IN THE SUPREME COURT OF IOWA 

No. 19–2088 

Submitted January 21, 2021—Filed February 19, 2021 

IN THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP 

OF VERNON D. RADDA

KEVIN KIENE and BARBARA KIENE,

Appellants, 

vs. 

WASHINGTON STATE BANK, as Conservator for Vernon D. Radda, 

Appellee. 

Appeal from the Iowa District Court for Washington County, 

Crystal S. Cronk, Judge. 

Family members appeal ruling on declaratory judgment declining to 

adjudicate validity of wills while the ward is still alive, and requiring 

challengers to pay the conservator’s attorney fees. AFFIRMED IN PART, 

REVERSED IN PART, AND REMANDED FOR DISMISSAL. 

Waterman, J., delivered the opinion of the court, in which all justices 

joined. 

Siobhan Briley (argued) of Pugh Hagan Prahm PLC, Coralville, for 

appellants. 
2 

R. Ronald Pogge and Chandler M. Surrency (argued) of Hopkins & 

Huebner, P.C., Des Moines, for appellee Washington State Bank, as 

conservator for Verdon D. Radda. 
3 

WATERMAN, Justice.

In this interlocutory appeal, we must decide whether a prospective 

heir can bring a declaratory judgment action under Iowa Code section 

633.637 (2019) to determine the validity of wills before the testator dies. 

The ward executed wills in 1992 and 2015 while he was in a voluntary 

conservatorship and without any contemporaneous judicial determination 

of his testamentary capacity. The ward’s sister and her husband brought 

this declaratory judgment action in 2019 to determine the validity of those 

wills. The conservator bank filed a motion to dismiss the action, arguing 

the petitioners’ claims were not ripe and they lacked standing to challenge 

the wills while the testator remained alive. The district court denied the 

motion to dismiss, but in response to the conservator’s motion to enlarge, 

then limited the scope of the action to a determination of the ward’s 

present testamentary capacity and required the petitioners to pay the 

conservator’s attorney fees. We granted the petitioners’ application for 

interlocutory appeal and retained the case. 

On our review, we hold that neither section 633.637 nor other 

provisions of the Probate Code permit a challenge to the validity of a will 

executed by a testator who is still living. This legislative choice to avoid 

predeath will contests makes sense, because the testator might execute a 

new will or the beneficiaries might predecease the testator, wills are 

confidential while the testator remains alive, and a postdeath challenge to 

a will in probate would include notice to all potentially affected parties with 

trial by jury. For the reasons elaborated below, we affirm the district 

court’s ruling declining to adjudicate the validity of the ward’s 1992 or 

2015 wills. The district court erred, however, by allowing the action to 

proceed for a determination of the ward’s present testamentary capacity 

and by requiring the petitioners to pay the conservator’s legal fees. We 
4 

reverse those rulings. No relevant fee-shifting statute applies, and the 

petitioners’ claims were not frivolous. 

I. Background Facts and Proceedings. 

Vernon D. Radda, now age fifty-nine, suffers from schizoaffective 

disorder and severe autism spectrum disorder. He resides at the Pearl 

Valley care facility in Washington, Iowa. Until 1991, his mother, Betty 

Jean Radda, cared for him. In June of that year, a guardianship and 

conservatorship was set up for Betty Jean because she had suffered a 

stroke and was unable to care for herself. Vernon agreed to a separate 

guardianship and conservatorship established for him that has remained 

in place since 1991. His sister, Julie Zieser, was appointed his guardian, 

and Washington State Bank his conservator. After Julie died, her 

husband and son, Wayne and David Zieser, were appointed Vernon’s 

coguardians. 

In 2017, Radda told another sister, Barbara Kiene, that he had 

recently signed some documents. Barbara asked what documents he had 

signed, and whether it was a will. Radda responded that he did not know. 

Barbara and her husband, Kevin Kiene, investigated and discovered 

Radda had executed two wills, one in 1992 and another in 2015. The 

attorney who prepared the 1992 will filed an affidavit regarding 

compensation, stating that he met with Radda twice, including a 

conference to sign the will. Julie filed an accompanying “itemized time” 

list to support her compensation. Julie’s list indicated that she took Radda 

to the attorney’s office on the date the will was executed but does not 

include the initial conference. The 2015 will was also prepared by an 

attorney. The 1992 will was deposited with the court and was later 

replaced by the 2015 will. Neither will is found in the record on this 

appeal. Radda, as of the conservator’s 2018 annual report, had assets 
5 

including investments and real property with a total value exceeding $1.9 

million. 

On May 13, 2019, the Kienes filed a petition to commence this 

declaratory judgment action seeking a judicial determination of whether 

Radda had the testamentary capacity to execute either will, and if not, to 

declare the will null and void. On August 1, the conservator filed a 

preanswer motion to dismiss the petition, arguing that the claims were not 

ripe because Radda was still alive and probate had not been filed (and 

could not be filed). The conservator argued that the Kienes lacked 

standing to bring the action before Radda’s death because they had no 

vested interest in his estate. Finally, the conservator requested the court 

sanction the Kienes under Iowa Rule of Civil Procedure 1.413 by ordering 

them to pay the conservator’s attorney fees. 

The Kienes resisted, arguing that they were not asking the court to 

probate the wills, but rather were seeking a judicial determination whether 

Radda had testamentary capacity when he executed them because, as they 

contended, both wills were presumptively invalid under Iowa Code 

section 633.637. The conservator replied, arguing that section 633.637 

does not allow third parties to petition the court for a determination of 

testamentary capacity. The conservator also disputed the presumption of 

incompetency and reiterated that the issue was not ripe while Radda 

remained alive. 

On September 6, the court denied the conservator’s motion to 

dismiss, ruling that Radda’s right to execute a will was “uncertain and 

appropriate for declaratory judgment.” The conservator filed a motion to 

enlarge, asking the court to clarify: (1) whether the action involved a 

determination of Radda’s present capacity to execute a will or past capacity 

to execute the 1992 or 2015 will; (2) whether the determination would bind 
6 

all heirs or just the Kienes; and (3) whether Radda would be responsible 

for the costs of the action. The Kienes resisted, arguing that the petition 

itself clarified that the requested determination regarded Radda’s capacity 

to execute the 2015 will and, if invalid, the 1992 will. They also argued 

that the court had to determine whether the will was valid before it 

determined who would be bound by the court’s ruling. Finally, the Kienes 

contended that the parties should pay their own attorney fees. 

On November 14, the conservator’s counsel contacted counsel for 

the Kienes, stating that it had been “quite a while” since the motion to 

enlarge had been filed, and that when he inquired with the court 

administrator, he was told to submit a proposed order. Counsel attached 

a copy of the proposed order in his letter to the Kienes. This order, adopted 

by the court five days later, stated that the declaratory judgment would 

only involve a determination of Radda’s present testamentary capacity, 

would bind Radda “as to his current ability” but not “affect his competency 

at other times,” and that the Kienes would be responsible for the costs of 

the action including the conservator’s attorney fees. 

The Kienes filed an application for interlocutory appeal and motion 

to stay, arguing the ruling was outcome determinative. The conservator 

resisted. We granted the application and retained the appeal. 

II. Standard of Review. 

“We review a district court’s ruling on a motion to dismiss for the 

correction of errors at law.” Benskin, Inc. v. W. Bank, 952 N.W.2d 292, 

298 (Iowa 2020) (quoting Shumate v. Drake Univ., 846 N.W.2d 503, 507 

(Iowa 2014)). “We review the probate court’s interpretation of statutory 

provisions for corrections of errors at law.” In re Est. of Whalen, 827 

N.W.2d 184, 187 (Iowa 2013). 
7 

The Kienes complain that the order we are reviewing was prepared 

by the conservator’s counsel. We do not apply “a higher standard of 

review” when the court adopts verbatim a proposed ruling drafted by a 

prevailing litigant. NevadaCare, Inc. v. Dep’t of Hum. Servs., 783 N.W.2d 

459, 465 (Iowa 2010). But “we will scrutinize the record more closely and 

carefully when performing our appellate review.” Id.1 The Kienes correctly 

state that we need not decide whether this is an action at law or in equity 

because we are reviewing the district court’s legal conclusions that are not 

binding on the appellate court. See id. (“The trial court’s ‘legal conclusions 

and application of legal principles are not binding on the appellate court.’ ” 

(quoting EnviroGas, L.P. v. Cedar Rapids/Linn Cnty. Solid Waste Agency, 

641 N.W.2d 776, 781 (Iowa 2002))). 

We review de novo the district court’s ruling allowing an award of 

attorney fees for defending litigation under the Probate Code. See In re 

Est. of Bockwoldt, 814 N.W.2d 215, 221–22 (Iowa 2012). We review 

de novo an award of attorney fees allowed under the court’s equitable 

powers. Hockenberg Equip. Co. v. Hockenberg’s Equip. & Supply Co. of 

Des Moines, 510 N.W.2d 153, 158 (Iowa 1993). 

 

1We continue to “recognize[] counsels’ submission of proposed findings of fact and 

conclusions of law can be extremely valuable in assisting the district court, especially in 

highly technical or complicated cases.” NevadaCare, 783 N.W.2d at 465. But we reiterate 

that the district court should not adopt verbatim a proposed ruling prepared by the 

prevailing attorney such that “the decision on review reflects the findings of the prevailing 

litigant rather than the court’s own scrutiny of the evidence and articulation of controlling 

legal principles.” See id. (quoting Rubes v. Mega Life & Health Ins., 642 N.W.2d 263, 266 

(Iowa 2002)). Here, we are not reviewing voluminous factual findings written by one side. 

We are reviewing terse conclusions of law on a limited record. Although prompted by an 

ex parte phone call with the court administrator, the proposed ruling drafted by the 

conservator’s attorney was not submitted ex parte but was simultaneously filed and 

served on the Kienes’ counsel who had time to respond before the court ruled the following 

week. 
8 

III. Analysis. 

We first address whether the Probate Code, and specifically Iowa 

Code section 633.637, permits the Kienes to challenge the validity of 

Radda’s wills while he remains alive. We hold that will contests must await 

the testator’s death, and the Code does not allow this declaratory judgment 

action to proceed. Next we address whether the district court erred by 

ordering the Kienes to pay the conservator’s attorney fees without an 

applicable fee-shifting statute. We apply the American rule to hold that 

the conservator must bear its own attorney fees. 

A. Section 633.637 Does Not Permit a Third Party to Contest a 

Will of a Testator Who Is Still Living. The Kienes argue that Iowa Code 

section 633.637 permits an interested third party to seek a judicial 

determination that the ward lacked testamentary capacity to execute a will 

while in a conservatorship. Barbara Kiene is Radda’s sister and would 

inherit from Radda’s estate under intestacy provisions if both his wills 

were determined to be invalid. Iowa Code § 633.219(3). She therefore 

asserts that she is an “interested party” under the Probate Code with 

standing to bring this declaratory judgment action under Iowa Code 

section 633.637 to challenge the validity of Radda’s 1992 and 2015 wills 

while Radda remains alive. The conservator responds that the statute does 

not permit a third party to bring an action to challenge a will while the 

ward is alive. This is a question of statutory interpretation and we begin 

with the statutory text. 

Iowa Code section 633.637 is entitled, “Powers of ward,” and 

provides: 

A ward for whom a conservator has been appointed 

shall not have the power to convey, encumber, or dispose of 

property in any manner, other than by will if the ward 

possesses the requisite testamentary capacity, unless the 
9 

court determines that the ward has a limited ability to handle 

the ward’s own funds. If the court makes such a finding, it 

shall specify to what extent the ward may possess and use the 

ward’s own funds. 

Any modification of the powers of the ward that would 

be more restrictive of the ward’s control over the ward’s 

financial affairs shall be based upon clear and convincing 

evidence and the burden of persuasion is on the conservator. 

Any modification that would be less restrictive of the ward’s 

control over the ward’s financial affairs shall be based upon 

proof in accordance with the requirements of section 633.675. 

We see nothing in the text of this statute that creates rights in a putative 

beneficiary or other third party to challenge the validity of a ward’s will 

before the ward dies, and we have never construed this statute to allow 

such a challenge. 

The parties disagree whether section 633.637 requires the court to 

contemporaneously authorize a ward to execute a will. In our view, the 

phrase “other than by will” expressly exempts wills from the statute’s 

requirement that the court preapprove property transfers. See 

Conservatorship of Rininger v. Rininger, 500 N.W.2d 47, 50 (Iowa 1993) 

(“Without securing prior court approval, a ward is not allowed to dispose 

of property in any manner other than by will.” (emphasis added)). But this 

exception for wills is qualified by the phrase, “if the ward possesses the 

requisite testamentary capacity.” The Kienes argue that Radda’s 1992 and 

2015 wills are invalid as a matter of law, or at least presumptively invalid, 

because he executed each will without a contemporaneous judicial 

determination of his testamentary capacity. The plain language of the 

statute, however, only requires a judicial determination to preapprove 

inter vivos transfers, that is, dispositions of property “other than by will.” 

If the legislature wanted to require the court to preapprove the ward’s 
10 

execution of a will it would have said so, as it did for inter vivos transfers 

and as other legislatures have done.2 

We conclude that section 633.637 does not allow the Kienes to 

challenge the validity of Radda’s wills regardless of the lack of a 

contemporaneous judicial determination of his testamentary capacity in 

1992 or 2015. Our conclusion is reinforced by an examination of chapter 

633 as a whole. “We read interrelated statutes together in a manner that 

harmonizes them if possible.” In re Tr. #T-1 of Trimble, 826 N.W.2d 474, 

483 (Iowa 2013). 

Chapter 633 contains numerous sections expressly providing 

specified powers and rights to interested persons. See, e.g., Iowa Code 

§§ 633.42, .53, .65, .83, .94, .97, .122, .186, .216, .247, .253, .256, .290, 

.308, .310, .354, .375, .377, .394, .469, .489, .518, .561. When the 

legislature wants to allow an interested party a right to sue in the Probate 

Code, it says so expressly as it did most notably in section 633.308 for 

postdeath will contests. See id. § 633.308 (“Any interested person may 

petition to set aside the probate of a will by filing a written petition in the 

probate proceedings.”). Section 633.637 omits the term “interested 

person” and textually provides no third party with the right to sue for a 

determination of the ward’s testamentary capacity. “[L]egislative intent is 

expressed by omission as well as by inclusion . . . .” Marcus v. Young, 538 

N.W.2d 285, 289 (Iowa 1995). We have observed “the legislature’s selective 

 

2Of course the ward or conservator at their option may petition the court to 

determine the ward’s testamentary capacity under section 633.637 before a will is 

executed, and doing so may well be the better practice. But we do not read this statute 

as requiring such preapproval. Other state legislatures have codified specific 

requirements for a ward to execute a will. See Ralph C. Brashier, Conservatorships, 

Capacity, and Crystal Balls, 87 Temp. L. Rev. 1, 27–28 (2014) (surveying states and noting 

“statutes in a few states do place or permit additional restrictions on conservatees that 

make it considerably more difficult, if not impossible, for them to make a will” (footnotes 

omitted)). 
11 

inclusion of [a] phrase . . . to be dispositive.” Oyens Feed & Supply, Inc. v. 

Primebank, 808 N.W.2d 186, 194 (Iowa 2011); see also Chesnut v. 

Montgomery, 307 F.3d 698, 701 (8th Cir. 2002) (“[W]here Congress 

includes particular language in one section of a statute but omits it in 

another section of the same Act, it is generally presumed that Congress 

acts intentionally and purposely in the disparate inclusion or exclusion.” 

(alteration in original) (quoting Russello v. United States, 464 U.S. 16, 23, 

104 S. Ct. 296, 300 (1983))); Freedom Fin. Bank v. Est. of Boesen, 805 

N.W.2d 802, 812 (Iowa 2011) (same). The legislature’s omission of any 

mention of an interested person in section 633.637—when that term 

appears in many other sections of the Probate Code—makes clear that the 

legislature did not provide third parties with a right to contest a will while 

the ward is still living. We will not “extend, enlarge, or otherwise change 

the meaning of a statute under the guise of construction.” Doe v. Iowa 

Dep’t of Hum. Servs., 786 N.W.2d 853, 858 (Iowa 2010). So we must 

decline to add a third-party standing provision into section 633.637 that 

the legislature chose to omit. 

The Kienes argue that under section 633.637 a will that is executed 

without a contemporaneous judicial determination of the ward’s 

testamentary capacity must be presumed invalid (thereby placing the 

burden of proof on the will’s proponent). This would require judicial 

preapproval to avoid a conflict with other Code provisions that presume 

the validity of a properly signed will. See Iowa Code § 633.279 (outlining 

the requirements for formal execution of a “valid” will); Est. of Gruis v. 

Winnebago Cnty., 207 N.W.2d 571, 573 (Iowa 1973) (“The burden of proof 

is on contestants in a will contest to establish testator at the exact time of 

the making of the will lacked one or more of the essentials of testamentary 

capacity.”). We disagree with the premise of the Kienes’ argument. 
12 

In our view, the fact Radda has been in a voluntary conservatorship 

since 1991 does not raise a presumption that he lacked testamentary 

capacity in 1992, 2015, or now. See In re Est. of Springer, 252 Iowa 1220, 

1232–33, 110 N.W.2d 380, 388 (1961).3 “Courts have often stated that 

the imposition of a conservatorship over a person’s assets is not a 

determination that the individual lacks testamentary capacity, because 

the capacity required to manage one’s assets is greater than that required 

to devise them.” Ralph C. Brashier, Conservatorships, Capacity, and 

Crystal Balls, 87 Temp. L. Rev. 1, 1 (2014) [hereinafter Brashier]. For 

example, a ward may presently lack the acumen to manage a complex 

farming operation, yet be well aware that he owns the farm and know 

whom he wants to inherit it. See id. at 21 (“A person may be unable to 

manage assets and yet know what those assets are and whom she wants 

to receive them.” (footnote omitted)). “Since the fundamental inquiries in 

a conservatorship proceeding and a will contest alleging lack of 

testamentary capacity are different, the ‘practically . . . universal rule’ 

developed that a determination that an individual requires a conservator 

is not a determination that the individual lacks testamentary capacity.” 

Id. at 13 (footnotes omitted) (quoting Est. of Hall v. Hall, 195 P.2d 612, 615 

(Kan. 1948)); see also id. at 3 n.12 (collecting cases). Our interpretation 

of section 633.637 protects the ward’s autonomy consistent with this 

 

3The burden is on the party challenging the will to show the testator lacked the 

mental capacity “1. To understand the nature of the instrument he is executing; 2, to 

know and understand the nature and extent of his property; 3, to remember the natural 

objects of his bounty, and; 4, to know the distribution he desires to make.” Springer, 252 

Iowa at 383, 110 N.W.2d at 383; see also Gruis, 207 N.W.2d at 573 (same). By contrast, 

a conservatorship may be opened when the proposed ward’s “decision-making capacity 

is so impaired that the person is unable to make, communicate, or carry out important 

decisions concerning the person’s financial affairs.” Iowa Code § 633.566(2)(a). 
13 

nearly universal rule4 and avoids a presumption of invalidity in conflict 

with other provisions of the Iowa Probate Code. 

The Kienes primarily rely on unpublished cases to support their 

contention that they can challenge the validity of Radda’s wills before he 

dies.5 But in most states will contests must await the testator’s 

 

4Our interpretation of section 633.637 also supports the policy recommendations 

from the Iowa Guardianship and Conservatorship Reform Task Force. See Iowa 

Guardianship & Conservatorship Reform Task Force, Final Report (2017),

https://www.iowacourts.gov/static/media/cms/Final_Task_Force_Report_5A992F4D4

AF86.pdf [https://perma.cc/7RKD-TMAF]. We formed the task force, comprised of more 

than seventy individuals, and chaired by Justice Bruce Zager, with University of Iowa 

College of Law Professor Josephine Gittler and Drake University Law School Professor 

Jerry Foxhoven as coordinators and reporters, “to address the challenges that the Iowa 

guardianship and conservatorship system faces now and will face in the future in meeting 

the needs of vulnerable Iowans.” Id. at iv. The task force report emphasized the need to 

respect, “to the extent feasible,” the “autonomy and self-determination of persons subject 

to guardianships and conservatorships.” Id. at 5. For example, the report recommends 

that “[t]he conservator should manage the financial affairs of the protected person in a 

way that maximizes his or her dignity, autonomy, and self-determination.” Id. at 80. 

More specifically, that “[t]he conservator, consistent with the Iowa Code and court orders, 

should exercise authority only as necessitated by the cognitive and functional limitations 

of the protected person.” Id. The task force recommended changing the term “ward” in 

the Iowa Code, court rules, and legal instruments to “person subject to guardianship” 

and “person subject to conservatorship.” Id. at 13. We use “ward” throughout this 

opinion because that is the term still used in chapter 633. 

5The Kienes rely on these cases to argue that a testator’s capacity may be 

challenged before the testator dies. None of these cases are binding on our court, and 

the decisions offer at best tangential support for the Kienes’ position. See In re 

Guardianship of Hanken, No. 18–1368, 2019 WL 719048, at *1 (Iowa Ct. App. Feb. 20, 

2019) (ward herself, not a third party, brought petition to terminate guardianship and 

conservatorship and sought determination of her right to execute a new will); In re 

Guardianship of Driesen, No. 08–1311, 2009 WL 1491871, at *1–2, *4 (Iowa Ct. App. May 

29, 2009) (rejecting challenge to validity of a trust amendment while trustee remained 

alive based on finding that trustee had sufficient capacity to amend trust); In re 

Guardianship & Conservatorship of Est. of Tennant, 714 P.2d 122, 125–26 (Mont. 1986) 

(validity of will properly determined in probate proceeding after testator died); In re Tr. of 

Niles, 823 A.2d 1, 10 (N.J. 2003) (holding that trustee removed for undue influence is 

liable to estate for attorney fees incurred to restore assets); In re Sable, No. A–3743–

06T23743–06T2, 2009 WL 321558, at *3–4, *8, *10 (N.J. Super. Ct. App. Div. Feb. 11, 

2009) (per curiam) (affirming order invalidating will of living testator but noting “the legal 

argument that the trial court improperly determined the validity of a will when the 

testator was still living . . . was not made before [the court], and an issue not properly 

raised below may not be raised on appeal”); In re Cohen, 760 A.2d 1128, 1141 (N.J. Super. 

Ct. App. Div. 2000) (“We agree with the Chancery Division judge’s ruling that it would be 

premature for any party to contest Henrietta’s will and trust while she is alive.”); In re 
14 

death.6 Iowa is no exception. See In re Est. of Lundgren, 250 Iowa 1233, 

1236–37, 98 N.W.2d 839, 841 (1959) (“The essential characteristic of a 

 

Armster, No. M2000–00776–COA–R3–CV, 2001 WL 1285904, at *6–7, *12, *18 (Tenn. Ct. 

App. Oct. 25, 2001) (affirming trial court rulings rejecting challenge to will and imposition 

of involuntary conservatorship while testator remained alive). 

6See, e.g., Fenstermaker v. PNC Bank, Nat’l Ass’n, No. 3:17–cv–00778 (JAM), 2018 

WL 1472521, at *5–6 (D. Conn. Mar. 26, 2018) (collecting cases and stating “[p]laintiff’s 

claims to invalidate his father’s will and revocable trust are not ripe for adjudication. As 

no more than a theoretical beneficiary of the will and the trust, plaintiff presently has no 

imminent or actual injury”); Hodge ex rel. Skiff v. Hodge, 78 F. Supp. 2d 29, 33 (N.D.N.Y. 

1999) (declining to rule on the validity of the testator’s will because she was alive and “it 

is premature to interpret or invalidate a will that has not yet been admitted to probate 

because the testator is still alive”); In re Est. of Henry, 919 N.E.2d 33, 36–37, 40–41 (Ill. 

App. Ct. 2009) (collecting cases and concluding that “[j]ust as appellants [putative 

beneficiaries] would lack standing to bring a judicial challenge during Henry’s life if Henry 

had regained his mental faculties and executed a new will overriding the 2004 will and 

eliminating their shares in his legacy, so too do they lack standing” to challenge the ruling 

allowing the ward’s guardian to execute new will); Lloyd v. Wayne Cir. Judge, 23 N.W. 28, 

29–30 (Mich. 1885) (Campbell, J., concurring) (noting that “[j]udicial proceedings to 

probate a will while the testator is living, are unheard of in this country or in England” 

and the practical problems it would present, including the fact that the living cannot have 

heirs, a relator may “dispose of his entire property” before death, and the relator may 

move before he or she dies so that the estate is beyond the jurisdiction of the county in 

which he or she currently lives); Alexander v. Walden, 337 S.E.2d 241, 243 (S.C. Ct. App. 

1985) (reversing the lower courts’ determination regarding the validity of the will, because 

“[t]he ambulatory nature of a will, and the absence of parties in interest, which result 

from the rule that a living person has neither heirs nor legatees, render impossible the 

assumption that a court has power to determine the validity of a will prior to the death of 

the maker”); Pond v. Faust, 155 P. 776, 778 (Wash. 1916) (en banc) (“[C]ourts have no 

power to inquire into the validity of wills prior to the death of the maker, to determine the 

incompetency of the maker.”). A few states (but not Iowa) have enacted “living probate” 

statutes allowing a determination of a will’s validity before the testator dies. Kyle Frizzelle, 

Comment, Better to Play Dead? Examining North Carolina’s Living Probate Law and Its 

Potential Effect on Testamentary Disposition, 39 Campbell L. Rev. 187, 189 n.16 (2017) 

(identifying Alaska, Arkansas, North Carolina, North Dakota, and Ohio as states with 

such statutes). However, these statutes give the testator the right to petition a court to 

determine the validity of the will, not a putative beneficiary such as the Kienes lacking 

the testator’s consent. See Alaska Stat. Ann. § 13.12.530 (West, Westlaw current through 

2020 Second Reg. Sess. 31st Leg.) (providing a testator, a personal representative 

nominated in the will, or an interested party—with the testator’s consent—may petition 

the court); Ark. Code Ann. § 28–40–202(a) (West, Westlaw current through 2021 Reg. 

Sess. 93rd General Assemb.) (providing that an individual who executes a will may 

request a declaratory judgment to establish the will’s validity); N.C. Gen. Stat. Ann. 

§ 28A–2B–1(a) (West, Westlaw current through 2020 Reg. Sess. 2020) (same); N.D. Cent. 

Code Ann. § 30.1–08.1–01 (West, Westlaw current through 2019 Reg. Sess. 66th Legis. 

Assemb.) (same); Ohio Rev. Code Ann. § 5817.02(A) (West, Westlaw current through 

133rd Gen. Assemb. (2019–2020)) (limiting predeath challenges to a testator and 
15 

testamentary instrument is that it operates only upon and by reason of 

the maker’s death. Until then it is ambulatory. By its execution the maker 

parts with no rights and divests himself of no part of his estate and no 

rights accrue to, or vest in, any other person [before his death].”); see also 

Birkhofer ex rel. Johannsen v. Birkhofer, 610 N.W.2d 844, 847 (Iowa 2000) 

(en banc) (“[T]he mere intestate claim of a daughter in the potential estate 

of her living mother is too contingent to constitute a legal interest sufficient 

to establish standing.”). 

Will contests are governed by Iowa Code sections 633.308–.320. 

Iowa Code section 633.308 provides in full, “Any interested person may 

petition to set aside the probate of a will by filing a written petition in the 

probate proceedings. The petition for such purpose shall state the grounds 

therefor.” A will cannot be probated until after the testator dies. Iowa 

Code § 633.290. No provision of the Iowa Probate Code allows an action 

to set aside a will while the testator is alive.7 

We recently held that a common law action for tortious interference 

with an inheritance must be joined with a timely will contest. Youngblut 

v. Youngblut, 945 N.W.2d 25, 38–40 (Iowa 2020). We did so based on 

Iowa’s legislative scheme for will contests, including trial by jury, the 

joinder of interested parties, heirs and proponents of the will, and the need 

for finality, “prompt and effective estate administration” and a “final and 

 

expressly prohibiting a testator’s guardian or agent under the testator’s power of attorney 

from filing a complaint to determine the validity of the will or to voluntarily dismiss a 

complaint). Even in a state that allows a predeath determination of a will’s validity, the 

Kienes, without the testator’s consent, would lack standing. See also David L. Skidmore 

& Laura E. Morris, Before the Party’s Over: The Arguments for and Against Pre-Death Will 

Contests, 27-APR Prob. & Prop. 50, 50–51 (2013) (collecting cases and stating that the 

majority of states refuse to determine the validity of a will during the testator’s lifetime). 

7The Kienes argue this “is not a will contest” but the relief they seek is a 

declaration that Radda’s 1992 and 2015 wills are invalid because there was no judicial 

determination of his testamentary capacity at those times. 
16 

conclusive distribution.” Id. at 37. We declined to allow such claims “to 

go forward outside normal probate deadlines and proceedings.” Id. at 38. 

Our reasoning in Youngblut v. Youngblut cuts against creating a new 

predeath will contest procedure that evades the existing statutory 

safeguards for will contests. 

With Iowa’s detailed legislative scheme in place for will contests, we 

must decline the Kienes’ invitation to read between the lines of section 

633.637 to judicially create a new, separate mechanism for a predeath will 

contest. Although allowing challenges to wills under section 633.637 

during the ward’s life may avoid some postdeath will contests, it might 

generate unnecessary challenges to wills that are never probated. In our 

view, it makes more sense to defer challenges to a will to formal probate 

proceedings after the testator’s death, when the rights of all affected 

parties can be determined and questions of capacity or undue influence 

can be decided by a jury as the conscience of the community.8 We see 

good practical reasons not to stray from the legislature’s chosen statutory 

scheme. Predeath challenges to wills may be a waste of time—the testator 

might replace the will at issue with a new one, die without property, or the 

challenger might die before the testator.9 The testator is entitled to keep 

 

8See Iowa Code § 633.311 (providing that the rules of civil procedure, including 

demand for jury trial, governs an action to set aside a will). 

9The legislature has allowed for modification or termination of irrevocable trusts 

by the court with consent of all beneficiaries before the death of the settlor in certain 

circumstances. See Iowa Code § 633A.2203. This understandably applies to irrevocable 

trusts, but not revocable trusts, because, like wills, a settlor may change or revoke his or 

her revocable trust before death. See id. § 633A.3102; id. § 633.284. Moreover, just as 

will contests can only be brought after the death of the testator, challenges to revocable 

trusts must wait until after the settlor’s death. See id. § 633A.3108; see also Alexander 

v. Walden, 337 S.E.2d 241, 242–43 (S.C. Ct. App. 1985) (addressing claims of undue 

influence and incompetence as to an irrevocable trust, but reversing the lower court’s 

determination that her will was valid, because the court had no power “to determine the 

validity of a will prior to the death of the maker”). 
17 

the terms of the will confidential before his death;10 yet a predeath 

challenge might invade the testator’s privacy interest or reveal terms the 

challenger would accept, making the challenge unnecessary or generating 

unwanted discord among family members. There is no right to a jury trial 

in conservatorship proceedings under section 633.637 and questions of 

testamentary capacity and undue influence are better determined by a jury 

than a lone judge. The testator’s heirs and beneficiaries have a stake in 

the outcome; while their rights are protected in probate, if we allow a family 

member to challenge a will in a conservatorship proceeding under section 

633.637, the result might be to disinherit a charity or other beneficiary 

without providing them notice and an opportunity to be heard. 

The Kienes make a policy argument that allowing the claims by 

family members to adjudicate a ward’s testamentary capacity would 

advance the purpose of the conservatorship: protection of the ward. 

“Policy arguments to amend the statute should be directed to the 

legislature.” Whalen, 827 N.W.2d at 194. It is the role of the court and 

the conservator to protect the ward. Family members may have their own 

conflicts of interest with the ward. See Brashier, 87 Temp. L. Rev. at 15 

(“Petitioners often seek to have the conservatorship court strip the 

respondent of her right to make a will to protect their own interests under 

the respondent’s existing estate plan.”). The Kienes do not allege that 

Radda was unprotected or subjected to improper influence when he 

 

10See Iowa Code § 622.10 (codifying attorney–client privilege); id. §§ 633.288 

(requirement that during the testator’s life, only the testator or “some person authorized 

by the testator by an order in writing duly acknowledged” may have access to the will), 

.289 (requirement that the clerk must notify the indorsed individual, if any, when the 

clerk is informed of the testator’s death, and if no petition for probate is filed within thirty 

days of the testator’s death, the will becomes publicly opened). 
18 

executed the wills in 1992 or 2015.11 The Code provides other procedures 

to protect a ward from a bad conservator. A conservator is a fiduciary, 

and a beneficiary may request the court to remove a fiduciary who 

mismanages the estate or breaches a legal duty. See Iowa Code 

§§ 633.3(17), .65; see also Est. of Rutter v. Rutter, 633 N.W.2d 740, 744, 

751 (Iowa 2001) (holding the district court abused its discretion by failing 

“to remove the executor [at the beneficiary’s request] after finding that the 

executor had made unauthorized disbursements from the trust account 

and the estate account to his personal advantage”). 

We hold that the Probate Code and specifically section 633.637 does 

not allow a predeath will contest. We therefore affirm the district court’s 

ruling declining to adjudicate the validity of Radda’s wills executed in 1992 

or 2015. No party seeks an adjudication of Radda’s present testamentary 

capacity, and we see no valid reason to allow the case to continue while 

Radda is alive. Section 633.637 does not allow family members to bring a 

declaratory judgment action to determine the ward’s current testamentary 

capacity. See Birkhofer, 610 N.W.2d at 847. Accordingly, we direct the 

district court to dismiss this action on remand. 

B. The District Court Erred by Ordering the Kienes to Pay the 

Conservator’s Attorney Fees. The district court ordered the Kienes to 

pay the conservator’s attorney fees based on its finding that “it is not in 

[Radda’s] best interest to utilize his funds to defend his competency, when 

those funds will likely be needed for his care.” The Kienes argue there is 

no statute or other basis for requiring them to pay the bank’s attorney 

fees. We agree. 

 

11The Kienes merely state that while “[i]t is not clear in this case whether the 

failure to request a determination of Radda’s testamentary capacity . . . was the product 

of ignorance or malfeasance[, i]t is clear, . . . that the determination was required and 

was not made.” 
19 

“Iowa follows the American rule: ‘the losing litigant does not 

normally pay the victor’s attorney’s fees.’ ” Thornton v. Am. Interstate Ins., 

897 N.W.2d 445, 474 (Iowa 2017) (quoting Rowedder v. Anderson, 814 

N.W.2d 585, 589 (Iowa 2012)). “Generally, attorney fees are recoverable 

only by statute or under a contract.” Id. (quoting Miller v. Rohling, 720 

N.W.2d 562, 573 (Iowa 2006)). “There is a ‘rare’ common law exception to 

this rule, permitting recovery of attorney fees when the [party] ‘has acted 

in bad faith, vexatiously, wantonly, or for oppressive reasons.’ ” Id.

(quoting Miller, 720 N.W.2d at 573). 

No exception to the American rule applies here. There is no 

applicable fee-shifting statute or contract. Nor has the conservator alleged 

that the Kienes acted in bad faith, vexatiously, wantonly, or for oppressive 

reasons. Instead, the conservator argues that public policy supports feeshifting, relying on In re Marriage of Erpelding, where we held that Iowa 

Code section 596.5 prohibits premarital agreements from including a 

waiver of the right to attorney fees incurred to obtain child or spousal 

support. 917 N.W.2d 235, 246–47 (Iowa 2018). Erpelding is inapposite. 

Courts have discretion to award attorney fees in marital dissolution 

actions under Iowa Code chapter 598. See id. By contrast, the conservator 

cites no authority allowing the court to order a third party to pay the 

conservator’s attorney fees. Rather, with court approval, the conservator, 

as executor in a will contest, may be allowed fees from the estate. Iowa 

Code § 633.315. The conservator’s policy arguments for fee-shifting under 

section 633.637 (to protect the solvency of the estate) should be directed 

to the legislature. Whalen, 827 N.W.2d at 194. 

The applicable public policy here is reflected in the American rule 

under which each side bears its own attorney fees. Indeed, we have 

cautioned that fee-shifting awards can “chill vigorous advocacy.” First Am. 
20 

Bank v. Fobian Farms, Inc., 906 N.W.2d 736, 751 (Iowa 2018) (quoting 

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393, 110 S. Ct. 2447, 2454 

(1990)). The Kienes presented questions of first impression that we 

ultimately found without merit. But their claims were not frivolous within 

the meaning of Iowa Rule of Civil Procedure 1.413(1) (allowing an award of 

fees as a sanction for frivolous pleadings) and the conservator has 

abandoned its claim for fees under that rule. 

We hold that the conservator was not entitled to recover its attorney 

fees from the Kienes, and we reverse the district court’s fee-shifting order. 

IV. Disposition. 

For these reasons, we affirm the district court’s ruling denying the 

Kienes’ request to adjudicate the validity of Radda’s 1992 or 2015 wills. 

We reverse the ruling that allowed a determination of Radda’s present 

testamentary capacity. We also reverse the ruling requiring the Kienes to 

pay the conservator’s attorney fees. We remand the case for dismissal. 

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR 

DISMISSAL.