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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Enders v. Parker (3/21/2003) sp-5675

Enders v. Parker (3/21/2003) sp-5675

     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,
     e-mail corrections@appellate.courts.state.ak.us.

            THE SUPREME COURT OF THE STATE OF ALASKA

IRIS ENDERS,                                 )
                              )    Supreme Court No. S-9341/9391
                                      Appellant,            )
                              )    Superior Court No.
     v.                       )    3AN-97-1124 P
                              )
CONNIE PARKER, Personal                  )    O P I N I O N  O  N
                                   R E H E A R I N G
Representative of the Estate of         )
JOEL W. KOTTKE,                          )     [No. 5675 -  March
                              21, 2003]
                              )
                                      Appellee.             )
_______________________________    )
                              )
CONNIE PARKER, Personal            )
Representative of the Estate of         )
JOEL W. KOTTKE,                         )
                              )
                                      Cross-Appellant,      )
                              )
     v.                                           )
                              )
IRIS ENDERS and RALPH              )
KOTTKE,                                           )
                              )
                                      Cross-Appellees.      )
_______________________________    )
                    
          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    Appellant/Cross-Appellee
          Enders.   C.  James Mathis,  Davis  &  Davis,
          P.C.,    Anchorage,    for    Appellee/Cross-
          Appellant.
          Before:     Fabe,  Chief  Justice,  Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          CARPENETI, Justice.
           BRYNER, Justice, with whom FABE, Chief Justice, joins,
dissenting.

I.   INTRODUCTION1

           Iris  Enders  unsuccessfully challenged the  admission

into  probate  of  Joel  Kottke's  1997  will,  which  named  his

companion  Connie  Parker  as  personal  representative,  on  the

grounds  of  undue influence and insane delusions.  We previously

upheld the superior court's rejection of that challenge.

           Iris Enders now appeals the superior court's denial of

her  AS 13.16.435 claim for costs and attorney's fees arising out

of  her  unsuccessful  prosecution of the will  contest.   Connie

Parker  cross-appeals the superior court's refusal to  award  her

attorney's  fees  and costs under Alaska Civil  Rules  82(b)  and

79(b).   Because  AS 13.16.435 does not require that  a  personal

representative  or  nominated personal  representative's  actions

benefit the estate before the personal representative can recover

expenses,  we vacate the superior court's denial of  Enders's  AS

13.16.435  claim.   Because  the  superior  court  did  not  make

specific  findings  as  to  whether Enders  prosecuted  the  will

contest  in good faith, we remand this case for specific findings

on  this issue.  Because the attorney's fees and costs provisions

of  Civil  Rules  82(b)  and 79(b) are  inapplicable  to  probate

proceedings,  we affirm the superior court's denial  of  Parker's

motion seeking attorney's fees and costs under these rules.

II.  FACTS AND PROCEEDINGS

A.             Facts

           Joel  Kottke  executed a will in 1983, nominating  his

stepdaughter  Iris  Enders as successor to  his  wife  Martha  as

personal  representative and leaving fifty percent of his  estate

to  his  siblings and fifty percent to Martha's children.   After

Martha's  death in 1991, Kottke entered into a relationship  with

Connie  Parker.  Parker lived with Kottke and cared for him  when

he was diagnosed with cancer.

           In  June  1997, four months before his  death,  Kottke

executed  a  new will disinheriting his siblings and stepchildren

in  favor  of Parker.2  The 1997 will nominated Connie Parker  as

Kottke's  personal  representative.   After  Kottke's  death   in

October    1997,   Parker   obtained   appointment   as   special

administrator  and sought to probate the 1997 will.   Enders  and

Joel's  brother Ralph Kottke then filed a petition to  set  aside

the 1997 will based on the theories of undue influence and insane

delusions.

           After  a  seven-day evidentiary hearing in July  1998,

Superior  Court  Judge  Sen  K. Tan  upheld  the  1997  will  and

appointed Parker as Kottke's personal representative.  Enders and

Ralph  Kottke  appealed to this court.  We affirmed the  superior

court's thoughtful and thorough decision.3

B.             Proceedings

           Several  weeks  after the evidentiary hearing,  Enders

served  Parker with a claim for administrative expenses  incurred

in  the  litigation of the will contest pursuant to AS 13.16.435.

Enders's   claim  itemized  expenses  of  $32,987.07;   a   later

supplement  itemized further expenses of $14,337.71.  Parker  did

not formally respond to this claim.

           On  September  21, 1998 Enders filed  a  petition  for

allowance  of  her  AS 13.16.435 claim with the  superior  court.

Parker  opposed  the  petition  and  also  moved  for  costs  and

attorney's fees under Civil Rules 79 and 82.  The superior  court

denied  Enders's petition on the grounds that her claim  did  not

benefit  Kottke's estate.  The court also denied Parker's motion,

ruling  that  it would not award fees and costs under  the  civil

rules  because there is a specific statutory scheme for  awarding

costs and fees for will contests.

           Enders  appeals  the denial of her  petition.   Parker

cross-appeals  the denial of her motion for costs and  attorney's

fees.

III. STANDARD OF REVIEW

           Enders  challenges the superior court's interpretation

of   AS   13.16.435;  Parker  challenges  the  superior   court's

interpretation  of  Civil Rules 79 and 82.   We  review  a  trial

court's  interpretation of statutes and  court  rules  under  the

independent judgment standard.4  When construing the meaning of a

statute  under  this standard, we "look to `the  meaning  of  the

language,  the  legislative  history,  and  the  purpose  of  the

statute' "5 and "adopt the rule of law that is most persuasive in

light of precedent, reason, and policy."6

IV.  DISCUSSION

A.             Alaska Statute 13.16.435 Governs Recovery from the
          Estate  of  Expenses Incurred in Estate Litigation;  It
          Does  Not  Impose  a  Requirement that  the  Litigation
          Benefit the Estate.
          
1.                         Alaska  Statute  13.16.435  does   not
               contain a benefit-to-the-estate requirement.
               
           After considering "whether the actions of the personal

representative benefitted the estate," the superior court  denied

Enders's claim on the grounds that her "conduct fails to meet the

requirement  that a personal representative must act  to  benefit

the  estate."  But AS 13.16.435 contains no benefit-to-the-estate

requirement.

           We  have  not  yet  interpreted  AS  13.16.435.   When

interpreting  a  statute, we look to its language  "construed  in

light of the purpose of its enactment."7  If the language of  the

statute  is  unambiguous and expresses the legislature's  intent,

and  if  no ambiguity is revealed by its legislative history,  we

will  not modify or extend the statute by judicial construction.8

"Where a statute's meaning appears clear and unambiguous, .  .  .

the  party  asserting a different meaning bears a correspondingly

heavy burden of demonstrating contrary legislative intent."9

           The  language  of  AS 13.16.435 is unambiguous.10   It

states  that  a  personal representative  or  nominated  personal

representative who has prosecuted or defended a probate action in

good  faith  is  entitled to recover all necessary  expenses  and

disbursements, regardless of whether he or she prevailed  in  the

action.  Nothing in the text of the statute suggests that a court

has    the   discretion   to   determine   whether   a   personal

representative's actions benefitted the estate before awarding  a

personal representative his or her administrative expenses.

           Our examination of the legislative intent and policies

behind  the  statute and the Uniform Probate Code11 (UPC)  yields

nothing   that   meets  the  burden  of  demonstrating   contrary

legislative  intent.  Alaska Statute 13.16.435 is taken  directly

from  the  UPC,  which Alaska adopted in 1972.12  Alaska  Statute

13.06.010(a) states that the provisions comprising the Alaska UPC

"shall  be  liberally  construed and  applied  to  promote  their

underlying  purposes and policies."  Alaska Statute  13.06.010(b)

sets out five such purposes and policies.13  Two purposes support

the  conclusion that no benefit-to-the-estate requirement  should

be  found;14          Subsection (5) ["make uniform the law among

the  various  jurisdictions"] likewise  supports  the  conclusion

because  AS 13.16.435 is a verbatim adoption of section 3-720  of

the  UPC  and because case law from other UPC jurisdictions  with

identical  or  nearly identical statutes overwhelmingly  supports

the   notion  that  AS  13.16.435  does  not  contain  a  benefit

requirement.  See, e.g., In re Estate of Killen, 937  P.2d  1375,

1380-81 (Ariz. App. 1996); In re Estate of Holmes, 821 P.2d  300,

304  (Colo. App. 1991); Estate of Rosen, 520 A.2d 700,  701  (Me.

1987);  In  re Estate of Evenson, 505 N.W.2d 90, 92  (Minn.  App.

1993);  In re Estate of Watkins, 501 N.W.2d 292, 296 (Neb. 1993);

In  re  Estate  of Frietze, 966 P.2d 183, 187 (N.M.  App.  1998).

Nearly all of these states adhere to a literal reading of section

3-720,  imposing only the requirements found in  it  -  that  the

claimant  be  either  a personal representative  or  a  nominated

personal  representative,  that he or  she  have  prosecuted  the

action  in  good  faith,  and  that  charges  be  reasonable  and

necessary.   See,  e.g.,  Holmes,  821  P.2d  at  304   (citation

omitted); Evenson, 505 N.W.2d at 92; Watkins, 501 N.W.2d at  296;

Frietze,  966 P.2d at 187.  But see Estate of Brideau,  458  A.2d

745, 747 (Me. 1983) (stating that under Maine statute, party  who

unsuccessfully  contests will on basis of undue influence  cannot

recover  attorney's  fees from estate). only  one  even  arguably

supports the opposite conclusion.15  Thus, Parker has not met her

heavy  burden  of  demonstrating a  legislative  intent  that  is

contrary to the clear and unambiguous words of the statute.

           In  conclusion, the text of AS 13.16.435  contains  no

benefit-to-the-estate  requirement.  The legislature's  expressed

policies and purposes in enacting the statute do not suggest such

a  requirement.  Accordingly, we hold that AS 13.16.435 does  not

require   a  personal  representative  or  a  nominated  personal

representative  to  show that a will contest has  benefitted  the

estate before he or she may recover expenses under the statute.

           We  have  seen  that AS 13.16.435 does not  require  a

benefit-to-the-estate analysis.  We turn now to what the  statute

does  require.   It  imposes  only  three  requirements  for  the

recovery   from  the  estate  of  expenses  incurred  in   estate

litigation:

          If  any  personal  representative  or  person
          nominated as personal representative  defends
          or  prosecutes any proceeding in good  faith,
          whether  successful or not,  that  person  is
          entitled to receive from the estate necessary
          expenses    and    disbursements    including
          reasonable attorney fees incurred.
          
           Thus, in order for the claimant to recover, (1) he  or

she  must be a personal representative or nominated as a personal

representative; (2) he or she must have brought or  defended  the

proceeding  in  good faith; and (3) expenses must be  "necessary"

and attorney's fees "reasonable."16  It is immaterial whether the

party  seeking  the  expenses prevailed in  the  action;  if  the

requirements   are  met,  the  party  is  entitled   to   receive

reimbursement  from  the  estate for  expenses  incurred  in  the

litigation, including attorney's fees.17

2.                         Enders   is   a   nominated   personal
               representative for the purposes of AS 13.16.435.
               
           Alaska  Statute 13.16.435 explicitly provides  that  a

nominated  personal representative can recover expenses.   Enders

was  nominated  as a personal representative under Kottke's  1983

will;  therefore,  she  is  eligible  to  receive  administrative

expenses from Kottke's estate under the statute.18

3.                        The  superior  court made  insufficient
               findings  as  to whether Enders brought  the  will
               contest in good faith.
               
            Because   Enders   meets   the   nominated   personal

representative requirement in AS 13.16.435, she can  recover  her

necessary and reasonable expenses if she brought the will contest

in good faith.  The issue of good faith was extensively litigated

below,  but the superior court did not make specific findings  on

it.  Instead, the court rested its decision to deny fees under AS

13.16.435 on its conclusion that Enders's actions did not benefit

the estate.19  As we have seen, the court's reliance on a benefit-

to-the-estate  requirement  was  error.   We  turn  now  to   the

sufficiency of the court's findings on good faith.

          Enders argues that she must recover unless the superior

court makes an explicit finding that she acted in bad faith,  and

that  it  did not do so.  While the superior court used  strongly

critical  language  of  Enders  in its  decision,20  the  court's

findings are not explicit on the question of good faith.  Because

the findings erroneously focused on the question whether Enders's

actions  benefitted the estate, we are unable  to  say  that  the

court would have explicitly found a lack of good faith.  We  must

remand  to the superior court for findings, sufficiently specific

or  detailed to allow for meaningful appellate review,21  on  the

question whether Enders acted in good faith.22  To aid the  court

in this task, we note the following.

           Although  "good faith" is not defined in  the  probate

statutes,    the   statutory   obligations   of   the    personal

representative  shed  light  on the  meaning  of  that  term.   A

personal   representative  is  a  fiduciary  who  is  statutorily

obligated  to  "observe  the  standards  of  care  applicable  to

trustees . . . [and who] is under a duty to settle and distribute

the  estate  .  .  .  as  expeditiously  and  efficiently  as  is

consistent  with  the  best interests  of  the  estate."23   "[A]

fiduciary   relationship  exists  when  one  imposes  a   special

confidence  in  another, so that the latter, in equity  and  good

conscience, is bound to act in good faith and with due regard  to

the  interests  of  the  one  imposing  the  confidence."24   The

fiduciary duty is "the highest standard of duty implied by law."25

And it is statutorily recognized as an obligation of the personal

representative  of  the estate of a decedent.26   Alaska  Statute

13.16.350(a)  requires  that a personal  representative  use  her

authority  "for the best interests of successors to the  estate."

In  the  context  of two competing wills with different  personal

representatives, it is to be expected that the "successors"  will

not be identical.  Each personal representative thus must act for

the best interests of the successors named in the will which each

personal  representative is respectively seeking to  uphold.   We

hold  that  "good  faith"  under AS  13.16.435  incorporates  the

statutory requirement that a personal representative act with the

intent to benefit successors named in the instrument the personal

representative  seeks  to  uphold, but  does  not  incorporate  a

requirement that the acts of the personal representative actually

benefit  the  estate.27  In making its findings  concerning  good

faith,  the  superior court should consider  whether  Enders  had

reasonably arguable grounds to challenge the 1997 will.  Presence

of  such  grounds would imply good faith on her part; absence  of

such grounds would imply a lack of good faith.

B.             Rule 82(b) Attorney's Fees and Rule 79 Costs

           On  cross-appeal, Parker contends that she is entitled

to an award of Civil Rule 82(b)(2) attorney's fees and Rule 79(b)

costs against Enders because she was the prevailing party in  the

will contest.  We disagree.

           Civil Rule 82 provides for an award of attorney's fees

to the prevailing party "[e]xcept as otherwise provided by law."28

Here,  the legislature has expressly provided otherwise  by  law.

It  has  provided  that a designated personal representative  can

recover   "necessary   expenses   and   disbursements   including

reasonable attorney fees incurred."29  Therefore, Civil  Rule  82

does not apply in this case.  If a specific statutory scheme  for

attorney's fees exists, Civil Rule 82 does not apply.30  And since

the statute also clearly covers costs incurred in the litigation,

Civil Rule 79 likewise does not apply.

           Because  AS  13.16.435 sets out a  specific  statutory

scheme for awarding attorney's fees, Parker is not entitled to an

award  of  attorney's fees and costs under Civil Rules 82(b)  and

79(b).

V.   CONCLUSION

           Because  AS  13.16.435 does not contain a  requirement

that  a  nominated personal representative's actions benefit  the

estate  before the nominated personal representative can  recover

expenses  from the estate, we VACATE the superior court's  denial

of Enders's AS 13.16.435 claim.  We REMAND this case for specific

findings as to whether Enders prosecuted the will contest in good

faith and a redetermination of the AS 13.16.435 claim.

           Parker's  cross-appeal  is  meritless;  therefore,  we

AFFIRM  the  superior  court's  denial  of  Parker's  motion  for

attorney's fees and costs under Civil Rules 82(b) and 79(b).

BRYNER,   Justice,   with  whom  FABE,  Chief   Justice,   joins,

dissenting.

           In our original ruling in this appeal, we affirmed the

denial  of  Enders's application for attorney's fees, unanimously

concluding that the superior court adequately addressed the issue

of  Enders's  bad faith.  With scarcely a glance at our  original

reasoning  and  without explaining its change of  heart,  today's

opinion  on  rehearing turns about-face and vacates the  superior

court's attorney's fee ruling; it now concludes that the superior

court's  findings  on  bad  faith were insufficient.   Our  first

opinion reached a sound, well-reasoned conclusion, and it  speaks

for itself as my view of a correct resolution of this case.31  But

the  court's  new reasoning does not support today's opinion  and

thus requires additional comment.

           The  opinion on rehearing begins by noting  that  "the

superior  court  denied Enders's claim on the  grounds  that  her

`conduct   fails  to  meet  the  requirement  that   a   personal

representative  must act to benefit the estate.' "32   Construing

the  superior  court's remark to mean that the  court  applied  a

benefit-to-the-estate-requirement to Enders's request  for  fees,

the  opinion  holds that AS 13.16.435 imposes no such requirement

and  that  the statute allows a nominated personal representative

to  recover  reasonable attorney's fees necessarily  incurred  in

good-faith litigation, regardless of whether it results in actual

benefit to the estate.33

           Having so decided, the opinion on rehearing holds that

the  superior  court  erred in applying  a  benefit-to-the-estate

requirement and in neglecting to make explicit findings  on  good

faith:

          The  issue  of  good  faith  was  extensively
          litigated  below, but the superior court  did
          not  make  specific findings on it.  Instead,
          the  court  rested its decision to deny  fees
          under  AS  13.16.435 on its  conclusion  that
          Enders's actions did not benefit the  estate.
          As  we have seen, the court's reliance  on  a
          benefit-to-the-estate requirement was  error.
          . . .  While the superior court used strongly
          critical language of  Enders in its decision,
          the  court's findings are not explicit on the
          question of good faith.  Because the findings
          erroneously  focused on the question  whether
          Enders's  actions benefitted the  estate,  we
          are  unable to say that the court would  have
          explicitly found a lack of good faith.[34]
          
          But this holding unfairly accuses the superior court of

applying  a  benefit-to-the-estate requirement and overlooks  its

unequivocal  findings that Enders acted in  bad  faith.   In  the

early  part  of its fee decision, the superior court did  discuss

cases that nominally apply a benefit-to-the-estate requirement in

awarding  attorney's fees.  But the court nowhere suggested  that

it construed these cases as allowing it to rule that conferral of

an  actual benefit on the estate was a prerequisite to - or  even

an  important  factor  bearing on - an award  of  fees  under  AS

13.16.435.   To  the contrary, a careful review of  the  superior

court's ruling shows that the court believed just the opposite.

           In beginning its analysis, the superior court cited an

early Alaska precedent, In re Underwood's Estate.35   The court in

Underwood did not adopt the actual-benefit rule - that is, it did

not  require  a  financial  gain to  the  estate  or  success  in

litigation  as  a condition of reimbursing expenses;  rather,  it

more narrowly recognized that reimbursement would be allowed  for

any  necessary work done "in the interest or for the  benefit  of

the estate."36  Here, the superior court recognized that Underwood

stood for this proposition, describing that case as holding  that

attorney's fees are allowed "if the services are rendered for the

benefit  of the estate."  Thus, in beginning its fee decision  in

the  present  case, the superior court unquestionably  understood

that  AS 13.16.435 did not require Enders to prevail on her claim

or  to have actually advanced the estate's financial interests in

order  to  recover fees.  Although the court expressly recognized

that  Enders's  unsuccessful  claim  "did  not  bring  about   an

enhancement in value or an increase in the assets of the estate,"

the court did not stop its analysis there; it looked farther,  to

the  underlying  purposes  of Enders's action,  noting  that  the

relevant  inquiry was whether Enders's action against the  estate

was  motivated by a desire to discover Kottke's true testamentary

intent  and  to  achieve  a proper disposition  of  the  estate's

property.

           The  court  thus proceeded to describe  in  depth  the

extensive circumstantial evidence revealing Enders's motives  for

pursuing the action.  The court observed, for example, that

          Joel  W.  Kottke  took  every  precaution  to
          ensure  that his 1997 will would be probated.
          He  sought  independent legal  counsel  by  a
          competent  probate  lawyer,  he  had  himself
          videotaped  while announcing his testamentary
          intentions,  and he was not hasty  in  making
          his  decisions.  Joel Kottke took  all  these
          steps  because  he  was  concerned  that  Ms.
          Enders  would challenge his 1997 will.   When
          Ms.  Enders  discovered that Mr.  Kottke  had
          changed   his   1983  will,  she  immediately
          questioned  his testamentary  capacity.   Dr.
          Webb,  Mr.  Kottke's  oncologist,  and   John
          Burke,  a  representative of the Division  of
          Senior  [S]ervices looked into  Mr.  Kottke's
          testamentary capacity and freedom from  undue
          influence.  Both reported that Mr. Kottke was
          not  suffering  [from] insane  delusions  and
          that   he  was  not  the  subject  of   undue
          influence  by Connie Parker.  Yet Ms.  Enders
          continued to pursue her claims.
          
                At  no stage pre-trial or at trial  did
          Ms.  Enders  claim  that she  was  acting  as
          personal  representative.   She  makes   this
          claim only after trial.
          
           The  facts  of  the  case led the  superior  court  to

conclude   "that  Ms.  Enders  failed  to  act  in  the  estate's

interest."  Hence, in denying Enders's motion for fees, the court

did  not dwell on the obvious fact that Enders had lost her  case

or  rule  that a personal representative's act must  benefit  the

estate.   Instead, the court specifically said  that  a  personal

representative   "must  act  to  benefit  the   estate."37    The

distinction is crucial.  The former proposition - that a personal

representative "must benefit the estate" - describes the benefit-

to-the-estate  requirement, which would allow a  fee  award  only

when  an  action's  outcome actually  benefits  the  estate.   In

contrast,   the   latter  proposition   -   that   the   personal

representative "must act to benefit the estate" -  looks  to  the

personal  representative's motives for acting; it simply requires

a  suit  to be brought for the purpose of benefiting the  estate.

In  concluding that Enders failed to "act to benefit the estate,"

then,  the superior court simply found that Enders had  sued  for

ulterior  motives,  and  not for the purpose  of  benefiting  the

estate.   Because the court's findings as to Enders's motivations

and  purposes did not pin her fee award to a successful  outcome,

they did not amount to an incorrect application of the benefit-to-

the-estate  requirement.            This  interpretation  of  the

trial  court's reasons for denying fees finds strong confirmation

in  other  specific factual findings.  The trial court  expressly

found  that  "Ms.  Enders'[s] case was  a  contest  for  her  own

personal benefit," that "[t]he real impetus behind the litigation

is  the  Enders[] family['s] personal animosity and  disdain  for

Connie  Parker," and that "[t]his immense distaste for Ms. Parker

has  propelled  Ms.  Enders to drain Mr. Kottke's  modest  estate

through litigation."

           Although  the  opinion  on rehearing  dismisses  these

statements  as nothing more than "strongly critical  language,"38

they  are certainly more than that: they are express, affirmative

findings  that  Enders's conduct was motivated by her  overriding

animosity  and  self-interest and not by a good faith  desire  to

benefit  the estate.  These findings are supported by substantial

evidence,  and  they  are not clearly erroneous.   Moreover,  the

superior court's earlier findings rejecting Enders's will contest

on   its   merits  foreshadow  and  bolster  its  later  findings

concerning  Enders's motives for suing;39 and we have  previously

reviewed  and  upheld  those  earlier  findings,  declaring  them

"exemplary" and free of error.40

           None of these findings touches on the issue of whether

Enders's  challenge  to  Kottke's  will  actually  benefited  the

estate.   To  the  contrary, they all  bear  solely  on  Enders's

motives  for prosecuting her action, thus belying the  conclusion

that  the superior court denied Enders's application because  her

suit  ultimately failed to provide a benefit to the estate.   Yet

despite  the  strength  of  the record against  that  conclusion,

today's  opinion  fails to point to any findings  supporting  its

theory  that  the  superior court attached  undue  importance  to

Enders's  failure  to prevail.  Indeed, had  the  superior  court

believed  that AS 13.16.435 required proof of actual benefit,  it

could  simply have rejected Enders's fee application as a  matter

of  law  on  the  ground that she had failed to prevail,  without

considering extensive argument on the issue of her good faith  or

making detailed findings concerning her motives for suing.

           I thus see no sound basis to accuse the superior court

of  erroneously applying a benefit-to-the-estate requirement, and

no good reason to doubt that it properly based its denial of fees

on its evaluation of Enders's ulterior motives for suing.

           The  opinion  on  rehearing separately  questions  the

sufficiency  of  the  superior court's  findings  concerning  bad

faith:  "Because the findings erroneously focused on the question

whether  Enders's  actions benefitted the  estate,"  the  opinion

professes,  "we  are  unable to say that  the  court  would  have

explicitly found a lack of good faith."41  But any doubts based on

a  supposed  lack  of "explicit" findings are groundless.42   For

despite  the  superior court's failure to recite the  words  "bad

faith"  explicitly, its ruling leaves no uncertainty  as  to  its

view  on  the  issue;  the ruling incorporates  explicit  factual

findings   that  mirror  the  relevant  definition  of  bad-faith

litigation.

            As   the   opinion  on  rehearing  acknowledges,   AS

13.16.435's  good faith requirement reflects the  Alaska  Probate

Code's  recognition that a personal representative  serves  in  a

fiduciary  role.43   Thus, in claiming  to  act  as  a  nominated

personal representative, Enders placed herself under the "special

confidence"  of  this  relationship  and,  "in  equity  and  good

conscience, [was] bound to act in good faith and with due  regard

to the interests of the one imposing the confidence."44  Under AS

13.16.350(a)  Enders owed her fiduciary duty to Kottke's  estate;

that  duty required her to serve the best interests of the estate

and  of  Kottke's successors; and it obliged her to  observe  the

same  statutory standards of care that trustees must  observe  in

managing trust assets.45  Alaska's trust laws require trustees to

act  with loyalty and impartiality.46  Accordingly, Enders had  a

duty  to act "solely in the interest" of Kottke's estate and  its

beneficiaries  and  to do so "impartially . .  .  ,  taking  into

account any differing interests of the beneficiaries."47

           The court's opinion on rehearing correctly warns that,

to  meet these obligations as a nominated personal representative

in  a contest between two competing wills, Enders needed only  to

act  with  intent to benefit those successors named in  the  will

that  she  supported.48  But this altered perspective has  little

bearing on the basic quality of Enders's duty: no matter what set

of  beneficiaries she purported to serve, Alaska's definition  of

good  faith  required Enders to act out of a genuine concern  for

Kottke's  true  will as she honestly perceived it,  unambiguously

precluding  her  from  suing  out of  personal  interest  or  for

ulterior motives.49

           Yet  here,  the superior court explicitly  found  that

Enders  acted  for  her  own  self-interest,  motivated  by   her

overriding  hostility toward Parker.  The court  denied  Enders's

application after explicitly finding

C                    "Ms.  Enders'[s] case was a contest for  her  own
          personal benefit";
          
C                    "The  real impetus behind the litigation  is  the
          Enders[]  family['s]  personal  animosity  and  disdain  for
          Connie Parker"; and
          
C                      "This  immense  distaste  for  Ms.  Parker  has
          propelled  Ms.  Enders to drain Mr. Kottke's  modest  estate
          through litigation[.]"50
          
           These  are clear, unequivocal, and explicit statements

of  the superior court's considered view that Enders's action was

motivated  by  spite and that she prosecuted  her  claim  against

Parker  for the purpose of draining the estate through litigation

-  not  to secure the estate's benefit for individuals who Enders

believed  were  Kottke's  rightful successors,  and  not  because

Enders  had  any genuine concern for Kottke's true  will.51   The

superior court's findings leave no doubt concerning its  view  of

this issue.

           Because  a needless remand for ritualistic incantation
of  the  words  "bad  faith" will only invite  another  round  of
appeal,  which,  in  turn,  will almost certainly  seal  Enders's
victory in her efforts to drain Kottke's estate, I dissent.
_______________________________
1    This opinion replaces the opinion issued on August 10, 2001.
2     The 1997 will left Parker an interest in Kottke's Anchorage
property, left Enders an interest in Kottke's property in  Kenai,
and  left  Parker the residuary estate under a trust system  that
was effectively a life estate.
3    In re Estate of Kottke, 6 P.3d 243, 247 (Alaska 2000).
4    Fancyboy v. Alaska Village Elec. Coop., Inc., 984 P.2d 1128,
1132  (Alaska  1999)  (stating  that  we  apply  our  independent
judgment  to  interpretation of statutes); see  also  Compton  v.
Chatanika Gold Camp Props., 988 P.2d 598, 601 (Alaska 1999).
5      Fancyboy,  984  P.2d  at  1132  (quoting  Muller  v.  B.P.
Exploration (Alaska), Inc., 923 P.2d 783, 787 (Alaska 1996)).
6     Id.  (citing  Guin v. Ha, 591 P.2d 1281, 1284  n.6  (Alaska
1979)).
7     Yahara v. Constr. & Rigging, Inc., 851 P.2d 69, 72  (Alaska
1993) (quoting J & L Diversified Enters., Inc. v. Municipality of
Anchorage, 736 P.2d 349, 351 (Alaska 1987)).
8      Id.  (citing  Alaska  Pub.  Employees  Ass'n  v.  City  of
Fairbanks, 753 P.2d 725, 727 (Alaska 1988) (quoting State,  Dep't
of  Natural  Res. v. City of Haines, 627 P.2d 1047, 1049  (Alaska
1981))).
9     University of Alaska v. Tumeo, 933 P.2d 1147, 1152  (Alaska
1997).
10    AS 13.16.435 provides:

          Expenses  in  estate  litigation.    If   any
          personal  representative or person  nominated
          as   personal   representative   defends   or
          prosecutes  any  proceeding  in  good  faith,
          whether  successful or not,  that  person  is
          entitled to receive from the estate necessary
          expenses    and    disbursements    including
          reasonable attorney fees incurred.
11     Unif.  Probate Code  3-720 (amended 1993),  8  U.L.A.  184
(1998).
12     Ch. 78,  1, SLA 1972.  The statutes comprising the Uniform
Probate  Code  in  Alaska are AS 13.06  through  13.36.   See  AS
13.06.005.
13    AS 13.06.010(b) provides:

          The  underlying purposes and policies  of  AS
          13.06-AS 13.36 are to
                 (1)  simplify  and  clarify  the   law
          concerning the affairs of decedents,  missing
          persons,   protected  persons,  minors,   and
          incapacitated persons;
                (2)  discover  and make  effective  the
          intent  of a decedent in distribution of  the
          decedent's property;
                (3)  promote  a  speedy  and  efficient
          system  for  liquidating the  estate  of  the
          decedent  and  making  distribution  to   the
          decedent's successors;
                (4)  facilitate use and enforcement  of
          certain trusts; and
                (5)  make  uniform the  law  among  the
          various jurisdictions.
          
Because purposes (1) and (4) are not relevant to our analysis, we
do not discuss them here.
14    Subsection (2) ["discover and make effective the intent of a
decedent"]  supports this conclusion because a  good  faith  will
contest can be effective in the discovery of a decedent's intent.
See  Watts  v.  Newport, 9 So. 2d 417, 421 (Fla.  1942)  (finding
sufficient  justification in having "both the proponent  and  the
heirs  . . . represented by able and industrious attorneys acting
in  good faith and earnestly representing their respective  sides
of  the  controversy in their capacity [as] attorneys  for  their
respective  clients and also as honorable officers of the  court,
to  the  end  that the question of the validity of the  purported
will be thoroughly tried out and determined").
15     Subsection (3) ["promote a speedy and efficient system for
liquidating  the estate . . . and making distribution"]  arguably
may  be  impeded by a system that allows a challenger to  recover
costs  and  fees,  thereby  encouraging challenges  and  delaying
liquidation and distribution.
16    AS 13.16.435.
17    Id.
18     A  personal  representative, duly appointed,  may  contest
another will that, if valid, would supersede the one naming  him,
while  enjoying the protection of section 3-720.  Uniform Probate
Code Practice Manual 321 (2d ed. 1977).
19     At  various  places in its decision,  the  superior  court
appeared to rest its decision to deny fees on its conclusion that
Enders's  action  did not benefit the estate.  For  example,  the
court said ". . . the court must evaluate whether the actions  of
the  personal representative benefitted the estate."  At  another
point  it  said,  "Ms.  Enders' claim  did  not  bring  about  an
enhancement in value or an increase in the assets of the estate."
20          At  no stage pre-trial or at trial did  Ms.
          Enders  claim that she was acting as personal
          representative.   She makes this  claim  only
          after trial . . . .  The entire tenor of  Ms.
          Enders'  case  was  a  contest  for  her  own
          personal  benefit  and  the  benefit  of  her
          family, not for the estate . . . .  The  real
          impetus behind the litigation is the Enders[]
          family['s] personal animosity and disdain for
          Connie  Parker,  the primary  beneficiary  of
          Joel  W.  Kottke's 1997 will.   This  immense
          distaste  for  Ms. Parker has  propelled  Ms.
          Enders  to  drain Mr. Kottke's modest  estate
          through  litigation  rather  than  have   Ms.
          Parker   benefit   from  the   estate.    Her
          intervention  in  the  probate  of  the  1997
          [will]  has only hindered the disposition  of
          Mr.   Kottke's  estate  in  a   manner   that
          comported with his testamentary intent.
          
No. 3AN-97-1124 P (Alaska Super., September 21, 1999).
21    S.L. v. J.H., 883 P.2d 984, 986 (Alaska 1994) (citing Murray
v. Murray, 856 P.2d 463, 466 (Alaska 1993)).
22    In the event that the superior court finds that Enders acted
in  good  faith, it should proceed to determine whether, pursuant
to AS 13.16.435, Enders's claimed expenses and disbursements were
"necessary,"  and  whether  her  incurred  attorney's  fees  were
"reasonable."   We interpret the statute to allow  the  court  to
award only those disbursements that were necessary and only those
attorney's fees that were reasonable.
23    AS 13.16.350(a).
24    Paskvan v. Mesich, 455 P.2d 229, 232 (Alaska 1969).
25    Black's Law Dictionary 625 (6th ed. 1990).
26    AS 13.16.350(a).
27    Supra Part IV.A.3.
28    Alaska R. Civ. P. 82(a).
29    AS 13.16.435.
30     Cf.  Bobich  v. Hughes, 965 P.2d 1196, 1200 (Alaska  1998)
(stating  that statutory attorney's fees provision awarding  full
fees  ordinarily take precedence over Rule 82 provision  awarding
partial  attorney's fees); Whaley v. Alaska Workers'  Comp.  Bd.,
648 P.2d 955, 959 (Alaska 1982) (holding that prevailing employer
could not obtain attorney's fees because granting such fees would
undermine purposes of Alaska Workers' Compensation Act and  limit
claimant's ability to seek appellate relief).
31    Because this court's order granting rehearing, from which I
dissented,  withdrew  the original opinion from  publication  and
precluded its citation "for any purpose," see Order Granting Pet.
for  Reh'g, S-9341/9391 (April 4, 2002), the opinion has now been
withdrawn  from  the bound volumes of the Alaska  Reporter.   The
original  opinion  nonetheless remains available  for  historical
reference as Westlaw document 28 P.3d 280.
32    Op. on Reh'g at 5.
33    Op. on Reh'g at 5-9.
34     Op.  on  Reh'g at 9-10 (internal footnote and paragraphing
omitted).
35    6 Alaska 673 (D. Alaska Terr. 1922).
36    Id. at 678.
37    Emphasis added.
38    Op. on Reh'g at 10.
39     See  In  re  Estate of Kottke, 6 P.3d 243, 248-49  (Alaska
2000).   In  these earlier findings the superior  court  observed
that,  although  Parker and Kottke "were intimately  involved  in
each  other's lives," members of Enders's family "never  took  to
Connie  Parker  .  .  .  . The real crux  is  the  alienation  of
affection   in  the  relationship  between  Connie   Parker   and
[Enders's] family," who "did not accept Connie Parker[.]"  Id. at
248.    The  superior  court  described  the  Enders  family   as
"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.' "  Id.  According  to
the  court, "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.' "  Id. at 248-49.   By the time  Kottke
died  in 1997, the court found, the situation had evolved into  a
"feud"  that  had led to "a failing relationship" between  Enders
and  Kottke.   Id. at 249.  "[E]ven at the time of Joel  Kottke's
death,"  the court noted, "there was a dispute as to who was  and
was  not  family, rather than an acceptance that Joel Kottke  had
many families."  Id.
40    Id. at 245.
41    Op. on Reh'g at 10.
42     To  the  extent that the opinion's doubts  stem  from  the
superior  court's  asserted  focus on  whether  Enders's  actions
benefited  the estate, this dissent has addressed  the  issue  by
demonstrating  that the superior court did not erroneously  focus
on the benefit-to-the-estate requirement.
43    Op. on Reh'g at 11-12.
44    Paskvan v. Mesich, 455 P.2d 229, 232 (Alaska 1969).
45    AS 13.16.350(a) states:

               A personal representative is a fiduciary
          who  shall  observe  the  standards  of  care
          applicable  to trustees under AS 13.36.225  -
          13.36.290.   A  personal  representative   is
          under  a  duty  to settle and distribute  the
          estate of the decedent in accordance with the
          terms of any probated and effective will  and
          AS 13.06 - AS 13.36, and as expeditiously and
          efficiently  as is consistent with  the  best
          interests   of   the  estate.    A   personal
          representative   shall  use   the   authority
          conferred  by AS 13.06 - AS 13.36, the  terms
          of  the  will,  if  any,  and  any  order  in
          proceedings    to    which    the    personal
          representative   is  party   for   the   best
          interests of successors to the estate.
          
46     AS  13.36.245  defines the duty of  loyalty,  stating:  "A
trustee  shall invest and manage the trust assets solely  in  the
interest of the beneficiaries."  AS 13.36.250 governs the duty of
impartiality:  "If  a  trust has two or more  beneficiaries,  the
trustee shall act impartially in investing and managing the trust
assets,  taking  into  account any  differing  interests  of  the
beneficiaries."
47    AS 13.36.245; AS 13.36.250.
48    Op. on Reh'g at 11-12.
49     As the commentary to the Uniform Probate Code makes clear,
"Litigation  prosecuted  by  a personal  representative  for  the
primary purpose of enhancing his prospects for compensation would
not  be in good faith."  Unif. Probate Code  3-720 cmt., 8 U.L.A.
184  (1998).  See, e.g., Oliver v. City of Larimore, 540 N.W.  2d
630, 634 (N.D. 1995).
50    Emphasis added.
51     As  noted above, the superior court's findings  are  amply
supported  by  the  record, as well as by  the  superior  court's
dispositive findings on the merits of the will contest.