RICHARD ALAN KESSLER and RICHARD L. KESSLER, Plaintiffs-Appellants,
MERCEDES KESSLER, Individually and as Co-Executor of the Estate of Charles L. Kessler, and TOM THOMPSON, as Co-Executor of the Estate of Charles L. Kessler, Defendants-Appellees.
from the Iowa District Court for Jefferson County, Lucy J.
Alan Kessler appeals a district court ruling removing him as
co-executor of his late father's estate.
A. Miller of Miller Law Office, Fairfield, for appellants.
R. Harrison of Harrison, Moreland, Webber, Simplot, &
Maxwell, P.C., Ottumwa, for appellees.
Considered by Vaitheswaran, P.J., and Potterfield and Tabor,
VAITHESWARAN, PRESIDING JUDGE.
decide whether the district court abused its broad discretion
in removing a co-executor of a will.
Background Facts and Proceedings
Alan Kessler was named co-executor of his father's will.
The will bequeathed stock to a testamentary trust of which
Kessler was a trustee. However, a second codicil to the will
removed certain stock from the trust. According to an
accountant, the stock sale proceeds were placed in an
investment account. Kessler's father separately
designated his wife sole beneficiary of the account and
executed a transfer-on-death beneficiary form granting her
the assets in the account.
will was admitted to probate. As co-executor, Kessler signed
an oath to "faithfully discharge the duties imposed by
law." See Iowa Code § 633.168 (2018).
time, Kessler and his son filed a petition to set aside the
second codicil and non-testamentary transfer of stock. They
alleged, "There was no reasonable grounds for the
decedent to dramatically limit distributions to [them]
through the reduction to the . . . [t]estamentary
[t]rust." They further alleged Kessler's father
lacked testamentary capacity and was subject to undue
influence by his wife.
remaining co-executors petitioned for Kessler's removal
as co-executor. They asserted Kessler had a duty to
"make all reasonable efforts to sustain" the
validity of the will and his "action to contest the
second codicil . . . placed [him] in a conflict." The
district court scheduled an evidentiary hearing solely on the
removal petition, setting a separate trial on Kessler's
petition to set aside the second codicil and non-testamentary
transfer. Following the hearing, the court ordered
Kessler's removal as co-executor. The court reasoned in
The Iowa Supreme Court has specifically determined that an
executor's duty to defend a will includes all codicils
In this case, Richard Alan Kessler has chosen to attack the
Second Codicil to the Will rather ...