Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Estate of Klein

Court of Appeals of Iowa

September 12, 2018

IN THE MATTER OF THE ESTATE OF THOMAS JAMES KLEIN, deceased. KARI J. KLEIN BORROEL and MATTHEW J. KLEIN, Appellants.

          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.

          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.

          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 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.