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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Riddell v Edwards (10/05/2001) sp-5483

Riddell v Edwards (10/05/2001) sp-5483

     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.


ROBERT J. RIDDELL,            )
                              )    Supreme Court No. S-9326
               Appellant,     )
                              )    Superior Court No.
          v.                  )    1KE-97-154 PR
IRVIN H. EDWARDS,             )    O P I N I O N
               Appellee.      )    [No. 5483 - October 5, 2001]

          Appeal from the Superior Court of the State of
Alaska, First Judicial District, Ketchikan,
                      Larry R. Weeks, Judge.

          Appearances:  Robert J. Riddell, pro se, Ward
Cove.  Bryan T. Schulz, Holman & Schulz, Ketchikan, for Appellee
(no brief filed).

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

          BRYNER, Justice.

          After Lillie M. Rahm-Riddell passed away in September
1997, her brother, Irvin H. Edwards, and her husband, Robert J.
Riddell, filed competing requests to probate wills that Lillie had
executed in 1992 and 1997.  The 1992 will left most of Lillie's
estate to Edwards; the 1997 will left almost everything to Riddell. 
After a bench trial, Superior Court Judge Larry R. Weeks declared
the 1997 will invalid, concluding that Lillie was incompetent when
she executed it and that she acted under Riddell's undue influence. 
Finding that the 1992 will was valid, Judge Weeks admitted it to
probate.  Riddell appeals, challenging these findings and arguing
that he was entitled to a jury trial.  We affirm, holding that
Riddell had no statutory or constitutional right to a jury trial in
a probate proceeding and that the superior court did not clearly
err in finding Lillie's 1997 will invalid for lack of testamentary
          Lillie N. Rahm-Riddell was a long-time resident of
Ketchikan.  Lillie met Robert Riddell in December 1993, when she
was in her early nineties and Riddell was in his mid-sixties. 
Riddell began working as Lillie's handyman, performing odd-jobs
around her house.  Their relationship quickly developed, and within
months of their meeting, Riddell and Lillie began living together
in Lillie's home and at a cabin in Eagle Creek.  Although Riddell
provided companionship and assistance to Lillie, her friends came
to believe that he discouraged independent communication with
Lillie.  Further, they often felt uncomfortable around Riddell
because he was rude and abusive toward them. 
          In April 1995 Lillie revoked a power of attorney that
gave her daughter, Anita May Zugoff, access to her funds.  Lillie
also transferred money from an Alaska Federal Savings & Loan
account to three separate accounts at Bank of America.  Riddell had
access to all information concerning her new bank accounts.  When
Edwards attempted to discuss these transfers with Lillie, Riddell
intervened and would not allow him to talk to Lillie; according to
Edwards, Lillie seemed confused about the monetary transfers.
          These actions led Zugoff to petition for appointment of
a conservator on April 27, 1995.  While the conservatorship
proceeding was pending, Riddell married Lillie in a ceremony
performed in Ketchikan on May 1, 1995.  In January 1996 Superior
Court Judge Thomas M. Jahnke appointed the Public Guardian as
Lillie's primary conservator. 
          Several months later, a court-appointed attorney filed a
domestic violence petition against Riddell on Lillie's behalf.  The
petition was prompted by reports that Lillie, the Public Guardian,
Lillie's part-time care taker, her hospital, and attorneys involved
in her case had been subjected to physical attacks or verbal
threats by Riddell.  After a hearing, Superior Court Judge
Patricia A. Collins granted the petition, finding that Riddell had
abused Lillie and enjoining Riddell from contact with her.  The
Office of Public Advocacy subsequently arranged for Lillie to be
placed in an assisted living home in Washington.  She lived there
until Riddell located her; Riddell removed Lillie from the home and
moved her to Oregon.  He refused to reveal Lillie's location, even
after the superior court expressly ordered him to do so.  Lillie
died September 4, 1997, in Springfield, Oregon. 
          Lillie executed three different wills in the five years
preceding her death.  Lillie's attorney, Richard Whittaker,
prepared the first will, which Lillie executed on August 14, 1992.
The 1992 will left Lillie's brother, Edwards, an undivided one-half
of her estate; it left her daughter, Zugoff, an undivided one-
quarter of her estate; and it left two grandchildren undivided
eighths of her estate.
          Lillie signed a second will on June 3, 1994.  According
to Riddell, he prepared the 1994 will at Lillie's request.  This
will nominated Riddell as Lillie's personal representative and left
him her "home and property . . . and all the furniture, appliances,
pictures, tools and whatever is deemed necessary and needed for his
confortable [sic] living in my home." It gave Edwards an undivided
three-fourths of any monies remaining after payment of claims
against the estate and costs of administration, while leaving
Riddell the remaining one-fourth of the monies.  Zugoff received
nothing but Lillie's station wagon. 
          On January 29, 1997, almost eight months before she died,
Lillie executed a will in Springfield, Oregon.  This will left her
entire estate to Riddell and expressly disinherited her brother,
daughter, and grandchildren.  Riddell also prepared this will.
          Two months after Lillie's death, on November 10, 1997,
Edwards filed an application for informal probate of Lillie's 1992
will and requested appointment as personal representative.  In
February 1998 Riddell filed an application for informal probate of
Lillie's 1997 will, asking to be appointed as personal
representative.  No one requested probate of the 1994 will.
          Riddell moved to dismiss Edwards's probate application,
arguing that Lillie's 1997 will revoked her 1992 will.  Edwards
opposed the motion, challenging the 1997 will as invalid due to
Lillie's lack of testamentary capacity and Riddell's undue
influence.  Judge Weeks denied Riddell's motion to dismiss, finding
triable issues of fact concerning the validity of the 1997 will. 
Riddell demanded a jury trial; Judge Weeks denied this motion and
proceeded to hold a bench trial on the competing requests for
          Upon conclusion of the trial, Judge Weeks issued a
memorandum decision finding that the 1997 will was invalid due to
lack of testamentary capacity and the presence of undue influence. 
Finding that Edwards had established that the 1992 will was
properly executed, Judge Weeks admitted the will to probate and
appointed Edwards personal representative. 
          Riddell filed this appeal.
     A.   Riddell Was Not Entitled To a Jury Trial.
          Riddell contends that the superior court erred in denying
his motions for a jury trial.  This claim raises a question of law
that we review de novo. [Fn. 1]  In denying Riddell's demand for a
jury trial, Judge Weeks determined that, because probate matters
are generally equitable in nature, no right to a jury trial
ordinarily exists in a probate case unless expressly authorized by
statute. [Fn. 2]  Judge Weeks relied on McGill v. Wahl for the
proposition that "[t]he Alaska Constitution preserves a jury trial
only for those causes of action which are legal, and not equitable
in nature."[Fn. 3]  In that case, we concluded that, because the
McGills' claim for a prescriptive easement was "in the nature of an
equitable claim and was historically tried in the courts of
equity,"the McGills were not entitled to a jury trial. [Fn. 4] 
          Riddell nonetheless cites Alaska Probate Rule 11, [Fn. 5]
AS 13.06.085, [Fn. 6] and In re Estate of McCoy, [Fn. 7] claiming
that these authorities "show[] that Jury Trials in probate cases
are allowed in the State of Alaska, therefore, [Riddell] was and is
entitled to a jury trial." But Riddell misinterprets these
          Alaska Statute 13.06.085(a) only entitles a party in a
probate case to a jury trial when "any controverted question of
fact arises as to which any party has a constitutional right to
trial by jury." Article I, section 16 of the Alaska Constitution,
guarantees parties the right to a jury trial only to the extent
that the right existed at common law:  "In civil cases where the
amount in controversy exceeds two hundred fifty dollars, the right
of trial by a jury of twelve is preserved to the same extent as it
existed at common law." Riddell was thus entitled to a jury trial
under AS 13.06.085(a) only to the extent that the common law
preserved such a right as to the facts at issue in this case.
          Here, as the superior court correctly recognized, will
contests are "unknown to the common law"and exist only as
permitted by statute. [Fn. 8]  As the court also correctly
recognized, because probate matters are equitable, and because no
constitutional right to a jury trial exists in matters of equity,
[Fn. 9] the Alaska Constitution does not guarantee jury trials in
will contest cases.  Riddell cites no statute creating a right to
jury trial in such cases, and we are aware of none. [Fn. 10] 
Therefore, we affirm the trial court's denial of Riddell's motion
for a jury trial.
     B.   The Superior Court Did Not Clearly Err in Declaring the
1997 Will Invalid.
          Riddell next contends that the superior court erred in
declaring the 1997 will invalid and in admitting the 1992 will to
probate.  When decisions of "testamentary capacity depend[]
largely, if not entirely, on oral testimony given by witnesses seen
and heard by the trial judge, [it is the superior court's] province
to judge their credibility, and we may not reverse [its] decision
unless we find it to be clearly erroneous."[Fn. 11]  The superior
court's factual findings are clearly erroneous only "if we are left
with 'a definite and firm conviction on the entire record that a
mistake has been made, although there may be evidence to support
the finding.'"[Fn. 12]  We review all evidence in the light most
favorable to the party prevailing below. [Fn. 13]
          Riddell opposed Edwards's petition for probate of the
1992 will, alleging that the 1997 will was properly executed and
that it revoked the 1992 will.  Under AS 13.16.170 the
"[p]roponents of a will have the burden of establishing prima facie
proof of due execution in all cases, and if they are also
petitioners, prima facie proof of death and venue." The statute
further provides that "[c]ontestants of a will have the burden of
establishing . . . revocation."[Fn. 14]  Judge Weeks found that
the 1992 "will was proved up at this trial and Mr. Whittaker
testified [Lillie] was competent at the time.  No one contradicted
that testimony."
          Riddell does not specifically challenge this finding.  He
contends that the 1997 will revoked the 1992 will. [Fn. 15]  In
Alaska a will may be revoked by a physical act of revocation or by
execution of a subsequent will that revokes the previous will
either expressly or by inconsistency. [Fn. 16]  Under Alaska law,
marriage does not revoke a pre-existing will. [Fn. 17]  It follows
that Riddell could prevail only by establishing the validity of the
1997 will, which expressly revoked Lillie's prior wills.  Here,
even though the 1997 will appeared to be correctly executed, it was
open to challenge on grounds of testamentary capacity, fraud, or
undue influence. [Fn. 18]  The trial court found lack of
testamentary capacity and undue influence.
          Judge Weeks determined that Lillie lacked the requisite
testamentary capacity to execute her 1997 will under the standard
set out in Paskvan v. Mesich:
               Disease, great weakness, the use of
alcohol and drugs, and approaching death do not alone render a
testator incompetent to make a will.  The question is always
whether, in spite of these things, [a testator] had sufficient
mental capacity to understand the nature and extent of [her]
property, the natural or proper objects of [her] bounty, and the
nature of [her] testamentary act.[ [Fn. 19]]

To meet this standard, Lillie had to have testamentary capacity at
the time she executed her 1997 will. [Fn. 20]  As we recently said
in In re Estate of Kottke, "a deficiency on any one of the three
elements [of testamentary capacity] invalidates the will."[Fn. 21]
          Based on the evidence presented at trial, Judge Weeks
determined that Lillie was incompetent at the time she executed her
1997 will.  He found that Lillie "suffered from Alzheimer's disease
and/or senile dementia from 1993 until her death.  She undoubtedly
confabulated when she was forgetful and was very forgetful.  She
would make up stories to cover her forgetfulness and those stories
would often result in erroneous and inaccurate information being
transmitted."[Fn. 22]  This finding is supported by testimony from
at least four doctors who all agreed that Lillie suffered from
dementia, Alzheimer's disease, or both.  Further, in both March and
November of 1995, two of these doctors determined that Lillie was
incompetent to manage her financial affairs.  Indeed, all witnesses
at trial except Riddell and his relatives believed that Lillie was
incompetent to manage her affairs.  Dr. Lasse, a court-appointed
psychologist, even noted that Lillie was confused about her
relationship with Riddell. [Fn. 23] 
          Judge Weeks also considered Superior Court Judge
Thomas M. Jahnke's earlier memorandum and order regarding Lillie's
conservatorship, which appointed a public guardian to act as
Lillie's conservator on January 30, 1996. [Fn. 24]  Judge Jahnke's
order stated that "[a]t numerous points in her conversation with
the court, [Lillie] was utterly confused about the status of people
in her life and about her own capabilities."[Fn. 25]  
          Our review of the record convinces us that Judge Weeks's
finding of testamentary incapacity is supported by substantial
evidence and is not clearly erroneous.  Indeed, overwhelming
evidence suggests that Lillie was incompetent and did not
understand the extent of her estate or the status of her personal
relationships.  Thus, we affirm the superior court's decision
invalidating the 1997 will.  Because Lillie's 1997 will was
invalid, and Riddell did not otherwise challenge the validity of
the 1992 will, we also affirm the superior court's order admitting
the 1992 will to probate. [Fn. 26] 
          We AFFIRM the superior court's decision.


Footnote 1:

     Cf. McGill v. Wahl, 839 P.2d 396 (Alaska 1992).

Footnote 2:

     Focusing on a sentence in the superior court's written
decision that states "[t]he Alaska Supreme Court has said there is
right to a jury trial in equity cases in this state,"Riddell
claims that the superior court engaged in "deceitfulness, bias,
prejudice, and contempt"by denying him a jury trial.  In context,
however, it is obvious that the superior court simply committed a
clerical error by omitting the word "no"between the words "is"and
"right"in its written decision.  As we explain in the text, our
prior cases make it clear that there is no right to a jury trial in
cases of equity.

Footnote 3:

     McGill, 839 P.2d at 396; see also Alaska Const. art. I, sec.

Footnote 4:

     McGill, 839 P.2d at 396.

Footnote 5:

     Probate Rule 11 provides:

          A demand for jury trial pursuant to AS
13.06.085 is governed by Civil Rules 38 and 39, except that the
demand must be served no later than 20 days after service of the
first pleading directed to a triable issue or five days before the
scheduled hearing, whichever is earlier.  The first pleading in a
creditor's claim is the petition for allowance.  The demand for
jury trial must specify the issues to be tried by jury and the
legal basis supporting the right to jury trial on those issues.

Footnote 6:

     AS 13.06.085 provides:

          (a) If duly demanded, a party is entitled to
trial by jury in any proceeding in which any controverted question
of fact arises as to which any party has a constitutional right to
trial by jury.

          (b) If there is no right to trial by jury
under (a) of this section or the right is waived, the court in its
discretion may call a jury to decide any issue of fact, in which
case the verdict is advisory only.

Footnote 7:

     844 P.2d 1131 (Alaska 1993).

Footnote 8:

     80 Am. Jur. 2d Wills sec. 1026 (1975); see also 47 Am. Jur. 2d
Jury sec. 51 (1995); 3 William J. Bowe & Douglas H. Parker, Page on
the Law of Wills sec. 26.85 (rev. ed. 1961) ("[N]o constitutional
right exists to a trial by jury in a proceeding to probate or
contest a will.").

Footnote 9:

     See McGill v. Wahl, 839 P.2d 393, 396 (Alaska 1992).

Footnote 10:

     Although Probate Rule 11 evidently contemplates a jury trial
in some probate cases, since it describes how the right should be
implemented, see supra, note 5, the rule's provisions do not
support Riddell's position.  Probate cases are not confined to will
contests, but often involve creditors' claims, which raise contract
issues that traditionally are matters at law and, as such, are
triable before juries.  Probate Rule 11, which expressly refers to
"a creditor's claim,"appears to address these situations.  

Footnote 11:

     In re Estate of Kraft, 374 P.2d 413, 416 (Alaska 1962); see
also Alaska R. Civ. P. 52(a); Paskvan v. Mesich, 455 P.2d 229, 232
(Alaska 1969).

Footnote 12:

     In re Estate of Kottke, 6 P.3d 243, 245 (Alaska 2000) (quoting
Mathis v. Meyeres, 574 P.2d 447, 449 (Alaska 1978)); see alsoPaskvan, 
455 P.2d at 232, 240.

Footnote 13:

     See Kottke, 6 P.3d at 245 (citing Mathis, 574 P.2d at 449).

Footnote 14:

     AS 13.16.170.

Footnote 15:

     Riddell separately maintains that, even if the 1997 will is
invalid, the 1994 will independently revoked the 1992 will;
according to Riddell, then, the court should have admitted the 1994
will instead of the 1992 will.  But Riddell never applied to admit
the 1994 will to probate or argued that it had priority over the
1992 will.  Accordingly, we deem this argument to be waived.  See
Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska
1985) ("As a general rule, a party may not present new issues or
advance new theories to secure reversal of a lower court

Footnote 16:

     See AS 13.12.507. 

Footnote 17:

     Alaska Statute 13.12.301(a) provides that a testator's
surviving spouse, who married the testator after the testator
executed a will,

          is entitled to receive, as an intestate share,
no less than the value of the share of the estate the surviving
spouse would have received if the testator had died intestate as to
that portion of the testator's estate, if any, that neither is
devised to a child of the testator who was born before the testator
married the surviving spouse and who is not a child of the
surviving spouse nor is devised to a descendant of such a child or
passes under AS 13.12.603 or 13.12.604 to such a child or to a
descendant of such a child,  unless

               (1) it appears from the will or other
evidence that the will was made in contemplation of the testator's
marriage to the surviving spouse;

               (2) the will expresses the intention that
it is to be effective notwithstanding a subsequent marriage;  or

               (3) the testator provided for the spouse
by transfer outside the will and the intent that the transfer be in
lieu of a testamentary provision is shown by the testator's
statements or is reasonably inferred from the amount of the
transfer or other evidence.

Moreover, in conformity with the Uniform Probate Code, AS 13.12.508
states that "[e]xcept as provided in AS 13.12.803 [effect of
testator's homicide by beneficiary] and 13.12.804 [revocation of
probate and nonprobate transfers by divorce], a change of
circumstances does not revoke a will or a part of it." See also
Uniform Probate Code sec. 2-508 (1993).  Therefore, although
is a change in circumstances, it does not revoke a pre-existing

Footnote 18:

     See 95 C.J.S. Wills sec. 274(d)(1) (1957); 2 William J. Bowe
& Douglas H. Parker, Page on the Law of Wills sec. 21.27 (rev. ed.

Footnote 19:

     Paskvan, 455 P.2d at 234 (quoting In re Estate of Kraft, 374
P.2d 413, 416 (Alaska 1962)).

Footnote 20:

     See 1 William J. Bowe & Douglas H. Parker, Page on the Law of
Wills sec. 12.2 (rev. ed. 1960).

Footnote 21:

     6 P.3d 243, 246 (Alaska 2000).

Footnote 22:

     Alzheimer's disease is a progressive, degenerative condition. 

Footnote 23:

     Lillie once stated that "[Riddell has] been my right hand man,
and now he's mine;"but on another occasion she stated that 
"[Riddell is] not my husband; he's a boarder."

Footnote 24:

     That proceeding was limited to the appointment of a 
conservator for Lillie, but Judge Jahnke noted that there is
"substantial overlap in the issues that must be addressed by a
court in evaluating one's competency to manage one's financial
affairs and one's competency to assent to a marriage and make a
will"; examples include testamentary capacity and undue influence. 

Footnote 25:

     Judge Jahnke's earlier findings are significant.  Although we
recognized in Paskvan v. Mesich that a finding of incompetency in
a guardianship proceeding does not necessarily determine the issue
of testamentary capacity, we further held that the finding in the
guardianship proceeding is "evidence to be considered, along with
other evidence, on the issue of testamentary capacity." 455 P.2d
at 238-39 (internal citations omitted); see also 2 William J. Bowe
& Douglas H. Parker, Page on the Law of Wills sec. 21.27 (rev. ed.
1961).  Judge Weeks recognized that there may be "instances when a
person is incompetent followed by other times when a person may be
competent and that sequence may continue for many years." But the
judge expressly concluded that Lillie "did not know the extent of
her property at the time of the last will in January 1997."  

Footnote 26:

     The trial court independently found the 1997 will invalid on
the ground of undue influence.  A finding of undue influence
presupposes the existence of testamentary capacity.  See1 William J. 
Bowe & Douglas H. Parker, Page on the Law of Willssec. 15.4 (1960) 
("Undue influence is said to presuppose mental
capacity, and to require it as essential to the existence of undue
influence.  This is true as far as the absence of mental capacity
renders the will invalid, and makes any inquiry into undue
influence unnecessary.").  Our decision affirming the finding that
Lillie lacked testamentary capacity makes it unnecessary to address
the court's added finding of undue influence.