Memorandum decisions of this court do not create legal precedent. A party wishing to cite such a decision in a brief or at oral argument should review Alaska Appellate Rule 214(d).
MEMORANDUM OPINION ANDJUDGMENT
Etta Bavilla attempted to informally probate her mother's 1987 will, but the court did not allow the informal probate because her mother had signed a new will in 2006. In a prior appeal we held that Etta should have been permitted to amend her pleadings and convert the matter to a formal probate proceeding to contest the 2006 will. On remand she argued that her mother had been subject to undue influence in executing the 2006 will, but she introduced little evidence to support her claim. The superior court found that she had not met her burden of proof and admitted the 2006 will to probate. Etta appeals the decision and claims that the court was biased. We affirm the superior court's decision.
II. FACTS AND PROCEEDINGS
Offenesia Yako Bavilla died in 2010.
In mid-February 2006 Offenesia executed a new will witnessed by two people who worked at the nursing home.
Two years after Offenesia's 2010 death Etta applied for informal probate of the 1987 will, arguing that the 2006 will was invalid.
Etta appealed both orders to this court. We affirmed the recusal decision because there was no evidence of bias, but held that the superior court should have allowed Etta to amend her pleading under Alaska Civil Rule 15(a), which requires leave to amend to "be freely given when justice so requires."
On remand Etta moved to have the estate formally probated and to have the 2006 will nullified. She argued that the 2006 will's executors had "utilized assets" of the estate without fulfilling their duties, and she said she had sought criminal charges against Steven but had been turned away. Her subsequent request for appointed counsel "due to mental health issues" was denied.
The superior court granted Etta's petition to convert the matter to a formal probate proceeding under AS 13.16.140, and an evidentiary hearing was held before a magistrate judge in August 2015. Etta appeared by telephone. The court noted on the record that none of the other parties or interested persons had appeared in person or by phone. When asked what evidence or witnesses she wanted to present, Etta referred to the 2005 letter from Offenesia's doctor, the fact that Offenesia's signature on the 2006 will was shaky and misspelled, and a contact information sheet on which her sister was listed as guardian. She also told the court that she believed having nursing home employees serve as witnesses to the will was a conflict of interest or amounted to coercion because Offenesia had allegedly "suffered a lot of abuse and neglect" at the home.
The court explained that by signing the will the witnesses testified that, at the time of signing, Offenesia had been "of sound mind and [under] no constraint or undue influence." When asked if she had any evidence to contradict that testimony other than the doctor's letter, Etta only referred again to the misspelled signature. The court asked five times if she had other evidence to present. Etta replied more than once that she did not know how she could gather more evidence because she was incarcerated. Within days of the hearing and before the magistrate judge issued a recommendation, Etta moved for reconsideration and requested a jury trial, arguing that the magistrates and judges involved in the case were all biased.
The magistrate judge issued his recommendation in February 2016. He explained that Etta claimed the 2006 will was invalid because Offenesia was not competent to execute a will at that time. He noted that Etta had not presented any new evidence or called any witnesses at the evidentiary hearing, and found that there was no evidence other than Etta's "beliefs and suspicions" to support her claim of undue influence. The magistrate judge found that Etta had not presented sufficient evidence to establish: (1) that the will had not been prepared at Offenesia's direction; (2) that Offenesia had been incompetent or subject to undue influence when she signed the will; or (3) that Offenesia had "insufficient mental capacity to understand the nature and extent of her property, the natural or proper objects of her bounty, or the nature of her testamentary act." The magistrate judge therefore recommended that the 2006 will be admitted to probate. Etta filed an objection to the recommendation, repeating her claims that the judicial officers were biased against her and that the will had been executed illegally.
In March 2016 the superior court approved the recommendation, writing, "The [c]ourt reviewed testimony and evidence on file, as well as objections to the report. There is simply no admissible evidence presented to support Ms. Bavilla's speculation as to incompetency."
III. STANDARD OF REVIEW
"Issues of testamentary capacity and undue influence involve questions of fact" that we review for clear error.
Etta argues that the superior court erred in determining that the 2006 will was valid and that both the magistrate judge and the superior court judge were biased against her. She also claims that her request for a jury trial was wrongly ignored, but this claim is waived for inadequate briefing.
A. The Validity Of The 2006 Will
Under AS 13.16.170, "[c]ontestants of a will have the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation." Etta argues that her mother was not capable of making a will, that she was subject to undue influence, and that the will was fraudulent.
1. Lack of testamentary capacity
Whether an individual had the necessary testamentary capacity to execute a will depends upon "whether the testator had sufficient mental capacity to understand," among other things, "the nature of her testamentary act."
The superior court found that Etta had presented insufficient evidence to support her claim. To invalidate the will, Etta was required to show that Offenesia was incompetent at the time of signing.
2. Undue influence
A party challenging a will based on undue influence must prove that "the testator was virtually compelled to make a will [that the testator] would not have made [if] left to the free exercise of [her] own judgment and wishes."
Etta presented no evidence that influence was brought to bear on Offenesia by the primary beneficiaries of the new will or anyone else. She testified at the hearing that she believed Steven had asked the Alaska Legal Services Corporation to draw up the new will, but there is no evidence that he was involved in preparing or signing the will. Without evidence that someone pressured Offenesia about the new will, Etta cannot show that Offenesia was subject to undue influence. Although she firmly believes that her mother was unduly influenced, her belief does not provide sufficient evidence to invalidate the will.
Etta claims that both the magistrate judge and the superior court judge were biased against her and actively supported the beneficiaries of the 2006 will against her. She claims that the superior court judge "act[ed] as the opposing part[y's] attorney by making wrong `technical' calls," in particular the decision that the 2005 doctor's letter was insufficient evidence to support her claims. But we have explained that "judicial bias should not be inferred merely from adverse rulings."
We AFFIRM the judgment of the superior court.