In re Estate of Roethler

IN THE COURT OF APPEALS OF IOWA

No. 22-2045
Filed January 10, 2024

IN THE MATTER OF THE ESTATE OF VERONICA J. ROETHLER, Deceased.

DAVID H. ROETHLER and DALE F. ROETHLER,
Appellants.
________________________________________________________________

Appeal from the Iowa District Court for Chickasaw County,

Richard D. Stochl, Judge.

Appellants appeal the district court’s decision considering extrinsic

evidence in interpreting decedent’s will. REVERSED AND REMANDED.

Beau D. Buchholz of Engelbrecht and Buchholz, PLLC, Waverly, for

appellants.

Justin E. LaVan and Brandon M. Hanson of Bradshaw, Fowler, Proctor &

Fairgrave, P.C., Des Moines, for appellee.

Heard by Bower, C.J., and Schumacher and Langholz, JJ.
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SCHUMACHER, Judge.

David Roethler and Dale Roethler appeal the district court’s decision

considering extrinsic evidence in interpreting the will of their late mother, Veronica

Roethler. We determine the will as written was not ambiguous and the district

court improperly considered the testimony of the scrivener of the will to find

Veronica’s intent was different from the language of the will. The court rewrote the

will to include property in a trust that was not specified by the will to be included in

the trust. We reverse the decision of the district court and remand for further

proceedings.

I. Background Facts & Proceedings

Veronica was the mother of David, Dale, and Diane Roethler. Veronica

owned farmland in section 31 and section 32 of Chickasaw County, and the two

properties were divided by Gilmore Avenue. Section 31 property contained 111.75

acres and included the homestead. Section 32 property contained 151 acres. On

June 25, 2020, Veronica executed a last will and testament in the office of attorney

Kristen Ollenburg.1 The will nominated Diane as the executor.

Under the subheading Farm Real Estate, the will set out the legal

description for the land contained in section 31. The will provided Diane was to

hold the property in trust with the following conditions: (1) Diane could reside in the

homestead for the remainder of her life; (2) all of the principal and corpus of the

trust would be preserved intact; (3) each of Veronica’s three children would receive

33.3% of the net income from the trust estate; (4) at the death of Veronica’s last

1 Veronica’s spouse was deceased when she executed her will.
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surviving child, 50% of the net income from the estate would be given to the

children of Diane and 50% to the children of David; (5) upon the death of her last

surviving grandchild, the trust would terminate and the property would be

distributed to the great-grandchildren of Diane and David; (6) during the term of

the trust, no farmland could be sold.

The next provision in the will had the subheading, Remainder of Estate.

This provision states:

I bequeath the residue of my estate to my children in equal
shares, so as to provide one share for each then living child of mine
and one share for each deceased child of mine leaving children who
survive me, subject to the terms of Article VIII.[2] A share set aside
for the children of a deceased child of mine shall be distributed per
stirpes and not per capita.

Under the will as written, section 32 farmland was governed by this residuary

provision, rather than placed in trust like section 31 farmland. David, Dale, and

Diane would each receive 33.3% of section 32 farmland. Ollenburg and Veronica

reviewed the will, and Veronica signed it on June 25, 2020.

Veronica died on December 16, 2021. Diane petitioned for probate of the

will. She was appointed as the executor of Veronica’s estate. As the executor,

Diane petitioned for declaratory judgment interpreting the will, claiming the will

contained a latent ambiguity. She claimed Veronica intended to include all of her

farmland under the subheading “Farm Real Estate” so all of the farmland would be

included in the trust.3 Diane asserted Ollenburg “inadvertently and mistakenly left

2 This portion of the will provides that beneficiaries would not receive a share of

the trust income until they were twenty-five years old.
3 The estate inventory shows the section 31 property was worth $1,180,000 and

the section 32 property was worth $1,720,000 at the time of Veronica’s death.
Diane claimed all the farmland, worth $2.9 million, should be included in the trust.
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out part of the ‘Farm Real Estate’ which was owned by the Decedent when she

was drafting the will, contrary to the intent of the Decedent.” Diane asked the court

to construe the will to include section 32 farmland under the subheading of Farm

Real Estate.4

David and Dale challenged the executor’s requested relief and asked the

court to proceed with a plain reading of Veronica’s will. They claimed there was

no ambiguity in the will on its face. They asserted that the court should not

consider extrinsic evidence to contradict or add to the terms of the will.

David and Dale also filed a motion in limine seeking a prohibition on the

introduction of extrinsic evidence. They stated there was no ambiguity in

Veronica’s will and the court should prohibit extrinsic evidence. The executor

resisted the motion. The court, which specifically pointed out that the proceedings

were in equity, denied the motion in limine. The court stated, “We’ll make a record

on the evidence. I’m not saying I will not apply the principles you’re arguing, but

let’s have a full record before those issues are dealt with.”

At the hearing, Ollenburg was asked what Veronica told her she wanted in

her will. David and Dale objected on the ground of hearsay. The court overruled

the objection, noting they were in equity and the court could give the evidence

“whatever weight, if any, it should be afforded.” Ollenburg testified:

Veronica indicated that her current will that was in place at
that time had given everything to her three kids equally, but she was
scared that David and Dale, her two sons, would want to sell the farm
and split it up, and she did not want that to happen. She wanted all—

4 Diane moved for summary judgment on this issue, which the court denied, finding

there were genuine issues of material fact related to Veronica’s intent for the
disposition of her real estate.
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all of her farm real estate to be held in a trust so that it would be
preserved for future generations and couldn’t be sold.

Ollenburg also testified, “Veronica had trusted me to ensure that all of her farm

real estate was listed and included in the trust, and it was not.”

The district court found:

Diane is asking the court to go outside the specific reading of
Veronica’s will and make a factual finding that Veronica intended to
include all of her land in the trust. Article VI of [ ] Veronica’s will is
headed “Farm Real Estate.” It than provides “I own real estate in
Chickasaw County, Iowa legally described as” and contains an
incomplete legal description of all of her land. The provision finally
provides “upon my death, I give, devise and bequeath said real
estate to my daughter, Diane Roethler, to be held in trust . . . .”
The parcel of real estate not included in the property placed
in trust is never mentioned in the will. The parcel is valued at
$1,720,000.00 in the executor’s inventory. The total value of the
estate is $2,998,649.00. Therefore, an asset with a value of more
than one-half of the estate is never discussed. The court finds the
will is vague as to what real estate was intended to be included in the
trust. Therefore, extrinsic evidence may be considered in
determining Veronica’s intent.

Because the court found the will was ambiguous, the court considered

Ollenburg’s testimony and determined it was Veronica’s intent to place all of the

farmland in the trust. The court granted the motion for declaratory judgment. David

and Dale appeal the district court’s decision.

II. Standard of Review

A declaratory judgment to construe or interpret a decedent’s will is tried in

equity and our review is de novo. In re Est. of Kruse, 250 N.W.2d 432, 433

(Iowa 1977). In a de novo review, we must make findings of fact anew; however,

when considering the credibility of the witnesses we give weight to the fact findings

of the district court, although we are not bound by them. Iowa R. App.

P. 6.904(3)(g); Russell v. Johnston, 327 N.W.2d 226, 228 (Iowa 1982).
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III. Motion in Limine

David and Dale claim the district court should have granted their motion in

limine to exclude extrinsic evidence to support Diane’s assertion the will was

ambiguous.

We have previously noted that a motion in limine becomes moot when the

parties agree to a bench trial. See Short v. Elliott Equip. Co., No. 16-1795, 2018

WL 540336, at *5 (Iowa Ct. App. Jan. 24, 2018).

Motions in limine are generally unnecessary and superfluous in
bench trials, as the judge deciding the case is going to become
aware of the evidence the moving party seeks to exclude at some
point anyway, either in ruling on the motion or in ruling on objections
made at trial, so there is no need to insulate the factfinder from the
disputed evidence like there is in a jury trial.

DSM Inv. Grp., LLC v. City of Des Moines, No. 21-1887, 2022 WL 4362323, at *3

(Iowa Ct. App. Sept. 21, 2022).

The court was aware of these principles when it denied the motion in limine.

The court did not rule that it would consider the extrinsic evidence but stated all

the evidence should come in and then the court would determine the evidence that

should be considered. We conclude the court did not err in its ruling on the motion

in limine.

IV. Ambiguity in the Will

David and Dale contend the district court improperly concluded the will was

ambiguous, so that extrinsic evidence could be considered. They assert that

looking only at the four corners of the will, the plain language of the will was not

ambiguous. They state the will could not be considered ambiguous unless
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extrinsic evidence was considered to raise questions about the plain language of

the will.

On the issue of the interpretation of wills, our supreme court has stated:

In the interpretation of a will the primary and controlling
consideration is the determination of the intention of the testator.
When that has been done the intention must be made effective if it
is a lawful one, and not against public policy. The intention of the
testator must be ascertained from the will itself, and from nothing
else, if its language is plain and unambiguous. Where the intention
is thus clearly and unequivocally expressed there is no need for
judicial construction, or extrinsic evidence, and all other rules of
testamentary interpretation are inapplicable and must yield.

Palmer v. Evans, 124 N.W.2d 856, 859–60 (Iowa 1963) (citations omitted).

The intention of the testator “must be that which is manifest from the

express language of the will or by necessary implication.” In re Est. of

Syverson, 32 N.W.2d 799, 801 (Iowa 1948). There is a strong presumption against

finding a testator’s intent that has not been set forth in the will. Id. “[A]fter a will is

admitted to probate, a testator cannot testify. Intent should therefore be gleaned

from the words of the will.” In re Est. of Kiel, 357 N.W.2d 628, 631 (Iowa 1984).

A testator’s intent is derived from “(a) all of the language contained within

the four corners of the will, (b) the scheme of distribution, (c) the surrounding

circumstances at the time of the will’s execution and (d) the existing facts.” In re

Est. of Roethler, 801 N.W.2d 833, 842 (Iowa 2011). “[E]xtrinsic evidence may not

be presented in attempts to prove the testator’s intent was not the same as that

expressed by the language of the will or to vary, contradict, or add to the terms of

the will.” In re Est. of Eickholt, 365 N.W.2d 44, 46 (Iowa Ct. App. 1985); accord In

re Est. of Hamilton, 467 N.W.2d 801, 803 (Iowa Ct. App. 1991) (“It is not the
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function of the Court to make, remake, improve or otherwise modify the clear

provisions of the will of a competent testator.”).

Extrinsic evidence can only be considered in resolving issues of ambiguity

in a will. In re Steinberg Family Living Tr., 894 N.W.2d 463, 472 (Iowa 2017).

There are two types of ambiguities—patent and latent. In re Est. of Redenius, 455

N.W.2d 295, 298 (Iowa Ct. App. 1990). “A patent ambiguity is that which appears

on the face of the will and arises from the phraseology or the defective, obscure,

doubtful, or uncertain language.” Id. “A latent ambiguity exists where the language

of the instrument does not lack certainty, but some extrinsic or collateral matter

outside the will renders the meaning obscure and uncertain.” Id. “Latent

ambiguities arise where either the subject of the devise or the devisee is

ambiguous.” Kiel, 357 N.W.2d at 631.

Extrinsic evidence is not admissible to show a testator’s intent unless there

is a patent or latent ambiguity in the will. In re Est. of Anderson, 359

N.W.2d 479, 481 (Iowa 1984); In re Est. of Nagl, 408 N.W.2d 768, 772 (Iowa Ct.

App. 1987). “Hence, where there is no patent ambiguity, a will must be construed

as written unless some latent or hidden ambiguity appears.” Kiel, 357 N.W.2d

at 630. Veronica’s will contains no patent ambiguities. We turn then to whether

there is a latent ambiguity.

Because a latent ambiguity involves an extrinsic or collateral matter outside

the will, extrinsic evidence is necessary to show there is a latent ambiguity.

Anderson, 359 N.W.2d at 481. “To discover a latent ambiguity it is proper to go

outside the instrument to ascertain whether the words used aptly fit the facts

existing when the instrument was executed.” Widney v. Hess, 45 N.W.2d 233, 239
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(Iowa 1950). However, “the extrinsic evidence in such a case is admitted only for

that narrow purpose. No inquiry into the testator’s intent by way of extrinsic

evidence is appropriate until after existence of the ambiguity has been

established.” Kiel, 357 N.W.2d at 631.

As to the limited nature of the consideration of extrinsic evidence, the

supreme court has noted:

Such (extrinsic) evidence is admissible solely for the purpose of
ascertaining the testator’s intention from the language he has used.
It cannot be heard to show that he meant one thing when he said
another or to show an intention not expressed in the will itself, or to
aid in making a will which the testator intended to make, but did not
in fact make. However clearly an intention not expressed in the will
may be proved by extrinsic evidence, the rule of law requiring wills
to be in writing stands as an insuperable barrier against carrying the
intention thus proved into execution.

In re Est. of Lepley, 17 N.W.2d 526, 529–30 (Iowa 1945) (quoting McCoy v.

Bradbury, 235 S.W. 1047, 1049 (Mo. 1921)). The court found that extrinsic

evidence “might indicate that the testator did not intend to say what he did say in

the will, but the courts cannot draw his will for him.” Id. at 529.

Also, “testators are presumed to have known the effect of the language of

their wills.” In re Est. of Rogers, 473 N.W.2d 36, 40 (Iowa 1991). “We will not,

from oral testimony, make a will the testator perhaps intended to, but in fact did

not, make.” Id.; accord Bankers Tr. Co. v. Allen, 135 N.W.2d 607, 611 (Iowa 1965)

(noting extrinsic evidence “may indicate decedent intended to say something he

did not say but courts cannot draw his will to carry out a possible intent not

expressed in the will”); In re Est. of Roberts, 35 N.W.2d 756, 758 (Iowa 1949)

(“Courts will not re-draft wills from oral testimony.”). This is based on the rule that
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wills must be in writing;5 the court “cannot add to the will on the basis of oral

testimony regarding what was said during the making and execution of the will.”

Eickholt, 365 N.W.2d at 46.

The present situation is somewhat similar to that found in In re Estate of

Winslow, where the scrivener of a will testified there was a typographical error in

the will in the categorization of certain beneficiaries. 147 N.W.2d 814, 817–18

(Iowa 1967). The testator reviewed the will and signed it. Id. at 818. “The

scrivener said that when the will was read after the decedent’s death she was

surprised to discover what she called her error.” Id. The court did not consider the

extrinsic evidence, stating, “Courts will not, from oral testimony, make a will the

testator perhaps intended to, but in fact did not, make.” Id. Also, “[i]t may be that

testator’s intent was as claimed by the appellants but that is not what he said in his

will.” Id. at 819.

“The use of a scrivener’s word does not create an ambiguity because the

question is not what the testator meant to say but what he meant by what he did

say.” In re Est. of Crist, 434 N.W.2d 904, 906 (Iowa Ct. App. 1988); accord In re

Est. of Kalouse, 282 N.W.2d 98, 104 (Iowa 1979) (finding that even if a scrivener’s

testimony showed an intent different from that found in the will, “the heirs’ problem

is the principle against varying wills by extrinsic evidence.”); but see In re Est. of

Fox, No. 01-0178, 2002 WL 1585621, at *3 (Iowa Ct. App. July 19, 2002) (finding

a scrivener’s testimony of the testator’s intent could be considered when there was

a patent ambiguity in the will, as the same property was designated twice); Covert

5 Under Iowa Code section 633.279(1) (2021), to be valid all wills must be in writing

and signed by the testator.
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v. Sebern, 35 N.W. 636, 637 (Iowa 1887) (finding extrinsic evidence provided by a

scrivener of a will could be considered to show there was a misspelling in the name

of a beneficiary, as the will named a person who did not exist). Thus, in general,

“extrinsic evidence of [the testator’s] declarations to the scrivener may not be used

to construe the will.” Kalouse, 282 N.W.2d at 106.

We assume a testator “selected the language adopted to express his

meaning and he knew and appreciated the effect of the language used in his or

her will.” In re Est. of Cross, 551 N.W.2d 344, 347 (Iowa Ct. App. 1996); accord

In re Est. of Todd, No. 22-1211, 2023 WL 3860112, at *4 (Iowa Ct. App. June 7,

2023) (“For better or worse, our case law requires us to presume [the testator]

knew the effect of the language used in her will, particularly when it was prepared

by an experienced scrivener—as it was here.”).

Veronica reviewed her will before signing it. She is presumed to know the

meaning of the language used in the will. See Cross, 551 N.W.2d at 347. She is

also presumed to understand the effect of the language used in the will. See id.

Ollenburg’s testimony does not create an ambiguity “because the question is not

what [Veronica] meant to say but what [s]he meant by what [s]he did say.” See

Crist, 434 N.W.2d at 906. The will does not purport to transfer property not owned

by the decedent, give different instructions for the same property, or contain a

slight typographical error in designating property or a beneficiary. See Covert, 35

N.W. at 637; Eckford v. Eckford, 58 N.W. 1093, 1093 (Iowa 1894); Fox, 2002

WL 1585621, at *3. We find the general rule applies—that “extrinsic evidence of

[Veronica’s] declarations to the scrivener may not be used to construe the will.”

See Kalouse, 282 N.W.2d at 106.
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We determine the district court improperly considered the extrinsic evidence

presented by Ollenburg’s testimony to change the terms of Veronica’s will. As

noted, “Extrinsic evidence is not admissible to vary, contradict or add to terms of

the will or to show an intention different from that disclosed by the language of the

will.” See Rogers, 473 N.W.2d at 39. Veronica’s “[i]ntent should therefore be

gleaned from the words of the will.” See Kiel, 357 N.W.2d at 631. We do “not re-

draft wills from oral testimony.” Roberts, 35 N.W.2d at 758. As noted, under

section 633.279(1), wills must be in writing. For this reason, the court “cannot add

to the will on the basis of oral testimony regarding what was said during the making

and execution of the will.” Eickholt, 365 N.W.2d at 46.

We reverse the district court’s decision that rewrote Veronica’s will to

include property in a trust that was not specifically set out in the language of the

will. The will as written is not ambiguous because Veronica could have intended

to place the farmland around the homestead in a trust, while permitting the

remainder of the farmland to pass through the residuary clause. We are bound by

the words of the testator contained within the will. We reverse the decision of the

district court and remand for further proceedings.

REVERSED AND REMANDED.