Lanham v. Fleenor, 429 P.3d 1231

Gordon Lanham executed a handwritten/written will (dictated over recordings) that disinherited his son Thomas, leaving him $1 and a wooden bed; the will mentioned but did not specifically devise two real properties (Ranch and Big Creek) and contained no residuary clause.
Gordon repeatedly named Judd Lanham as executor and wrote he was giving Judd a “Power of Attorney” to control and distribute Gordon’s personal and real property “now and even after I am dead” and to distribute property “in any way that he sees fit.”
Magistrate granted summary judgment against Thomas on his challenge to disposition of the residue; Fleenor (Thomas’s attorney) filed an appeal 49 days after the magistrate’s written judgment (42-day deadline), and the district court dismissed the untimely appeal; the Court of Appeals affirmed.
Thomas sued Fleenor for legal malpractice, alleging the untimely appeal (Fleenor’s error) proximately caused loss because a timely appeal would have succeeded and Thomas would have received intestate shares of undevised property.
District court, on summary judgment, held the will unambiguously granted Judd a general power of appointment over all personal and real property not specifically devised, so a timely appeal would have failed; it granted summary judgment for Fleenor. Thomas appealed to the Idaho Supreme Court.

Issue	Lanham (Plaintiff) Argument	Fleenor (Defendant) Argument	Held
Whether the success of a hypothetical (unperfected) appeal is a question for the court or jury	Jury should decide whether a timely appeal would have succeeded (proximate cause is factual)	Court should decide as a matter of law whether the underlying appeal would have succeeded	Court: question is one of law for the judge to decide (majority rule; appellate-type legal question)
Whether Gordon’s will unambiguously granted a general power of appointment to the executor that precluded intestate succession	The will failed to devise the residue and used the term “Power of Attorney,” so no post-death power existed; residuary property should pass intestate to Thomas	The will’s language ("Power of Attorney... even after I am dead" and "distribute... as he sees fit") manifests intent to grant Judd a general power of appointment over undevised property	Held: the will unambiguously granted Judd a general power of appointment over all personal and real property not specifically devised, blocking intestate succession; therefore a timely appeal would have failed
Whether Fleenor is entitled to attorney’s fees on appeal under I.C. § 12-121	Thomas argues appeal raises unsettled law and was not frivolous	Fleenor argues appeal is without foundation and contrary to established law	Held: fees denied; appeal raised a question of first impression so not frivolous, but costs awarded to Fleenor

Lanham v. Lanham, 160 Idaho 89 (Ct. App. 2016) (affirming dismissal of untimely magistrate appeal)
In re Estate of Krokowsky, 182 Ariz. 277 (Ariz. 1995) (articulating three-part test for intent to create a power of appointment)
In re Lidston’s Estate, 32 Wash.2d 408 (Wash. 1949) (holding no special form of words required to create a power of appointment when intent appears)
In re Estate of Lewis, 738 P.2d 617 (Utah 1987) (discussing limits on implying powers of appointment and relevant intent analysis)
Elec. Wholesale Supply Co. v. Nielson, 136 Idaho 814 (Idaho 2001) (standards for awarding fees under I.C. § 12-121 on appeal)