Abbott's Estate, Matter of
| Decision Date | 28 July 1977 |
| Docket Number | No. 76-508,76-508 |
| Citation | 39 Colo.App. 536,571 P.2d 311 |
| Parties | In the Matter of the ESTATE of Allen G. ABBOTT, Deceased. Petition of Yvonne ABBOTT, Petitioner-Appellant, v. Gean ABBOTT, Personal Representative of the Estate of Allen G. Abbott, Shirley Uhrich, and Hazel Cronk, Respondents-Appellees. . II |
| Court | Colorado Court of Appeals |
Albert Cohen, Louis A. Weltzer, Denver, for petitioner-appellant.
Dawson, Nagel, Sherman & Howard, Chapman B. Cox, Christopher Lane, David Thomas, III, Denver, for respondents-appellees.
Petitioner, Yvonne Abbott, appeals from a summary judgment dismissing her petition to claim a widow's elective share in the estate of Allen G. Abbott, deceased. We affirm.
The facts established in conjunction with entry of the summary judgment are these. On July 30, 1963, decedent and Yvonne executed an antenuptial agreement wherein the parties recited their pending marriage and stipulated that neither should by their marriage acquire possession or interest in certain enumerated items of property which they then individually owned. By the terms of the antenuptial agreement, the decedent agreed to name Yvonne as the beneficiary of certain insurance policies, and Yvonne agreed, inter alia, "that she will make no claim against the estate of the said Allen Abbott by virtue of any statute of distribution, widow's allowance, or otherwise . . . ." The parties were married on August 20, 1963.
Decedent executed his will on December 18, 1969, wherein he devised to his eight children the items owned by him and referred to in the antenuptial agreement. A statement by Yvonne was appended to the will of the decedent in which she stated that: "I hereby renounce and release my right to take the statutory share and consent that distribution may be made of the above estate as the same is herein designated to be distributed."
Decedent died on July 4, 1975; his will was admitted to probate pursuant to the Colorado Probate Code; and decedent's son, Gean Abbott, was appointed personal representative. See § 15-10-201(33), C.R.S. 1973.
In response to Yvonne's petition claiming the widow's elective share, the personal representative filed an answer setting forth the terms of the antenuptial agreement as a bar, and subsequently filed a motion for summary judgment. In opposing the motion for summary judgment, Yvonne filed an affidavit in which she stated that at the time she signed the antenuptial agreement, she was not informed as to the extent or value of the property owned by decedent. She further stated that she was under the mistaken impression that the attorney who drew the antenuptial agreement was representing both Yvonne and the decedent, but subsequently discovered that the attorney represented the decedent only. Yvonne therefore alleged that she had no legal representation at the time she signed the agreement, and that she would not have entered into the transaction were she not under the mistaken belief that she was represented by counsel. Additionally, she alleged that she would not have signed the agreement if she had been aware of the extent and nature of decedent's property interests.
Yvonne also filed a motion for summary judgment wherein she contended that the antenuptial agreement could not operate as a waiver of her right to claim an augmented estate under the Colorado Probate Code because the Code was adopted after the agreement was signed.
In conjunction with the first hearing on the personal representative's motion, the trial court ruled that testimony from Yvonne in support of the allegations in the affidavit was inadmissible under the Dead Man's Statute, § 13-90-102, C.R.S. 1973. The court noted that under C.R.C.P. 56, an affidavit in opposition to a motion for summary judgment must reflect admissible evidence. The trial court therefore granted an additional 20 days for Yvonne to submit further affidavits.
Yvonne filed a second affidavit which noted that the inventory filed in the decedent's estate reflected assets having a gross value of $593,670.93, whereas the amount due Yvonne as the result of decedent's death was only $35,477.49, in the form of insurance proceeds. Yvonne therefore alleged that this disparity was so gross as to render the prenuptial contract unconscionable and thus void.
Prior to a second hearing on the personal representative's motion for summary judgment, two of decedent's daughters also filed an answer to Yvonne's petition wherein they "asked to call witnesses and take testimony to determine the merits of Yvonne's claim." Gean Abbott then sought leave to intervene in his individual capacity as a devisee under the will and filed an answer which adopted by reference the answer and motion he had previously filed as personal representative. The other five children did not file any response to Yvonne's petition.
Following a second hearing, the trial court granted the personal representative's motion for summary judgment and denied Yvonne's motion.
Yvonne first contends that since she is not seeking to take assets away from the estate, but rather is seeking to redistribute those assets between herself as surviving spouse and the distributees under the will, the personal representative had no standing to oppose her petition. Even assuming the personal representative lacked standing to oppose the petition, see § 15-12-703(1), C.R.S. 1973; Risbry v. Swan, 124 Colo. 567, 239 P.2d 600 (1951), we conclude that he was entitled to oppose Yvonne's petition as a devisee under decedent's will and in such capacity could raise the bar of the Dead Man's Statute.
A judgment granting Yvonne's petition would adversely affect the interest of any distributee under decedent's will and the Probate Code expressly provides for notice and an opportunity for the distributees to appear at any hearing on Yvonne's petition. Section 15-11-205(2), C.R.S. 1973. The requirement for notice and an opportunity to appear must be deemed to include the right to oppose the petition.
Yvonne next contends that the trial court erred in concluding that her affidavit failed to set forth material issues of fact for resolution at a trial because she was disqualified from testifying under the Dead Man's Statute. In support of her position, she relies upon cases such as Phillips v. Joseph Kantor & Co., 31 N.Y.2d 307, 338 N.Y.S.2d 882, 291 N.E.2d 129 (1972), for the proposition that since the bar of the Dead Man's Statute may be waived at the time of trial, or since it may subsequently appear that an exception to the statute applies, the trial court may not reject an affidavit on the basis of that statute. In further support of her position, Yvonne points to the answer filed by two of the decedent's daughters and to the statement of their attorney during a hearing on the motion for summary judgment that "should a trial ensue, (we) would call Yvonne Abbott as an adverse witness and cross-examine her and ask her questions about the premarital agreement, together with any nondisclosure of assets, to get to the merits of that controversy." We conclude that the trial court's...
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