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SALT LAKE CITY — Are Josh Powell's mother and sister prepared to admit that he killed his wife, missing Utah mother Susan Cox Powell, in order to collect his life insurance policy?
The answer is yes, according to a newly filed brief in 3rd District Court by the Salt Lake attorney for Chuck Cox, Donald Reay, who is working with Cox's Washington state attorney, Anne Bremner. Cox is Susan Powell's father.
"The Powells are prepared to try and prove that Joshua Powell killed Susan in order to further pursue their alleged entitlement to certain insurance proceeds. Such behavior is shocking. It demonstrates the Powells care not about Susan’s best interest, but rather will take whatever position maximizes their opportunity to benefit monetarily from Joshua Powell’s crimes," the court brief states.
But an attorney for Alina Powell and Terrica Powell — Josh Powell's sister and mother — said that's not true.
"That's not what they said," Joshua L. Lee told the Deseret News. "We're disappointed to see this type of discourse in a judicial proceeding."
At issue is the ongoing and oftentimes complicated battle over who should collect on the life insurance policies of Josh Powell and the children of Josh and Susan Powell, which, with interest, are worth an estimated $2.5 million today, according to court records.
If a legal determination is made that Susan Powell died before her husband, then he or his family would become the beneficiary of her estate. If Josh Powell died first, then his wife's family would benefit.
Another area of contention is whether Cox can be named conservator of his daughter's estate.
On June 28, 2007, Josh Powell took out a New York Life insurance policy on his wife that was worth an estimated $1 million and $250,000 each for his two young sons, Charlie and Braden.
On Feb. 4, 2009, Josh and Susan Powell executed the Powell Trust. Technically, Susan Powell became the sole trustee after her husband's death in 2012.
Susan Powell went missing in December 2009. To this day, she is legally considered a missing person. Police, however, believe Josh Powell killed her, but they never arrested or charged him and her body has never been found.
On Dec. 3, 2011, Josh Powell changed the beneficiary designation on the primary insurance portion of his policy to make his brother, Michael, the primary beneficiary and the person getting the lion's share of the money, followed by his sister, Alina, and other brother, John. The secondary beneficiary became his father, Steven Powell.
But after Josh Powell murdered his two young sons and then killed himself and set fire to his house in Washington just two months later, questions were raised about whether Josh Powell's family could receive the money.
Michael Powell committed suicide in 2012.
Chuck Cox has filed for conservatorship in the estate of his daughter. Alina and Terrica Powell have filed motions trying to remove Cox as conservator. Court documents have been filed in both federal and district court in Washington and Utah in the ongoing legal battle.
In court papers filed Thursday in Salt Lake City, one of the key issues surrounding conservatorship and insurance payouts is deciding when Susan Powell will legally be declared dead.
Susan Powell's date of death will be listed in court documents as Dec. 6, 2014. Even though that date hasn't happened yet, under Utah law she can be declared dead five years after disappearing, unless there is "clear and convincing" evidence to prove otherwise. Chuck Cox has agreed to declare Dec. 6, 2014, as the date of death of his daughter, according to court papers filed in Washington.
But depending on the outcome of the conservatorship case, Cox's attorneys claim Terrica and Alina Powell may argue that Susan Powell's death happened earlier.
"Terrica Powell may seek to bring an action under the Utah Presumption of Death Statute, based upon available evidence, to establish a date of death earlier than Dec. 6, 2014," according to court documents.
"Ultimately, any attempt to prove Susan died on a date earlier than Dec. 6, 2014, would result in the equivalent of a lengthy and expensive murder trial. It would require the Powell family to prosecute their own and would have significant implications on the administration of the estate and its assets. Unless Susan’s whereabouts are determined before Dec. 6, 2014, she will be presumed deceased on that date," Cox's attorneys wrote in court papers.
Lee, however, said his clients seeking to prove Susan Powell died earlier than 2014 in no way implies they believe she was murdered by Josh Powell.
"They simply said, depending on how things turn out, they want to keep their options open to try and prove an earlier date of death for Susan," he said. "What (Cox's attorneys) filed in court here was actually a misstatement of what they filed in Washington."
The Powells claim that after Josh Powell's death, his estate went to Michael Powell. But Susan Powell must consent to the change in beneficiary, and because she's missing, no one can say if that happened. Because she was legally considered missing and not dead, the Powells claim there is no need for Cox to be appointed as conservator.
Alina Powell has long been one of Josh Powell's biggest supporters. She suggested at one point that Susan Powell ran off with missing Utahn Steve Koecher.
Jennifer Graves, Josh and Alina Powell's sister who has been estranged from her family since Susan Powell's disappearance, believes what is at stake is who is in line to receive the insurance money. The policy, according to her, currently lists brother Michael Powell as the main benefactor, followed by Chuck Cox.
"Michael committed suicide, so he's off. That is not an inheritable position. So it's back to Chuck. It legally goes back to Chuck," Graves said. "It disappoints me that (Alina and Terrica) are continuing to pursue this. That's the biggest thing. It's not really appropriate for them to pursue this."