Family Fued
The Iowa Supreme Court has imposed a public reprimand on an attorney
for the attorney having a witness sign a will outside the presence of the testatrix and the other witness and then giving the will to the executrix to probate without disclosing this fact.
The misconduct was in the context of a messy situation in the attorney’s family
Haskovec is part of a large family, which began feuding decades ago. Family members put Haskovec in the middle of this feud when they asked him to draft a new will for one of his aunts, Edith Benson. Benson had previously executed a will and power of attorney documents in 2005, naming her nephew, Kenneth M. Bronner, as the executor of her estate and his son, Kenneth R. Bronner, as her power of attorney.
On July 6, 2010, Haskovec, Benson, and Benson’s sister, Elsie Pint, met for two hours at Benson’s home to discuss the provisions of a new will, a new power of attorney, and a new durable power of attorney for health care decisions. Haskovec and Benson discussed removing certain family members from Benson’s will and naming new individuals as her power of attorney and durable power of attorney for health care decisions. Haskovec, Benson, and Pint also discussed how to change the beneficiaries on Benson’s Ameriprise Financial account. Haskovec did not change the beneficiaries on this account. Rather, he advised Benson to speak with the financial agent on the account to determine the proper way to make that change.
On July 8, Haskovec returned to Benson’s home to execute the new documents. She designated new beneficiaries and a new executrix. Haskovec and Pint were with Benson when she executed the will, and Haskovec signed the will as a witness. For some unknown reason, Pint did not sign the will as a witness. The will was not a self-proving will because Haskovec did not use self-proving wills in his practice.
In early August, Benson’s health began to fail and she entered the Cresco hospital. It was at that time other family members discovered the changes Haskovec had made to Benson’s will and power of attorney documents. The hospital where Benson was admitted notified Benson’s great-nephew, Kenneth R., and his wife, Terri Bronner, that other family members were trying to move Benson out of her local hospital. After learning from family member Susan Randall that Benson had named Randall as her new power of attorney and executrix under the 2010 documents, Kenneth R. went to Haskovec’s office to question him about the changes to the will.
When questioned by Kenneth R., Haskovec confirmed he had written the new will and other documents executed by Benson. After this discussion Haskovec reviewed the will and discovered that Pint, who had been present at the execution of the will, did not sign the will as a witness. Soon after discovering Pint had not signed the will, Haskovec consulted the Iowa Code and noted that for a will to be valid, two witnesses must sign it in the presence of the testator and each other. See Iowa Code § 633.279(1) (2011). Though Haskovec recognized Benson’s will did not meet this requirement, he thought there might be some legal argument a probate attorney could make to save the will.
Prior to Benson’s death, he sent the will to Arizona for Pint to sign the will as a witness. Pint then signed the will pursuant to Haskovec’s instructions and returned it to his office.
On August 26, Benson passed away. In mid-September, Haskovec gave the 2010 will to Randall so she could probate it. Haskovec did not disclose to Randall the fact that Pint signed the will outside the presence of himself and the testatrix. Randall took the will to another attorney, Michael Dunbar, so he could open an estate.
After receiving the will, Dunbar sent Haskovec an Affidavit of the Subscribing Witness. After receiving the affidavit, Haskovec contacted Dunbar. Haskovec readily admitted he had sent the will to Pint for her signature, as she had not signed it on the same day as he and Benson had. He informed Dunbar he would not sign the affidavit because the statements in it were not accurate. Dunbar then informed Randall the will was invalid and he could not probate it. Another attorney, Brian McPhail, ultimately probated the 2005 will.
The court could not identify a comparable case with similar facts. (Mike Frisch)