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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.
