In re Estate of Hughes-Juan, (2023)

• Docket Number: AV2021-0104
• Decision Date: 19 January 2023
• Citation: In re Estate of Hughes-Juan, 4 TOR3d 172, AV2021-0104 (Jud. Ct. of the Tohono O'odham Nation Adult Civil Division Jan 19, 2023)
• Parties: In the Matter of the Estate of Lucinda Anita Hughes-Juan (DOB: 2/26/1965) (DOD: 10/4/2020) Decedent
• Court: Judicial Court of the Tohono O'odham Nation Adult Civil Division

4 TOR3d 172

In the Matter of the Estate of Lucinda Anita Hughes-Juan (DOB: 2/26/1965) (DOD: 10/4/2020) Decedent

No. AV2021-0104

Judicial Court of the Tohono O'odham Nation Adult Civil Division

January 19, 2023

ORDER

Joseph Hardy Jr., Judge

A status hearing was held on January 11, 2023(the ''Hearing").The Personal Representative, Emma L. Hughes-Juan, and her legal counselSuzanne Laursen from the Tohono O'odham Advocate Program appeared.

Before the Hearing, Ms. Laursen for the Personal Representative submitted a Motion for Court Ruling on Applicability of A.R.S. §§ 14-2402-2405(the "Motion").

The Court found the Motion convincing, and granted it from the bench at the Hearing.The Court ruled that none of those statutes, which provide for mandatory surviving spouse allowances and exemptions under Arizona law, applied in this case.This Order provides more detail, and affirms findings and other orders made at the Hearing.

I.FACTUAL & PROCEDURAL BACKGROUND

Lucinda Anita Hughes-Juan(the "Decedent" or "Lucinda") passed on October 4, 2020.A petition to appoint a personal representative and probate the Estate was filed September 2, 2021(the "Petition").The Petition included a copy of the Last Will and Testament of Lucinda Hughes-Juan(the "Will").

4 TOR3d 173

At the Hearing, Ms. Laursen produced the original Will.The Court examined it, confirmed that the copy in the Petition is a complete and accurate copy, and returned the original to Ms. Laursen.Pursuant to 9 T.O.C. ch. 1, § 17, the Court determined the Will to be validly executed.

The Will (p. 1) recites that:

(a) the Decedent was then (January 8, 2020) married to Tyrone Juan;

(b)she intended to dissolve that marriage before her death;

(c)they had been married for 28 years, but separated for the past eight;

(d) Tyrone had not contributed to the accumulation of any of the assets mentioned in the Will;

(e) if the marriage was not terminated by the time of her death, it was Lucinda's strongest intention that Tyrone not receive any of her property- by the will, intestacy, or any other means; and

(f) Lucinda expressly excluded Tyrone from inheriting any property under the Will.

In addition to including a copy of the Will, the Petition expressly states (Part IV) that Tyrone is excluded from the Will, and asks the Court to find that the people named in the Will (and not Tyrone) are the lawful devisees of the Decedent.

Tyrone signed an Affidavit of Acceptance of Service of Process, &Waiver of Time for Response, on October 18, 2021.Paragraph 2 of that document states that Tyrone "has no objection to the matter proceeding and the court granting the relief requested in the petition."

Nobody filed an objection or response to the Petition.

4 TOR3d 174

As stated in the Summons, an initial hearing on the Petition was held on November 1, 2021.Tyrone did not appear.Nobody who did appear raised any objection.The Court appointed the Personal Representative at that hearing.

A status hearing was held on November 9, 2022.Tyrone did not appear.At that hearing, and included in the related Order that was served on Tyrone and all other interested parties, the Court stated that it was not aware whether Tohono O'odham law contained any mandatory surviving spouse allowances or exemptions, like those of Arizona contained in A.R.S. §§ 14-2402-2405.And if not, whether the Court should look to Arizona's allowances and exemptions in a case like this.The Court further invited Ms. Laursen to brief the Court, and Tyrone, on that issue.

Ms. Laursen did that with her Motion, arguing that Tohono O'odham law did not have any such allowances or exemptions, and that the Court should not apply Arizona's allowances or exemptions in this case.That was also served on Tyrone.He did not file a response.He did not attend the Hearing.

II.ANALYSIS

A.Applicable Law

Under Title 4 of the Tohono O'odham Code, Chapter 1, Section 1-102, Tohono O'odhamcourts must apply the following laws in the following order of precedence for civil actions:

1.The Tohono O'odham Constitution;

2.The Nation's laws and ordinances;

3.The customs of the Nation.

If the Court finds no Tohono O'odham law or custom on point, it may in its discretion look to Arizona laws for guidance.Id.

1.Tohono O'odham Constitution

4 TOR3d 175

The Tohono O'odham Constitution contains no surviving spouse exemptions or allowances.Accordingly, the Court must then look to Tohono O'odham laws and ordinances.

2.Tohono O'odham Laws & Ordinances

The Nation's laws and ordinances contain no surviving spouse exemptions or allowances.Section 17 of the Nation's Domestic Relations Code(Tohono O'odham Code, Title 9), simply directs the Court to distribute property as provided in a valid will:

If the court determines the will to he validly executed, it shall order the property described in the Will to be given to the persons named in the Will or to their heirs; but no distribution of property shall be made in violation of the proved Tribal custom which restricts the privilege of the Tribal members to distribute property by Will.

Because Tohono O'odham laws and ordinances do not address surviving spouse exemptions and allowances, the Court will next look to the customs of the Nation.

3.Tohono O'odham Customs

O'odham custom may be proved by testimony of persons familiar with the customary practices of the O'odham, or the custom of a particular community within the Nation.

4 T.O.C. ch. 1, § 1-102.

No such testimony was provided in this case.However, there is case law from this Court^[1] stating that it is Tohono O'odham custom to follow and honor the wishes of a decedent.SeeIn the Matter of the Estate of Elizabeth P. Norris,2021 TOR. Supp. 142, 143 (Tr. Ct. 2018);Moreno v. Moreno,3 TOR3d 76, 77 (Tr. Ct. 2009);In the Matter of Miguel,2 TOR3d 75, 76 (Tr. Ct. 2004).

4 TOR3d 176

By contrast, there is no Tohono O'odhamcase law providing that a surviving spouse is entitled to part of a decedent's estate when the decedent expressly wishes otherwise, and the spouses had long been separated, with the intent to divorce.

B.No Mandatory Spousal Exemptions or Allowances

The above analysis shows that Tohono O'odham law-Code and custom-is to follow a decedent's will, as an expression of her wishes.There is nothing in the Tohono O'odham Constitution, Code or case law providing for an allowance or exemption to that if the decedent expressly stated her wishes to exclude her spouse.And no party provided testimony of custom to contradict that here.

It is conceivable that Tohono O'odham custom, or equity, could compel a different result under different facts.Here, however, the undisputed facts show that there is no community property, Tyrone was not dependent on Lucinda and is not participating in the Estate's administration, they had been separated for over eight years, and Lucinda intended to dissolve the marriage.^[2]

Accordingly the Court finds that Tohono O'odham law covers this situation and sees no reason to exercise its discretion under 4 T.O.C. ch. 1, § 1-102...