Estate of Gaines, Matter of

• Decision Date: 05 March 1992
• Docket Number: No. 12560,12560
• Parties: In the Matter of the ESTATE of Joseph S. GAINES, Deceased. Joseph Casey GAINES, Petitioner-Appellant, v. Joseph Blair GAINES, Respondent-Appellee.
• Court: Court of Appeals of New Mexico

Page 569

830 P.2d 569

113 N.M. 652

In the Matter of the ESTATE of Joseph S. GAINES, Deceased.

Joseph Casey GAINES, Petitioner-Appellant, v. Joseph Blair GAINES, Respondent-Appellee.

No. 12560.

Court of Appeals of New Mexico.

March 5, 1992.

[113 NM 653] Dean E. Border, Border Law Office, Tucumcari, for petitioner-appellant.

Terrence R. Kamm, John William Clever, Kastler and Kamm, Raton, for respondent-appellee.

OPINION

BLACK, Judge.

Joseph Casey Gaines appeals from the trial court's denial of his Rule 60(B) motion for relief from a judgment that the will of Joseph S. Gaines was invalid. SCRA 1986, 1-060(B) (Rule 60(B)). We uphold the trial court.

FACTS

Joseph S. Gaines died on November 22, 1983. He was killed by his alleged wife, Cecilia Duran. Joseph S. Gaines was survived by Cecilia Duran; their adult son, Joseph Casey Gaines ("Casey"); and his adult children from a prior marriage, Joseph Blair Gaines ("Joe") and Julie Blair.

An application for informal appointment was filed by Joe in the Probate Court of Colfax County, New Mexico, on December 6, 1983. On the same day, the probate judge signed an order appointing Joe as administrator of the estate. On January 12, 1984, the probate judge transferred the probate cause to the Colfax County District Court, where it was captioned Estate of Joseph S. Gaines, Deceased, Probate No. 84-3-PB.

On January 26, 1984, Joe filed a petition for formal testacy ("first petition"). In the first petition, Joe alleged that Cecilia Duran claimed to hold a will executed by Joseph S. Gaines but stated, "[p]etitioner believes the decedent either destroyed or intended to destroy the original of said will prior to his death." He prayed the district court to "find and order that the decedent left no unrevoked, valid will."

On January 27, 1984, Joe's attorney certified that he sent a copy of the first petition to Casey, who does not deny receiving this petition. On February 1, 1984, Joe filed an amended petition ("amended petition") in which he requested, among other things, a specific determination that any purported will be declared invalid. The amended petition was never served on Casey.

On February 16, 1984, Cecilia Duran filed a petition seeking formal probate of decedent's will and requesting appointment as personal representative ("mother's petition"). Casey filed an acceptance of service of his mother's petition. On November 30, 1984, Casey, along with his mother Cecilia Duran, executed a joint retainer agreement employing Stephen M. Peterson to represent them in the pending probate matters.

Casey was deposed on May 10, 1989, and was subpoenaed to testify at the trial on the merits, which was scheduled for October 24, 1989. That setting was vacated. Casey was again subpoenaed and testified at the trial commencing March 19, 1990.

After hearing all the evidence, including Casey's testimony, the jury determined that: (1) the last will and testament of Joseph S. Gaines was not validly executed; and (2) Cecilia Duran feloniously and intentionally killed Joseph S. Gaines. The trial court entered judgment on the verdict on March 29, 1990. On May 16, 1990, Casey filed a motion for relief from judgment under Rule 60(B). The trial court denied this motion.

ISSUES

Casey argues that: (1) he did not receive the notice required by NMSA 1978, Section 45-3-412 (Repl.Pamp.1989), and due process; (2) the trial court lacked jurisdiction to adjudicate the validity of the will in his absence because he was an indispensable party; (3) the trial court erred in applying the doctrine of laches; and (4) the trial court's denial of the relief requested under Rule 60(B) is not supported by substantial evidence.

NOTICE UNDER SECTION 45-3-412(A)(1)

Casey maintains that the judgment should be set aside because Joe did not comply with statutory and constitutional notice requirements. Section 45-3-412(A)(1) reads:

A. Subject to appeal and subject to vacation as provided in this section and in Section 3-413 [45-3-413 NMSA 1978], a formal testacy order under Sections 3-409 through 3-411 [45-3-409 to 45-3-411 NMSA 1978], including an order that the decedent left no valid will and determining heirs, is final as to all persons with respect to all issues concerning the decedent's estate that the court considered or might have considered incident to its rendition relevant to the question of whether the decedent left a valid will, and to the determination of heirs, except that:

(1) the court shall entertain a petition for modification or vacation of its order and probate of another will of the decedent if it is shown that the proponents of the later-offered will were unaware of its existence at the time of the earlier proceeding or were unaware of the earlier proceeding and were given no notice thereof, except by publication * * *. [Emphasis added.]

First, we note that Section 45-3-412(A)(1) places the burden upon the party challenging the validity of the court's final order. See Mathieson v. Hubler, 92 N.M. 381, 387, 588 P.2d 1056, 1062 (Ct.App.), cert. denied, 92 N.M. 353, 588 P.2d 554 (1978); cf. NMSA 1978, Sec. 45-3-407 (Repl.Pamp.1989) (burden of proof in contested cases).

Second, the purpose of Section 45-3-412(A)(1) is to allow the trial court to consider a will that was not tendered before a formal testacy order was entered. In the present case Casey has no new will to offer, but merely wants a chance to advance the same will offered by his mother, a will that was already considered by a jury and found invalid.

Even if Section 45-3-412(A)(1) can be invoked by one promoting a will which has previously been rejected, Casey cannot satisfy its requirements. Casey contends that he was "unaware of the earlier proceeding and [was] given no notice thereof." Sec. 45-3-412(A)(1). The facts refute this. It is undisputed that Casey received the first petition by certified mail. This petition for formal testacy, filed by Joe on January 26, 1984, alleged that the decedent intended to destroy the will held by Cecilia Duran and requested a finding that the decedent left no valid, unrevoked will. It is also undisputed that Casey received the petition filed by his mother, Cecilia Duran. The record also contains unrebutted evidence that Casey and his mother retained counsel, Stephen M. Peterson, to represent them in the probate proceeding initiated by his stepbrother, Joe. The retainer agreement, executed by both Casey and Cecilia Duran, specifically provides:

We, Cecelia Duran Gaines and Joe Casey Gaines, retain the Law Offices of Stephen M. Peterson, (herein referred to as "PETERSON") as our Lawyer in all cases involving the recovery of the assets of the Estate of Joseph S. Gaines, Deceased, which cases are presently pending in the District Court of New Mexico in Colfax County, New Mexico, and being entitled the Estate of Joseph S. Gaines, Deceased, Probate No. 84-3 PB and all claims arising against Joseph Blair Gaines, both personally and as Personal Representative of the Estate of Joseph S. Gaines, Deceased, and any claims otherwise arising directly or indirectly therefrom, including but not limited to, the recovery of any Insurance Claims.

Casey testified during discovery and at trial, and his lawyer, representing both Casey and his mother, was involved at every phase of the proceeding. Casey makes no claim his counsel did not receive all pleadings and notice of all hearings.

Casey's argument not only ignores this evidence, but misapprehends the purpose of notice in probate proceedings. Casey argues that his notice was inadequate because it did not inform him of all issues and contentions involved in the will contest between his mother and stepbrother. Initially we note that Section 45-3-412(A)(1) allows a petition to vacate an order of probate and offer a new will if petitioner was "unaware of the earlier proceeding and [was] given no notice thereof, except by publication." (emphasis added). The Probate Code does not require that a non-party be notified of every hearing in a proceeding. See In re Protective Proceeding for Strozzi, 112 N.M. 270, 814 P.2d 138 (Ct.App.1991). Nor is notice inadequate because it does not keep him informed of the development of subsequent issues which differ from the relief initially requested. See id. (notice was adequate where grandnephew received original petition for guardianship and conservatorship, but was not informed of later court order creating limited power of attorney). Notice is only required to " 'apprise him of the litigation and his rights to participate in it.' " Id. at 274, 814 P.2d at 142 (quoting 53 A.L.I.Proc. 303 (1976)).

Casey received Joe's first petition, which specifically challenged any will possessed by Cecilia Duran. He also accepted service of his mother's petition seeking admission of the very will from which his alleged rights derived. He was thus apprised "of the litigation and his rights to participate in it," and indeed, he retained an attorney to do just that. Clearly Casey cannot maintain he was "unaware of the earlier proceeding." Moreover, his contention that notice must comprehensively inform the recipient of the specific claims at issue has been directly rejected. In Kortz v. American Nat'l Bank, 571 P.2d 985 (Wyo.1977), the contestant argued that the three-month Wyoming limitation for challenging a will should not apply where someone had allegedly substituted a page in the original filed will and this was ascertainable only upon examination of the actual court file. The challenge was rejected by the trial court as untimely. The Wyoming Supreme Court affirmed.

This aspect of Kortz was considered by John A. Warnick in The Ungrateful Living: An Estate Planner's Nightmare--The Trial Attorney's Dream, 24 Land & Water L.Rev. 401 (1989). Like the Wyoming Supreme Court, Warnick rejects the contention that potential claimants must be given notice of more than the bare fact that a will has been submitted for probate:

Presumably once...