In the Matter of The EState Justene Harmon

Decision Date25 May 2011
Docket NumberNo. DA 10–0341.,DA 10–0341.
Citation2011 MT 84,253 P.3d 821,360 Mont. 150
PartiesIn the Matter of the ESTATE OF Cecelia Justene HARMON, Deceased.
CourtMontana Supreme Court

OPINION TEXT STARTS HERE

For Appellant: Steven T. Potts; Steven T. Potts, PLLC; Great Falls, Montana.For Appellee: Joseph M. Sullivan; Deschenes & Sullivan; Great Falls, Montana.Justice BETH BAKER delivered the Opinion of the Court.

[360 Mont. 151] ¶ 1 Appellant Dennis Waitt (Waitt) appeals from the order of the Eighth Judicial District Court granting summary judgment in favor of the Estate's Personal Representative, Roger Harmon (Harmon). We affirm the District Court and remand for further proceedings.

¶ 2 We consider the following issues on appeal:

¶ 3 1. Whether the District Court erred in granting summary judgment in favor of Harmon.

¶ 4 2. Whether the District Court erred in denying Waitt's motion to vacate, alter or amend.

¶ 5 3. Whether the District Court erred in denying Waitt's Rule 56(f) motion.

¶ 6 4. Whether Harmon is entitled to attorney's fees and costs.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 7 This case concerns two competing wills made slightly over one month apart near the end of the decedent's life. The District Court granted Harmon's motion for summary judgment in favor of the probate of a will executed by the decedent, Cecilia Harmon (Cecilia), on January 31, 2009 (the “ January Will”). The court dismissed Waitt's formal petition to probate a handwritten document Waitt claims is a valid holographic will executed by Cecilia in December 2008, and denied Waitt's motion to vacate, alter or amend the order granting summary judgment in favor of Harmon.

¶ 8 Cecilia's first will was executed in 1976. This initial will left the entirety of her estate to her then-husband should he survive her, and to her adopted son Harmon should her husband predecease her. In 2008, Cecilia suffered a stroke and Waitt became her caregiver some time thereafter. On December 23, 2008, Cecilia hand wrote the document that Waitt contends is a valid holographic will (the “Holographic Will”). The document did not explicitly revoke the 1976 will, but left several pieces of property to Waitt and provided that Cecilia's tenant Kermit Knudson (Knudson) would have the option to purchase the property he had long rented at a fraction of its appraised value.

¶ 9 In January 2009, Cecilia was hospitalized with an illness that was later determined to be pancreatic cancer. She was released several weeks later. On January 31, Cecilia executed a self-proved will at her home, in the presence of her attorney, Joseph Sullivan (Sullivan), two witnesses from Sullivan's office, Harmon, and Harmon's family. This will explicitly revoked all prior wills, including the 1976 Will and the Holographic Will, and left all property to Harmon.

¶ 10 Cecilia made both Harmon and Sullivan aware of her desires with respect to Waitt and Knudson. Sullivan's affidavit stated he discussed with Cecilia the January Will's omission of explicit bequests to Waitt and specifically offered to reinstate those bequests, but Cecilia confirmed her desire that Harmon simply carry out her wishes.

¶ 11 Cecilia died on March 29, 2009. The January Will was informally admitted to probate on April 8. Harmon was appointed Personal Representative of the Estate. On September 2, 2009, Harmon filed a motion seeking court approval of his proposed partial distribution of the estate and sale of real property. The District Court entered an order approving the proposed distributions shortly thereafter. With that approval, Harmon facilitated the transfer of a home and two vehicles to Waitt and the discounted purchase of the rental home by Knudson. Waitt received less property than the Holographic Will had left him, however, and Knudson purchased the home at a substantially lesser discount than was provided for in the Holographic Will.

¶ 12 On November 20, 2009, Waitt filed a motion seeking his own appointment as Personal Representative and formal probate of the Holographic Will. Harmon filed a motion for summary judgment on November 27, 2009, seeking confirmation of the January Will. The District Court held a hearing on Harmon's motion on March 23, 2010. Waitt filed a Rule 56(f) motion and supporting documents on the day of trial seeking a continuance for additional discovery. After oral argument, the court denied Waitt's Rule 56(f) motion and granted summary judgment to Harmon in open court. The court subsequently issued a written order on March 26 incorporating its oral decision.

¶ 13 Waitt filed a motion to vacate, alter or amend on April 16, 2010. The District Court took no action within 60 days, and the motion was deemed denied pursuant to M.R. Civ. P. 52(d). Waitt timely appealed.

STANDARD OF REVIEW

¶ 14 We review de novo a district court's grant of summary judgment, using the same standards applied by the district court under M.R. Civ. P. 56. Rich v. Ellingson, 2007 MT 346, ¶ 12, 340 Mont. 285, 174 P.3d 491. The moving party has the burden of establishing the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. Once the moving party has met this burden, the non-moving party must present substantial evidence essential to one or more elements of the case to raise a genuine issue of material fact. Apple Park, L.L.C. v. Apple Park Condos., L.L.C., 2008 MT 284, ¶ 11, 345 Mont. 359, 192 P.3d 232. Reliance upon “conclusory statements” lacking specific factual support is not sufficient to raise a genuine issue of material fact. PPL Mont., L.L.C. v. State, 2010 MT 64, ¶ 84, 355 Mont. 402, 229 P.3d 421 (citing Smith v. Burlington N. and Santa Fe Ry. Co., 2008 MT 225, ¶ 10, 344 Mont. 278, 187 P.3d 639). We review evidentiary rulings made in the context of a summary judgment proceeding de novo, in order to determine whether the evidentiary requirements for summary judgment have been satisfied. PPL Mont., ¶ 85.

¶ 15 We review the denial of a motion to vacate, alter or amend for an abuse of discretion. Essex Ins. Co. v. Moose's Saloon, Inc., 2007 MT 202, ¶ 16, 338 Mont. 423, 166 P.3d 451. We review a district court's conclusions of law to determine whether they are correct. Stanton v. Wells Fargo Bank Mont., N.A., 2007 MT 22, ¶ 17, 335 Mont. 384, 152 P.3d 115.

DISCUSSION

¶ 16 Whether the District Court erred in granting summary judgment in favor of Harmon.

¶ 17 Waitt raises numerous assertions of error regarding the District Court's grant of summary judgment. He argues that Harmon's motion was improperly granted due to the existence of genuine issues of material fact, the erroneous exclusion of portions of affidavit testimony submitted by Waitt, and the court's failure to analyze the elements of undue influence under § 28–2–407, MCA. Because the correctness of the District Court's ruling on summary judgment depends on the resolution of these sub-issues, we will address each in turn.

¶ 18 Existence of genuine issues of material fact.

¶ 19 Under § 72–3–310, MCA, the proponent of a will has the burden of establishing that it has been duly executed under the criteria set out in § 72–2–522(1), MCA. Where a will has been simultaneously executed, attested and acknowledged by the testator and witnesses, in the manner set out in § 72–2–524, MCA, it is self-proved and may be admitted to probate without testimony of the attesting witnesses. Section 72–3–309(2), MCA. Where a duly executed will is admitted to probate, a further presumption exists that the testator was competent and of sound mind. In re Est. of Brooks, 279 Mont. 516, 521, 927 P.2d 1024, 1027 (1996). Furthermore, the party contesting a will bears the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation, and bears the ultimate burden of persuasion on these elements. Section 72–3–310, MCA.

¶ 20 Waitt's sole contention is that the January Will was a result of undue influence. Section 28–2–407, MCA, defines undue influence as:

(1) the use by one in whom a confidence is reposed by another person or who holds a real or apparent authority over the other person of the confidence or authority for the purpose of obtaining an unfair advantage over the other person;

(2) taking an unfair advantage of another person's weakness of mind; or

(3) taking a grossly oppressive and unfair advantage of another person's necessities or distress.

To determine whether the statutory requirements have been met, a court may consider: (1) any confidential relationship between the person alleged to be exercising undue influence and the donor; (2) the physical condition of the donor as it may affect his or her ability to withstand influence; (3) the mental condition of the donor as it may affect his or her ability to withstand influence; (4) the unnaturalness of the disposition as it relates to showing an unbalanced mind or a mind easily susceptible to influence; and (5) the demands and importunities as they may affect the donor, taking into account the time, place and surrounding circumstances. In re Est. of Harms, 2006 MT 320, ¶ 21, 335 Mont. 66, 149 P.3d 557 (citations omitted). These criteria are nonexclusive considerations available to guide the court in its application of statutory requirements, and may or may not be present in any given undue influence case. Id. at ¶ 21 (citing In re Est. of Bradshaw, 2001 MT 92, ¶ 16, 305 Mont. 178, 24 P.3d 211; Mowrer v. Eddie, 1999 MT 73, ¶ 31, 294 Mont. 35, 979 P.2d 156).

¶ 21 We also have explained that the mere opportunity to exercise undue influence on the testator is not sufficient to prove undue influence. We consider opportunity together with the alleged acts of influence to determine if the acts amount to undue influence. In re Est. of Lien, 270 Mont. 295, 304, 892 P.2d 530, 535 (1995). To meet his burden and defeat summary judgment, therefore, Waitt was required to present admissible...

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