed the question of insane
delusions in the context of a contested will.  Therefore, we apply
our independent judgment in adopting the most prudent rule of law
by considering precedent, reason, and policy. [Fn. 6]
          1.   The test for insane delusions incorporates the test
for testamentary capacity.
          
          A claim of insane delusions challenges the testamentary
capacity of the testator. [Fn. 7]  Therefore, a test for insane
delusions should incorporate the existing framework that applies to
testamentary capacity.
          We addressed the issue of testamentary capacity in
Paskvan v. Mesich. [Fn. 8]  The test asks whether the testator
understood the nature and extent of his or her property, the
natural or proper objects of his or her bounty, and the nature of
his or her testamentary act. [Fn. 9]  Any challenge under the
umbrella of testamentary capacity necessarily attacks one or more
of these elements; finding a deficiency on any one of the three
elements invalidates the will. [Fn. 10]
          A challenge of insane delusions does not differ from
other challenges to testamentary capacity.  Thus, a simple
extension of the testamentary capacity framework to account for
claims of insane delusions provides the best approach. [Fn. 11] 
First, there must be an insane delusion: "An insane delusion is a
belief which has absolutely no foundation in fact, and even slight
evidence which provides a basis for the belief negates the
existence of a delusion." [Fn. 12]  Beliefs based on fact but
derived from faulty logic or distorted by emotion will not support
a claim of insane delusions. [Fn. 13]  Thus, the belief must be
totally devoid of reason and must lack even a glimmer of a factual
basis.  Second, the will must be the product of an insane delusion. 
This requires that the will must be "the product or offspring of
[a] delusion" or it must be materially affected by a delusion. [Fn.
14]  Accordingly, the party contesting the will must show that but
for the delusion, the will would be materially different.  Thus,
the test is whether the testator suffered from an insane delusion
that gave rise to the will, or materially affected the will, by
rendering the testator incapable of understanding the extent of his
or her property, the natural or proper objects of his or her
bounty, or the nature of his or her testamentary act. [Fn. 15]
          2.   Joel Kottke was not suffering from insane delusions
that undermined his testamentary capacity.

          Iris challenges the will based on the theory that Joel
suffered from paranoid delusions that Iris rifled through his safe
and stole his original will, and that she took Martha's jewelry and
other belongings.  Iris maintains that these delusional beliefs
drove Joel to cut her and Joel's siblings out of the will.  Iris's
theory fails.  
          As the superior court found, there is evidence in the
record that the will was missing from the safe.  There was also
evidence that Iris had participated in dividing some of Martha's
property immediately after Martha's death.  Regardless of who took
the will or how it disappeared, and regardless of the circumstances
surrounding the division of property, these events gave Joel a
factual basis for his beliefs that Iris rifled through his safe and
improperly took Martha's property following her death.  The
superior court also found that the evidence regarding whether
Martha's jewelry was missing was inconclusive, but that Joel at
least had a factual basis for his belief that it was taken.  Thus,
Joel had factual bases for his beliefs.  This is sufficient to
refute both theories of insane delusions.  Since Joel had at least
some slight factual basis for his beliefs, they were not delusions
(even if they were incorrect).  Because appellants failed to show
that Joel suffered from insane delusions, and because appellants
raised no other challenge to Joel's testamentary capacity, the
superior court correctly rejected their challenge to the 1997 will.
V.   CONCLUSION
          The superior court properly found that the facts urged by
Iris did not support theories of undue influence or insane
delusions.  Because the superior court did not err in its findings
of fact or in its conclusions of law, we AFFIRM the judgment.

                       APPENDIX [Fn. 16]
     1) In determining the issue of undue influence, the court has
considered numerous factors.  
     2)  The court finds that Connie Parker and Joel Kottke were in
a confidential relationship.
     3) Connie Parker is not the sole beneficiary of Joel Kottke's
June 10, 1997 will.  Under the will, Connie Parker was to receive
Joel Kottke's interest in the Anchorage condominium she co-owned
with him, and Iris Enders was to receive Joel Kottke's interest in
a piece of Kenai Peninsula property.  Under the Trust provisions of
the will, Connie Parker also received what essentially amounts to
a life estate in Joel Kottke's Wasilla, Alaska property, with the
remainder given to two charities.
     4) As Trustee and Beneficiary of the Trust set up in Joel
Kottke's will, Connie Parker has broad powers, but the powers are
not unlimited.  There are also obligations.  The Court is not
willing to conclude that Connie Parker would break her fiduciary
duties as Trustee in order to use the trust estate.
     5) The court finds that Connie Parker received a life estate
in the Trust set up by the June 10, 1997 will, with the residual
going to charities.
     6) Connie Parker is not young, and the amount left over for
charities depends on how long she lives and her health conditions.
     7) The court finds that Connie Parker is not the principal
beneficiary, but that she is one of the principal beneficiaries of
the estate.
     8) There is no direct evidence that Connie Parker participated
in the will-making process.  She sat in on some, but not all,
meetings between Trigg Davis, Esq., the attorney who drafted Joel
Kottke's will, and Joel Kottke.  And she provided some information
to Attorney Davis relative to the Anchorage condominium she co-
owned with Mr. Kottke and relative to her social security benefits.
     9) However, Trigg Davis, Esq., testified that Connie Parker
did not participate substantively in the will preparation process. 
The thoughts as to what his will would provide were Joel Kottke's
alone, developed independently by him in collaboration with his
attorney, Trigg T. Davis.  The intent reflected in the June 10,
1997 will is Joel Kottke's intent.  He wanted to take care of
Connie Parker and the charities specified.  The choice of charities
came from Mr. Kottke, not Connie Parker.
     10) The court finds that Connie Parker did not participate
substantively in the will preparation process, and what little
involvement Connie Parker had in the process carries little, if
any, weight as to the existence of any undue influence. 
     11) Joel Kottke obtained independent legal advice in
connection with his June 10, 1997 will.  That independent advice
was thorough.  Joel Kottke considered his options, including the
option of leaving part of his property to charities, and part to
Connie Parker.
     12) It took Mr. Kottke a long time to make his will.  When he
was diagnosed with cancer he contacted an attorney about preparing
a new will.  Mr. Kottke did not sign any will until over six months
after his first meeting with his attorney about the will.  The
Court finds that there was no haste involved in Mr. Kottke's will-
making process.
     13) In January 1997, Joel Kottke wrote to his brother, Ralph,
and communicated his intent regarding his will.  Joel Kottke shared
his thoughts on Connie Parker needing to be taken care of, and his
beliefs that his property should not pass to his step-children.
There was not any secrecy involved in Joel Kottke's will-making
process. 
     14) The court finds that there was a change in attitude by
Joel Kottke towards others.  The court also finds reasons for that
change that have nothing to do with undue influence as follows:
     (a)  Relationships change over time, with relationships that
were important at one time, sometimes fading.  Relationships need
to be nurtured.
     (b)  Joel Kottke had a relationship with his siblings, then
time and distance came into play.  Joel Kottke met with his
siblings a total of about a half dozen times in the 1990s.
     (c)  Joel Kottke and Martha Kottke had a wonderful
relationship and a wonderful life.  When Martha Kottke was at the
center of Joel Kottke's life, her family also took center stage. 
After Martha Kottke's death, the significance of the relationship
between Joel Kottke and Martha Kottke's family diminished.  The
relationships faded, and former bonds were weakened and stretched.
     (d)  Then Joel Kottke got together with Connie Parker.  Their
relationship started in 1992 to 1993, with a period of courtship,
and the relationship developed from there.  Joel Kottke and Connie
Parker shared common interests and they developed a close, tight,
intimate relationship with each other.
     15) Based on the testimony presented at trial, the court finds
that Connie Parker took care of Joel Kottke in the last months of
his life, and that in doing so, she did a good job.  This finding
is based on the testimony of third-party observers, including
Sharon Lind-Charron, Hannah Smith, Dr. Wrigley, and Dr. Webb.
     16) The court finds that there was no indication of any
physical abuse of Joel Kottke by Connie Parker.
     17) Connie Parker was the main and primary person who gave
care and comfort to Joel Kottke in the last months of his life. 
Joel Kottke and Connie Parker shared a life.  They were not
married, but they were significant others to each other.  They were
intimately involved in each other's lives.
     18) As to the relationship between Martha Kottke's family and
Connie Parker, it is clear that:
     (a)  The family was involved in Joel Kottke's life.  However,
they never took to Connie Parker, based largely on the differences
between Martha Kottke and Connie Parker.  The real crux is the
alienation of affection in the relationship between Connie Parker
and Martha Kottke's family.  Joel Kottke was right in the middle of
things.
     (b)  The Enders family did not accept Connie Parker, and there
is some testimony that Martha Kottke did not like Connie Parker.
     (c)  The Enders family was outspoken in its animosity towards
Connie Parker as early as 1993, with the most favorable testimony
from the Enders family being that Connie Parker was "tolerable."
     (d)  Some of the worst words in the case were spoken by Greg
          Enders in his testimony, where he described Connie Parker
          as a "decrepit old woman."
     (e)  Connie Parker likes to express ideas, she is chatty, and
          she can be loud.
     19) The court also finds that Connie Parker, in response to
the Enders' feelings towards her, had some distaste for the Enders
family.  She therefore put up some obstacles to them.
     20) The court finds that there was a change in Joel Kottke's
attitudes towards others, but that it was an understandable change
since his significant other was in a feud with other family
members.
     21) The family feud culminated in the events of August 1997. 
Until August 1997, Martha Kottke's family's assumption was that
Joel Kottke's original will was in existence and in full force. 
This was a reasonable assumption.  When Iris Enders found out that
Joel Kottke had changed his will, she laid claim to certain
property.  On August 3, 1997, she "set about to collect items that
she thought were her mother's."  Iris Enders felt some antagonism,
but she failed to appreciate Joel Kottke's point of view.  Joel
Kottke was dying, but he refused to believe he was dying, as of
August 1997.
     22) Implicit in Iris Enders' attempts to collect property in
August 1997 was the thought that Joel Kottke was going to die, and
die soon.
     23) The court finds that Robert Dixon's testimony was key. 
Mr. Dixon testified that Mr. Kottke did not understand and did not
like Iris Enders' attempts to collect property.  The August 1997
incident evidences a failing relationship.
     24) The court further finds that even at the time of Joel
Kottke's death, there was a dispute as to who was and was not
family, rather than an acceptance that Joel Kottke had many
families.
     25) The court finds that there was a change in Joel Kottke's
plan of disposing of his property.  That is, his June 10, 1997 will
provides for a different disposition than his 1983 will.
     26) The court finds that the gifts made in Joel Kottke's June
10, 1997 will are not unnatural or unjust.  Petitioners believe
they are entitled to some of Joel Kottke's estate, and they have
filed an Irrevocable Representation by Petitioners, in which they
would purport to grant Connie Parker the condominium, a car
transferred before Joel Kottke's death, and bank accounts.  But
under petitioner's Irrevocable Representation, Connie Parker would
have no interest in Joel Kottke's Wasilla house.
     27) The court appreciates Martha's family's position. 
However, Martha Kottke left everything to Joel Kottke in her 1983
will.  In his June 1997 will he left essentially a life estate to
Connie Parker, along with his interest in the condominium.  The
court finds that such a disposition is not unnatural or unjust.
     28) Moreover, the court finds that Joel Kottke's gift of the
residual to charity is not unjust or unnatural.
     29) The court further finds that Joel Kottke's omission of
siblings and step-children from his will is not unnatural or
unjust.  After careful deliberation, Joel Kottke's decision was
that his siblings did not need his money, and he decided he wanted
to use his money in a different way.  Given the court's finding
that Joel Kottke was in the middle of a strained relationship
between Martha Kottke's family and his chosen companion, Connie
Parker, it was not unnatural or unjust for him to make the choices
he did with respect to his step-children.
     30) The court finds that Joel Kottke was a quiet man who did
not like confrontation, and would step away from it when he could.
     31) However, the court also finds that although Mr. Kottke was
a quiet man, he was an independent man, with his own ideas, his own
thoughts, and his own lifestyle.  He lived the life he wanted to
live.
     32) As evidence of this, Mr. Kottke chose charities that were
not in the mainstream. Such choice reflects a person with strong
beliefs.
     33) Mr. Kottke was competent.  All third party witnesses in
this case testified that he was possessed of his faculties.  The
court finds it particularly telling that Mr. Kottke had a sense of
humor right up to the end of his life.
     34) Mr. Kottke was not a vulnerable man.  Even at the end of
his life, with a lot of pressure being applied to him to do
something different, he did not yield to that pressure.  Martha
Kottke's family questioned his competency, and he resisted it.
     35) Joel Kottke was not isolated.  During the period in
dispute in this case, he had many friends, such as Robert Dixon,
Roxanne Olson, and Linda Plettner.  He had a strong support
network.
     36) In making the decisions he made for his property, Mr.
Kottke engaged in a deliberate process, reviewed and looked at
competing interests carefully, and made the decisions he did.  He
wanted to take care of Connie Parker, and he wanted to leave a
legacy.





                            FOOTNOTES


Footnote 1:

     Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).


Footnote 2:

     Alaska R. Civ. P. 52(a); see also Paskvan v. Mesich, 455 P.2d
229, 232 (Alaska 1969) (stating that under Civil Rule 52(a), "we
may not set aside . . . findings unless we determine them to be
clearly erroneous" (footnote omitted)).


Footnote 3:

     Mathis v. Meyeres, 574 P.2d 447, 449 (Alaska 1978) (citations
and internal quotation marks omitted).


Footnote 4:

     See id.


Footnote 5:

     Judge Tan's findings of fact relevant to this issue are
appended to this opinion.


Footnote 6:

     See Guin, 591 P.2d at 1284 n.6.


Footnote 7:

     See generally In re Estate of Kesler, 702 P.2d 86, 88 (Utah
1985) (suggesting that insane delusions can result in testamentary
incapacity); 79 Am. Jur. 2d Wills sec. 87, at 339-40 (1975) ("A
will
which is the product of an insane delusion . . . is invalid for
want of testamentary capacity . . . .") (footnote omitted).


Footnote 8:

     455 P.2d 229, 234 (Alaska 1969).


Footnote 9:

     See id. (citation omitted).


Footnote 10:

     See Estate of Kesler, 702 P.2d at 88.


Footnote 11:

     This was precisely the approach used by the Utah Supreme 
Court in Estate of Kesler, 702 P.2d at 88.  See also In re Estate
of Meagher, 375 P.2d 148, 149 (Wash. 1962); 79 Am. Jur. 2d Willssec.
88, at 341-42 (1975).


Footnote 12:

     Dillon v. Phillips, 756 P.2d 1278, 1279 (Or. App. 1988)
(citation omitted).


Footnote 13:

     See id. at 1279; Estate of Meagher, 375 P.2d at 149.


Footnote 14:

     79 Am. Jur. 2d Wills sec. 88, at 341; see also Estate of
Kesler,
702 P.2d at 88-89 ("[T]here was substantial evidence adduced at
trial . . . to support the jury verdict that Mrs. Kesler suffered
from insane delusions that materially affected the contested will
and trust, and thus was mentally incompetent at the time she made
the will and trust.").


Footnote 15:

     See Estate of Kesler, 702 P.2d at 88.


Footnote 16:

     This Appendix consists of the findings of fact made by the
superior court relevant to the issue of undue influence and in
response to arguments raised by Iris Enders on that issue.  The
findings have been edited to conform to the appellate court rules
and for technical form, but not for substantive content.