Enders v. Parker

erred October 1999 when it found probable cause to believe that Kevin was a aid;

child in abridged need that the state process rights by

her due failing to investi-

gate the surrounding Amy's circumstances

presence in Erica's home October 1999 by failing provide notice to Erica's Amy

mother that unsuper- was not allowed Erica;

vised visits with and that the process

court violated her rights by rely- due

ing unsigned plan on an failing case adjudication

to hold permanency hear- ings for Kevin within statutorily mandat-

ed time frame. any

Erica has failed point to cite in the issues;

record where she raised these our

review of the record has not uncovered

indication that she did so. We will not re

view issues that properly were not raised in the trial court.21

IV. CONCLUSION AFFIRM the court's order

terminating parental rights Erica's to Kevin Amy. ENDERS, Appellant,

Iris

v. PARKER, Repre-

Connie Personal

sentative of the Estate of Joel Kottke, Appellee.

W. Parker,

Connie Representative Personal Kottke, Estate of Joel W.

Cross-Appellant,

v. Ralph

Iris Kottke, Enders and

Cross-Appellees. S-9341,

Nos. S-9391.

Supreme Court of Alaska.

March Amy's placement family. with her foster This eg., 21. See, D.E.D. State, v. 704 P.2d 774, 780 (Alaska 1985). claim likewise is moot. Byrnes, Hughes Thorsness

Timothy R. LLC, Anchor- & Bauman Huddleston Powell Enders. age, Appellant/Cross-Appellee Davis, P.C., Mathis, Davis & C. James Appellee/Cross-Appellant. Anchorage, for Justice, FABE, Chief Before: BRYNER, EASTAUGH, MATTHEWS, CARPENETI, Justices. REHEARING

OPINION ON CARPENETI, Justice. INTRODUCTION 1 I. challenged the unsuccessfully

Iris Enders Kottke's 1997 probate of Joel into admission companion Par- will, Connie named his which representative, on ker and insane delu- undue influence grounds upheld previously sions. We challenge. rejection of that appeals Enders now Iris 18.16.485claim her AS denial of August opinion replaces the issued 1. This attorney's arising

costs fees out of her based the theories of undue influence and prosecution unsuccessful of the will contest. insane delusions. cross-appeals Connie Parker seven-day After a evidentiary hearing in court's refusal attorney's award her fees July 1998,Superior Judge Court Sen K. Tan 82(b) and costs under Alaska Civil Rules upheld the 1997 appointed will and Parker as 79(b). and Because AS 18.16.4835does not personal Kottke's representative. Enders

require personal or Ralph and appealed Kottke to this court. personal representative's nominated actions superior affirmed the thoughtful court's benefit the personal repre- estate before the thorough and decision.3 expenses, sentative can recover we vacate superior court's denial of Enders's AS Proceedings B. 13.16.4835claim. superior Because the Several weeks after evidentiary hear- specific did not make as to whether ing, Enders served Parker with a claim for prosecuted Enders the will contest expenses administrative incurred in the liti- faith, we specific remand this case for find- gation of pursuant the will contest to AS ings on this issue. attorney's Because the 13.16.485. Enders's claim expenses itemized 82(b) provisions fees and costs of Civil Rules $82,987.07; of a later supplement itemized 79(b) and inapplicable probate pro- to expenses $14,837.71. further of Parker did ceedings, superior we affirm the court's de- formally respond to this claim. nial of Parker's seeking attorney's motion fees and costs under September 21, these rules. On 1998 Enders filed a

petition for allowance of her AS 18.16.485 claim superior with the court. op- Parker II. FACTS AND PROCEEDINGS posed petition and also moved for costs A. Facts attorney's and fees under Civil Rules 79 and 82. The court denied peti- Joel Kottke executed a will in nomi- grounds tion on the that her claim did not nating stepdaughter his Iris Enders as sue- benefit Kottke's estate. The court also de- cessor personal to his wife Martha repre- motion, nied ruling Parker's that it would not leaving fifty percent sentative and of his award fees and costs under the civil rules estate to siblings fifty his percent and because there is a statutory scheme Martha's children. After Martha's death in awarding costs and fees for will contests. 1991, Kottke entered into a relationship with Connie Parker. Parker lived with Kottke and appeals Enders the denial petition. of her cared for him diagnosed when he was with cross-appeals Parker the denial of her motion cancer. attorney's costs and fees. In June four months before his III. STANDARDOF REVIEW death, Kottke executed a new will disinherit ing siblings stepchildren his and in favor of challenges Parker.2 The 1997 will nominated Connie court's interpretation 13.16.485; of AS Par Parker as Kottke's representative. challenges ker interpre After Kottke's death in October Parker tation of Civil Rules 79 and 82. We review a appointment obtained special administra trial interpretation of statutes sought tor and probate the 1997 will. independent rules under judgment Enders and Joel's Ralph brother Kottke then construing standard.4 meaning When of petition filed to set aside the 1997 will standard, statute under this we "look to 2. The 1997 will left Parker Fancyboy Inc., an interest in Village Kottke's Coop., v. Alaska Elec. Anchorage property, left Enders an interest (Alaska 1999) (stating 1128, 1132 Kenai, property Kottke's and left Parker the apply independent judgment we our interpre- residuary system estate under a trust that was statutes); Compton tation of see also v. Chatanika effectively a life estate. (Alaska Gold 988 P.2d 598, 601 Camp Props., 1999). (Alaska re Kottke, Estate P.3d 2000). meaning 'the language, legislative modify or extend by judicial the statute cons

history, the purpose of the statute'" truction.8 "Where a meaning ap statute's "adopt the rule pears unambiguous, law most clear and ... party persuasive light precedent, reason, asserting a different meaning bears a corre policy." spondingly heavy demonstrating burden of contrary legislative intent." IV. DISCUSSION language unambiguou AS 13.16.4835is

A. s.10 It representa Alaska states that a Statute 13.16.4385 Governs Recovery tive or from the Estate of Ex-

penses prosecuted who has Litiga- or probate Incurred defended a Estate tion; action in Impose Require- It faith is Does Not entitled to all recover necessary Litigation expenses disbursements, ment that re Benefit gardless of prevailed whether he or she Estate. Nothing the action. in the text of the statute 1. Alaska Statute 13.16485 does not suggests that a court has the discretion to contain a benefit-to-the-estate re- personal determine whether a representa quirement. tive's actions benefitted the estate before considering After "whether the actions of awarding personal a representative his or benefitted the expenses. administrative estate," court denied Enders's Our examination of legislative intent grounds claim on the that her "conduct fails policies and behind the statute and the Uni to meet the that rep- a 11(UPC) form Probate yields Code nothing resentative must act to benefit the estate." that meets the burden of demonstrating con But AS 18.16.485 contains no benefit-to-the- trary legislative intent. Alaska Statute - requirement. estate 13.16.4835 directly UPC, is taken from the yet AS which We have adopted interpreted Alaska in 1972.12 Alaska not 13.16.435. interpreting statute, When 18.06.010(a) a we Statute provisions states that the language look to its comprising the Alaska UPC "shall be liberal in light "construed of the 7 purpose of its enactment." If language ly construed applied promote and their underlying purposes unambiguous statute is expresses policies." and and Alaska 13.06.010(b) legislature's intent, is Statute and if ambiguity sets out no pur five such revealed legislative history, we not poses will policies.13 and Two purposes support Fancyboy, 5. 984 (quoting not, P.2d at 1132 Muller v. person or is entitled to receive from Inc., (Alaska), Exploration 783, B.P. 923 P.2d 787 necessary expenses estate and disburse- (Alaska 1996)). including attorney ments reasonable fees in- curred. (citing 6. Id. Guin Ha, v. 591 P.2d n. 6 1281, 1284 (Alaska 1979)). (amended 1993), § 11. Unif. Probate Code 3-720 (1998). 8 U.L.A. 184 Inc., 69, 7. Rigging, Yahara v. Constr. & 851 P.2d (Alaska 1993) 72 (quoting J & L En- Diversified 78, 1,§ 12. Ch. SLA compris- 1972. The statutes ters., Municipality Inc. v. Anchorage, 736 P.2d of ing the Uniform Probate Code in Alaska are AS (Alaska 1987)). through 13.06 13.36. See AS 13.06.005. (citing Id. Employees Alaska City Pub. Ass'n v. 13.06.010(b) provides: Fairbanks, (Alaska 1988) 753 P.2d of State, (quoting Dep't City Natural underlying Res. v. purposes The policies of AS Haines, (Alaska 1981))). 13.06-AS 13.36 are to (1) simplify clarify concerning the law University Tumeo, Alaska v. decedents, missing persons, affairs of pro- (Alaska 1997). minors, persons, incapacitated tected per- sons; provides: 10. AS 13.16.435 (2) discover and make effective the intent of Expenses litigation. in estate If a decedent in distribution of the decedent's representative person or person- nominated as property; al prosecutes any (3) defends or promote speedy system a and efficient faith, proceeding whether successful liquidating the estate of the decedent and faith, not, per- whether or successful that no benefit-to-the-estate the conclusion found;14 only one be requirement should son is entitled to receive from the estate opposite necessary expenses in- supports the conclusi and disbursements arguably even Thus, heavy cluding attorney met her Parker has not reasonable fees incurred. on.15 legislative demonstrating a intent burden Thus, recover, for the claimant to order unambigu contrary clear and (1) personal representa he be a or she must words of the statute. ous personal representa tive or nominated as a (2) tive; brought he or or she must have conclusion, text AS 18.16.485 faith; proceeding defended the require no benefit-to-the-estate contains (8) expenses "necessary" must be and attor expressed policies legislature's ment. ney's fees "reasonable." It is immaterial enacting purposes in the statute do seeking expenses party pre whether the Accordingly, requirement. suggest such action; requirements in the if the require vailed does not we hold that AS 18.16.485 met, party is reim per entitled receive personal representative or expenses from the estate for in con bursement to show sonal the estate before he or test has benefitted litigation, including attorney's curred in the fees.17 expenses the statute. may recover under she 18.16.485 does not have seen that AS We rep- 2. Enders is a nominated analysis.

require a benefit-to-the-estate purposes resentative for the of AS require. turn now to what the statute does 13.16.435. only requirements for the imposes three It explicitly expenses Alaska Statute 18.16.4850 recovery of in- from the estate litigation: curred in estate provides personal represen that a nominated person expenses. tative can recover Enders was any personal representative If or personal representative a un representative nominated as personal de- nominated will; therefore, eligi- she der Kottke's 1988 is prosecutes proceeding good in fends or making distribution to the decedent's succes- (Ariz.App.1996); Holmes, In re 1380-81 Estate of 300, sors; (Colo.App.1991); 304 Estate of (4) (Me.1987); of certain facilitate use and enforcement Rosen, 700, 520 A.2d 701 In re Estate Evenson, 90, trusts; (Minn.App.1993); and 505 N.W.2d 92 of (5) among law various make uniform the the 583, re 243 Neb. 501 Watkins, Estate of Frietze, 292, (1993); jurisdictions. 296 In re Estate N.W.2d of 16, 183, (1) (4) (N.M.App.1998). purposes relevant to N.M. 187 Because and are not 126 Nearly to a literal all of these states adhere we do not discuss them here. our analysis, 3-720, reading imposing only the re of section ("discover (2) and make effective quirements in the claimant be 14. Subsection found it-that supports this conclu- decedent] the intent of a a a or either good can be sion because a faith will contest representative, pros that he or she have discovery of decedent's intent. faith, effective in the a charges good in and that ecuted the action 417, Watts v. Fla. 9 So.2d See 151 e.g., Newport, See, Holmes, be reasonable necessary. Evenson, (1942) (citation omitted); (finding justification in hav- 821 P.2d at 505 421 sufficient ing proponent repre- ... "both the the heirs Watkins, 296; 501 N.W.2d at 92; N.W.2d at acting by attorneys Frietze, sented able and industrious Bri- 966 P.2d at 187. But see Estate of good earnestly representing their deau, (Me.1983) in faith and (stating 458 A.2d statute, unsuccessfully respective controversy capac- party who sides of the in their under Maine ity attorneys respective for their clients and [as] cannot contests on basis of undue influence court, to the end estate). also as honorable officers the attorney's fees recover from validity purported that the of the determined"). thoroughly (3) tried out and ["promote speedy will be a and effi- 15. Subsection system liquidating ... and cient for the estate (5) among Subsection uniform the law ["make making arguably may impeded be distribution''] jurisdictions'] supports various likewise system a a to recover that allows challenger conclusion because AS 13.16.435 is verbatim fees, thereby encouraging challenges costs and adoption of section 3-720 of the UPC and be delaying liquidation and distribution. jurisdictions cause case law from other UPC with nearly or statutes identical identical overwhelm 16. AS 13.16.435. ingly supports the notion AS 13.16.435 does e.g., See, not contain a benefit In re requirement. Id. P.2d Killen, Estate Ariz. the es actions benefitted from whether expenses receive administrative ble to say that the court tate, under the statute.18 are unable estate we Kottke's good a lack explicitly found have would superior court made insufficient must remand The faith. We 3. - or detailed sufficiently specific findings, Enders to whether review,21 good in meaningful appellate brought contest the will to allow good faith. acted Enders question whether task, we note in this the court To aid faith.22 per the nominated meets Because Enders following. requirement in AS representative sonal necessary and 13.16.4835, can recover she faith" is not de Although "good brought the will if she expenses reasonable faith,. statutory statutes, probate in the fined good faith The issue good contest below, supe obligations litigated but extensively was A meaning term. findings on of that light on the make did not shed rior court fiduciary is who Instead, its decision rested it. conclu the stan obligated on its to "observe statutorily AS 18.16.485 deny fees under ... [and did not benefit applicable Enders's actions to trustees care sion dards of seen, the court's reli have duty As we and distribute estate.19 to settle is under who] efficiently a benefit-to-the-estate expeditiously ance on ... as the estate sufficiency of turn now was error. We interests of the best with as is consistent faith. good relationship the court's fiduciary exists "[A] estate." special confidence imposes a one when un- recover argues that she must Enders latter, another, equity that the so explicit an superior court makes less faith and conscience, to act is bound faith, it and that in bad acted finding that she of the one the interests regard to due with used superior court not do so. While did fiduciary confidence."24 imposing the in its language of strongly critical duty implied highest standard duty is "the explicit not decision,20 the court's 25 recognized statutorily it And is law." the Because good faith. question of on the representa- personal obligation of the an erroneously the focused on probate of the in the duly appointed, estate. Her intervention representative, personal 18. A only disposition of that, valid, the has hindered [will} would may if another contest comported him, a manner that enjoying estate in naming Mr. Kottke's while supersede one the Propate testamentary intent. his with 3-720. Unirorm protection of section the Cope ed.1977). (2d Manvar 321 Practice (Alaska P September No. 3AN-97-1124 Super., 1999). decision, superior places its various 19. At deny to fees appeared rest its decision court 1994) J.H., (Alaska 883 P.2d 21. S.L. v. action did not Enders's on its conclusion (citing v. Murray, Murray said example, estate. For benefit (Alaska 1993)). the actions evaluate whether "... the court must the es- personal representative benefitted said, superior finds that Enders' point it "Ms. the event that At another In tate." faith, proceed to bring enhancement it should about an acted in did not Enders claim of the estate." in the assets or an increase 13.16.435, value to AS whether, determine pursuant expenses and disbursements claimed Enders's stage pre-trial did Ms. Enders or at trial At no at- "necessary," - her incurred and whether were representa- acting personal that she was claim interpret torney's fees were "reasonable." only trial.... after this claim tive. She makes only those the court to award to allow the statute case was a con- of Ms. Enders' tenor The entire only necessary were disbursements benefit personal and the own benefit test for her attorney's were reasonable. fees that those family, The real for the estate.... of her litigation Enders[] is the impetus behind 13.16.350(a). animosity disdain for family's] personal Parker, beneficiary primary of Joel Connie (Alaska Mesich, v. 24. Paskvan for immense distaste will. This W. Kottke's 1997 1969). to drain propelled Ms. Parker has Ms. through litigation estate modest Mr. Kottke's Dictionary ed.1990). (6th Law 25. Black's benefit from Ms. Parker rather than have tive of the estate a decedent.26 attorney's exists, Alaska fees Civil Rule 82 does not 18.16.350(a) requires apply.30 And since the personal Statute that a clearly statute also representative authority use her "for the covers costs litigation, incurred Civil best interests of successors to the estate." Rule 79 apply. likewise does not In the context of competing two wills with Because AS 18.16.4385 sets out a personal representatives, different it is to be statutory scheme awarding for attorney's expected that the "successors" will not be fees, Parker is not entitled to an award of identical. Each thus attorney's fees and costs under Civil Rules must act for the best interests of the succes 82(b) 79(b). sors named in the personal will which each representative respectively is seeking up v. CONCLUSION hold. "good We hold that faith" under AS Because AS 18.16.485does not contain a incorporates statutory require 13.16.4835 personal rep- nominated personal ment that a representative act with resentative's actions benefit the estate before the intent to benefit successors named can instrument seeks expenses estate, recover from the we VA- uphold, incorporate require but does not CATE the court's denial of ment the acts of the represen AS 18.16.485claim. actually We REMAND tative benefit the this case estate.27 In mak specific findings ing as to findings concerning good faith, whether Enders prosecuted the will in good court should contest consider whether faith and End- reasonably arguable ers had redetermination of the grounds AS to chal 18.16.4835claim. lenge the 1997 will. Presence of such cross-appeal meritless; Parker's there- grounds imply good would part; faith on her fore, we AFFIRM the court's denial grounds absence of imply such would a lack of Parker's motion attorney's fees and faith. 82(b) 79(b). costs under Civil Rules 82(b) Attorney's B. Rule Fees and Rule BRYNER, Justice, FABE, with whom 79 Costs Justice, joins, Chief dissenting. cross-appeal, On Parker contends BRYNER, Justice, FABE, with whom that she is entitled to an award of Civil Rule Justice, 82(b)(2) joins, Chief dissenting. attorney's 79(b) fees and Rule costs against Enders prevail because she was the original ruling our appeal, this we ing party in the will contest. disagree. affirmed application the denial of Enders's provides Civil Rule 82 for an award of fees, attorney's for unanimously concluding attorney's prevailing fees to the party superior adequately "[elx- that the court addressed cept provided by Here, the issue of Enders's bad faith. With scearce- as otherwise law." legislature the expressly has provided other ly glance original at our reasoning and wise provided law. It has designat that a explaining heart, without change its to- day's ed opinion rehearing turns about-face can recover "nec essary expenses and disbursements including superior and vacates attorney's the court's attorney reasonable fees incurred." ruling; fee it now superior - - concludes that the Therefore, Civil Rule 82 does apply findings on bad faith were insuffi- specific this case. If a statutory scheme for opinion sound, client. Our first reached a 13.16.350(a). precedence provision awarding par- 26. AS over Rule 82 fees); tial v. Alaska attorney's Workers' Whaley Supra Part IV.A.3. Bd., Comp. (Alaska 1982) (holding prevailing employer that could not ob- 82(a). 28. Alaska R. Civ. P. attorney's granting tain fees because such fees purposes would undermine of Alaska Workers' 13.16.435. Compensation ability Act and limit claimant's Hughes, Bobich v. relief). Cf. appellate seek (Alaska 1998) (stating statutory attorney's that provision awarding fees ordinarily full fees take conclusion, well-reasoned speaks and it holding unfairly But this supe- accuses the my itself as view of a correct resolution rior court of applying a benefit-to-the-estate requirement this case.1 But the reasoning court's new unequivocal overlooks its findings support today's opinion does not that Enders acted in bad thus faith. requires early part decision, the of its fee superior additional comment. the court did nominally discuss cases that apply opinion The rehearing begins by noting requirement a benefit-to-the-estate in award- that superior "the court denied Enders's ing attorney's fees. But the court nowhere grounds claim on the that her 'conduct fails suggested that it construed these cases as to meet requirement the personal rep allowingit to rule that conferral of an actual resentative must act to benefit the estate."" benefit on the prerequisite estate was a to- Construing superior the court's remark to important or even an factor bearing on-an mean that applied the court a benefit-to-the- award of fees under AS 18.16.485. To the estate-requirement request to Enders's contrary, a careful review of superior fees, opinion holds that AS 18.16.4385 ruling shows that the court believed imposes requirement no such and that just opposite. statute allows a repre In beginning analysis, superior sentative to attorney's recover reasonable early court an precedent, cited Alaska In re necessarily fees good-faith incurred in litiga Underwood's Estate.5 The court in Under tion, regardless of whether it results actu adopt wood did not the actual-benefit rule- al benefit to the estate.3 is, require it did not gain financial Having decided, litigation so estate or success on rehear- as a condi tion reimbursing expenses; rather, ing holds that it more superior court erred in narrowly recognized applying a reimbursement requirement benefit-to-the-estate would be any necessary allowed for work neglecting and in explicit to make findings on "in done the interest or for the benefit of the good faith: 6 Here, estate." superior recog issue of extensively faith was nized that Underwood proposi stood for this below, litigated but court did tion, describing that holding case as not make findings Instead, on it. attorney's fees are allowed "if the services the court rested its deny decision to fees are rendered for the benefit of the estate." under AS 18.16.485 on its conclusion that Thus, beginning its fee decision in the Enders's actions did not benefit the estate. case, present unquestion seen, As we have the court's reliance on a ably understood that AS 13.16.485 did not benefit-to-the-estate was er require prevail Enders on her claim or to ror.... While the court used actually have advanced the estate's financial strongly language critical of Enders in its interests order to Although recover fees. decision, the court's are not ex expressly recognized the court that Enders's plicit on faith Be unsuccessful claim bring "did not about an cause erroneously focused on enhancement in value or an increase in the whether Enders's actions ben- estate," assets of the the court stop did not estate, efitted the say we are unable to analysis there; farther, it looked that the court explicitly would have found a underlying purposes action, of Enders's not faith.[4] lack of ing that inquiry the relevant was whether 1. Because granting this court's rehearing, order Op. Reh'g 2. on at 14. dissented, from original which I withdrew the Op. Reh'g 3. at 14-16. opinion publication precluded from its cita any purpose," tion "for Granting see Order Pet. (internal Op. Reh'g 4. at 16 para- footnote and Reh'g, 4, 2002), $-9341/9391 for (April opin omitted). graphing ion has now been withdrawn from the bound Reporter. volumes of original the Alaska The (D.Alaska. Terr.1922). 5. 6 Alaska 673 opinion nonetheless remains available for histori cal reference as Westlaw document 28 P.3d 280. 6. Id. at against Enders's action the estate was moti proposition-that former a repre by vated a desire to discover Kottke's true sentative "must benefit estate"-de- testamentary proper intent and to achieve a seribes the requirement, benefit-to-the-estate disposition of which property. the estate's would a only allow fee award when an actually action's outcome benefits the estate. proceeded The court thus to describe in contrast, proposition-that the latter depth the extensive cireumstantial evidence personal representative "must act to benefit revealing pursuing Enders's motives for estate"-looks to the represen observed, action. The court example, tative's acting; motives for it simply requires a suit brought to be purpose bene every precaution Joel W. Kottke took to fiting the estate. In concluding that Enders ensure that his 1997 probat- will would be estate," failed to "act then, to benefit the sought ed. independent legal He counsel simply court found that Enders had by competent probate lawyer, he had motives, sued for ulterior and not for the videotaped himself announcing while his purpose of benefiting the estate. Because testamentary intentions, and he was not findings as to Enders's motiva hasty making his decisions. Joel Kottke purposes tions and pin did not her fee award steps took all these because he con- was outcome, to a successful they did not amount cerned that Ms. Enders challenge would to an application incorrect of the benefit-to- his 1997 will. When Ms. Enders discover- requirement. the-estate ed that Mr. changed Kottke had his 1983 interpretation This of the trial court's rea- will, immediately questioned she his testa- denying sons for fees strong finds confirma- mentary capacity. Webb, Dr. Mr. Kottke's tion other findings. factual oncologist, Burke, representa- John trial expressly found that "Ms. End- tive of the Division of [Slervices Senior ers'[s] case was a contest person- for her own looked into testamentary Mr. Kottke's ca- benefit," al impetus "[the real behind pacity and freedom from undue influence. litigation is the family['s] per- Enders[ ] reported Both that Mr. Kottke was not animosity sonal and disdain for Connie Par- suffering [from] insane delusions and that ker," and that "[tlhis immense distaste for subject he was not the of undue influence Ms. Parker propelled has Ms. Enders by Connie Parker. Yet Ms. Enders con- drain Mr. Kottke's modest estate through pursue tinued to her claims. litigation." stage At pre-trial no or at trial did Ms. Although on rehearing dismiss Enders claim that acting per- she was es these nothing statements more than representative. sonal She makes this "strongly language," critical they are cer only claim after trial. tainly they more than that: express, are The facts of the case led the findings affirmative that Enders's conduct to conclude "that Ms. Enders failed to act in by was motivated overriding animosity Hence, the estate's interest." denying by self-interest and not faith fees, Enders's motion for the court did not desire to benefit the findings estate. These dwell on the obvious fact that Enders had supported are evidence, substantial lost her case or rule that a repre they clearly Moreover, erroneous. sentative's act must In estate. rejecting earlier benefit stead, specifically the court per said that a Emnders's will contest on its merits foresha sonal "must act to benefit the dow and bolster its later concerning estate."7 The distinction is crucial. The Enders's suing; 9 motives for and we have Emphasis added. intimately Kottke "were involved in each other's lives," family members of Enders's "never took to Connie Parker.... The real crux is the alien- Op. Reh'g 8. on at 16. ation of relationship affection in the between Connie family," Parker and [Enders's] who "did Kottke, 9. See In re Estate 248-49 accept Connie Id. Parker{.]" at 248. The (Alaska 2000). findings In these earlier the family court described the Enders as supe- that, although rior court observed "outspoken Parker animosity and in its towards Connie Par- "Because the faith: concerning bad findings those earlier upheld and

previously reviewed and the "exemplary" erroncously focused on declaring them findings, es the benefitted actions Enders's free of error.10 whether are unable tate," professes, "we opinion the on the issue findings touches these None of explicitly have say the court would that to challenge Kottke's to Enders's of whether any But good faith."11 lack of a found To the the estate. actually benefited "explicit" supposed lack on a based doubts solely on Enders's they contrary, all bear despite the groundless.12 For findings are action, bely- thus her prosecuting motives for the words to recite failure superior court's superior court the that ing the conclusion ruling leaves no explicitly, its faith" "bad her suit because application Enders's denied issue; the the on uncertainty as to its view provide a benefit ultimately to failed explicit factual ruling incorporates ree- strength of the despite the Yet estate. definition bad- the relevant mirror that conclusion, opinion today's against that ord litigation. faith supporting its any findings to point to fails un- attached superior court theory that acknowledges, rehearing opinion on As the prevail. failure to to Enders's importance due re good faith 13.16.485's AS that Indeed, superior court believed had recognition Code's Alaska Probate flects benefit, actual required proof of 18.16.4835 AS a in serves fee rejected Enders's simply have it could Thus, claimingto act as in fiduciary role.13 ground on the a matter of law as application Enders representative, consid- prevail, to without had failed that she confidence" "special under placed herself her issue of argument on the ering extensive and, equity good relationship "in this findings con- making detailed good faith or faith conscience, in to act bound [was] suing. cerning motives for her regard the interests to and with due to accuse basis see no sound I thus Under AS the confidence." imposing one erroneously applying a ben- 18.16.350(a) fiduciary duty superior court her Enders owed no requirement, efit-to-the-estate estate; duty required her to Kottke's to properly it based to doubt reason and of the estate interests of the best serve of Enders's evaluation of fees on its denial successors; obliged and it Kottke's suing. ulterior motives statutory of care standards the same observe managing trust trustees must observe ques rehearing separately on require trustees superior court's laws sufficiency of the Alaska's trust assets.15 tions require- ously benefit-to-the-estate focus on the most favorable early with the as ker ment. family being that testimony the Enders from According Id. was 'tolerable.'" Connie Parker words the worst court, "some of Reh'g Op. at 16-17. 13. on by Greg in his testimo- spoken Enders case were 'de- as a ny, Connie Parker where he described (Alaska Mesich, 14. Paskvan v. By the time Id. at 248-49. crepit old woman.'" 1969). found, situa- Kottke died "a had led to into a "feud" that had evolved tion 13.16.350(a) states: and Kottke. failing relationship" between Kottke's the time of Joel at "[Elven Id. at 249. fiduciary who personal representative is A noted, death," dispute as was a "there the court applicable of care the standards shall observe an than and was not rather who was family, A 13.36.225-13.36.290. under AS to trustees many families." acceptance Kottke had that Joel duty to set- under Id. the decedent the estate of tle and distribute any probated terms of accordance with the 10. Id. at 245. 13.36, and AS 13.06-AS effective will efficiently as is consistent expeditiously and Reh'g Op. at 16. person- A the estate. interests of with the best authority con- use the shall al opinion's doubts stem To the extent that the 13.36, the terms of by AS 13.06-AS ferred will, asserted focus from the proceedings to any, order if estate, benefited actions whether party for representative is which the issue demon- has addressed the this dissent to the estate. of successors best interests did not errone- strating that the loyalty impartiality.16 to act with Ac spite prosecuted she her claim cordingly, duty "solely Enders had a to act against Parker purpose for the of draining the interest" of Kottke's estate and its bene through estate litigation-not to secure "impartially ..., ficiaries and to do so taking the estate's benefit for individuals who End- ers believed were rightful Kottke's into account differing succes interests of the beneficiaries." sors, and not because any genu Enders had ine concern for Kottke's true will.21 The The court's on rehearing correctly superior findings court's leave no doubt con that, obligations warns to meet these as a cerning its view of this issue. in a con wills, competing test between two Because a needless remand for ritualistic incantation of the only words only "bad faith" will needed to act with intent benefit those successors named in the will that invite another appeal, which, she round of supported.18 turn, But perspective this altered certainly almost seal Enders's vie bearing tory has little quality on the in her basic efforts to drain estate, Kottke's I dissent. duty: no matter what set of benefi purported serve, ciaries she Alaska's defi

nition of required faith Enders to act genuine

out of a concern for Kottke's true honestly perceived it,

will as she unambigu

ously precluding her suing from per out of

sonal interest or for ulterior motives.19 here,

Yet superior explicitly found that Enders acted for her own self- PERRIN, Appellant, Ronn B. interest, by motivated overriding her hostili- ty toward Parker. The court denied End- v. application ers's explicitly after finding Alaska, Appellee. STATE of * "Ms. Enders'[s] case was a contest for No. A-7696. benefit"; own

* "The impetus real litigation behind the Appeals Court of of Alaska. familyl's] personal Enders] ani- March 2003. mosity Parker"; and disdain for Connie * "This immense distaste for Ms. Parker propelled

has Ms. Enders to drain Mr.

Kottke's modest tion|.J" ^[20] estate through litiga clear,

These unequivocal, are explicit

statements of the court's considered

view that Enders's action by was motivated

16. AS duty loyalty, 13.36.245 defines the stat- primary purpose for the ing: "A trustee manage shall invest and the trust enhancing prospects compensation his solely assets in the interest of the Cope beneficiaries." would not be in faith." Uni. Prosate governs duty AS impartiality: 13.36.250 cmt., (1998). See, § 3-720 e.g., 8 U.L.A. 184 "If a trust has two or more beneficiaries, Oliver v. Larimore, 540 N.W.2d City 630, 634 impartially investing trustee shall act (N.D.1995). assets, managing taking the trust into account any differing interests of the beneficiaries." Emphasis 20. added. 13.36.245; AS 13.36.250. above, 21. As noted Op. Reh'g at 16-17. record, amply supported by as well as commentary dispositive As the Uniform Probate on the clear, "Litigation prosecuted Code makes by a merits of the will contest.

Case Details

Case Name: Enders v. Parker

Court Name: Alaska Supreme Court

Date Published: Mar 21, 2003

Citation: 66 P.3d 11

Docket Number: S-9341, S-9391

Court Abbreviation: Alaska