In re Estate of Lande, 98-493.

• Decision Date: 08 July 1999
• Docket Number: No. 98-493.,98-493.
• Parties: In the Matter of the ESTATE OF Thor K. LANDE, Deceased.
• Court: Montana Supreme Court

983 P.2d 308

1999 MT 162

In the Matter of the ESTATE OF Thor K. LANDE, Deceased.

No. 98-493.

Supreme Court of Montana.

Submitted on Briefs March 18, 1999.

Decided July 8, 1999.

Brent R. Cromley; Moulton, Bellingham, Longo & Mather, Billings, Montana, For Appellant.

James Robert Graves and Ingrid Gustafson; Graves, Toennis & Gustafson, Peter Stanley, Billings, Montana, For Respondent.

Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 Clifford Lande (Clifford), Kande Lande (Kande) and Kip Lande (Kip)(collectively, the Contestants) appeal from the order of the Thirteenth Judicial District Court, Big Horn County, admitting the last will and testament of Thor K. Lande (Cubby) to probate after a jury found by special verdict that Cubby had testamentary capacity and was not unduly influenced when he executed his will on December 30, 1996. We affirm.

¶ 2 We address the following issues:

¶ 3 1. Did the District Court abuse its discretion by denying the Contestants' discovery requests?

¶ 4 2. Did the District Court abuse its discretion by implicitly denying the Contestants' motion in limine?

¶ 5 3. Did the District Court abuse its discretion in refusing the Contestants' proposed instruction regarding the existence of a confidential relationship as a matter of law?

BACKGROUND

¶ 6 Cubby owned a ranch near Pryor, Montana, when he died on January 4, 1997. He was survived by four adopted children: Clifford, Kande and Kip had been adopted many years earlier; Joshua Payne (Joshua) was adopted several months prior to Cubby's death. Cubby's wife, Dorothea Bell Lande (Dorothea), predeceased him.

¶ 7 Cubby was diagnosed with pancreatic cancer in January of 1996 and was hospitalized several times in November and December of 1996. Cubby had executed several wills in previous years and executed two more in the months just prior to his death.

¶ 8 On November 25, 1996, Cubby executed a will naming Nancy Witt (Witt), Joshua's mother, and Clifford co-personal representatives of his estate and creating two trusts. In the first, a 15-year trust with a $50,000 corpus, Witt was designated the trustee and Joshua was the sole beneficiary. In the second 15-year trust (hereinafter, the Ranch Property Trust), Clifford, Kande and Kip were designated co-trustees and equal beneficiaries of income produced by the ranch. The will provided that, at the expiration of the Ranch Property Trust, the ranch would be divided equally between Clifford, Kande and Kip. The residue of Cubby's estate not provided for in the trusts was to be divided equally among the four children.

¶ 9 Cubby executed a codicil to the November will on December 12, 1996. In pertinent part, the codicil left Cubby's ranch house to Joshua and named him an equal beneficiary—with Clifford, Kande and Kip— of income produced under the Ranch Property Trust. The codicil did not alter the earlier provisions requiring division of the ranch property between Clifford, Kande and Kip at the expiration of that trust. The codicil also designated Clifford and Witt as co-trustees of the Ranch Property Trust and, again, as co-personal representatives of Cubby's estate.

¶ 10 Cubby was hospitalized at St. Vincent's Hospital in Billings, Montana, from December 17, until December 28, 1996. On December 28, 1996, Wilma Lande (Wilma) and Vickie Lande MacCarty (Vickie) checked Cubby out of the hospital and drove him to their ranch near Pryor, Montana. Wilma is the widow of Cubby's deceased nephew and Vickie is Wilma's daughter. On December 29, 1996, Cubby instructed Vickie to contact his attorney, Ingrid Gustafson (Gustafson), about his will and he executed another will the following day.

¶ 11 The December 30, 1996, will created three 15-year, $50,000 trusts, naming Clifford, Kande and Kip as the beneficiaries. The remaining corpus of each trust was to be distributed equally to the beneficiaries on expiration of the trust. This will again created the 15-year Ranch Property Trust, but altered the terms so that Clifford, Kande and Kip would each receive 10% of the income produced by the ranch. In addition, at the expiration of the Ranch Property Trust, the ranch would be divided equally between Joshua and Vickie. The December 30, 1996, will designated Vickie and Witt as co-personal representatives of Cubby's estate and co-trustees of the Ranch Property Trust.

¶ 12 After Cubby's death, Gustafson filed a motion on behalf of Vickie and Witt (collectively, the Personal Representatives) in the Thirteenth Judicial District Court, Yellowstone County, requesting probate of the will executed on December 30, 1996, and appointment of Vickie and Witt as co-personal representatives of the estate. In April of 1997, Clifford filed a pro se motion disputing Cubby's testamentary capacity and claiming that Cubby had been unduly influenced at the time he executed the December 30, 1996, will. Clifford's motion requested, and the court ordered, that venue be changed to Big Horn County.

¶ 13 In June of 1997, Clifford filed an additional pro se pleading renewing his prior objections and, in addition, objecting to Vickie and Witt acting as Cubby's co-personal representatives under the December 30, 1996, will. Clifford also requested supervised administration of the estate pursuant to § 72-3-301, MCA. Thereafter, Clifford obtained representation and Kande and Kip joined Clifford in contesting the validity of the December 30, 1996, will. The parties filed various motions and discovery ensued.

¶ 14 The Contestants' discovery request to the Personal Representatives included a request for production of files relating to Gustafson's representation of Cubby and the files in her possession relating to Cubby's representation by her predecessor, Marcie Schwarz (Schwarz). The Personal Representatives objected to the discovery requests, asserting the attorney-client privilege, and the Contestants requested that the files be produced at Gustafson's deposition. During her deposition, Gustafson reasserted the attorney-client privilege, refused to answer questions about her communications with Cubby and refused to produce the requested files. Gustafson's deposition was discontinued.

¶ 15 The Contestants subsequently filed a motion in limine requesting that Gustafson be prohibited from testifying at trial. The Personal Representatives responded that, in light of further legal research, they were withdrawing the assertion of the attorney-client privilege with regard to Cubby's estate planning and related legal services, but would continue to assert the privilege with regard to other legal work performed for Cubby; the responses also indicated that all estate planning files and records had been provided to the Contestants. At the final pretrial conference, the District Court treated the Contestants' motion in limine as a motion to compel and ordered Gustafson to submit all files in her possession related to legal work performed for Cubby—including the Schwarz files, but excluding estate planning files previously produced—for in camera inspection. The court also ordered legal memoranda relating to the applicability of the attorney-client privilege vis-a-vis the files ordered for in camera inspection, and the Personal Representatives again responded that they had produced all the estate planning files in Gustafson's possession. During the same period of time, the Personal Representatives moved for summary judgment, the Contestants responded and the District Court denied the motion.

¶ 16 The Personal Representatives continued to assert the attorney-client privilege with regard to eight other files, however, and submitted those files—including Dorothea's probate file and Joshua's adoption file—to the District Court for its in camera inspection. After reviewing the files, the District Court concluded that the Personal Representatives could not assert the attorney-client privilege against the Contestants, Dorothea's probate file and Joshua's adoption file were not relevant or discoverable, and the remaining six files it had inspected were relevant and discoverable. The court ordered production of the latter files, Gustafson's deposition was completed and the case proceeded to a jury trial on the issues of testamentary capacity and undue influence vis-a-vis Cubby's December 30, 1996, will.

¶ 17 The jury returned a special verdict finding that Cubby had testamentary capacity and was not unduly influenced when he executed the will. Based on that verdict, the District Court admitted the December 30, 1996, will to formal probate as Cubby's valid last will and testament and confirmed Vickie and Witt as Cubby's co-personal representatives. The Contestants appeal.

DISCUSSION

¶ 18 1. Did the District Court abuse its discretion by denying the Contestants' discovery requests?

¶ 19 The Contestants concede that the District Court ultimately rejected the Personal Representatives' privilege-based discovery objections, ordered submission of all legal files relating to representation of Cubby in Gustafson's possession which had not been produced previously, and required production of all but Dorothea's probate file and Joshua's adoption file. They contend, however, that the District Court erred in failing to: A)"strike" the Personal Representatives' objections to discovery based on the attorney-client privilege; B) require production of Dorothea's probate file and Joshua's adoption file; and C) require production of Cubby's complete estate planning files, including the Schwarz files, in Gustafson's possession. We review a district court's discovery-related rulings to determine whether the court abused its discretion. In re Estate of Bolinger, 1998 MT 303, ¶ 24, 292 Mont. 97, ¶ 24, 971 P.2d 767, ¶ 24, 55 St.Rep. 1251, ¶ 24 (citations omitted).

A. Failure to "strike" privilege-based discovery objections

¶ 20 The Contestants discuss at length the Personal Representatives' assertion—and withdrawal—of the attorney-client privilege and the...