IN THE MATTER OF THE ESTATE OF THOMAS JAMES KLEIN, deceased. KARI J. KLEIN BORROEL and MATTHEW J. KLEIN, Appellants.
from the Iowa District Court for Sac County, William C.
seeking to contest their father's will appeal the
district court's grant of summary judgment in favor of
J. McGinn of McGinn, Springer & Noethe PLC, Council
Bluffs, for appellants.
C. Badding of Neu, Minnich, Comito, Halbur, Neu &
Badding, PC, Carroll, for appellee.
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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
Background Facts and Proceedings
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
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.
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 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.
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
Standard of Review
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