In re Estate of Erickson

• Decision Date: 31 October 2017
• Docket Number: DA 17-0100
• Citation: 389 Mont. 147,406 P.3d 1,2017 MT 260
• Parties: In the MATTER OF the ESTATE OF Bruce A. ERICKSON, Deceased.
• Court: Montana Supreme Court

389 Mont. 147

406 P.3d 1

2017 MT 260

In the MATTER OF the ESTATE OF Bruce A. ERICKSON, Deceased.

DA 17-0100

Supreme Court of Montana.

Submitted on Briefs: August 9, 2017

Decided: October 31, 2017

For Appellant: W. Bjarne Johnson, Steven M. Johnson, Eric B. Biehl, Church Harris Johnson & Williams PC, Great Falls, Montana

For Appellee, Cross-Appellant and Personal Representative: David M. Wagner, Griffin B. Stevens, Crowley Fleck PLLP, Bozeman, Montana

For Appellees: John T. Jones, Kathryn J. Maehl, Cole A. Derks, Moulton Bellingham PC, Billings, Montana

Justice Michael E Wheat delivered the Opinion of the Court.

¶ 1 This appeal comes from the District Court's denial of a motion for relief from a judgment or order under M. R. Civ. P. 60(b).

¶ 2 We restate the issues on appeal as follows:

Issue One: Did the District Court err in determining M. R. Civ. P. 60(b) did not apply?

Issue Two: Did the District Court err in denying Gail's motion to modify a formal testacy order under § 72-3-317(4), MCA ?

Issue Three: Did the District Court err in denying Gail's request for imposition of a constructive trust?

Issue Four: Is the Personal Representative entitled to attorney fees and costs pursuant to § 72-12-206, MCA ?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 Bruce A. Erickson (Decedent) died on November 18, 2015. At that time, he was married to Gail Erickson (Gail); he had two grown children, Tyler Erickson (Tyler) and Taylor Wortman. Gail is not the biological parent of either child. Decedent executed a Last Will and Testament on May 2, 1995. After his first wife died, Decedent executed a Codicil to the Last Will and Testament on February 5, 2008. The Codicil nominated Tyler to act as Personal Representative of the Estate.

¶ 4 On December 16, 2015, Gail filed an Application for Informal Appointment of Personal Representative in Intestacy. The District Court Clerk granted Gail's application and appointed her Personal Representative.

¶ 5 On December 18, 2015, Tyler filed a Petition for Formal Probate of Will, Determination of Testacy and Heirs, and Appointment of Personal Representative. At that time, the Last Will and Testament and Codicil were submitted collectively as the Decedent's Will. The District Court issued an order setting a hearing on the Formal Petition for January 26, 2016, and directed anyone who intended to contest the Will and/or object to the appointment of Tyler as the Personal Representative was required to give written notice to the attorneys and the District Court no later than January 5, 2016. A copy of the order was provided to Gail personally, as well as counsel.

¶ 6 On January 22, 2016, Gail's counsel notified Tyler's counsel that Gail would not object to the probate of the Will and Codicil, the appointment of Tyler as Personal Representative, or the determination that Montana is the situs for the probate. On January 25, 2016, the day before the hearing, Tyler's counsel provided Gail's counsel with drafts of a Proposed Order and Letters of Appointment that would be presented to the Court for issuance. That same day Gail's counsel sent an email to Tyler's counsel providing him with a draft of "the Idaho document I mentioned," told him that § 72-3-314, MCA, addresses the probate of more than one document, and that the parties could discuss it at the hearing.

¶ 7 At the January 26, 2016 hearing, Gail's counsel advised the court that he had reviewed the Proposed Order and Letters of Appointment from Tyler's counsel, and had no objection. No party raised any issues related to the "the Idaho document" (hereinafter referred to as the 6 Point Document). Thus, without objection, the District Court issued an Order of Formal Probate and appointed Tyler as Personal Representative. Gail did not appeal the order.

¶ 8 Almost five months later, on June 3, 2016, Gail's counsel filed a Verified Creditor's Claim asserting the 6 Point Document is a written contract by the Decedent to make payments of money and provide benefits to or on behalf of Gail, and that it is a contract to make a will or devise that provides for said payment of money and provision of benefits. On August 16, 2016, Gail's counsel filed a Petition for Elective Share, Homestead Allowance, Exempt Property, and Family Allowance. On September 15, 2016, Tyler as the Personal Representative, filed a Notice of Disallowance of the Verified Creditor's Claim.

¶ 9 On September 16, 2016, Gail obtained new counsel. On November 14, 2016, Gail's counsel petitioned the District Court to allow her creditor claim. However, on November 21, 2016, before the court could rule on that motion, Gail's counsel filed a Motion for Relief From Formal Testacy Order entered 1/26/2016; or alternatively for Imposition of Constructive Trust. Gail's counsel argued the 6 Point Document should have been included in the Order of Formal Probate of the Will. The issue was fully briefed. On January 9, 2017, Gail withdrew her creditor claim against the Estate.

¶ 10 On January 18, 2017, the District Court denied Gail's Motion for Relief From Formal Testacy Order entered 1/26/2016; or alternatively for Imposition of Constructive Trust. Gail appeals the denial of her Motion for Relief. We affirm.

STANDARD OF REVIEW

¶ 11 We review a district court's ruling denying a motion to alter or amend its judgment pursuant to Rule 60(b), M. R. Civ. P., for an abuse of discretion. Heller v. Gremaux, 2002 MT 199, ¶ 7, 311 Mont. 178, 53 P.3d 1259.

¶ 12 The interpretation and construction of a statute is a matter of law, and we review whether the district court interpreted and applied a statute correctly de novo. State v. Triplett, 2008 MT 360, ¶ 13, 346 Mont. 383, 195 P.3d 819.

¶ 13 This Court reviews factual findings to determine whether they are clearly erroneous. Roland v. Davis, 2013 MT 148, ¶ 21, 370 Mont. 327, 302 P.3d 91. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the court misapprehended the effect of the evidence or if, upon reviewing the record, this Court is left with the definite and firm conviction that the district court made a mistake. Roland, ¶ 21.

DISCUSSION

¶ 14 Issue One: Did the District Court err in determining M. R. Civ. P. 60(b) did not apply?

¶ 15 Gail asserts that M. R. Civ. P. 60(b)(6) governs her January 26, 2016 Motion for Relief From Formal Testacy Order, or alternatively for Imposition of Constructive Trust, not § 72-3-317, MCA. Gail argues the District Court erred when it determined that M. R. Civ. P. 60(b)(6) does not apply to formal testacy orders because it is inconsistent with § 72-3-317, MCA.

¶ 16 Rule 60(b) applies generally to final judgments, orders, or proceedings, while § 72-3-317, MCA, applies specifically to formal testacy orders. Rule 1 of the Montana Rules of Civil Procedure states "these rules govern the procedure in all civil actions and proceedings in the district courts of the state of Montana, including probate proceedings, unless specifically provided to the contrary in the Uniform Probate Code." Montana adopted the Uniform Probate Code (UPC) in 1947 as codified in § 72-1-101, MCA, et seq. (formerly R.C.M., 91A-1-101(1947)). The UPC, § 72-1-207, MCA, provides that "unless specifically provided to the contrary in this code or unless inconsistent with its provisions, the rules of civil procedure, including the rules concerning vacation of orders and appellate review, govern formal proceedings under this code."

¶ 17 Therefore, the Montana Rules of Civil Procedure apply to all probate actions and proceedings, unless specifically provided to the contrary in the UPC or the Rules of Civil Procedure are inconsistent with the provisions of the UPC.

¶ 18 For the case at hand, the UPC, § 72-3-317, MCA, specifically provides that a formal testacy order is "final as to all persons with respect to all issues." When a petitioner seeks relief from a formal testacy order, their petition is "subject to appeal and subject to vacation as provided in 72-3-318 and this section." Section 72-3-317, MCA. The plain language of the statute allows for an appeal or vacation from a formal testacy order only under the terms provided in §§ 72-3-317 and -318, MCA.

¶ 19 Section 72-3-317, MCA, is inconsistent with M. R. Civ. P. 60 because no petition for probate of any other instrument may be entertained unless the final testacy order is first appealed or vacated as stated in § 72-3-317, MCA.

¶ 20 Gail cites a list of non-jurisdictional UPC cases asserting that final testacy orders are subject to collateral attack under M. R. Civ. P. 60(b).¹ After review of these cases, we disagree with their application to the case at hand. Under the facts of this case, a petition for relief from a formal testacy order based on a later offered will, are entertained under §§ 72-3-317 and -18, MCA.

¶ 21 The District Court properly interpreted M. R. Civ. P. 60 and § 72-3-317, MCA, correctly determining that Gail's motion for relief from the formal testacy order must be considered under § 72-3-317, MCA. Therefore, we decline to address Gail's analysis of the motion for relief from formal testacy order under M. R. Civ. P. 60(b)(6).

¶ 22 Issue Two: Did the District Court err in denying Gail's motion to modify a formal testacy order under § 72-3-317(4), MCA ?

¶ 23 In the District Court, Gail asserted § 72-3-317(4), MCA, allows for modification of the Final Probate Order; thereby, allowing the 6 Point Document to be included in the order as a codicil to the will. Gail asserted in her motion and in her appeal that her previous counsel was grossly negligent regarding the introduction of the 6 Point Document to the District Court, that previous counsel was negligent in their unfamiliarity with Montana law, and that the Estates' Personal Representative breached his fiduciary duties by failing to present the 6 Point Document at the January 26, 2016 hearing. Gail asserted this created an appropriate circumstance to provide relief under § 72-3-317(4), MCA. The District Court denied Gail's claim, finding §...