IN THE MATTER OF THE ESTATE OF ELLEN P. VAN GINKEL, Deceased.
JENNIE L. KRONTHAL, Defendant-Appellee. JOSEPH G. VAN GINKEL III and ELIZABETH A. WINTERHALTER, Plaintiffs-Appellants,
from the Iowa District Court for Polk County, Craig E. Block,
Associate Probate Judge.
plaintiffs appeal from the adverse summary judgment ruling in
this will contest.
S. Rieper of Rieper Law, P.C., Des Moines, for appellants.
J. Driscoll and Andrew T. Patton of Finley Law Firm, P.C.,
and Seth Ryan Delutri of Bradshaw, Fowler, Proctor &
Fairgrave, PC, Des Moines, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
G. Van Ginkel III ("Joe") and Elizabeth
Winterhalter ("Elizabeth"), two of Ellen Van
Ginkel's ("Ellen") six children, contested
Ellen's will, asserting: (1) Ellen lacked testamentary
capacity to make the November 13, 2013 fourth codicil to her
will, and (2) the will was a result of the undue influence of
their sibling, Jennie Kronthal ("Jennie"). The
district court entered summary judgment dismissing their
claims. Joe and Elizabeth (collectively "the
plaintiffs") appeal, contending the district court
abused its discretion in considering police reports and an
untimely-disclosed letter. They also assert the court erred
in concluding they failed to present sufficient evidence to
go to a jury on the questions of Ellen's lack of
testamentary capacity or undue influence. Finding summary
judgment proper, we affirm.
was married to her husband Joseph G. Van Ginkel Jr.
("Gerry") in 1950. Ellen and Gerry had six
children: Joan, Valerie, Elizabeth, Joe, Tamara, and Jennie.
On March 31, 1995, Ellen executed her original Last Will and
"disengaged" from her family for several years
beginning around 1996. Elizabeth did visit her parents in
Iowa in 2005 (to help Ellen "with her hip") and in
2010 (to help Ellen "with her cancer").
2010 and early November 2011, police were called to Ellen and
Gerry's home to investigate reports Joe assaulted Gerry.
November 16, 2011, Ellen executed a first codicil, removing
Joe as the executor and replacing him with Jennie. Other than
the change of executors, the first codicil ratified,
confirmed, and republished Ellen's 1995 will.
August 2012, Ellen and Gerry were both in ill health and
moved to Maryland. They lived with Jennie and her family for
about two months and then moved into their own apartment near
Jennie. Elizabeth lived in Arlington, Virginia, at the time.
December 18, 2012, Ellen executed a second codicil, which
deleted the dispositive provisions from Ellen's 1995 will
and, instead, included a new provision leaving her assets to
the Ellen P. Van Ginkel Trust she had created in August 2012.
The codicil also states: "As amended by this Codicil, I
hereby ratify, confirm and republish my Last Will and
Testament dated March 31, 1995 and my First Codicil to Last
Will and Testament of Ellen P. Van Ginkel dated November 16,
died in January 27, 2013.
March 6, 2013, Ellen executed the third codicil exercising
her power of appointment granted to Ellen in Gerry's
will, directing the assets from Gerry's Trust be paid
into Ellen's Trust, to be administered according to its
terms. Again, the codicil "ratif[ied], confirm[ed, ] and
republish[ed]" Ellen's 1995 Will and the first and
November 15, 2013, Ellen's primary care physician since
October 2012, Dr. Veronica DiFresco, was asked to witness the
execution of a fourth codicil. After a forty-five minute
examination in which Dr. DiFresco confirmed Ellen was aware
of her children and property and had knowledge of the effect
of a will, Dr. DiFresco determined Ellen had testamentary
competency on November 15, 2013, and that Ellen understood
what she was signing. Ellen then executed the fourth codicil,
by which she again exercised the power of appointment granted
to her in Gerry's will and directing the following
distributions: $50, 000 to granddaughter Carolyn Thomas; $25,
000 to grandson James Jae Brown; $25, 000 to grandson Andrew
Allen Brown; and the balance to be divided equally between
Tamara and Jennie. The fourth codicil ratified, confirmed,
and republished Ellen's 1995 will and the first, second,
and third codicils. This codicil effectively excluded Joe and
Elizabeth from Ellen's will.
died on January 9, 2016. On March 7, 2016, notice of probate,
appointment of executor, and the last will and testament and
trust documents were dispatched to all of Ellen's heirs.
On July 8, 2016, the plaintiffs filed a petition to set aside
the will,  alleging Jennie exercised undue influence
on Ellen and that Ellen lacked testamentary capacity to
execute the changes to her will.
filed a motion for summary judgment, a statement of
undisputed facts, and supporting documents. The plaintiffs
resisted, relying on medical records and personal accounts
from the period of 2011 to 2014. Jennie filed a reply brief
and a response to plaintiffs' facts, which included
Attachment DD, a three-page letter authored by attorney
Jonathan Kramer on November 9, 2011, and addressed to Ellen
and Gerry. The plaintiffs moved to strike the letter as
untimely produced. They also argued the court should not
consider the proffered police reports because they were
October 3, the court granted summary judgment to Jennie. With
respect to the claim that Ellen lacked testamentary capacity,
the district court noted "direct evidence provided by a
neutral medical practitioner [Dr. DiFresco] tending to show