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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dan v. Dan (11/16/2012) sp-6724

Dan v. Dan (11/16/2012) sp-6724

        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, email 

        corrections@appellate.courts.state.ak.us. 



                 THE SUPREME COURT OF THE STATE OF ALASKA 



OPAL DAN,                                       ) 

                                                )        Supreme Court No. S-13788 

                        Appellant,              ) 

                                                )        Superior Court No. 2NO-09-00003 PR 

        v.                                      ) 

                                                ) 

DESIREE DAN and FREDA DAN,                      )        O P I N I O N 

                                                ) 

                        Appellees.              )       No. 6724 - November 16, 2012 

                                                ) 



                Appeal   from      the  Superior    Court   of   the  State  of   Alaska, 

                Second Judicial District, Nome, Ben Esch, Judge. 



                Appearances:  Donna C. Willard, Law Offices of Donna C. 

                Willard, Anchorage, for Appellant.  Curtis W. Patteson, Law 

                Offices     of   Curtis   W.    Patteson,    LLC,     Anchorage,      for 

                Appellees. 



                Before:      Carpeneti,      Chief   Justice,   Fabe,    Winfree,    and 

                Stowers, Justices.     [Christen, Justice, not participating.] 



                STOWERS, Justice. 



I.      INTRODUCTION 



                This   appeal   concerns   a   dispute   between   three   daughters   regarding   the 



administration of their deceased mother's estate.             The dispute centered   around three 



documents:       (1)   a   will   executed   in   1987;   (2)   a   revised   will   the   decedent   allegedly 



executed in 2007 or 2008, which contained a clause revoking all prior wills; and (3) an 



exhibit that was allegedly an accurate - but            unsigned - draft of the revised will. 


----------------------- Page 2-----------------------

                 After an evidentiary hearing, the superior court found that: (1) the decedent 



executed a valid will in 1987; (2) the decedent subsequently executed a revised will, but 



that   will   was   lost;   and   (3)   the   revised   will   had   revoked   the   1987   will. Because   an 



executed version of the revised will was never located, the superior court concluded it 



had been destroyed by the decedent, leaving her estate to be administered under Alaska's 



statutory   scheme   for   intestate   succession.       On   appeal,   one   daughter   challenges   the 



superior court's conclusion that the 1987 will was properly revoked. We remand for the 



superior   court   to   determine   whether   its   finding   that   the   revised   will   was   properly 



executed   is   supported   by   clear   and   convincing   evidence.        We   also   remand   for   the 



superior   court   to   determine   whether   the   evidence   presented   at   trial   is   sufficient   to 



overcome the presumption that the decedent destroyed her will. 



II.     FACTS AND PROCEEDINGS 



                 Rose Anna Dan Waghiyi executed a will in 1987.  On June 2, 2008, Rose 



Anna died. She left numerous heirs, including the three daughters who are parties to this 



appeal:   Opal,   Freda,   and   Desiree.      A   dispute   arose   after   Rose   Anna's   death   about 



whether she left a validly executed will. 



                 After Rose Anna's death, Desiree filed an application with the superior 



court for informal probate of an unsigned and undated will that Desiree alleged had been 



validly executed.       Opal objected to informal probate of the unsigned will and filed a 



petition for formal probate of the 1987 will, which Opal claimed was Rose Anna's last 



validly executed will.       In July 2009, Superior Court Judge Ben Esch held a hearing to 



determine which will the estate would be administered under. 



                   Freda   testified   that   in   the   winter   of   2007,   Rose   Anna   asked   Freda   to 



prepare   a   revised   version   of   her   will.  Freda   complied   with   Rose   Anna's   request, 



prepared the revised will on her home computer in Anchorage, and printed it on the back 



                                                     -2-                                               6724
 


----------------------- Page 3-----------------------

of   Christmas   stationery.1    Freda   mailed   the   revised   will   to   Rose   Anna   in   Stebbins. 



Though   Freda   testified   that   she   never   saw   a   signed   version   of   the   revised   will,   she 



testified that the unsigned will Desiree had submitted for probate was an accurate copy 



of the revised will that she had printed on Christmas stationery and sent to Rose Anna. 



The unsigned will was admitted into evidence as Exhibit 1.  Exhibit 1 is two pages long 



and contains a provision stating that it "hereby revok[es] all former wills made by [Rose 



Anna]." 



                 Margaret Marlin testified that she had signed a will for Rose Anna as a 



witness at the Stebbins post office a few months before Rose Anna died.                    Marlin also 



testified this was the only will she ever witnessed for Rose Anna.                Laura Odinzoff, the 



former postmistress in Stebbins, testified that she signed and notarized a document at 



Rose Anna's request at the post office a "little while" before Rose Anna died.  Odinzoff 



did not remember the content of the document she signed and notarized or whether the 



document was a will, but she testified that it was a document Rose Anna wanted to be 



"official."   Odinzoff also remembered that the document was approximately two pages 



long   and   that   another   person   had   signed   it,   although   she   could   not   remember   who. 



Odinzoff did not recall serving as a notary for Rose Anna on any other occasions. 



                Desiree testified that she saw photocopies of Exhibit 1 in her mother's 



possession in Stebbins in the spring of 2007.             She testified that her mother excitedly 



showed her two copies of the will, both of which had been signed by Rose Anna, Marlin, 



and Odinzoff.   Desiree testified that her mother gave her a third copy of the revised will 



that was unsigned because it was printed on Christmas stationery. 



        1       Freda testified that Rose Anna asked her to revise the will on at least six 



occasions     between     1991   and   2007.    No    copies   of   these   other  revised   wills  were 

introduced, and the superior court concluded that "[n]o evidence was offered to prove 

the content or that any of these documents were properly executed." 



                                                   -3-                                               6724 


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                After hearing this testimony, the superior court found that in late 2007 or 



January 2008, Freda prepared and printed the revised will admitted as Exhibit 1 and sent 



it to Rose Anna in Stebbins.  The court also found that Rose Anna properly executed two 



copies of the revised will, and Odinzoff and Marlin witnessed her signature. Because the 



draft of the revised will admitted as Exhibit 1 included a clause expressly revoking all 



of Rose Anna's former wills, the court concluded that the revised will revoked the 1987 



will. 



                 However, because no signed version of the revised will was ever located 



after Rose Anna died, and the superior court found that "no evidence was produced that 



anyone else had any ability to have access to it," the court concluded it "must find that 



the properly executed will was destroyed by [Rose Anna] for the purpose of revoking 



that will." The superior court found that Rose Anna's "repeated efforts to craft and tailor 



a will demonstrates an intention not to die intestate," but ruled that she nonetheless died 

intestate under AS 13.12.507(a).2 



        2       Alaska Statute 13.12.507(a) provides: 



                 (a) A will or a part of a will is revoked 



                 (1) by executing a subsequent will that revokes the previous 

                will or part expressly or by inconsistency; or 



                 (2) by performing a revocatory act on the will, if the testator 

                performed   the   act   with   the   intent   and   for   the   purpose   of 

                revoking the will or part of the will or if another individual 

                performed the act in the testator's conscious presence and by 

                the testator's direction; in this paragraph, "revocatory act on 

                the will" includes burning, tearing, canceling, obliterating, or 

                 destroying the will or any part of it; a "revocatory act on the 

                will" includes a burning, tearing, or canceling whether or not 

                the burn, tear, or cancellation touched any of the words on the 

                will. 



                                                    -4-                                              6724
 


----------------------- Page 5-----------------------

               Opal appeals the superior court's order requiring that Rose Anna's estate 



be administered according to Alaska's statutory scheme for intestate succession. She 



claims the superior court's finding that the 1987 will was properly revoked was not 



supported     by  sufficient  evidence.   Alternatively,   Opal   argues   that   the   doctrine   of 



dependent relative revocation revives the 1987 will. 



III.	   STANDARD OF REVIEW 



               We review the superior court's factual findings for clear error, which exists 



"only when we are left with a definite and firm conviction based on the entire record that 

a mistake has been made."3        We grant "especially strong deference to a trial court's 



factual findings when the findings require weighing the credibility of witnesses and 

conflicting oral testimony."4 



               We review a trial court's legal analysis de novo, applying "the rule of law 

that is most persuasive in light of precedent, reason, and policy."5 



IV.	    DISCUSSION 



        A.	    The Superior Court Did Not State Whether It Applied The Clear And 

               Convincing       Standard     Of   Proof   Or   The    Preponderance       Of   The 

               Evidence      Standard     When    It  Found    That   The   Revised    Will   Was 

               Properly Executed. 



               In Alaska, a validly executed will must be: 



               (1) in writing; (2) signed by the testator or in the testator's 

               name     by  another    individual   in  the  testator's  conscious 

               presence and by the testator's direction; and (3) signed by at 



        3      In re Protective Proceedings of W.A. , 193 P.3d 743, 748 (Alaska 2008) 



(quoting Casey v. Semco Energy, Inc., 92 P.3d 379, 382 (Alaska 2004)). 



        4      Vezey v. Green, 171 P.3d 1125, 1128-29 (Alaska 2007) (citing  Vezey v. 



Green, 35 P.3d 14, 20 (Alaska 2001)). 



        5      Id . at 1129 (quoting Vezey, 35 P.3d at 20). 



                                                -5-	                                         6724
 


----------------------- Page 6-----------------------

                least two individuals, each of whom signs within a reasonable 

                time after the witness witnesses either the signing of the will 

                [by   the   testator]   or   the   testator's   acknowledgment   of   that 

                signature or the will.[6] 



The superior court found that Rose Anna "properly executed a will in 1987," but that she 



revoked the 1987 will by executing the revised will.               The superior court did not state 



whether   it   found   that   the   revised   will   had   been   executed   by   clear   and   convincing 



evidence or by a preponderance of the evidence. 



                1.	     The execution and contents of a lost will must be proved by clear 

                        and convincing evidence. 



                We   have   never   addressed   the   standard   of   proof   required   to   prove   the 



execution or contents of a lost will.   Many other jurisdictions have been faced with this 



question, however. 



                The North Carolina Supreme Court has addressed an attempt to prove that 



a lost will revoked a prior will, and the court held that the execution and contents of a 

lost will must be proved by "clear, strong, and convincing proof."7                 Courts in Maine, 



Nebraska, and New Mexico have also held that the execution of a lost will must be 

proved by clear and convincing evidence.8 



        6       AS   13.12.502(a).      There   are   some   exceptions   to   this   rule   that   are   not 



relevant here. 



        7       In re Will of McCauley , 565 S.E.2d 88, 95 (N.C. 2002). 



        8       In re Estate of Richard , 556 A.2d 1091, 1091 (Me. 1989); In re Estate of 



Mecello , 633 N.W.2d 892, 899 (Neb. 2001); In re Estate of Kerr , 918 P.2d 1354, 1360 

(N.M. App. 1996). 



                                                   -6-	                                            6724
 


----------------------- Page 7-----------------------

                 The   South   Dakota   Supreme   Court   has   also   considered   this   issue   and 

required   merely   a   preponderance   of   the   evidence.9      But   the   court   relied   on   a   South 



Dakota statute that required a lost will to be proven by the same standard of proof as 

wills in other cases.10     Alaska does not have a similar statute. 



                 Similarly,   North   Dakota   has   adopted   a   preponderance   of   the   evidence 



standard pursuant to a rule of evidence, which provides: 



                 In all civil actions and proceedings not otherwise provided 

                 for   by   statute   or   by   these   rules,   if   facts   giving   rise   to   a 

                 presumption       are   established     by   credible     evidence,     the 

                 presumption substitutes for evidence of the existence of the 

                 fact   presumed      until  the  trier  of  fact  finds   from   credible 

                 evidence that the fact presumed does not exist, in which event 

                 the presumption is rebutted and ceases to operate. A party 

                 against whom a presumption is directed has the burden of 

                proving that the nonexistence of the presumed fact is more 

                probable than its existence. [11] 



The North Dakota Supreme Court has held that this rule of evidence requires a party 



seeking to probate a missing will to demonstrate by a preponderance of the evidence that 

the lost will was not destroyed or revoked.12              Alaska does not have a similar rule of 



evidence or statute specifying the burden of proof that must be applied in this situation. 



                 As discussed above, states deciding the issue under the common law have 



applied the clear and convincing standard.              Tennessee also requires "the clearest and 



        9        Matter of Modde's Estate , 323 N.W.2d 895, 897-98 (S.D. 1982). 



        10       Id .  The statute read: "Whenever any will is lost or destroyed, the circuit 



court must take proof of the execution and validity thereof, and establish the same, notice 

to all persons interested being first given, as prescribed in regard to proofs of wills in 

other cases."  Id . at 897 n.1 (citing S.D. CODIFIED LAWS  30-6-26). 



        11       N .D . R . EVID . 301(a) (emphasis added). 



        12       In re Estate of Conley , 753 N.W.2d 384, 392-93 (N.D. 2008). 



                                                    -7-                                               6724
 


----------------------- Page 8-----------------------

most stringent" evidence to prove execution of a lost will.13           In Sanders v. McClanahan, 



the Tennessee Court of Appeals explained: 



                These stringent requirements are imposed to avoid fraud.  In 

                Haven   v.   Wrinkle   .   .   .   this   Court,   speaking   through   Judge 

                Hale,   said:   "Where   a   will   has   been   lost   or   destroyed,   the 

                person seeking to set it up labors under a severe handicap. 

                Doubtless this is due to the fear that a more elastic rule might 

                bring about more fraud than it would prevent."             Obviously, 

                too rigid requirements could tend to give a perpetrator of a 

                fraudulent   destruction   of   a   will   protection   where   he   may 

                benefit from the fruits of his wrongs.         It has never been the 

                policy of the law to require the impossible.            Nevertheless, 

                those who attempt to set up a lost holographic will are met by 

                an    almost    insurmountable       barrier  when     called   upon    to 

                produce strict and complete proof sufficient to establish legal 

                execution and contents of the will.[14] 



                We agree that a lost will must be proved by clear and convincing evidence. 



This higher burden of proof         decreases the chance that a will could be fabricated out of 



whole cloth, or that the draft of a will that the testator never intended to sign might be 



probated.  In our view, allowing a lost will to be proved by a mere preponderance of the 



evidence would create more opportunities for fraud. 



                2.	     The superior court did not state whether its findings were made 

                        under the clear and convincing standard. 

                We review factual findings for clear error.15         But in this case it is not clear 



whether the superior court's finding that Rose Anna properly executed the lost will was 



made under the clear and convincing standard.               We therefore remand the case to the 



        13      Sanders v. McClanahan, 442 S.W.2d 664, 667 (Tenn. App. 1969). 



        14      Id . (quoting Haven v. Wrinkle , 195 S.W.2d 787, 793 (Tenn. App. 1946)). 



        15      In re Protective Proceedings of W.A. , 193 P.3d 743, 748 (Alaska 2008) 



(quoting Casey v. Semco Energy, Inc., 92 P.3d 379, 382 (Alaska 2004)). 



                                                   -8-	                                            6724
 


----------------------- Page 9-----------------------

superior court for the court to determine whether this finding is supported by clear and 



convincing evidence.        Because the superior court must first resolve this factual issue 



concerning the validity of the revised will, we do not address Opal's arguments regarding 



the continued validity of the 1987 will. 



        B.	     The Superior Court Did Not State Whether The Evidence Presented 

                At Trial Rebutted The Presumption That Rose Anna Destroyed Her 

                Revised Will. 



                The superior court concluded that because the signed and witnessed copies 



of Rose Anna's revised will were never found, it "must find that the properly executed 



will was destroyed by [Rose Anna] for the purpose of revoking that will." 



                Alaska Statute 13.12.507(a)(2) provides that performing a revocatory act 



on the will revokes it "if the testator performed the act with the intent and for the purpose 

of revoking the will."        Destruction of the will is considered a revocatory act.16              The 



Restatement (Third) of Property explains: 



                If a will is traced to the testator's possession and cannot be 

                found after death, there are three plausible explanations for its 

                absence:    The testator destroyed it with the intent to revoke; 

                the will was accidentally destroyed or lost; or the will was 

                wrongfully destroyed or suppressed by someone dissatisfied 

                with   its   terms.   Of   these   plausible   explanations,   the   law 

                presumes that the testator destroyed the will with intent to 

                revoke it. . . . 



                The     presumption      that  the  testator   destroyed    the   will  or 

                performed   some   other   revocatory   act   on   it   with   intent   to 

                revoke      is  rebuttable.     Because      of   the  other    plausible 

                explanations       for   a   will's    absence     or   condition,     the 



        16      AS 13.12.507(a)(2). 



                                                   -9-	                                               6724 


----------------------- Page 10-----------------------

               presumption       is  not  such   a   strong   one   that  clear  and 

               convincing evidence is required to rebut it.[17] 



               Thus,   the   presumption   that   Rose   Anna   destroyed   the   revised   will   was 



rebuttable.   The superior court found that "[n]o evidence was produced concerning the 



circumstances of [Rose Anna's] destruction of the last signed will," but it did not make 



a finding on whether the presumption of destruction was rebutted by the other evidence 



presented at trial.    Because it is not clear whether the court found that the evidence 



presented at trial overcame the rebuttable presumption, we remand for the superior court 



to make this factual determination. 



V.      CONCLUSION 



               We REMAND for the superior court to determine whether the lost will's 



contents and execution were proved by clear and convincing evidence and whether the 



presumption of destruction was rebutted by the evidence presented at trial. 



        17     RESTATEMENT        (THIRD)   OF   PROPERTY :  WILLS       AND  OTHER     DONATIVE 



TRANSFERS  4.1 cmt. j (1999). 



                                                -10-                                            6724 

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