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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of the Estate of Janice V. Evensen (6/30/2023) sp-7664
Notice: This opinion is subject to correction before publication in the Pacific Reporter.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of the Estate of )
JANICE V. EVENSEN. ) Supreme Court No. S-18378
)
ALASKA SOCIETY FOR THE ) Superior Court No. 3AN-19-02846 PR
PREVENTION OF CRUELTY TO )
ANIMALS, ) O P I N I O N
)
Appellant, ) No. 7664 - June 30, 2023
)
v. )
)
STEPHEN OSTERBERG, Personal )
Representative of the Estate of RAGNI )
OSTERBERG, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Andrew Guidi, Judge.
Appearances: David G. Shaftel, Shaftel Delman, LLC,
Anchorage, for Appellant. Alexandra G. Foote-Jones,
Durrell Law Group, P.C., Anchorage, for Appellee.
Before: Winfree, Chief Justice, Maassen, Carney,
Borghesan, and Henderson, Justices.
MAASSEN, Justice,
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INTRODUCTION
A holographic will is one that does not meet the usual requirements of a
1
valid will - i.e., that it be in writing, signed by the testator, and properly witnessed
- but is nonetheless deemed sufficient to demonstrate the testator's intentions because
2
"the signature and material portions of the document are in the testator's handwriting."
In this appeal we address the argument that one or both of two will documents constitute
a valid holographic will. Both of them are signed by the testator, but neither was
properly witnessed.
We conclude that one will, first signed in 1994 and subsequently modified
several times by the testator, meets the statutory requirements for a valid holographic
will, and we therefore reverse the superior court's contrary conclusion. We also
conclude, however, that the superior court correctly determined that a later will, signed
in 2007, was presumptively revoked because the original document was never found,
and that the later will's proponent failed to overcome the presumption. We affirm the
court's rejection of the 2007 will. We remand the case for further proceedings
consistent with this opinion.
FACTS AND PROCEEDINGS
A. Facts
1. Janice Evensen's early life
Janice Evensen was born in 1939 to Vernon and Ragni Osterberg. She
grew up in Washington and had one sibling, Stephen, eight years her junior. She
married James Roan in 1956, and they had a daughter named Susan. After the couple 's
divorce a few years later, Janice and Susan moved in with Janice's parents, who
supported them while Janice returned to school to learn to be a court reporter. In 1962
1 AS 13.12.502(a).
2 AS 13.12.502(b).
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Janice and Susan moved to Alaska, where Janice again married and divorced. She
worked as a court reporter and later as a secretary.
2. Janice's relationship with her family
Janice suffered from bipolar disorder and manic depression. According
to Janice's brother Stephen, Janice declined to take medication for her mental illness,
resolving to treat it instead with witchcraft. Stephen would later testify that Janice's
relationships with other members of the family essentially ended after their mother
Ragni's 1991 visit to Alaska. One night, as Stephen recalled it, Janice drove Ragni into
the mountains to see "[i]nvisible people." Disturbed, Ragni flew home the next day.
Janice abruptly broke off relations with her and asked other family members, including
Stephen, to do the same. When they refused, Janice cut ties with them as well. Her
relationship with her daughter, Susan, had been rocky while Susan was growing up, and
when Susan later tried to mend it Janice rejected her efforts. Susan died in 2014.
3. Janice's later years
Janice lived in the same neighborhood in Anchorage for much of her later
life. According to her neighbor, David Kranich, the community found her "hard to deal
with," but nevertheless several neighbors helped her out with various tasks as she got
older.
In 2013 Janice spoke with the executive director of the Alaska Society for
the Prevention of Cruelty to Animals (Alaska SPCA) about her will. She told him she
did not want her relatives to be involved or notified. She followed up on the
conversation with a letter, in which she wrote, "Enclosed is a copy of My Last Will and
Testament that I've been meaning to update with more specific information."
Accompanying the letter was a will document, the "2007 Will." The document is a
scanned copy; the original was never found.
Darryl Waters, a general contractor and real estate investor, met Janice in
2018. She owned a rental property that "was rundown and in bad shape"; people were
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squatting in it and refusing to pay rent or leave. Waters agreed to help Janice resolve
the problem, eventually buying the building himself. He and Janice became friends,
and he helped her maintain her yard and occasionally brought her food.
At some point in 2019, Janice sent a letter to the Alaska Humane Society
about her will. The record does not include a copy of her letter, but the Alaska Humane
Society replied, thanking her for considering it while "finalizing [her] will."
In late 2019 Janice became very ill. Kranich visited her in the hospital
and agreed to watch her cat and try to locate her next of kin. She died on November 20
at 80 years old. Ragni outlived her, dying in December 2021.
B. Proceedings
1. Pretrial proceedings
After Janice's death the Kranichs entered her home looking for
information on her next of kin. In the living room they found a will file and boxes of
documents, including news clippings about animals and how to make a will. In the will
file was an original will document, the "1994 Will."
The Kranichs were appointed special administrators of Janice's estate.
They petitioned for a hearing to identify her heirs, attaching a copy of the 1994 Will
(though without one handwritten page). The Alaska SPCA filed its own petition,
seeking formal probate. It attached the 2007 Will it had found in its records and asserted
that it was "a valid holographic will." It later adjusted its position to rely on both the
1994 Will and the 2007 Will, arguing that the two documents together "form[ed] one
valid holographic [w]ill."
2. 1994 and 2007 Wills
The parties stipulated that the handwriting on both the 1994 Will and the
2007 Will belonged to Janice, and there is no dispute about what the handwriting says.
The majority of the 1994 Will - the one the Kranichs found in Janice's house - is
typewritten, although it has a number of handwritten alterations and additions. The
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document is not just a generic template; the typewritten portions are tailored to Janice's
own circumstances. The first paragraph states:
I, Janice V. Evensen, a legal resident of the State of Alaska,
being of sound and disposing mind and memory, of legal
age, and free from duress and undue influence, do make,
publish and declare this instrument as and for my Last Will
and Testament, intending hereby to dispose of all my
worldly estate and possessions, hereby revoking and
annulling any and all wills and codicils at any time
heretofore made by me.
What follows are eight substantive paragraphs, called "Items."
Item I dictates how Janice's bills and expenses should be paid; Item II
provides for the care of her pets; Item III sets out her wishes regarding cremation; Item
IV lists the organizations that should inherit her property, including the Alaska SPCA;
Item V expressly disinherits her family members, "with the exception of $1.00 to make
this item legal"; Item VI appoints an executor for her estate; Item VII authorizes her
executors to take certain actions; and Item VIII provides for grammatical flexibility in
interpretation. Janice signed the document and dated it November 25, 1994; however,
the next page, which contains signature lines for three witnesses, is not completed.
Janice edited and added to the 1994 Will by hand. Under Item I she added
her individual retirement account (IRA) to the list of resources that could be used to pay
off her debts. Under Item IV she crossed out the typewritten list of beneficiaries3 and
wrote "To be deleted." In Item V, which stated Janice's "express intention that [her]
daughter, [her] mother, and [her] brother along with any other relatives" not benefit
from her will, she inserted her daughter's name; at the end of the Item she added, "I do
this without hatred. I hope to have the time to include a letter to Susan and a copy of
3 The named beneficiaries in the typewritten version were "Victims for
Justice, Southcentral Counseling, the Alaska SPCA, PETA and the Old English
Sheepdog Rescue Fund (both in Alaska and national)."
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the story of the chicken who wanted to make bread (Aesop's)."4 In Item VI Janice
crossed out the typewritten list of executors5 and substituted the phrase "my
beneficiaries, to share and share alike."
Janice added more handwritten text on the back of the will's third page,
part of which was later crossed out. She wrote, "I have discussed this will with my
friend, Joyce Congdon, . . . and she understands my intentions if I don't get to actually
writing it down or taping." She then wrote:
Victim 's for Justice [and] Southcentral counseling were in
for approx 1/3 provided they provided me with attorney
advice on how to handle this. They both declined without
asking how much we're talking about. Total lack of interest.
Please inform them what they fluffed off. I would like trusts
set up with my individual mutual funds with the proceeds
going to:
The Iditarod Trail Race
The Yukon Quest
The Old English Sheepdog National Rescue
Local SPCA, [and] Rescue of animals like the
Hagemeister Reindeer[6]
4 This is an apparent reference to a fable about a hen "whose friends
declined to plant, harvest or thresh the wheat; grind or bake the flour, but were all too
ready to share with her the bread that resulted." Kroger Co. v. Johnson & Johnson , 570
F.Supp. 1055, 1060 (S.D. Ohio 1983); see also In re Volkswagen "Clean Diesel" Mktg.,
Sales Practices, & Prods. Liab. Litig., 914 F.3d 623, 648 (9th Cir. 2019) (summarizing
story as "a case where latecomers attempt to divide spoils that they did not procure"
(citing FLORENCE WHITE WILLIAMS, THE LITTLE RED HEN (1918))).
5 The identified executors in the typewritten version were her tax
accountant, "Victims for Justice and Southcentral Counseling of Anchorage, Alaska."
6 This presumably refers to reindeer living on Hagemeister Island in Bristol
Bay. First introduced to the island in the late 1960s, the reindeer overgrazed the island's
lichen and many starved. Their plight was well publicized around the time Janice
signed the 1994 Will. See Wesley Loy, Reindeer Rescuers' Airlift Races Against
Official 'Mercy Killing', WASHINGTON POST (Nov. 29, 1992),
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Anchorage Zoo
Our Lady of Compassion
Proceeds from property may be added to funds. I have no
idea as to amounts at this time. Might as well make it all
equal.
Janice signed this handwritten paragraph and dated it November 25, 1994. A separately
initialed postscript read: "Joyce Congdon should get my computer, typewriter [and]
other electronic equipment she wants for her friendship & trouble." But both this
postscript and the paragraph's first sentence, also referring to Congdon, were later
7
crossed out, with the deletion dated six years later - October 15, 2000.
The 2007 Will is the copy found in the Alaska SPCA's files. The
document's typewritten content is the same as that of the 1994 Will, but the handwritten
amendments differ. Notably, in Item IV, this version has lines through the typewritten
names of all beneficiaries except the Alaska SPCA. Janice signed the document and
dated it August 6, 2007. On the third page, following her signature, she handwrote the
following:
Beneficiaries will probably be:
Alaska SPCA
Anchorage Zoo
(The cathouse) (I don't know the name).
(The other dog & cat place on Arctic Blvd) (ditto)
Maybe "the pound"
Friends of Pets
The 2007 Will does not include the page for witness signatures.
https://www.washingtonpost.com/archive/politics/1992/11/29/reindeer-rescuers-
airlift-races-against-official-mercy-killing/3523d214-f844-4dd5-a35b-ed66653449f3/.
7 A witness testified at trial that these deletions "line up with approximately
the time that Mrs. Congdon moved to Florida."
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3. Trial
The court held a bench trial to determine whether the 1994 Will, the 2007
Will, or both in combination constituted a valid holographic will. Stephen's position
was that Janice died intestate, in which case Ragni would inherit her estate, which in
turn would pass to Stephen as Ragni's heir. Four witnesses testified, and 24 exhibits
were admitted by stipulation.
The Alaska SPCA called its executive director, Kelly Donnelly, as its first
witness. She testified that she received notice of Janice's estate and possible bequest in
2020 and as a result hired counsel to represent her organization. She described the
contents of the seven boxes of documents found at Janice's home: these included many
pictures and articles about animals, but also documents that explained how to write a
will.
Waters testified next. He explained his friendship with Janice and the
events surrounding their property transaction. He testified that Janice told him Susan
once tried to kill her in her sleep, and Janice's family turned on her because of Susan.
He said Janice never mentioned that she had a brother. He testified that she did not
show him her will, but she was "adamant" that she did not want her family to get "a
dime" from her; she wanted to leave her estate to the SPCA.
Kranich testified that he grew up on Janice's street and had known her
since he was a child. He began helping her with various tasks in 2002, but she was a
"difficult personality." He testified that Janice "had a lot of resentment towards
everybody" and that she accused her family, particularly Ragni and Susan, of abusing
her. At various points she told him that she wanted her estate to go to her cat, the
Humane Society, and the SPCA. But she expressed frustration that the Alaska SPCA
would not help her with her will. It was Kranich's impression that Janice did not
finalize a will before her death.
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Janice's brother Stephen testified last. He described Janice's early life and
denied that Ragni had ever abused her; he testified that everyone but Janice loved Ragni.
He testified that Janice cut off contact with him in 1991 when he refused her demand
that he stop talking to his mother. Stephen explained that their family had a history of
mental illness; he believed that Janice suffered from delusions. He acknowledged that
she loved animals, but he nonetheless was surprised that she did not want to leave her
estate to her family.
At the close of the evidence the Alaska SPCA asked the court to accept
the 1994 Will and the 2007 Will in combination as a valid holographic will. Stephen
argued that Janice had chosen not to make a will despite knowing how to do so and had
died intestate.
4. Superior court decision
The superior court issued a written decision concluding that the 1994 Will
and the 2007 Will were insufficient to create a holographic will, whether considered
separately or together. The court reasoned:
Although the statutes authorizing holographic wills have
been liberalized with the intent of giving weight to the
testator's intent, they do not go so far as to suggest a printed
will, which was never validly executed, can be transformed
into a holographic will with the addition of a few
handwritten changes. If that was the rule, any handwritten
notes on a typed will could render the entire will a
holographic will, which undermines the ability to determine
a testator's final intent regarding the will.
The court concluded that no material portions of the will documents were in writing. It
also found no testamentary intent, that is, no specific intent that one of the proffered
documents was intended to control the distribution of Janice's estate following her
death.
The court relied on Janice 's training as a court reporter and her gathering
of information about making a will to support an inference that she knew how to make
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a valid will but chose not to. The court also found it significant that Janice deleted two
charitable organizations from her list of potential beneficiaries because they failed to
help her with the drafting; the court reasoned that she likely intended the same for the
Alaska SPCA, since it did not help her either. The court observed that Janice never
mentioned a final will to anyone, and that Kranich did not think she had one. The court
found that the only page entirely in Janice's handwriting - the back of the 1994 Will's
third page - "was conditional, contemplated future action, and . . . [said] that her friend
ha[d] more information on her wishes" than did the document itself. The court found
that the conditional nature of her writings indicated that she had not yet decided how
her estate should be distributed upon her death.
The Alaska SPCA appeals. It asks that both the 1994 Will and the 2007
Will be admitted to probate as one valid holographic will or as a valid will and codicil,
and in the alternative that the 1994 Will alone be admitted to probate.
STANDARD OF REVIEW
"The interpretation of a statute is a legal question which we review de
novo."8 "We review the superior court's factual findings for clear error, which exists
'only when we are left with a definite and firm conviction based on the entire record
that a mistake has been made.' "9 To the extent that "the superior court relied . . . on
the language of the will in determining the testator's intent," we review the
determination de novo.10 However, to the extent the superior court relied "on oral
8 In re Est. of Baker, 386 P.3d 1228, 1231-32 (Alaska 2016) (interpreting
Alaska's holographic will statute, AS 13.12.502(b)).
9 Dan v. Dan , 288 P.3d 480, 482 (Alaska 2012) (quoting In re Protective
Procs. of W.A., 193 P.3d 743, 748 (Alaska 2008)).
10 Vukmir v. Vukmir, 74 P.3d 918, 920 (Alaska 2003).
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testimony given by witnesses seen and heard by the trial judge," we review the
11
determination of testamentary intent for clear error.
DISCUSSION
A. It Was Error Not To Admit The 1994 Will To Probate As A
Holographic Will.
1. The 1994 Will document is a duly executed holographic will.
The Alaska requirements for a valid will are set out in statute. With some
stated exceptions, "a will must be (1) in writing; (2) signed by the testator . . . ; and (3)
signed by at least two [witnesses]."12 One of the stated exceptions is for a holographic
will - that is, "[a] will that is handwritten by the testator."13 Alaska Statute
13.12.502(b) provides that "a will that does not comply with [all three of the statutory
requirements] is valid as a holographic will, whether or not witnessed, if the signature
and material portions of the document are in the testator's handwriting."14 Material
11 In re Est. of Kraft, 374 P.2d 413, 416 (Alaska 1962) (noting standard of
review for decisions regarding testamentary capacity); cf. Smith v. Est. of Peters, 741
P.2d 1172, 1174 (Alaska 1987) (explaining that whether testator intended to make
specific bequest is question of fact subject to clear error review). Other states have also
recognized that whether an individual intended to create a will is a factual question
subject to clear error review. See, e.g., David Terrell Faith Prophet Ministries v. Est.
of Varnum, 681 S.W.2d 310, 313 (Ark. 1984) ("The accumulation of extrinsic evidence
was the key factor in removing any doubt about the testator's intent. No such
authenticating circumstances appear in the case at bar, and without them, or ones of
equal validity, we cannot say that the probate judge was clearly erroneous in his
ruling."); In re Conservatorship of H.D.K., 497 P.3d 1171, 1178 (Mont. 2021)
(concluding that testamentary intent is question of fact subject to clear error review).
12 AS 13.12.502(a).
13 Will-holographic will, BLACK 'S LAW DICTIONARY (11th ed. 2019).
14 This holographic will exception itself has an exception - "Except as
provided in AS 13.06.068" - which addresses wills created in other jurisdictions and
subject to other laws; it is not relevant here.
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portions "are the words identifying the property and the devisee."15 Immaterial
portions, like the date or "introductory wording," need not be handwritten in order for
16
a holographic will to be valid.
When applying these statutes we keep in mind several interpretive
principles. Most importantly, Alaska law aims to "discover and make effective the
intent of a decedent in distribution of the decedent's property."17 And "[w]ills should
be construed to avoid intestacy whenever possible." 18 If the validity of a document
purporting to be a will is contested, the will's proponents must demonstrate "prima facie
proof of due execution." 19 But once they have established due execution, then the
burden shifts, and the "[c]ontestants of [the] will have the burden of establishing lack
of testamentary intent or capacity, undue influence, fraud, duress, mistake, or
20
revocation."
The parties do not dispute that Janice signed the 1994 Will. In deciding
whether it meets the statutory requirements for a holographic will, the only remaining
15 RESTATEMENT (THIRD) OF PROP.: WILLS & OTHER DONATIVE
TRANSFERS § 3.2 (AM. L. INST . 1999).
16 In re Est. of Baker, 386 P.3d 1228, 1233-34 (Alaska 2016) (citing UNIF .
PROB. CODE § 2-502 cmt. b. (UNIF . L. COMM'N amended 2019)). "Alaska [has]
adopted the Uniform Probate Code (UPC) in near-entirety." Id. at 1233. Immaterial
portions also include provisions that, if left out, are imposed by statute anyway. Much
of the typewritten boilerplate language in the 1994 and 2007 wills falls into this
category: most obviously Item VII in the two proffered wills, which describes the
authority and duties of Janice's executors in terms that reflect the governing statutes.
See AS 13.16.320 ("The special administrator has the power of a personal
representative under AS 13.06-AS 13.36 necessary to perform the special
administrator's duties.").
17 AS 13.06.010(b)(2).
18 Smith v. Est. of Peters, 741 P.2d 1172, 1175 (Alaska 1987).
19 AS 13.16.170.
20 Id.
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question is whether the "material portions of the document are in [Janice's]
handwriting."21 Janice wrote on the back of the 1994 Will that she "would like trusts
set up with [her] individual mutual funds with the proceeds going to" a list of mostly
animal-related charities. At the end of the list she added: "Proceeds from property may
be added to funds. I have no idea as to amounts at this time. Might as well make it all
equal."
We conclude that Janice's handwritten additions to the 1994 Will satisfy
the statutory requirement that the "material portions" - that is, "the words identifying
the property and the devisee"22 - be in her handwriting. The property is specifically
described: "trusts set up with [her] individual mutual funds" with "[p]roceeds from
property . . . added." The devisees are identified by name as well.23 It was therefore
error to find that the 1994 Will did not satisfy the statutory exception for a valid
holographic will.
2. Stephen did not carry his burden of establishing Janice's lack
of testamentary intent.
An apparently valid will is still subject to challenge on the ground that it
does not actually reflect testamentary intent - that is, the "testator's intent that a
21 AS 13.12.502(b).
22 RESTATEMENT (THIRD) OF PROP.: WILLS & OTHER DONATIVE
TRANSFERS § 3.2 (AM. L. INST . 1999).
23 We note that one beneficiary, "Rescue of animals like the Hagemeister
Reindeer," is named only generally. This may mean that the executor of Janice's estate
has the discretion to select a specific beneficiary consistent with her apparent intent, as
this is how courts typically handle general beneficiaries in the charitable trust context.
See In re Clement Trust, 679 N.W.2d 31, 39 (Iowa 2004) ("Because the will setting up
this charitable trust identified the beneficiaries of the trust quite broadly, the trustees
had the discretion to select the specific beneficiaries."). We do not decide this issue.
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particular instrument function as his or her last will and testament."24 Because the 1994
Will appears to be a valid holographic will, Stephen had the burden of demonstrating
25
that it was not actually Janice's intent that the document take effect upon her death.
The superior court determined that he met this burden.
A lack of testamentary intent may be found in conditional or speculative
language in the document.26 As evidence that the 1994 Will was not a finished product,
the court cited Janice's handwritten statement on the back of the third page: "[M]y
friend . . . understands my intentions if I don't get to actually writing it down or taping,"
indicating an intent to take further action in the future. But it is undisputed that Janice
crossed out this sentence in 2000, initialing the deletion; it was no longer expressive of
her intent.
The court noted other evidence supporting a finding that Janice
consciously chose not to finalize a will.27 It cited letters she sent to the Alaska SPCA
24 Intent-testamentary intent, BLACK 'S LAW DICTIONARy (1 1th ed. 2019);
see also Est. of Smith, 71 Cal. Rptr. 2d 424, 431 (Cal. App. 1998) (" 'Testamentary
intent' . . . does not refer to the testator's intentions regarding particular dispositions of
property. It means the testator's general intent to make a revocable disposition of his
or her property, effective on the testator's death."); Irving v. Divito, 807 S.E.2d 741,
745 (Va. 2017) ("Testamentary intent . . . means that the writing offered for probate
must have been executed by the testator with the intent that such writing take effect as
his last will." (omission in original) (quoting Thompkins v. Randall, 150 S.E. 249, 251
(Va. 1929))).
25 AS 13.16.170.
26 In re Est. of Tiedeman, 912 N.W.2d 816, 825-26 (Neb. App. 2018).
27 Some states do not allow extrinsic evidence of testamentary intent unless
the document is ambiguous. See, e.g., In re Est. of Ostby, 479 N.W.2d 866, 871 (N.D.
1992) ("Unless a duly executed will is ambiguous, the testamentary intent is derived
from the will itself, not from extrinsic evidence.") But "California law allows the
admission of extrinsic evidence to establish that a will is ambiguous and to clarify
ambiguities in a will." In re Est. of Duke, 352 P.3d 863, 867 (Cal. 2015); see also UNIF .
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and the Alaska Humane Society indicating that she "was still working to finalize her
will," and that "her intent in sending a copy to the [Alaska SPCA] was more of a
working draft . . . than a final will." But Janice's letter to the Alaska SPCA can just as
easily be read as confirming that she had a will; she explained that she was enclosing a
copy of her "Last Will and Testament that [she had] been meaning to update with more
specific information," referring again to "this update" later in the letter. Her use of the
term "update" implies that a valid will was already in place, though perhaps needing
modification. Janice's letter to the Humane Society is not in evidence, only the Humane
Society's response, which closes with the words, "We . . . trust that you will [c]onsider
us in finalizing your will." Whether this accurately reflects the language of Janice's
own letter can only be guessed at; it is, at best, very weak evidence of her intent.
The court also cited evidence that Janice had worked as a court reporter
and that she had collected a number of articles about estate planning and will drafting,
supporting a finding that she "knew exactly how to make a valid will and she chose not
to finalize a valid handwritten will or finalize a valid typewritten will by having the will
witnessed." The significance of Janice's court reporter career is unclear from the
record, but there is no evidence that she retained any knowledge of wills and estates
beyond that of any layperson.28 Nor is there evidence that she read the clippings she
PROB. CODE § 2-502 cmt. c (UNIF . L. COMM'N, amended 2019) ("[T]estamentary intent
can be shown by extrinsic evidence, including for holographic wills the printed, typed,
or stamped portions of the form or document."). Here, neither party challenges the
consideration of extrinsic evidence, so we do not decide the extent to which Alaska law
allows it.
28 Stephen testified about Janice's training as a court reporter before she and
Susan moved to Alaska in the early 1960s, and Stephen's counsel, citing Waters'
testimony, asserted in closing argument that Janice "was a court reporter during her
lifetime." But the only evidence of the duration of Janice's court reporting career is a
letter she wrote in 1973 - submitted as part of a joint trial exhibit - in which she said
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collected about drafting wills, which, as the court acknowledged, were not "perfect
statement[s] of the law in the State of Alaska regarding the validity of wills."
The superior court also cited Janice's "pattern of behavior . . . of wanting
a charitable organization to provide her with legal advice to finalize her will" and, when
that advice was not forthcoming, of "eliminat[ing] them as beneficiaries." The court
inferred that Janice likely intended to do that with the Alaska SPCA as well, meaning
that the handwritten beneficiary list in the 1994 Will did not reflect her evolving intent.
But both Kranich and Waters testified that Janice told them of her desire to leave
property to the Alaska SPCA; Waters did not meet Janice until 2018, five years after
the Alaska SPCA's failure to respond to her request for its help, and Kranich placed
Janice's comments in the same time frame. Although eliminating the Alaska SPCA
from the list of beneficiaries would have been consistent with Janice's actions toward
other charitable organizations, she did not do so.
Other extrinsic evidence supports a finding that Janice intended that her
estate be distributed in accordance with the terms of the 1994 Will unless and until she
changed it. The typewritten portions of the document reflect her own particular
circumstances; she deliberately created a "Last Will and Testament of Janice V.
Evensen" that devised her estate to particular charitable organizations and explicitly
disinherited her daughter, her mother, her brother, and "any other relatives." She signed
and dated the 1994 Will. The language remaining after her 2000 deletions is not
equivocal: "I would like trusts set up . . . with the proceeds going to . . . . " And more
indicative of her intent that the 1994 Will have lasting impact is the fact that over the
next 13 years she initialed and (mostly) dated changes she made to the typewritten text
she "stopped court reporting about eight to ten years ago," i.e., by the mid-1960s, and
had "been working as a secretary."
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and the handwritten addition, dating the 2000 deletion of references to Joyce Congdon
and dating the change to the named executors seven years later.
The fact that Janice repeatedly returned to the same signed document,
revised it, and dated and initialed her revisions over the course of 13 years is strong
evidence that that document - the 1994 Will - reflected her intentions as to what
would happen upon her death.
The goal of Alaska's probate statutes is to "discover and make effective
the intent of a decedent in distribution of the decedent's property."29 Two very clear
threads run through both the written record and the testimony of Janice's neighbors:
She did not want her relatives to see "a dime" of her estate and she wanted her estate to
go primarily to animal welfare organizations. A finding of intestacy would upend her
clearly expressed desires. The 1994 Will is signed, its material portions are in Janice's
handwriting, and it reflects what is known of Janice's testamentary intent. Because the
1994 Will contains all the elements of a valid holographic will and Stephen did not
carry his burden to prove that Janice lacked testamentary intent, we conclude that the
1994 Will is a valid holographic will.
B. It Was Not Error To Reject The 2007 Will As Invalid.
The superior court also concluded that the 2007 Will - the copy on which
Janice had deleted all beneficiaries except the Alaska SPCA from the typewritten text
- was presumed to have been revoked, since no original of it was ever found. We
agree that the governing law compelled this conclusion. If the original of a will
document cannot be found, there is a rebuttable presumption that the testator revoked
it.30 The party attempting to rebut the presumption must prove by clear and convincing
29 AS 13.06.010(b)(2).
30 Dan v. Dan , 288 P.3d 480, 484 (Alaska 2012) (citing RESTATEMENT
(THIRD) OF PROP.: WILLS AND OTHER DONATIVE TRANSFERS § 4. 1 cmt. j (AM. L. INST .
1999)).
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evidence that the original was merely lost.31 "[T]hose who attempt to set up a lost
holographic will are met by an almost insurmountable barrier when called upon to
produce strict and complete proof sufficient to establish legal execution and contents of
32
the will."
Arguing against revocation of the 2007 Will, the Alaska SPCA points to
Janice's statements to Kranich and Waters about her wish to leave her estate to the
Alaska SPCA, her 2013 letter to the organization, and her conversation with its
executive director. It also relies on the fact that Janice made handwritten modifications
to both the 1994 Will and the 2007 Will on the same date, indicating an intent that they
be considered together. But Janice's repeated references to the Alaska SPCA do not
necessarily mean she intended the 2007 Will to replace the 1994 Will, which included
the "Local SPCA" among its listed beneficiaries. It makes sense that she would
highlight the Alaska SPCA's status as an intended beneficiary in the copy she sent to
that organization seeking its help with her estate planning. And the fact that Janice
modified both will documents simultaneously supports a finding that she intended the
earlier version to remain in effect even as she considered an "updated" version. The
Alaska SPCA did not provide clear and convincing evidence to rebut the presumption
of revocation.
Even if the Alaska SPCA had rebutted the presumption of revocation, the
2007 Will still would not satisfy either the statutory requirements for a valid will (being
unwitnessed)33 or the statutory exception for a holographic will (lacking the 1994 Will's
31 Id.
32 Id. (quoting Sanders v. McClanahan, 442 S.W.2d 664, 667 (Tenn. App.
1969)).
33 See AS 13.12.502(a)(3).
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handwritten material portions).34 The Alaska SPCA admits this, but it argues that the
1994 Will and the 2007 Will together create a valid holographic will or in the alternative
a valid will and codicil.35 But there is no support for the proposition that a valid will
can be modified by its integration with a different will that has been presumptively
revoked. And in order to be a valid codicil, a document must satisfy the requirements
of a valid will.36 We conclude, therefore, that the superior court did not clearly err when
it found that the Alaska SPCA had failed to rebut the presumption that the 2007 Will
was not a valid will.
CONCLUSION
We REVERSE the superior court decision that the 1994 Will was not valid
under Alaska law and REMAND for further proceedings consistent with this opinion.
34 See AS 13.12.502(b). We observe that the handwritten list of beneficiaries
added to the 2007 Will is phrased conditionally ("Beneficiaries will probably be . . .")
as opposed to that in the 1994 Will, in which the conditional words initially included in
the handwritten portion were later deleted.
35 A codicil is "[a] supplement or addition to a will, not necessarily disposing
of the entire estate but modifying, explaining, or otherwise qualifying the will in some
way." Codicil, BLACK 'S LAW DICTIONARY (11th ed. 2019).
36 See AS 13.06.050(62) (providing that " 'will' includes a codicil").
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