In the Matter of the Guardianship and Conservatoship of Vernon D. Radda

I
               IN THE SUPREME COURT OF IOWA
                               No. 19–2088

          Submitted January 21, 2021—Filed February 19, 2021


IN THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP
OF VERNON D. RADDA

KEVIN KIENE and BARBARA KIENE,

      Appellants,

vs.

WASHINGTON STATE BANK, as Conservator for Vernon D. Radda,

      Appellee.



      Appeal from the Iowa District Court for Washington County,

Crystal S. Cronk, Judge.



      Family members appeal ruling on declaratory judgment declining to

adjudicate validity of wills while the ward is still alive, and requiring

challengers to pay the conservator’s attorney fees. AFFIRMED IN PART,

REVERSED IN PART, AND REMANDED FOR DISMISSAL.



      Waterman, J., delivered the opinion of the court, in which all justices

joined.



      Siobhan Briley (argued) of Pugh Hagan Prahm PLC, Coralville, for

appellants.
                                   2

     R. Ronald Pogge and Chandler M. Surrency (argued) of Hopkins &

Huebner, P.C., Des Moines, for appellee Washington State Bank, as

conservator for Verdon D. Radda.
                                      3

WATERMAN, Justice.

      In this interlocutory appeal, we must decide whether a prospective

heir can bring a declaratory judgment action under Iowa Code section

633.637 (2019) to determine the validity of wills before the testator dies.

The ward executed wills in 1992 and 2015 while he was in a voluntary

conservatorship and without any contemporaneous judicial determination

of his testamentary capacity. The ward’s sister and her husband brought

this declaratory judgment action in 2019 to determine the validity of those

wills. The conservator bank filed a motion to dismiss the action, arguing

the petitioners’ claims were not ripe and they lacked standing to challenge

the wills while the testator remained alive. The district court denied the

motion to dismiss, but in response to the conservator’s motion to enlarge,

then limited the scope of the action to a determination of the ward’s

present testamentary capacity and required the petitioners to pay the

conservator’s attorney fees. We granted the petitioners’ application for

interlocutory appeal and retained the case.

      On our review, we hold that neither section 633.637 nor other

provisions of the Probate Code permit a challenge to the validity of a will

executed by a testator who is still living. This legislative choice to avoid
predeath will contests makes sense, because the testator might execute a

new will or the beneficiaries might predecease the testator, wills are

confidential while the testator remains alive, and a postdeath challenge to

a will in probate would include notice to all potentially affected parties with

trial by jury.   For the reasons elaborated below, we affirm the district

court’s ruling declining to adjudicate the validity of the ward’s 1992 or

2015 wills. The district court erred, however, by allowing the action to

proceed for a determination of the ward’s present testamentary capacity

and by requiring the petitioners to pay the conservator’s legal fees. We
                                     4

reverse those rulings. No relevant fee-shifting statute applies, and the

petitioners’ claims were not frivolous.

      I. Background Facts and Proceedings.

      Vernon D. Radda, now age fifty-nine, suffers from schizoaffective

disorder and severe autism spectrum disorder. He resides at the Pearl

Valley care facility in Washington, Iowa. Until 1991, his mother, Betty

Jean Radda, cared for him. In June of that year, a guardianship and

conservatorship was set up for Betty Jean because she had suffered a

stroke and was unable to care for herself. Vernon agreed to a separate

guardianship and conservatorship established for him that has remained

in place since 1991. His sister, Julie Zieser, was appointed his guardian,

and Washington State Bank his conservator.           After Julie died, her

husband and son, Wayne and David Zieser, were appointed Vernon’s

coguardians.

      In 2017, Radda told another sister, Barbara Kiene, that he had

recently signed some documents. Barbara asked what documents he had

signed, and whether it was a will. Radda responded that he did not know.

Barbara and her husband, Kevin Kiene, investigated and discovered

Radda had executed two wills, one in 1992 and another in 2015. The
attorney who prepared the 1992 will filed an affidavit regarding

compensation, stating that he met with Radda twice, including a

conference to sign the will. Julie filed an accompanying “itemized time”

list to support her compensation. Julie’s list indicated that she took Radda

to the attorney’s office on the date the will was executed but does not

include the initial conference. The 2015 will was also prepared by an

attorney.   The 1992 will was deposited with the court and was later

replaced by the 2015 will.    Neither will is found in the record on this

appeal. Radda, as of the conservator’s 2018 annual report, had assets
                                     5

including investments and real property with a total value exceeding $1.9

million.

      On May 13, 2019, the Kienes filed a petition to commence this

declaratory judgment action seeking a judicial determination of whether

Radda had the testamentary capacity to execute either will, and if not, to

declare the will null and void.    On August 1, the conservator filed a

preanswer motion to dismiss the petition, arguing that the claims were not

ripe because Radda was still alive and probate had not been filed (and

could not be filed).   The conservator argued that the Kienes lacked

standing to bring the action before Radda’s death because they had no

vested interest in his estate. Finally, the conservator requested the court

sanction the Kienes under Iowa Rule of Civil Procedure 1.413 by ordering

them to pay the conservator’s attorney fees.

      The Kienes resisted, arguing that they were not asking the court to

probate the wills, but rather were seeking a judicial determination whether

Radda had testamentary capacity when he executed them because, as they

contended, both wills were presumptively invalid under Iowa Code

section 633.637. The conservator replied, arguing that section 633.637

does not allow third parties to petition the court for a determination of
testamentary capacity. The conservator also disputed the presumption of

incompetency and reiterated that the issue was not ripe while Radda

remained alive.

      On September 6, the court denied the conservator’s motion to

dismiss, ruling that Radda’s right to execute a will was “uncertain and

appropriate for declaratory judgment.” The conservator filed a motion to

enlarge, asking the court to clarify: (1) whether the action involved a

determination of Radda’s present capacity to execute a will or past capacity

to execute the 1992 or 2015 will; (2) whether the determination would bind
                                     6

all heirs or just the Kienes; and (3) whether Radda would be responsible

for the costs of the action. The Kienes resisted, arguing that the petition

itself clarified that the requested determination regarded Radda’s capacity

to execute the 2015 will and, if invalid, the 1992 will. They also argued

that the court had to determine whether the will was valid before it

determined who would be bound by the court’s ruling. Finally, the Kienes

contended that the parties should pay their own attorney fees.

      On November 14, the conservator’s counsel contacted counsel for

the Kienes, stating that it had been “quite a while” since the motion to

enlarge had been filed, and that when he inquired with the court

administrator, he was told to submit a proposed order. Counsel attached

a copy of the proposed order in his letter to the Kienes. This order, adopted

by the court five days later, stated that the declaratory judgment would

only involve a determination of Radda’s present testamentary capacity,

would bind Radda “as to his current ability” but not “affect his competency

at other times,” and that the Kienes would be responsible for the costs of

the action including the conservator’s attorney fees.

      The Kienes filed an application for interlocutory appeal and motion

to stay, arguing the ruling was outcome determinative. The conservator
resisted. We granted the application and retained the appeal.

      II. Standard of Review.

      “We review a district court’s ruling on a motion to dismiss for the

correction of errors at law.” Benskin, Inc. v. W. Bank, 

952 N.W.2d 292

,

298 (Iowa 2020) (quoting Shumate v. Drake Univ., 

846 N.W.2d 503

, 507

(Iowa 2014)). “We review the probate court’s interpretation of statutory

provisions for corrections of errors at law.”    In re Est. of Whalen, 

827 N.W.2d 184

, 187 (Iowa 2013).
                                             7

       The Kienes complain that the order we are reviewing was prepared

by the conservator’s counsel.            We do not apply “a higher standard of

review” when the court adopts verbatim a proposed ruling drafted by a

prevailing litigant. NevadaCare, Inc. v. Dep’t of Hum. Servs., 

783 N.W.2d 459

, 465 (Iowa 2010). But “we will scrutinize the record more closely and

carefully when performing our appellate review.” Id.1 The Kienes correctly

state that we need not decide whether this is an action at law or in equity

because we are reviewing the district court’s legal conclusions that are not

binding on the appellate court. See

id. (“The trial court’s

‘legal conclusions

and application of legal principles are not binding on the appellate court.’ ”

(quoting EnviroGas, L.P. v. Cedar Rapids/Linn Cnty. Solid Waste Agency,

641 N.W.2d 776

, 781 (Iowa 2002))).

       We review de novo the district court’s ruling allowing an award of

attorney fees for defending litigation under the Probate Code. See In re

Est. of Bockwoldt, 

814 N.W.2d 215

, 221–22 (Iowa 2012).                         We review

de novo an award of attorney fees allowed under the court’s equitable

powers. Hockenberg Equip. Co. v. Hockenberg’s Equip. & Supply Co. of

Des Moines, 

510 N.W.2d 153

, 158 (Iowa 1993).




       1We   continue to “recognize[] counsels’ submission of proposed findings of fact and
conclusions of law can be extremely valuable in assisting the district court, especially in
highly technical or complicated cases.” 

NevadaCare, 783 N.W.2d at 465

. But we reiterate
that the district court should not adopt verbatim a proposed ruling prepared by the
prevailing attorney such that “the decision on review reflects the findings of the prevailing
litigant rather than the court’s own scrutiny of the evidence and articulation of controlling
legal principles.” See

id. (quoting Rubes v.

Mega Life & Health Ins., 

642 N.W.2d 263

, 266
(Iowa 2002)). Here, we are not reviewing voluminous factual findings written by one side.
We are reviewing terse conclusions of law on a limited record. Although prompted by an
ex parte phone call with the court administrator, the proposed ruling drafted by the
conservator’s attorney was not submitted ex parte but was simultaneously filed and
served on the Kienes’ counsel who had time to respond before the court ruled the following
week.
                                    8

      III. Analysis.

      We first address whether the Probate Code, and specifically Iowa

Code section 633.637, permits the Kienes to challenge the validity of

Radda’s wills while he remains alive. We hold that will contests must await

the testator’s death, and the Code does not allow this declaratory judgment

action to proceed. Next we address whether the district court erred by

ordering the Kienes to pay the conservator’s attorney fees without an

applicable fee-shifting statute. We apply the American rule to hold that

the conservator must bear its own attorney fees.

      A. Section 633.637 Does Not Permit a Third Party to Contest a

Will of a Testator Who Is Still Living. The Kienes argue that Iowa Code

section 633.637 permits an interested third party to seek a judicial

determination that the ward lacked testamentary capacity to execute a will

while in a conservatorship. Barbara Kiene is Radda’s sister and would

inherit from Radda’s estate under intestacy provisions if both his wills

were determined to be invalid. Iowa Code § 633.219(3). She therefore

asserts that she is an “interested party” under the Probate Code with

standing to bring this declaratory judgment action under Iowa Code

section 633.637 to challenge the validity of Radda’s 1992 and 2015 wills
while Radda remains alive. The conservator responds that the statute does

not permit a third party to bring an action to challenge a will while the

ward is alive. This is a question of statutory interpretation and we begin

with the statutory text.

      Iowa Code section 633.637 is entitled, “Powers of ward,” and

provides:

            A ward for whom a conservator has been appointed
      shall not have the power to convey, encumber, or dispose of
      property in any manner, other than by will if the ward
      possesses the requisite testamentary capacity, unless the
                                      9
      court determines that the ward has a limited ability to handle
      the ward’s own funds. If the court makes such a finding, it
      shall specify to what extent the ward may possess and use the
      ward’s own funds.

             Any modification of the powers of the ward that would
      be more restrictive of the ward’s control over the ward’s
      financial affairs shall be based upon clear and convincing
      evidence and the burden of persuasion is on the conservator.
      Any modification that would be less restrictive of the ward’s
      control over the ward’s financial affairs shall be based upon
      proof in accordance with the requirements of section 633.675.

We see nothing in the text of this statute that creates rights in a putative

beneficiary or other third party to challenge the validity of a ward’s will
before the ward dies, and we have never construed this statute to allow

such a challenge.

      The parties disagree whether section 633.637 requires the court to

contemporaneously authorize a ward to execute a will. In our view, the

phrase “other than by will” expressly exempts wills from the statute’s

requirement that the court preapprove property transfers.                 See

Conservatorship of Rininger v. Rininger, 

500 N.W.2d 47

, 50 (Iowa 1993)

(“Without securing prior court approval, a ward is not allowed to dispose

of property in any manner other than by will.” (emphasis added)). But this

exception for wills is qualified by the phrase, “if the ward possesses the
requisite testamentary capacity.” The Kienes argue that Radda’s 1992 and

2015 wills are invalid as a matter of law, or at least presumptively invalid,

because he executed each will without a contemporaneous judicial

determination of his testamentary capacity. The plain language of the

statute, however, only requires a judicial determination to preapprove

inter vivos transfers, that is, dispositions of property “other than by will.”

If the legislature wanted to require the court to preapprove the ward’s
                                           10

execution of a will it would have said so, as it did for inter vivos transfers

and as other legislatures have done.2

       We conclude that section 633.637 does not allow the Kienes to

challenge the validity of Radda’s wills regardless of the lack of a

contemporaneous judicial determination of his testamentary capacity in

1992 or 2015. Our conclusion is reinforced by an examination of chapter

633 as a whole. “We read interrelated statutes together in a manner that

harmonizes them if possible.” In re Tr. #T-1 of Trimble, 

826 N.W.2d 474

,

483 (Iowa 2013).

       Chapter 633 contains numerous sections expressly providing

specified powers and rights to interested persons. See, e.g., Iowa Code

§§ 633.42, .53, .65, .83, .94, .97, .122, .186, .216, .247, .253, .256, .290,

.308, .310, .354, .375, .377, .394, .469, .489, .518, .561.                   When the

legislature wants to allow an interested party a right to sue in the Probate

Code, it says so expressly as it did most notably in section 633.308 for

postdeath will contests. See

id. § 633.308 (“Any

interested person may

petition to set aside the probate of a will by filing a written petition in the

probate proceedings.”).         Section 633.637 omits the term “interested

person” and textually provides no third party with the right to sue for a
determination of the ward’s testamentary capacity. “[L]egislative intent is

expressed by omission as well as by inclusion . . . .” Marcus v. Young, 

538 N.W.2d 285

, 289 (Iowa 1995). We have observed “the legislature’s selective


       2Of  course the ward or conservator at their option may petition the court to
determine the ward’s testamentary capacity under section 633.637 before a will is
executed, and doing so may well be the better practice. But we do not read this statute
as requiring such preapproval.         Other state legislatures have codified specific
requirements for a ward to execute a will. See Ralph C. Brashier, Conservatorships,
Capacity, and Crystal Balls, 87 Temp. L. Rev. 1, 27–28 (2014) (surveying states and noting
“statutes in a few states do place or permit additional restrictions on conservatees that
make it considerably more difficult, if not impossible, for them to make a will” (footnotes
omitted)).
                                     11

inclusion of [a] phrase . . . to be dispositive.” Oyens Feed & Supply, Inc. v.

Primebank, 

808 N.W.2d 186

, 194 (Iowa 2011); see also Chesnut v.

Montgomery, 

307 F.3d 698

, 701 (8th Cir. 2002) (“[W]here Congress

includes particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that Congress

acts intentionally and purposely in the disparate inclusion or exclusion.”

(alteration in original) (quoting Russello v. United States, 

464 U.S. 16

, 23,

104 S. Ct. 296

, 300 (1983))); Freedom Fin. Bank v. Est. of Boesen, 

805 N.W.2d 802

, 812 (Iowa 2011) (same). The legislature’s omission of any

mention of an interested person in section 633.637—when that term

appears in many other sections of the Probate Code—makes clear that the

legislature did not provide third parties with a right to contest a will while

the ward is still living. We will not “extend, enlarge, or otherwise change

the meaning of a statute under the guise of construction.” Doe v. Iowa

Dep’t of Hum. Servs., 

786 N.W.2d 853

, 858 (Iowa 2010).          So we must

decline to add a third-party standing provision into section 633.637 that

the legislature chose to omit.

      The Kienes argue that under section 633.637 a will that is executed

without a contemporaneous judicial determination of the ward’s
testamentary capacity must be presumed invalid (thereby placing the

burden of proof on the will’s proponent).       This would require judicial

preapproval to avoid a conflict with other Code provisions that presume

the validity of a properly signed will. See Iowa Code § 633.279 (outlining

the requirements for formal execution of a “valid” will); Est. of Gruis v.

Winnebago Cnty., 

207 N.W.2d 571

, 573 (Iowa 1973) (“The burden of proof

is on contestants in a will contest to establish testator at the exact time of

the making of the will lacked one or more of the essentials of testamentary

capacity.”). We disagree with the premise of the Kienes’ argument.
                                           12

       In our view, the fact Radda has been in a voluntary conservatorship

since 1991 does not raise a presumption that he lacked testamentary

capacity in 1992, 2015, or now. See In re Est. of Springer, 

252 Iowa 1220

,

1232–33, 

110 N.W.2d 380

, 388 (1961).3 “Courts have often stated that

the imposition of a conservatorship over a person’s assets is not a

determination that the individual lacks testamentary capacity, because

the capacity required to manage one’s assets is greater than that required

to devise them.”       Ralph C. Brashier, Conservatorships, Capacity, and

Crystal Balls, 87 Temp. L. Rev. 1, 1 (2014) [hereinafter Brashier]. For

example, a ward may presently lack the acumen to manage a complex

farming operation, yet be well aware that he owns the farm and know

whom he wants to inherit it. See

id. at 21

(“A person may be unable to

manage assets and yet know what those assets are and whom she wants

to receive them.” (footnote omitted)). “Since the fundamental inquiries in

a conservatorship proceeding and a will contest alleging lack of

testamentary capacity are different, the ‘practically . . . universal rule’

developed that a determination that an individual requires a conservator

is not a determination that the individual lacks testamentary capacity.”

Id. at 13

(footnotes omitted) (quoting Est. of Hall v. Hall, 

195 P.2d 612

, 615
(Kan. 1948)); see also

id. at 3

n.12 (collecting cases). Our interpretation

of section 633.637 protects the ward’s autonomy consistent with this




       3The   burden is on the party challenging the will to show the testator lacked the
mental capacity “1. To understand the nature of the instrument he is executing; 2, to
know and understand the nature and extent of his property; 3, to remember the natural
objects of his bounty, and; 4, to know the distribution he desires to make.” 

Springer, 252 Iowa at 383

, 110 N.W.2d at 383; see also 

Gruis, 207 N.W.2d at 573

(same). By contrast,
a conservatorship may be opened when the proposed ward’s “decision-making capacity
is so impaired that the person is unable to make, communicate, or carry out important
decisions concerning the person’s financial affairs.” Iowa Code § 633.566(2)(a).
                                             13

nearly universal rule4 and avoids a presumption of invalidity in conflict

with other provisions of the Iowa Probate Code.

         The Kienes primarily rely on unpublished cases to support their

contention that they can challenge the validity of Radda’s wills before he

dies.5     But in most states will contests must await the testator’s

         4Our interpretation of section 633.637 also supports the policy recommendations
from the Iowa Guardianship and Conservatorship Reform Task Force. See Iowa
Guardianship & Conservatorship Reform Task Force, Final Report (2017),
https://www.iowacourts.gov/static/media/cms/Final_Task_Force_Report_5A992F4D4
AF86.pdf [https://perma.cc/7RKD-TMAF]. We formed the task force, comprised of more
than seventy individuals, and chaired by Justice Bruce Zager, with University of Iowa
College of Law Professor Josephine Gittler and Drake University Law School Professor
Jerry Foxhoven as coordinators and reporters, “to address the challenges that the Iowa
guardianship and conservatorship system faces now and will face in the future in meeting
the needs of vulnerable Iowans.”

Id. at iv.

The task force report emphasized the need to
respect, “to the extent feasible,” the “autonomy and self-determination of persons subject
to guardianships and conservatorships.”

Id. at 5.

For example, the report recommends
that “[t]he conservator should manage the financial affairs of the protected person in a
way that maximizes his or her dignity, autonomy, and self-determination.”

Id. at 80.

More specifically, that “[t]he conservator, consistent with the Iowa Code and court orders,
should exercise authority only as necessitated by the cognitive and functional limitations
of the protected person.”

Id. The task force

recommended changing the term “ward” in
the Iowa Code, court rules, and legal instruments to “person subject to guardianship”
and “person subject to conservatorship.”

Id. at 13

. We use “ward” throughout this
opinion because that is the term still used in chapter 633.
         5The Kienes rely on these cases to argue that a testator’s capacity may be

challenged before the testator dies. None of these cases are binding on our court, and
the decisions offer at best tangential support for the Kienes’ position. See In re
Guardianship of Hanken, No. 18–1368, 

2019 WL 719048

, at *1 (Iowa Ct. App. Feb. 20,
2019) (ward herself, not a third party, brought petition to terminate guardianship and
conservatorship and sought determination of her right to execute a new will); In re
Guardianship of Driesen, No. 08–1311, 

2009 WL 1491871

, at *1–2, *4 (Iowa Ct. App. May
29, 2009) (rejecting challenge to validity of a trust amendment while trustee remained
alive based on finding that trustee had sufficient capacity to amend trust); In re
Guardianship & Conservatorship of Est. of Tennant, 

714 P.2d 122

, 125–26 (Mont. 1986)
(validity of will properly determined in probate proceeding after testator died); In re Tr. of
Niles, 

823 A.2d 1

, 10 (N.J. 2003) (holding that trustee removed for undue influence is
liable to estate for attorney fees incurred to restore assets); In re Sable, No. A–3743–
06T23743–06T2, 

2009 WL 321558

, at *3–4, *8, *10 (N.J. Super. Ct. App. Div. Feb. 11,
2009) (per curiam) (affirming order invalidating will of living testator but noting “the legal
argument that the trial court improperly determined the validity of a will when the
testator was still living . . . was not made before [the court], and an issue not properly
raised below may not be raised on appeal”); In re Cohen, 

760 A.2d 1128

, 1141 (N.J. Super.
Ct. App. Div. 2000) (“We agree with the Chancery Division judge’s ruling that it would be
premature for any party to contest Henrietta’s will and trust while she is alive.”); In re
                                              14

death.6 Iowa is no exception. See In re Est. of Lundgren, 

250 Iowa 1233

,

1236–37, 

98 N.W.2d 839

, 841 (1959) (“The essential characteristic of a

Armster, No. M2000–00776–COA–R3–CV, 

2001 WL 1285904

, at *6–7, *12, *18 (Tenn. Ct.
App. Oct. 25, 2001) (affirming trial court rulings rejecting challenge to will and imposition
of involuntary conservatorship while testator remained alive).

       6See,  e.g., Fenstermaker v. PNC Bank, Nat’l Ass’n, No. 3:17–cv–00778 (JAM), 

2018 WL 1472521

, at *5–6 (D. Conn. Mar. 26, 2018) (collecting cases and stating “[p]laintiff’s
claims to invalidate his father’s will and revocable trust are not ripe for adjudication. As
no more than a theoretical beneficiary of the will and the trust, plaintiff presently has no
imminent or actual injury”); Hodge ex rel. Skiff v. Hodge, 

78 F. Supp. 2d 29

, 33 (N.D.N.Y.
1999) (declining to rule on the validity of the testator’s will because she was alive and “it
is premature to interpret or invalidate a will that has not yet been admitted to probate
because the testator is still alive”); In re Est. of Henry, 

919 N.E.2d 33

, 36–37, 40–41 (Ill.
App. Ct. 2009) (collecting cases and concluding that “[j]ust as appellants [putative
beneficiaries] would lack standing to bring a judicial challenge during Henry’s life if Henry
had regained his mental faculties and executed a new will overriding the 2004 will and
eliminating their shares in his legacy, so too do they lack standing” to challenge the ruling
allowing the ward’s guardian to execute new will); Lloyd v. Wayne Cir. Judge, 

23 N.W. 28

,
29–30 (Mich. 1885) (Campbell, J., concurring) (noting that “[j]udicial proceedings to
probate a will while the testator is living, are unheard of in this country or in England”
and the practical problems it would present, including the fact that the living cannot have
heirs, a relator may “dispose of his entire property” before death, and the relator may
move before he or she dies so that the estate is beyond the jurisdiction of the county in
which he or she currently lives); Alexander v. Walden, 

337 S.E.2d 241

, 243 (S.C. Ct. App.
1985) (reversing the lower courts’ determination regarding the validity of the will, because
“[t]he ambulatory nature of a will, and the absence of parties in interest, which result
from the rule that a living person has neither heirs nor legatees, render impossible the
assumption that a court has power to determine the validity of a will prior to the death of
the maker”); Pond v. Faust, 

155 P. 776

, 778 (Wash. 1916) (en banc) (“[C]ourts have no
power to inquire into the validity of wills prior to the death of the maker, to determine the
incompetency of the maker.”). A few states (but not Iowa) have enacted “living probate”
statutes allowing a determination of a will’s validity before the testator dies. Kyle Frizzelle,
Comment, Better to Play Dead? Examining North Carolina’s Living Probate Law and Its
Potential Effect on Testamentary Disposition, 39 Campbell L. Rev. 187, 189 n.16 (2017)
(identifying Alaska, Arkansas, North Carolina, North Dakota, and Ohio as states with
such statutes). However, these statutes give the testator the right to petition a court to
determine the validity of the will, not a putative beneficiary such as the Kienes lacking
the testator’s consent. See Alaska Stat. Ann. § 13.12.530 (West, Westlaw current through
2020 Second Reg. Sess. 31st Leg.) (providing a testator, a personal representative
nominated in the will, or an interested party—with the testator’s consent—may petition
the court); Ark. Code Ann. § 28–40–202(a) (West, Westlaw current through 2021 Reg.
Sess. 93rd General Assemb.) (providing that an individual who executes a will may
request a declaratory judgment to establish the will’s validity); N.C. Gen. Stat. Ann.
§ 28A–2B–1(a) (West, Westlaw current through 2020 Reg. Sess. 2020) (same); N.D. Cent.
Code Ann. § 30.1–08.1–01 (West, Westlaw current through 2019 Reg. Sess. 66th Legis.
Assemb.) (same); Ohio Rev. Code Ann. § 5817.02(A) (West, Westlaw current through
133rd Gen. Assemb. (2019–2020)) (limiting predeath challenges to a testator and
                                             15

testamentary instrument is that it operates only upon and by reason of

the maker’s death. Until then it is ambulatory. By its execution the maker

parts with no rights and divests himself of no part of his estate and no

rights accrue to, or vest in, any other person [before his death].”); see also

Birkhofer ex rel. Johannsen v. Birkhofer, 

610 N.W.2d 844

, 847 (Iowa 2000)

(en banc) (“[T]he mere intestate claim of a daughter in the potential estate

of her living mother is too contingent to constitute a legal interest sufficient

to establish standing.”).

       Will contests are governed by Iowa Code sections 633.308–.320.

Iowa Code section 633.308 provides in full, “Any interested person may

petition to set aside the probate of a will by filing a written petition in the

probate proceedings. The petition for such purpose shall state the grounds

therefor.” A will cannot be probated until after the testator dies. Iowa

Code § 633.290. No provision of the Iowa Probate Code allows an action

to set aside a will while the testator is alive.7

       We recently held that a common law action for tortious interference

with an inheritance must be joined with a timely will contest. Youngblut

v. Youngblut, 

945 N.W.2d 25

, 38–40 (Iowa 2020). We did so based on

Iowa’s legislative scheme for will contests, including trial by jury, the
joinder of interested parties, heirs and proponents of the will, and the need

for finality, “prompt and effective estate administration” and a “final and


expressly prohibiting a testator’s guardian or agent under the testator’s power of attorney
from filing a complaint to determine the validity of the will or to voluntarily dismiss a
complaint). Even in a state that allows a predeath determination of a will’s validity, the
Kienes, without the testator’s consent, would lack standing. See also David L. Skidmore
& Laura E. Morris, Before the Party’s Over: The Arguments for and Against Pre-Death Will
Contests, 27-APR Prob. & Prop. 50, 50–51 (2013) (collecting cases and stating that the
majority of states refuse to determine the validity of a will during the testator’s lifetime).
       7The  Kienes argue this “is not a will contest” but the relief they seek is a
declaration that Radda’s 1992 and 2015 wills are invalid because there was no judicial
determination of his testamentary capacity at those times.
                                            16

conclusive distribution.”

Id. at 37.

We declined to allow such claims “to

go forward outside normal probate deadlines and proceedings.”

Id. at 38.

Our reasoning in Youngblut v. Youngblut cuts against creating a new

predeath will contest procedure that evades the existing statutory

safeguards for will contests.

       With Iowa’s detailed legislative scheme in place for will contests, we

must decline the Kienes’ invitation to read between the lines of section

633.637 to judicially create a new, separate mechanism for a predeath will

contest.      Although allowing challenges to wills under section 633.637

during the ward’s life may avoid some postdeath will contests, it might

generate unnecessary challenges to wills that are never probated. In our

view, it makes more sense to defer challenges to a will to formal probate

proceedings after the testator’s death, when the rights of all affected

parties can be determined and questions of capacity or undue influence

can be decided by a jury as the conscience of the community.8 We see

good practical reasons not to stray from the legislature’s chosen statutory

scheme. Predeath challenges to wills may be a waste of time—the testator

might replace the will at issue with a new one, die without property, or the

challenger might die before the testator.9 The testator is entitled to keep


       8See Iowa Code § 633.311 (providing that the rules of civil procedure, including
demand for jury trial, governs an action to set aside a will).
       9The   legislature has allowed for modification or termination of irrevocable trusts
by the court with consent of all beneficiaries before the death of the settlor in certain
circumstances. See Iowa Code § 633A.2203. This understandably applies to irrevocable
trusts, but not revocable trusts, because, like wills, a settlor may change or revoke his or
her revocable trust before death. See

id. § 633A.3102; id.

§ 633.284. Moreover, just as
will contests can only be brought after the death of the testator, challenges to revocable
trusts must wait until after the settlor’s death. See

id. § 633A.3108; see

also Alexander
v. Walden, 

337 S.E.2d 241

, 242–43 (S.C. Ct. App. 1985) (addressing claims of undue
influence and incompetence as to an irrevocable trust, but reversing the lower court’s
determination that her will was valid, because the court had no power “to determine the
validity of a will prior to the death of the maker”).
                                              17

the terms of the will confidential before his death;10 yet a predeath

challenge might invade the testator’s privacy interest or reveal terms the

challenger would accept, making the challenge unnecessary or generating

unwanted discord among family members. There is no right to a jury trial

in conservatorship proceedings under section 633.637 and questions of

testamentary capacity and undue influence are better determined by a jury

than a lone judge. The testator’s heirs and beneficiaries have a stake in

the outcome; while their rights are protected in probate, if we allow a family

member to challenge a will in a conservatorship proceeding under section

633.637, the result might be to disinherit a charity or other beneficiary

without providing them notice and an opportunity to be heard.

       The Kienes make a policy argument that allowing the claims by

family members to adjudicate a ward’s testamentary capacity would

advance the purpose of the conservatorship: protection of the ward.

“Policy arguments to amend the statute should be directed to the

legislature.” 

Whalen, 827 N.W.2d at 194

. It is the role of the court and

the conservator to protect the ward. Family members may have their own

conflicts of interest with the ward. See Brashier, 87 Temp. L. Rev. at 15

(“Petitioners often seek to have the conservatorship court strip the
respondent of her right to make a will to protect their own interests under

the respondent’s existing estate plan.”). The Kienes do not allege that

Radda was unprotected or subjected to improper influence when he




        10See Iowa Code § 622.10 (codifying attorney–client privilege);

id. §§ 633.288 (requirement

that during the testator’s life, only the testator or “some person authorized
by the testator by an order in writing duly acknowledged” may have access to the will),
.289 (requirement that the clerk must notify the indorsed individual, if any, when the
clerk is informed of the testator’s death, and if no petition for probate is filed within thirty
days of the testator’s death, the will becomes publicly opened).
                                          18

executed the wills in 1992 or 2015.11 The Code provides other procedures

to protect a ward from a bad conservator. A conservator is a fiduciary,

and a beneficiary may request the court to remove a fiduciary who

mismanages the estate or breaches a legal duty.                      See Iowa Code

§§ 633.3(17), .65; see also Est. of Rutter v. Rutter, 

633 N.W.2d 740

, 744,

751 (Iowa 2001) (holding the district court abused its discretion by failing

“to remove the executor [at the beneficiary’s request] after finding that the

executor had made unauthorized disbursements from the trust account

and the estate account to his personal advantage”).

       We hold that the Probate Code and specifically section 633.637 does

not allow a predeath will contest. We therefore affirm the district court’s

ruling declining to adjudicate the validity of Radda’s wills executed in 1992

or 2015. No party seeks an adjudication of Radda’s present testamentary

capacity, and we see no valid reason to allow the case to continue while

Radda is alive. Section 633.637 does not allow family members to bring a

declaratory judgment action to determine the ward’s current testamentary

capacity. See 

Birkhofer, 610 N.W.2d at 847

. Accordingly, we direct the

district court to dismiss this action on remand.

       B. The District Court Erred by Ordering the Kienes to Pay the
Conservator’s Attorney Fees. The district court ordered the Kienes to

pay the conservator’s attorney fees based on its finding that “it is not in

[Radda’s] best interest to utilize his funds to defend his competency, when

those funds will likely be needed for his care.” The Kienes argue there is

no statute or other basis for requiring them to pay the bank’s attorney

fees. We agree.

        11The Kienes merely state that while “[i]t is not clear in this case whether the

failure to request a determination of Radda’s testamentary capacity . . . was the product
of ignorance or malfeasance[, i]t is clear, . . . that the determination was required and
was not made.”
                                     19

      “Iowa follows the American rule: ‘the losing litigant does not

normally pay the victor’s attorney’s fees.’ ” Thornton v. Am. Interstate Ins.,

897 N.W.2d 445

, 474 (Iowa 2017) (quoting Rowedder v. Anderson, 

814 N.W.2d 585

, 589 (Iowa 2012)). “Generally, attorney fees are recoverable

only by statute or under a contract.”

Id. (quoting Miller v.

Rohling, 

720 N.W.2d 562

, 573 (Iowa 2006)). “There is a ‘rare’ common law exception to

this rule, permitting recovery of attorney fees when the [party] ‘has acted

in bad faith, vexatiously, wantonly, or for oppressive reasons.’ ”

Id. (quoting Miller, 720

N.W.2d at 573).

      No exception to the American rule applies here.           There is no

applicable fee-shifting statute or contract. Nor has the conservator alleged

that the Kienes acted in bad faith, vexatiously, wantonly, or for oppressive

reasons. Instead, the conservator argues that public policy supports fee-

shifting, relying on In re Marriage of Erpelding, where we held that Iowa

Code section 596.5 prohibits premarital agreements from including a

waiver of the right to attorney fees incurred to obtain child or spousal

support. 

917 N.W.2d 235

, 246–47 (Iowa 2018). Erpelding is inapposite.

Courts have discretion to award attorney fees in marital dissolution

actions under Iowa Code chapter 598. See

id. By contrast, the

conservator
cites no authority allowing the court to order a third party to pay the

conservator’s attorney fees. Rather, with court approval, the conservator,

as executor in a will contest, may be allowed fees from the estate. Iowa

Code § 633.315. The conservator’s policy arguments for fee-shifting under

section 633.637 (to protect the solvency of the estate) should be directed

to the legislature. 

Whalen, 827 N.W.2d at 194

.

      The applicable public policy here is reflected in the American rule

under which each side bears its own attorney fees.          Indeed, we have

cautioned that fee-shifting awards can “chill vigorous advocacy.” First Am.
                                     20

Bank v. Fobian Farms, Inc., 

906 N.W.2d 736

, 751 (Iowa 2018) (quoting

Cooter & Gell v. Hartmarx Corp., 

496 U.S. 384

, 393, 

110 S. Ct. 2447

, 2454

(1990)).   The Kienes presented questions of first impression that we

ultimately found without merit. But their claims were not frivolous within

the meaning of Iowa Rule of Civil Procedure 1.413(1) (allowing an award of

fees as a sanction for frivolous pleadings) and the conservator has

abandoned its claim for fees under that rule.

      We hold that the conservator was not entitled to recover its attorney

fees from the Kienes, and we reverse the district court’s fee-shifting order.

      IV. Disposition.

      For these reasons, we affirm the district court’s ruling denying the

Kienes’ request to adjudicate the validity of Radda’s 1992 or 2015 wills.

We reverse the ruling that allowed a determination of Radda’s present

testamentary capacity. We also reverse the ruling requiring the Kienes to

pay the conservator’s attorney fees. We remand the case for dismissal.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR

DISMISSAL.

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