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Kessler v. Kessler

Court of Appeals of Iowa

May 15, 2019

RICHARD ALAN KESSLER and RICHARD L. KESSLER, Plaintiffs-Appellants,
v.
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.

          Appeal from the Iowa District Court for Jefferson County, Lucy J. Gamon, Judge.

         Richard Alan Kessler appeals a district court ruling removing him as co-executor of his late father's estate.

          Paul A. Miller of Miller Law Office, Fairfield, for appellants.

          Gayla R. Harrison of Harrison, Moreland, Webber, Simplot, & Maxwell, P.C., Ottumwa, for appellees.

          Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.

          VAITHESWARAN, PRESIDING JUDGE.

         We must decide whether the district court abused its broad discretion in removing a co-executor of a will.

         I. Background Facts and Proceedings

         Richard 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.

         The 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).

         In 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.

         The 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 part:

The Iowa Supreme Court has specifically determined that an executor's duty to defend a will includes all codicils thereto.
In this case, Richard Alan Kessler has chosen to attack the Second Codicil to the Will rather ...

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