In the Matter of the Estate of Margaret E. Workman, Dennis Workman v. Gary Workman, Individually and as of the Estate of Margaret E. Workman, and Laverne Workman, Cynthia Noggle, Randy Noggle, Mindy (Noggle) Sherwood, Christine (Workman) Thompson and Jeffrey Workman ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-0908
Filed February 22, 2017
IN THE MATTER OF THE ESTATE OF
MARGARET E. WORKMAN, Deceased,
DENNIS WORKMAN,
Plaintiff-Appellant,
vs.
GARY WORKMAN, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF
MARGARET E. WORKMAN,
Defendant-Appellee,
and
LAVERNE WORKMAN, CYNTHIA NOGGLE, RANDY NOGGLE, MINDY
(NOGGLE) SHERWOOD, CHRISTINE (WORKMAN) THOMPSON and
JEFFREY WORKMAN,
Defendants.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, John D. Telleen,
Judge.
Dennis Workman appeals the district court’s granting of several posttrial
motions. AFFIRMED.
Eric M. Updegraff of Hopkins & Huebner, P.C., Des Moines, for appellant.
Daniel P. Kresowik of Stanley, Lande & Hunter, P.C., Davenport, for
appellee.
Heard by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
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VAITHESWARAN, Presiding Judge.
Margaret Workman executed several wills over her lifetime. Her final will,
signed in 2007, contained a “no contest” provision that mandated revocation of
the shares of any beneficiary who contested the will.
After Margaret died, her son Dennis challenged the will on the ground that
(1) his mother lacked testamentary capacity and (2) his brother, Gary, exercised
undue influence over her. Dennis amended his will-contest petition to add his
adopted minor child, but the district court dismissed the child shortly thereafter.
The court granted Gary summary judgment on the lack-of-testamentary-
capacity claim, leaving the undue-influence claim for trial. During trial, Gary
moved for a directed verdict, which the district court denied. A jury found in favor
of Gary.
Gary filed applications (1) to revoke Dennis’ shares pursuant to the no
contest provision, (2) for approval of attorney fees, and (3) for ratification of
accounting, disbursements, and farm leases. The district court granted all three
motions. Dennis appealed.
I. No Contest Provision
“A ‘no contest’ . . . clause declares that one who attacks a will forfeits any
interest in the decedent’s estate or at least will suffer a limitation of his or her
interest.” George Blum et al., 80 Am. Jur. 2d Wills § 1323 (2d ed. 2016). “Its
purpose is to deter challenges to a will, that is, to dissuade the devisees of wills
from challenging bequests made therein.” Id.
Margaret’s 2007 will contained the following no contest provision:
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If any beneficiary under this Will in any manner, directly or
indirectly, contests the validity of this instrument, or any disposition
under this Will, or any other trust created by me, by filing suit
against my executor, the trustees under any trust, any share or
interest given to such beneficiary under the provisions of this Will is
revoked and shall be disposed of in the same manner provided
under this Will as if that contesting beneficiary and all descendants
of that beneficiary had predeceased me.
Gary argued that because Dennis sought to contest his mother’s will and
amended the petition to add his minor child, neither he nor his child could recover
anything under the will. After considering counsels’ arguments, the district court
found the no contest provision enforceable and concluded, “Every share or
interest given to Dennis or [his child] under the 2007 Will and 2008 Codicil are
revoked and shall be disposed of in the same manner provided under the 2007
Will and 2008 Codicil as if Dennis and [his child] had preceded Margaret
Workman.” On appeal, Dennis argues he satisfied common law factors for
deeming the will contest provision unenforceable.
States have expressed differing views on the enforceability of no contest
provisions. Compare Fla. Stat. § 732.517 (2016) (“A provision in a will purporting
to penalize any interested person for contesting the will or instituting other
proceedings relating to the estate is unenforceable.”), with Sharp v. Sharp, 447
S.W.3d 622, 626 (Ark. Ct. App. 2014) (noting “Arkansas courts have recognized
the validity of no-contest clauses dating back to at least 1937”). The Uniform
Probate Code stakes out a middle ground, authorizing no contest provisions but
allowing legal action to contest the will if there is probable cause for the filing.
See Unif. Probate Code § 2-517 (amended 2010) (“A provision in a will
purporting to penalize an interested person for contesting the will or instituting
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other proceedings relating to the estate is unenforceable if probable cause exists
for instituting proceedings.”).
Although the Iowa legislature has “selectively incorporated” other
provisions of the Uniform Probate Code, it has not adopted section 2-517. See
Iowa Code ch. 633 (2016); Freedom Fin. Bank v. Estate of Boesen, 805 N.W.2d
802, 813-14 (Iowa 2011). We infer from the legislature’s failure to incorporate
the uniform code’s no contest provision that it elected to leave intact longstanding
case precedent on the subject. Boesen, 805 N.W.2d at 813.
That precedent differs from the uniform probate code provision in one key
respect: the uniform provision renders the no contest provision unenforceable
only if there exists probable cause to contest the will, whereas our common law
holds the provisions “will not be enforced against one who contests the will in
good faith and for probable cause.” In re Estate of Cocklin, 17 N.W.2d 129, 135
(Iowa 1945) (emphasis added); see also Geisinger v. Geisinger, 41 N.W.2d 86,
93 (Iowa 1950) (same).
Although our courts subscribe to two standards—good faith and probable
cause—those standards overlap and have been applied interchangeably. See
Parker v. Benoist, 160 So. 3d 198, 208 (Miss. 2015) (“[M]any of the factors which
support a finding of good faith support a finding of probable cause, and vice
versa.”).
Persons have “probable cause for initiating civil proceedings against”
others if they “reasonably believe[] in the existence of facts upon which [the]
claim is based and reasonably believe[] that under such facts the claim may be
valid at common law or under an existing statute, or so believe[] in reliance upon
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the advice of counsel received and acted upon.” Geisinger, 41 N.W.2d at 93
(citing Restatement of the Law, Torts, § 675); Restatement (Third) of Property:
Wills and Other Donative Transfers § 8.5 cmt. c (2003) (“Probable cause exists
when, at the time of instituting the proceeding, there was evidence that would
lead a reasonable person, properly informed and advised, to conclude that there
was a substantial likelihood that the challenge would be successful. A factor that
bears on the existence of probable cause is whether the beneficiary relied upon
the advice of independent legal counsel sought in good faith after a full
disclosure of the facts.”); see also In re Estate of Shumway, 9 P.3d 1062, 1066
(Ariz. 2000) (quoting Restatement standard); Parker, 160 So. 3d at 206 (same).
“The ‘good faith’ requirement has been variously interpreted, with
jurisdictions applying definitions that can be categorized along a continuum from
a subjective to an objective standard . . . .” Wilson v. Dallas, 743 S.E.2d 746,
759 (S.C. 2013). Our precedent focuses on the challengers’ full disclosure to
their attorneys, the attorneys’ advice, and whether the challengers acted on the
advice. Geisinger, 41 N.W.2d at 92; Cocklin, 17 N.W.2d at 136; see also
Winningham v. Winningham, 966 S.W.2d 48, 52 (Tenn. 1998). The court also
has examined whether the challenger understood the testator’s intentions,
whether the testator’s conduct following execution of the will was consistent with
the stated intentions, and whether the testator’s mental capacity made the
testator susceptible to suggestions. See Geisinger, 41 N.W.2d at 92 (discussing
testator’s intent as reflected in original will and inconsistent codicil, failing
physical and mental condition of the testator, and susceptibility to influence); see
also Parker, 160 So. 3d. at 208 (discussing clear intent of testator, her failing
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health, and actions inconsistent with her will). Finally, our good faith precedent
gauges the strength of the challenger’s will contest action by asking whether “a
jury question was presented on the issues” and how long the jury deliberated.
Cocklin, 17 N.W.2d at 136.
The final two factors—whether there is a jury question and the length of
deliberation—could be read as requiring proof of the underlying claim. These
factors seem at odds with the Restatement’s prescription to examine the facts at
the time the will contest action is filed. See Wilson, 743 S.E.2d at 760 (stating
“proof of a claim is not required”); Restatement (Third) of Property: Wills and
Donative Transfers § 8.5 cmt. c. On closer examination, we believe these factors
bear on whether a challenger’s subjective belief that he or she is filing a will
contest in good faith is objectively reasonable. For example, if a challenger
introduces no evidence of undue influence, the challenger’s belief in the viability
of the action at the time it was filed could be deemed unreasonable. Conversely,
if the challenger introduces overwhelming evidence of undue influence, the
challenger’s belief could be deemed reasonable. These factors comport with an
objective good-faith standard. See Wilson, 743 S.E.2d at 760 (“The question is
not whether there was in fact undue influence, but whether the parties could in
good faith reasonably believe so . . . . [S]omething more than a subjective belief
or a mere allegation is necessary . . . .”).
With these definitions in mind, and recognizing the probable cause and
good-faith standards overlap, we will examine the factors underlying the
standards together. Both sides state our standard of review is de novo. We will
apply this standard.
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Advice of Counsel. Dennis argues he acted on the advice of counsel
because an attorney “appeared and tried th[e] [undue influence] case” and the
attorney had an ethical obligation to “avoid filing and/or prosecuting cases that
lack probable cause.” If this were enough, the probable-cause and good-faith
exceptions would eat up the rule permitting enforcement of no contest provisions.
See Restatement (Third) of Property: Wills and Donative Transfers § 8.5 cmt. c
(“The mere fact that the person mounting the challenge was represented by
counsel is not controlling, however, since the institution of a legal proceeding
challenging a donative transfer normally involves representation by legal
counsel.”); see also Winningham, 966 S.W.2d at 53 (“[I]f the mere advice of
counsel can be regarded as probable cause for instituting proceedings to contest
a will, there would be none without cause, and in every instance such a
[forfeiture] clause as the testatrix inserted in hers would be nugatory.” (quoting In
Re Friend’s Estate, 58 A. 853, 857 (Pa. 1904)). We are convinced more was
required. Dennis had to establish he informed counsel of the no contest
provision and counsel advised him to proceed with the will contest action
notwithstanding the no contest provision. See Geisinger, 41 N.W.2d at 93 (“[I]t is
usually a question of fact whether the advice was sought in good faith, after a full
and fair disclosure of all matters bearing on the case and whether it was followed
in good faith and with the belief there was good cause for the prosecution.”); see
also Klecan v. Santillanes, 643 F. App’x 743, 751 (10th Cir. 2016) (placing
burden on the objector “to point to any evidence that would lead a reasonable
person, who was properly informed and advised, to conclude that his challenge
to the [will] . . . would be successful”); In re Estate of Peppler, 971 P.2d 694, 697
8
(Colo. Ct. App. 1998) (“One factor which bears on the existence of probable
cause is that the beneficiary relied upon the advice of disinterested counsel
sought in good faith after a full disclosure of the facts.”); In re Estate of Beers,
No. 61979-9-I, 2009 WL 187862, at *4 (Wash. Ct. App. Jan. 26, 2009) (“If a
contestant brings an action or defends one on the advice of counsel, after fully
and fairly disclosing all material facts, he or she will be deemed to have acted in
good faith and for probable cause.”); In re Kubicks’ Estate, 513 P.2d 76, 80
(Wash. Ct. App. 1973) (“[A] suit such as this brought on advice of counsel is
persuasive of the bona fides of the suit. We are not prepared to say, however,
that such result is conclusive where the guardian has not been given an
opportunity to establish what facts were before counsel when and if he advised
the suit in the face of the [no contest] clause.”).
Dennis introduced no evidence that he informed counsel of the no contest
provision and that counsel advised him to file a will contest action in the face of
the no contest provision. He testified to going forward with the action even
though he might “get nothing and be disinherited” because he did not “feel that
the [w]ill” represented his “mother’s wishes.” But he did not call any of his
several attorneys to opine on the reasonableness of this belief.
We recognize Dennis did not have to present this type of evidence to
prove the underlying undue influence claim, which was the only claim before the
jury. See In re Estate of Bayer, 574 N.W.2d 667, 671 (Iowa 1998) (setting forth
elements of undue influence claim). But his brother defended the claim by
relying on the no contest provision and the circumstances that led to its inclusion
in Margaret’s wills. At that point, it was incumbent upon Dennis to address the
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good faith and probable cause exceptions to the no contest provision. See
Womble v. Gunter, 95 S.E.2d 213, 218 (Va. 1956) (stating good faith and
probable cause as a defense to a no contest provision “must be affirmatively
established by the parties making the allegation”). Because Dennis failed to do
so, Gary’s extensive evidence about the no contest provision stood
unchallenged.
Testator’s Intent. Dennis’s failure to present evidence that he sought
counsel’s advice is particularly notable in light of Margaret’s clearly expressed
intent to limit his access to her assets. According to one of her attorneys,
Margaret and her husband were concerned about “the difficulty [Dennis] had with
some debt problems and similar issues.” Another attorney reported Dennis
experienced “intense pressure from a number of creditors” and had “a number of
claims . . . against him personally.” This attorney stated Margaret was “always
concerned about the farmland” and wanted “to make sure that no third party ever
[was] able to acquire any interest in or be the [beneficiary] of the farmland.”
As early as 1985, Margaret withdrew “[a]ll benefits” provided for Dennis in
her 1983 will, created a trust administered by his siblings, and passed his
benefits to them as trustees. She also began including no contest provisions in
her wills specifically to stave off a will contest by Dennis. A will executed in 1987
included the following broadly-worded no contest provision:
Should any child of mine contest this Will or openly complain of
provisions made for him or her, either directly or under a trust, all
such benefits for that person are withdrawn and the assets or
benefits distributed to those who have not made protest.
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A 1995 will went even further, stating Dennis would “have no right to receive
principal from” the trust except in the discretion of the trustees and including the
following no contest provision:
If any beneficiary or remainderman under this Will in any manner,
directly or indirectly, contests or attacks this Will or any of its
provisions, any share or interest in any estate or any trust
established by this Will given to that contesting beneficiary or
remainderman under this Will is revoked and shall be disposed of in
the same manner provided herein as if the contesting beneficiary or
remainderman had predeceased me without issue.
A 1999 will contained a similar clause, as did a 2001 will. In light of this
longstanding expression of Margaret’s intent, Dennis needed to do more than
cite his subjective belief about her wishes as justification for filing the will contest
action; he needed to establish his belief was reasonable. He did not.
Testator’s Conduct. Dennis argues Margaret’s decision to divide the
property disproportionately supports a finding that he acted in good faith and with
probable cause in filing the will contest action. But Margaret gave reasons for
the disproportionate distribution. She stated:
My husband and I wish to formally acknowledge that we
recognize and understand that the cumulative effect of our wills and
The Workman Family Trust will be to give our son, Gary, a
disproportionately large share of our combined assets. We have
intentionally and knowingly made these provisions understanding
that Gary will receive more of our combined estates than our other
two children. We have done this to recognize the many years of
contribution and effort made by Gary, which has benefited us over
the years that he has lived near us. The statement I am making in
this paragraph is merely precatory and intended to express my
intent.
As noted, Margaret also expressed doubts about Dennis’ financial wherewithal
and attempted to protect her assets from his financial dealings. One of her
attorneys testified, “Most of the patterns that she followed or exhibited in pursuing
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her estate plan remained relatively consistent throughout the time.” Because her
beliefs were consistent for two decades and her conduct before and after
executing her wills conformed with her beliefs, Dennis is hard-pressed to argue
his view of her wishes was reasonable and he had probable cause to file the will-
contest action. See Wilson, 743 S.E.2d at 761 (noting the testator “painstakingly
developed his estate plan over the course of several years, and in various drafts
. . . made it clear” how he intended his estate to be used, stating “[a]nother strong
indicator of [his] intent” was “his inclusion of no-contest clauses in both his will
and trust,” and discerning “no reasonable or substantial basis to support a good
faith finding”).
Testator’s Mental Capacity. Dennis did not call into question Margaret’s
mental capacity; as noted, his lack-of-testamentary-capacity claim was resolved
against him before trial. At trial, one of Margaret’s attorneys testified she was “a
very decisive woman and was not dominated by anybody,” and the other testified
he “saw no evidence that anyone was controlling or influencing her.” This
evidence supports a conclusion that Dennis’ belief about the viability of a will-
contest action was unreasonable and he lacked probable cause for the filing.
Jury Question. This brings us to Dennis’ argument that “[t]he rulings of [the
district court on summary judgment and directed verdict] support the proposition
that the case was brought in good faith and with probable cause.” If the court’s
rulings are a measure of the strength of Dennis’ claims, those rulings do not
assist him. In the summary judgment proceeding, the district court simply
required Dennis to present “more than a scintilla of evidence” to withstand Gary’s
summary judgment motion instead of requiring him to establish a genuine issue
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of material fact as required by Iowa Rule of Civil Procedure 1.981. With this low
bar, it is no surprise Dennis’ undue influence claim was allowed to proceed to
trial. The denial of summary judgment says nothing about whether Dennis’ belief
that he had a valid claim was reasonable or whether the claim was supported by
probable cause. As the district court stated in ruling on Gary’s directed verdict
motion, “I think Plaintiff’s evidence is extremely thin but I think it is better for
judicial economy in this case . . . to deny the motion for directed verdict and see
what the jury does with it.” See Geisinger, 41 N.W.2d at 93 (noting the directed
verdict did not “determine the issue of probable cause”); Wilson, 743 S.E.2d at
763 (“[W]e question whether the claims were asserted in good faith since the
primary claim asserted by the parties as a basis for discarding [the testator’s]
testamentary documents, undue influence, was of dubious validity.”).
Jury Deliberation. The jury deliberated for sixty-three minutes. In Cocklin,
“[t]he jury deliberated for twenty-nine hours and was unable to reach an
agreement,” and after “a ‘verdict-urging instruction’ was given to them,” the jury
“deliberated five or six hours longer before reaching a verdict.” 17 N.W.2d at
136. From the short deliberation period, a court could infer the jury saw Dennis’
case as weak and Gary’s case as supported by overwhelming evidence.
A court addressed similar evidence in Russell v. Wachovia Bank, N.A.,
633 S.E.2d 722, 727-28 (S.C. 2006). The court stated, “Family discord and
strife, coupled with a less-than-favorable inheritance, do not constitute probable
cause. . . . Any suspicions [the will contestants] may have had about the
influence of others over Testator should have been dispelled by the
13
overwhelming evidence of Testator’s abilities.” Russell, 633 S.E.2d at 727-28.
The court continued,
There is evidence throughout the record that Testator anticipated
that certain beneficiaries would contest the validity of his estate
plan. He told his attorney and his son . . . that he anticipated a
challenge. . . . He even went so far as to have himself examined by
a psychiatrist to create a record of his testamentary capacity. And
most importantly, he amended his will and revocable trust to
include language explicitly providing that beneficiaries who
contested the validity of the estate plan would have their interest
revoked and “shall be deemed to have predeceased [him].” In sum,
he did all that he could have to ensure that his wishes would be
respected. If a no-contest clause cannot be upheld under these
facts, such a clause would not ever be enforceable.
Id. at 728. The same holds true here.
On our de novo review, we conclude Dennis failed to establish probable
cause and good faith for the filing of his will contest action. See Conklin, 17
N.W.2d at 136 (stating a remand was not required to address the good faith and
probable cause exception); see also Geisinger, 41 N.W.2d at 92 (referring to
record in trial on objections together with record in trial on construction of will); cf.
Peppler, 971 P.2d at 698 (noting transcript of original bench trial was not
included in appeal record and district court made no finding of probable cause,
necessitating remand for district court determination). Accordingly, the no
contest provision was enforceable, and the district court appropriately granted
Gary’s motion to revoke Dennis’ interest or shares.
The question remains whether the interest and shares of Dennis’ child
also should have been revoked. As father of the minor child, Dennis was the
appropriate person to file an action on behalf of the child. While we are troubled
by his seemingly impulsive decision to add his child, the no contest provision was
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clear: anyone who contested the will by “filing” an action would be divested of
their interest. In light of this language and Dennis’ failure to establish probable
cause and good faith, we conclude the district court appropriately divested the
child of his interest in the estate. See In re Estate of Hamill, 866 S.W.2d 339,
345 (Tex. App. 1993) (concluding “[t]he mere filing of a will contest is not
sufficient to invoke the harsh remedy of forfeiture under a no-contest clause if the
contest is later dismissed prior to any legal proceedings being held on the
contest and if the action is not dismissed pursuant to an agreement settling the
suit” but stating “[o]ur holding is subject to the caveat that the no-contest clause
under consideration here did not expressly provide that the mere filing of a
contest was sufficient to invoke the clause. The effect of such a provision upon
the filing and dismissal of a will contest is not before us and might present a
different question”); Womble, 95 S.E.2d at 220 (“If the testator had desired to
except his infant beneficiaries from the ‘no contest’ provision he could have very
easily used appropriate language to that end. He did not do so.”).
II. Attorney Fees
The district court approved Gary’s application for attorney’s fees after
finding he “acted reasonably and with the good faith interest of carrying out his
obligations as [e]xecutor and representing the desires of Margaret Workman,”
notwithstanding his “significant personal interest in the outcome of this litigation.”
Dennis contends Gary’s actions did not benefit the estate and, accordingly, the
attorney fee award was unwarranted.
“When any person is designated as executor in a will . . . and defends . . .
any proceedings in good faith and with just cause . . . that person shall be
15
allowed out of the estate necessary expenses and disbursements including
reasonable attorney fees . . . .” Iowa Code § 633.315. “An action may . . .
benefit an estate if it determines or represents the decedent’s desires and
intentions as expressed in the will.” In re Estate of Wulf, 526 N.W.2d 154, 157
(Iowa 1994). “We give a district court great deference when ruling on whether
services benefit an estate.” In re Estate of Bockwoldt, 814 N.W.2d 215, 229
(Iowa 2012).
Assuming without deciding Dennis had standing to contest this issue in
light of the revocation of his interest in the estate, we conclude the district court
did not abuse its discretion in granting Gary’s request for attorney fees. See In re
Estate of Olson, 479 N.W.2d 610, 614 (Iowa Ct. App. 1991) (setting forth
standard of review). Gary carried out the intention of his mother as reflected in
her 2007 will. Although his personal interests were also served, the personal
interest had to be “other than or in addition to the interest a will grants” to
foreclose an attorney fee award. Wulf, 526 N.W.2d at 157. In this case they
were not. We affirm the court’s ruling on the motion for attorney fees.
III. Accounting, Disbursements, and Farm Leases
Gary filed an application to approve accounting, disbursements, and farm
leases. The district court approved the application. On appeal, Dennis contends
Gary “failed to meet” his burden of “prov[ing] he properly discharged his
[fiduciary] duty.” In his view, Gary’s “proposal that his rents decrease by 46%
based on a 12.5% reduction in the value of farm ground is not sufficient to meet
the burden of persuasion.”
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Again, we assume without deciding Dennis had standing to challenge this
issue. The district court found
Gary Workman’s procedure for determining cash rent, a publication
from the Iowa State University Extension and Outreach, to be a fair
and reasonable method of calculating cash rent. Specifically, the
rent was calculated at 30% of the gross crop revenue from the farm
(average price of corn at the local elevator X actual production
history average X 30%).
We agree with this reasoning and affirm the court’s ruling.
AFFIRMED.
Bower, J., concurs; Potterfield, J., dissents.
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POTTERFIELD, Judge. (dissenting)
I respectfully dissent; I would find the district court’s rulings in Dennis’s
favor on the motions for summary judgment and directed verdict sufficient to
establish probable cause for Dennis’s claim. The majority credits the district
court’s hedging of its bets by restating the standard on summary judgment as
“more than a scintilla” and denying the motion for directed verdict by
characterizing the evidence as “thin.” These equivocal statements by the trial
court do not change the rulings’ green light for the claim to go to the jury—the
classic test of probable cause.
The majority discusses the evaluation of a challenger’s reasonable belief
in the context of the extremes of “overwhelming” evidence and no evidence. Our
case law does not draw such a broad distinction. In Geisinger v. Geisinger, 41
N.W.2d 86, 94 (Iowa 1950), our supreme court found a directed verdict against
the challengers to the codicils was not conclusive but only one circumstance to
consider in deciding whether the challengers should suffer forfeiture. Nor was
the absence of evidence altogether on one claim considered dispositive.
Geisinger, 41 N.W.2d at 92–93.
The trial judge in Geisinger gave substantial weight to the evidence that
the challengers acted on advice of counsel. 41 N.W.2d at 93. I agree with the
majority that Dennis would have improved his position at trial and on appeal if he
had met Gary’s trial evidence on the no-contest provision with evidence of his
reliance on counsel’s advice. Here, we do know that counsel undertook the
representation of Dennis and continued through the trial, allowing us to infer
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Dennis relied on counsel’s advice as one circumstance in the evaluation of
Dennis’s good faith and reasonable belief in his claim.
The trial judge here discounted his denial of the motions for summary
judgment and directed verdict, relying on Dennis’s deceptive and desperate
behavior as he attempted to handle his serious financial problems as evidence of
bad faith in bringing his challenge. While Dennis undoubtedly needed his
inheritance, the evidence draws no connection between that need and a bad faith
or lack of probable cause for his challenge to the codicil.
Our courts recognize the general principle that equity abhors forfeitures.
Brown v. Nevins, 499 N.W.2d 736, 738 (Iowa Ct. App. 1993). “In adherence to
that rule, forfeiture statutes are to be constructed strictly against a forfeiture, with
the burden to show full and strict compliance with the statutory procedures upon
the party seeking forfeiture.” Jamison v. Knosby, 423 N.W.2d 2, 5 (Iowa 1988);
see Van Hosen v. Bankers Trust Co., 200 N.W.2d 504, 507–08 (Iowa 1972)
(stating that a court of equity will enforce a contract where the parties have made
a contract that results in forfeiture, but even then, “since forfeitures are not
favored, those claiming them should show the equities clearly on their side”); see
also Cowan v. Cowan, 75 N.W.2d 920, 924 (Iowa 1956) (“In the absence of a
statute declaring such [forfeiture] provisions to be void, however, a clear
stipulation for a forfeiture will be enforced where not contrary to public policy, and
the law does not, unless there is a foundation in fact or law to justify it, prevent a
forfeiture.”) The record here does not sufficiently support forfeiture.
I would reverse the revocation of Dennis’s interest and also the derivative
revocation of his son’s interest under the forfeiture clause herein. Even if the
19
district court and the majority correctly find the evidence supports the revocation
of Dennis’s interest, I would reverse the revocation of his son’s interest. The son,
for whom his grandmother provided a separate, specific devise, did not make a
decision to join his father’s challenge to the will under the record here. He was a
child when his father’s litigation was undertaken and when his father attempted to
include him in the challenge. He exercised neither bad faith nor unreasonable
belief, directly or indirectly. His role in the litigation began and ended abruptly
because his claim was time-barred. He should not suffer forfeiture of his interest.