IN THE MATTER OF THE ESTATE OF CLARENCE M. BREHM, deceased.
from the Iowa District Court for Dubuque County, Monica L.
beneficiary challenges district court order finding he waived
his option to purchase real estate under the terms of his
A. Lemanski, Dubuque, for appellant.
J. Konrardy of Kintzinger Law Firm, P.L.C., Dubuque, and Todd
Locher of Locher & David, P.L.C., Farley, for appellee.
Considered by Vogel, P.J., and Tabor and Bower, JJ.
Background Facts and Proceedings
Brehm died April 13, 2015, leaving a will that gave his son,
Douglas Brehm, a one-third interest in his farm real estate,
and gave him the option to buy the remaining two-thirds from
his estate for $92, 000. The will also provided that if
Douglas elected not to purchase the remaining two-thirds of
the real estate, "this gift shall lapse and the property
shall be sold by my estate on the open market" with the
proceeds divided equally between Janet (his surviving
spouse), Douglas, and Douglas's sister. The will
nominated Janet to serve as executor of the estate.
26, 2015, Janet elected to take her share against the will.
Thereafter, on September 4, Douglas filed notice to exercise
his right to purchase the remaining two-thirds of the real
estate. On September 18, Janet, as executor, filed the
probate inventory reflecting the real estate appraised at
district court ordered a referee be appointed to identify
Janet's elective share, provide direction as to the
distribution of proceeds, and provide direction as to the
allocation of income and expenses related to the farm. On
June 6, 2016, the referee submitted his report finding
Janet's election against the will rendered Douglas's
option to purchase, for $92, 000, a legal impossibility
because the fair market value of Janet's elective share
as of Clarence's date of death was valued much higher. On
July 14, the district court entered an order confirming most
of the referee's findings and providing Douglas sixty
days from the filing of a new appraisal to submit his intent
to purchase the remaining portion of the real estate. Douglas
did not appeal from this order. The new appraisal was filed
on September 30. With no filing by Douglas of an intent to
purchase, the district court entered an order on February 16,
2017, confirming Janet was authorized to sell the real
filed a notice of appeal on March 2, 2017.
Standard of Review
for actions to set aside or to contest wills, for the
involuntary appointment of a guardian or conservator, or for
the establishment of contested claims, probate cases are
tried in equity. Iowa Code § 633.33 (2015). We determine
the probate court was acting in equity in approving the
referee's report and establishing directives for the
exercise of the option to purchase. Our review is therefore
de novo. Iowa R. App. P. 6.907.