 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Enders v. Parker3/21/2003
OPINION ON REHEARING
No. 5675
BRYNER, Justice, with whom FABE, Chief Justice, joins, dissenting.
I. INTRODUCTION
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. 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.
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.
Page 1 2 3 4 5 6 7 8 Alaska Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|