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In re Estate of Brehm

Court of Appeals of Iowa

December 20, 2017

IN THE MATTER OF THE ESTATE OF CLARENCE M. BREHM, deceased.

         Appeal from the Iowa District Court for Dubuque County, Monica L. Ackley, Judge.

         A beneficiary challenges district court order finding he waived his option to purchase real estate under the terms of his father's will.

          David A. Lemanski, Dubuque, for appellant.

          Dean 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.

          VOGEL, PRESIDING JUDGE.

         I. Background Facts and Proceedings

         Clarence 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.

         On June 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 $767, 314.

         The 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 estate.

         Douglas filed a notice of appeal on March 2, 2017.

         II. Standard of Review

         Except 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.

         III. ...


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