Britain v. Britain (In re Estate of Britain), S-17-0325

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: KAUTZ, Justice.
• Citation: 425 P.3d 978
• Parties: In the MATTER OF the ESTATE OF Patricia Ann BRITAIN, Deceased: Robert Oscar Britain, as Personal Representative of the Estate of Patricia Ann Britain, Appellant (Petitioner), v. Kelly L. Britain, Appellee (Respondent).
• Decision Date: 28 August 2018
• Docket Number: S-17-0325

425 P.3d 978

In the MATTER OF the ESTATE OF Patricia Ann BRITAIN, Deceased:

Robert Oscar Britain, as Personal Representative of the Estate of Patricia Ann Britain, Appellant (Petitioner),
v.
Kelly L. Britain, Appellee (Respondent).

S-17-0325

Supreme Court of Wyoming.

August 28, 2018

Representing Appellant: James R. Salisbury, The Salisbury Law Firm, P.C., Cheyenne, Wyoming; Robert "Bob" Mullen, Casper, Wyoming. Argument by Mr. Salisbury.

Representing Appellee: P. Craig Silva and Charles S. Chapin, Williams, Porter, Day, and Neville, P.C., Casper, Wyoming. Argument by Mr. Silva.

Before DAVIS, C.J., and BURKE^* , FOX, KAUTZ, and BOOMGAARDEN, JJ.

KAUTZ, Justice.

¶ 1] Appellant Robert Oscar Britain is the personal representative of his mother, Patricia Ann Britain’s, estate. He filed a declaratory judgment claim challenging a codicil to Patricia’s will on the grounds she did not have the capacity to execute the will codicil and his sister, Appellee Kelly L. Britain, exerted undue influence over her.¹

[¶ 2] The district court dismissed Personal Representative Robert’s claim, concluding that his challenges to the codicil could not be brought through a declaratory judgment action. We affirm.

ISSUE

[¶ 3] The dispositive issue in this case is:

Whether the personal representative of an estate can bring a declaratory judgment action to challenge a will codicil on the grounds that the testator lacked capacity and/or was unduly influenced.

FACTS

[¶ 4] Patricia passed away on June 13, 2016. She had three children—Robert, Kelly and Cindy Wheeler. Patricia’s last will and testament, dated June 3, 2011, was admitted to probate on July 29, 2016. Pursuant to the terms of the will, Robert was appointed as the personal representative and Patricia’s estate was to be distributed as follows:²

[425 P.3d 980

1. I give, devise and bequeath all of the Flying A Ranch, Inc. Stock which I own at the time of my death to my son, Robert Oscar Britain.

2. I give[,] devise and bequeath to my daughter, Kelly L. Britain[,] the surface rights to the here[in]after described real property.

The mineral rights to said real property shall be equally divided between my son, Robert Oscar Britain[,] and my daughter, Kelly L. Britain.

[real property description omitted]

3. I give [and] bequeath the sum of $5[,]000 to my daughter[,] Cindy Wheeler.

I hereby give, devise and bequeath all of the rest, residue and remainder of my estate, real, personal[,] and mixed, wheresoever situated, whereof I may be seized or possessed or which I may be in any manner entitled, or to which I may be interested at the time of my death, unto my children, Robert Oscar Britain and Kelly L. Britain, share and share alike and in equal shares.

The will also included an in terrorem or no-contest clause which stated:

ARTICLE SEVENTH

Should any person named herein challenge this Will or contest any provision hereof, to each such person pursuing such challenge or contest I bequeath the sum of One Dollar ($1.00) in lieu of any bequest or devise otherwise provided for such person; provided however, that any proceeding or action [in] the nature of a declaratory action, or for any accounting or for removal of my personal representative for cause shall not for these purposes be deemed to be a challenge or contest of my Will.

¶ 5] The first codicil to Patricia’s last will and testament, dated June 24, 2013, was filed in the district court on August 26, 2016. The first codicil changed the estate distribution as follows:

I give, devise, and bequeath all of the Flying A Ranch, Inc. Stock which I own at the time of my death to be divided equally one half to my son, Robert Oscar Britain, and one half to my daughter, Kelly L. Britain.

[¶ 6] On October 12, 2016, Personal Representative Robert filed a motion for approval of a revised notice of probate, stating that Kelly had produced the first codicil that was filed with the court. He requested the court enter an order approving a revised notice of probate which reiterated the original notice of probate, "except that it is to describe the document entitled First Codicil to Last Will and Testament of Patricia A. Britain ... and providing notice that any action to set aside the Will or First Codicil ... is to be filed in the Court within three months from the date of the first publication of the Revised Notice." The court entered an order approving the revised notice of probate.

[¶ 7] On December 19, 2016, Cindy filed a petition to set aside the first codicil on the grounds Patricia was incompetent to execute the codicil and Kelly had exerted undue influence upon her. Kelly filed a motion to intervene to "answer, move to dismiss and/or defend against" Cindy’s petition to set aside the codicil. Personal Representative Robert also responded to Cindy’s petition. He generally agreed with Cindy’s assertions that Patricia was not competent to execute the codicil and that Kelly was the "primary member of our family attending to" Patricia’s care at the time the codicil was signed. He also asserted:

25. I understand that my duty as Personal Representative is to administer the Estate according to Patricia Ann Britain’s instructions, the law, and the directives of this Court. Uncertainty as to Patricia’s instructions exists by virtue of the Petition of Cindy Wheeler, questions as to Patricia’s competency to make a codicil in June 2013, and the Motion and proposed Answer of Kelly Britain. Until the challenge to the First Codicil to Decedent’s Will is resolved, aspects of my administration cannot occur.

26. The Uniform Declaratory Judgments Act, W.S. §§ 1-37-101 et seq., empowers the Court to determine the validity of the

[425 P.3d 981

First Codicil, subject to determinations of factual issues as in other civil actions ( W.S. § 1-37-111 ).

27. The possibility of a declaratory action was contemplated by Patricia Ann Britain, as expressed in Article Seventh of her Last Will and Testament of June 3, 2011.

WHEREFORE, as Personal Representative, I ask that the Court determine the validity of the First Codicil to Decedent’s Will, subject to determinations of factual issues as in other civil actions, pursuant to the Uniform Declaratory Judgments Act, and to grant the Estate such other and further relief as is warranted under the circumstances.

¶ 8] The district court granted Kelly’s motion to intervene, and she filed a motion to dismiss Cindy’s petition to set aside the codicil. Kelly claimed that Cindy did not have standing to challenge the codicil because she was not a "person interested" under the will contest statute— Wyo. Stat. Ann. § 2-6-301 (LexisNexis 2017). That statute provides that "any person interested may, within the time designated in the notice provided for in W.S. 2-6-122 or 2-7-201, contest the will or the validity of the will." Section 2-6-301. (The definition of "will" in Wyo. Stat. Ann. § 2-1-301(a)(xxxiv) (LexisNexis 2017) "includes a codicil.") Kelly claimed that Cindy was not interested because the codicil did not change her share of Patricia’s estate, i.e., she was entitled to $5,000 under the original will and the codicil did not affect that devise. The district court agreed that Cindy could not challenge the codicil and granted Kelly’s motion to dismiss Cindy’s petition to set aside the codicil. No party appealed the district court’s order.

[¶ 9] Kelly also filed a motion to dismiss Personal Representative Robert’s declaratory judgment claim. She argued, in part, that a declaratory judgment action is not an appropriate means of challenging the validity of the will codicil on the grounds Patricia was incompetent or was subject to Kelly’s undue influence. The district court held a hearing on Kelly’s motion to dismiss and granted it.³ Personal Representative Robert filed a notice of appeal.

STANDARD OF REVIEW

[¶ 10] Kelly claimed that Personal Representative Robert’s declaratory judgment claim should be dismissed under W.R.C.P. 12(b)(1) and/or (b)(6). Rule 12 states in relevant part:

(b) How to Present Defenses .—Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(1) lack of subject-matter jurisdiction;

....

(6) failure to state a claim upon which relief can be granted[.]

[¶ 11] In considering a dismissal under either Rule 12(b)(1) or Rule 12(b)(6), this Court’s role is the same. We conduct a de novo review of the materials that were before the district court. Bush Land Dev. Co. v. Crook County Weed & Pest Control Dist., 2017 WY 12, ¶ 7, 388 P.3d 536, 539 (Wyo. 2017) ( Rule 12(b)(6) ); Moose Hollow Holdings, LLC v. Teton County Bd.

of County Comm’rs, 2017 WY 74, ¶ 20, 396 P.3d 1027, 1033 (Wyo. 2017) ( Rule 12(b)(1) ).

"[T]his Court accepts all facts stated in the complaint as being true and views them in the light most favorable to the plaintiff. ..." Herrig v. Herrig, 844 P.2d 487, 490 (Wyo.1992) (citation omitted), quoted in Davis v. State, 910 P.2d 555, 560 (Wyo.1996). Although dismissal is a drastic remedy which should be granted sparingly, a motion to dismiss " ‘is the proper method for testing the legal sufficiency of the allegations and will be sustained when the complaint shows on its face that the plaintiff is not entitled to relief.’ " Feltner v. Casey Family Program, 902 P.2d 206, 208 (Wyo.1995) (quoting Mummery v. Polk, 770 P.2d 241, 243 (Wyo.1989) ).

[425 P.3d 982

Rissler &

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