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Helgason v. Merriman12/7/2001
it was not an abuse of discretion to hold that the plaintiffs have failed to raise a real issue of a substantial conflict of interest caused by undue influence in this case.
c. The superior court did not give undue weight to the fact that the will designated Merriman as the personal representative.
As a subsidiary argument, the plaintiffs impliedly claim that the superior court gave undue weight to the fact that the will designates Merriman as the personal representative. Merriman notes that the superior court, in designating him as the personal representative, was merely following AS 13.16.065, which states that the testator's preference is given priority.
This dispute is largely irrelevant because AS 13.16.065 by its own terms applies only to the appointment of a personal representative in the first instance, and not to the subsequent removal of that representative. The superior court only mentions AS 13.16.065 in passing, and the court correctly noted that the standard to be applied for removal is the "best interests" of the estate. Because the removal of a previously appointed personal representative is what is at issue here, we decline to consider this argument any further.
B. Hostility Between Merriman and the Plaintiffs Does Not Require Merriman's Removal.
The plaintiffs claim that removal is also required because of the hostility that has developed between Merriman and the plaintiffs. Merriman claims that there is actually no evidence at all of hostility, and the superior court agreed:
The mere fact that the Petitioners are unhappy with their mother's choice for a personal representative, does not warrant removing Merriman as personal representative. Aside from the present matter before the court, there is no evidence of any hostility between the Petitioners and Merriman or that Merriman will be unable to carry out his duties as personal representative and trustee. To find otherwise, would allow the beneficiaries of an estate to select a personal representative in contravention of the testator's wishes.
The trial court's finding in this regard is not clearly erroneous. Moreover, any hostility between the Merrimans and the Helgasons would presumably affect the trust relationship between Merriman, the trustee, and the plaintiffs, as beneficiaries. Yet, the plaintiffs do not challenge Merriman's status as trustee. Therefore, the alleged hostility is not a basis for removal of Merriman as personal representative of the estate.
V. CONCLUSION
Because it was not an abuse of discretion to find that the plaintiffs failed to either raise a real issue of a substantial conflict of interest, or show any hostility between the parties relevant to Thomas Merriman's status as personal representative, we AFFIRM the superior court's decision to retain Thomas Merriman as the personal representative of the estate of Clara Helgason.
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