In the Matter of the Estate of Thomas James Klein

IN THE COURT OF APPEALS OF IOWA
No. 17-1876
Filed September 12, 2018
IN THE MATTER OF THE ESTATE OF THOMAS JAMES KLEIN, deceased.
KARI J. KLEIN BORROEL and MATTHEW J. KLEIN,
Appellants.
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Appeal from the Iowa District Court for Sac County, William C. Ostlund,
Judge.
Children seeking to contest their father’s will appeal the district court’s
grant of summary judgment in favor of the executor. AFFIRMED.
Kyle J. McGinn of McGinn, Springer & Noethe PLC, Council Bluffs, for
appellants.
Gina C. Badding of Neu, Minnich, Comito, Halbur, Neu & Badding, PC,
Carroll, for appellee.
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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VOGEL, Judge.
In this will-contest action, Thomas Klein’s children, Kari Klein Borroel and
Matthew Klein, argue the district court erred in granting the executor’s motion for
summary judgment. We affirm.
I. Background Facts and Proceedings
Thomas Klein died on August 12, 2016. At the time of his death, Klein had
two adult children: Kari and Matthew. Klein executed a last will and testament
on January 17, 2001. Klein’s brother, Richard (Ben) Klein filed a petition for
probate of the will and to be appointed its executor. Pursuant to the will, Klein
left $10,000 in the form of insurance proceeds to each of his children and
specifically stated: “To my children who have never spoke or tried to contact me
since the divorce my only connection with them will be the $10,000 each to be
paid them out of my insurance.”
In November 2017, Klein’s will was admitted to probate and Ben was
appointed the executor of the estate. Ben and his wife, believing all parties that
witnessed the signing of the will to be deceased, had filed an affidavit pursuant
to Iowa Code section 633.297 (2017) establishing that they recognized the
signatures contained on the will. On April 4, 2017, Kari and Matthew filed a
petition to set aside the will arguing proof of execution could not be established.
The parties later established that Kathleen Nielsen, a witness to the signing
of the will, was alive. On April 17, 2017, Nielsen signed an affidavit representing
she knew Klein, she was present when he declared the document to be his will
and signed it, and she affixed her signature to the will in the presence of other
witnesses as Klein requested. On May 19, Nielsen signed another affidavit—this
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one prepared by Kari and Matthew’s attorney—that indicated she recognized the
signatures contained in the will but she did “not specifically recall the date of
January 7, 2001 nor d[id] [she] recall the specific circumstances surrounding the
execution of the document.” Finally, the parties deposed Nielsen on July 27, at
which time she affirmed she was present at the will signing and recognized the
signatures contained within the will.
On August 7, 2017, Ben filed a motion for summary judgment. Kari and
Matthew filed a resistance on September 6. The court held a hearing on the
motion on September 25 and issued a written ruling on October 20, granting
Ben’s motion for summary judgment and dismissing Kari and Matthew’s petition
to set aside the admission to probate of their father’s will. Kari and Matthew
appeal from the grant of summary judgment.
II. Standard of Review
“We review a decision by the district court to grant summary judgment for
correction of errors at law.” Goodpaster v. Schwan’s Home Serv., Inc., 849
N.W.2d 1, 6 (Iowa 2014) (citing Iowa R. App. P. 6.907). “Summary judgment is
proper when the movant establishes there is no genuine issue of material fact and
it is entitled to judgment as a matter of law.” Id. (citing Iowa R. Civ. P. 1.981(3)).
“The burden is on the moving party to demonstrate that it is entitled to judgment
as a matter of law.” Id. (quoting Sallee v. Stewart, 827 N.W.2d 128, 133 (Iowa
2013)). “As we determine whether the moving party has met this burden, we view
the record in the light most favorable to the nonmoving party.” Id. (citing Wright
v. Am. Cyanamid Co., 599 N.W.2d 668, 670 (Iowa 1999)).
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III. Deposition Exhibit
Kari and Matthew contend the district court should not have granted
summary judgment for the executor because the only living witness to the will
provided contradictory statements concerning her memory of the event. They
assert that Nielsen’s deposition recalled particular details of the execution of the
will despite the deposition being weeks after her signing an affidavit indicating she
did not recall the date or specific circumstances of the execution of the will. This,
Kari and Matthew claim, calls into question her credibility and creates a genuine
issue of material fact.
Kari and Matthew cite In re Estate of Olson for the proposition that
confusion or self-contradiction of a subscribing witness in his or her testimony is
a matter to be observed in determining whether there was a proper execution of
the will. See 34 N.W.2d 207 (Iowa 1948). Olson provides, “When a subscribing
witness denies or does not recollect the execution of the instrument to which his
name is subscribed as such witness, its execution may be proved by other
evidence.” Id. at 209 (citing Iowa Code § 622.24 (1946)).
In granting the motion for summary judgment, the district court held, “The
document admitted to the court, titled, ‘Last Will and Testiment [sic] of Thomas J.
Klein,’ is in writing, signed by the testator, was declared as his will as shown
through Nielsen’s deposition testimony, and was witnessed and signed by three
witnesses.” See Iowa Code § 633.279(1) (2001) (providing requirements for the
formal execution of a will). “If the lack of the due execution of a will constitutes a
ground for objection, proof of such execution shall not be made by affidavit as
provided in section 633.295.” Id. § 633.319. Kari and Matthew contested the
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execution of the will; as such, an affidavit other than that found in section 633.295
must have been used.1 Nielson’s April 17 affidavit affirmed Klein’s execution of
his will, and although her May 19 affidavit acknowledged she “did not recall the
specific circumstances surrounding the execution” of the will, her later deposition
testimony honed in on many details, including:
Stella Scheel called to make sure that Bonnie and I were both in the
office. She said that Tom had done his will and he wanted to get it
notarized, and would I be there if they came up. And I asked how
soon. And she told me. And I said yeah, I’ll make sure that we’re
here. And so Stella and Phyllis and Tom came up to the office, and
we just sat at a table, chatted a few minutes. I did not read the will.
That wasn’t my job. I—Tom sat down, signed the will. I notarized it,
Bonnie notarized it, and Stella signed it as a witness.
The district court found Nielsen’s deposition testimony established proper
execution of the will, concluding there was no remaining issue of material fact.
Because we agree the essential elements of the proper execution of a will were
met and Nielsen’s credibility was the only question, there were no material facts
in dispute and summary judgment was appropriate.
IV. Conclusion
Because the witness’s deposition establishes the essential elements to
formally execute a will, the district court did not err in granting summary judgment
in favor of the estate.
AFFIRMED.
Danilson, C.J., concurs specially; Tabor, J., joins special concurrence.
1
“The trial court is required to examine, in the light most favorable to the nonmoving
party, the entire record before it including pleadings, admissions, depositions, answers
to interrogatories and affidavits.” In re Eickman’s Estate, 291 N.W.2d 308, 312 (Iowa
1980) (emphasis added).
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DANILSON, Chief Judge (concurring specially)
I specially concur to address the claimed credibility issue. It can be fatal
to the resisting party to rely only on perceived weaknesses in the movant’s
contention. Suss v. Schemmel, 375 N.W.2d 252, 254 (Iowa 1985). Here, the
nonmoving party has failed to set forth specific facts showing there is a genuine
issue for trial. Instead, the nonmoving party relies solely upon inconsistent
statements concerning the ability to recall events made by the lone surviving
subscribing witness to the will, Kathleen Nielsen. The burden is on the moving
party and the record must be viewed in the light most favorable to the nonmoving
party. Goodpaster v. Schwan’s Home Serv., Inc., 849 N.W.2d 1, 6 (Iowa 2014).
Notwithstanding, I do not believe a genuine issue of material fact has been
generated by contending Nielsen lacks credibility under these circumstances.
I decline to rely upon Iowa Code section 633.319 as argued by the
appellant; although affidavits may not be used to prove due execution of a will at
trial, affidavits of otherwise-admissible evidence are proper proof in summary-
judgment proceedings. Iowa R. Civ. P. 1.981(5) (stating “[s]upporting and
opposing affidavits shall be made on personal knowledge, shall set forth facts as
would be admissible in evidence”). I view section 633.319 as only preventing the
court and clerk from admitting the will to probate based solely upon affidavits when
an objection has been raised, not prohibiting the use of witness affidavits in a
contested summary-judgment proceeding.
Here, the evidence of both parties would be admissible at trial via
testimony. The fact the admissible evidence was in a form inadmissible at trial is
of no consequence. Other courts have reached the same conclusion. See, e.g.,
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Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005) (“At the
summary judgment stage, the parties need not submit evidence in a form
admissible at trial; however, the content or substance of the evidence must be
admissible.”); Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir. 1994)
(“The evidence need not be in admissible form; affidavits are ordinarily not
admissible evidence at a trial. But it must be admissible in content, in the sense
that a change in form but not in content, for example a substitution of oral
testimony for a summary of that testimony in an affidavit, would make the
evidence admissible at trial.”); Reeder v. Harper, 788 N.E.2d 1236, 1241-42 (Ind.
2003) (“[A]n affidavit that would be inadmissible at trial may be considered at the
summary judgment stage of the proceedings if the substance of the affidavit would
be admissible in another form at trial.”).
Here, the nonmoving party seeks to avoid the grant of summary judgment
by claiming a genuine issue of material fact exists as a result of an inconsistency
in testimony arising from an affidavit dated May 19, 2017. The affidavit was
signed by Nielsen and apparently prepared by counsel for the nonmoving party.
Although prepared by nonmoving party counsel, the affidavit was attached to the
motion for summary judgment as exhibit 3. This affidavit states in part, “I do not
recall the date of January 7, 2001 nor do I recall the specific circumstances
surrounding the execution of the document that has been shown to me captioned
‘LAST WILL AND TESTAMENT OF THOMAS J. KLEIN.’” I would agree this
evidentiary statement appears inconsistent with Nielsen’s deposition testimony
and another affidavit dated April 17, 2017—attached to the motion as exhibit 2.
During the deposition, Nielsen recalled and recited with specifics the
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circumstances relating to the execution and witnessing of the will of Thomas
James Klein. The affidavit is in the form prescribed by Iowa Code section 633.295
and is entitled, “Testimony of Subscribing Witness on Probate of Will.” The exhibit
2 affidavit states that Nielsen knew Thomas J. Klein and the other subscribing
witnesses, the will was exhibited to her, Klein declared the instrument to be his
will, Klein signed the will at “Co. Bluffs” in the presence of her and the other two
witnesses among some additional facts.
Normally, “[i]n granting summary judgment, the district court is not to make
credibility assessments, as such assessments are ‘peculiarly the responsibility of
the fact finder.’” Frontier Leasing Corp. v. Links Eng’g, L.L.C., 781 N.W.2d 772,
776 (Iowa 2010) (citation omitted). It is generally for a jury to resolve
discrepancies in deposition testimony and affidavits, and this province of the jury
is not to be invaded by a court on summary judgment. See Smidt v. Porter, 695
N.W.2d 9, 22 (Iowa 2005). These principles typically result in summary judgment
being withheld so the jury can resolve the discrepancy and determine the
credibility of the witnesses.
The question becomes whether the inconsistency in Nielsen’s testimony in
the affidavits and subsequent deposition is sufficient to create a genuine issue of
material fact to avoid summary judgment. The principles that the court does not
weigh evidence or make credibility findings at the summary-judgment stage are
hardened and longstanding. See Frontier Leasing, 781 N.W.2d at 776. Yet, here
there is only one witness, and Nielsen’s subsequent deposition offered both
parties the opportunity to examine Nielsen and test her recollection.
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One authority commenting upon conflicting affidavits and depositions has
stated, “[C]ourts have found that if the affidavit itself presents incredible assertions
contradicted by otherwise objective evidence, it is insufficient to prevent summary
judgment from being entered.” 10A Charles A. Wright, et al., Federal Practice &
Procedure § 2726.1 (4th ed. 2018). The same authority has also noted, “a
witness’ affidavit will not be automatically excluded because it conflicts with the
witness’ earlier or later deposition, despite the greater reliability usually attributed
to the deposition. The court may, however, consider whether the conflict creates
a credibility issue preventing summary judgment from being entered.” 10A
Charles A. Wright, et al., Federal Practice & Procedure § 2738 (footnote omitted).
I would conclude there is no credibility issue that must be determined by
the jury and agree the district court should be affirmed. Nielsen’s deposition taken
after signing the affidavits constitutes objective evidence of the facts. Nielsen’s
deposition also makes clear she has good recall of the facts notwithstanding the
affidavit apparently prepared by the nonmoving party. The nonmoving party
should not be able to avoid summary judgment by raising a credibility issue that
does not exist.