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In re Estate of Bavilla

Supreme Court of Alaska

March 6, 2015

In the Matter of the Estate of OFFENESIA YAKO BAVILLA, Deceased

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Patrick J. McKay, Judge. Superior Court No. 3AN-12-01316 PR.

Etta Marie Bavilla, Pro se, Eagle River, Appellant.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.

OPINION

FABE, Chief Justice.

I. INTRODUCTION

This appeal arises from Etta Bavilla's attempt to informally probate the 1987 will of her mother, Offenesia Bavilla. Because Offenesia signed a new will in 2006, the superior court did not accept Etta's informal probate of the 1987 will. Etta, a pro se litigant, attempted to contest the validity of the 2006 will by filing a motion to amend her probate of the 1987 will to include a challenge to the 2006 will. Her motion to amend was denied, as was her motion for recusal of the magistrate

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judge who recommended denial of that amendment. On appeal, Etta challenges the superior court's denial of her motion to amend her pleadings and the magistrate judge's decision not to recuse himself. We remand for the superior court to allow Etta to amend her pleadings but affirm the magistrate judge's decision not to recuse himself.

II. FACTS AND PROCEEDINGS

A. Facts

Offenesia Yako Bavilla died in 2010. She was an Alaska Native woman who lived in Dillingham and had two children, Etta and Steven.[1] In 1987 Offenesia executed a will that left most of her assets to Etta and Steven. In the mid-2000s Offenesia was elderly and slipping mentally. In November 2005 a doctor at the Bristol Bay Area Health Corporation wrote that Offenesia's " mental status has declined significantly," that she " has become nearly mute," and that she " appears to hallucinate." The doctor concluded that " [d]ue to her dementia, her condition is quite likely to continue to deteriorate."

In February 2006 Offenesia executed a new will, which was prepared by Alaska Legal Services Corporation.[2] The new will was witnessed by individuals who worked at the elder care facility where Offenesia resided. This new will eliminated Etta from any inheritance but still included her brother, Steven. The 2006 will included a statement explicitly " revoking all prior wills and codicils."

B. Proceedings

In June 2012 Etta applied for informal probate of the 1987 will. Etta noted in her application that the 1987 will was followed by a 2006 will, but she asserted that the 2006 will was invalid.[3] Based on this, Magistrate Judge John Duggan, acting in his capacity as a probate master, held a status hearing in early November 2012. Etta participated in the hearing telephonically because she was incarcerated at the Hiland Mountain Correctional Center. Magistrate Judge Duggan told Etta that he could not admit Offenesia's 1987 will for ...


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