Powell v. Dicksion (In re Estate of Dicksion)

• Decision Date: 09 July 2012
• Docket Number: No. 107,295.,107,295.
• Citation: Powell v. Dicksion (In re Estate of Dicksion), 286 P.3d 283, 2011 OK 96 (Okla. 2012)
• Parties: In the Matter of the ESTATE OF Valatus Merral DICKSION. Thomas Powell and Kolleen M. Mailloux, Appellants/Counter–Appellees, v. Archie Dicksion, Appellee/Counter–Appellant.
• Court: Oklahoma Supreme Court

286 P.3d 283

2011 OK 96

In the Matter of the ESTATE OF Valatus Merral DICKSION.Thomas Powell and Kolleen M. Mailloux, Appellants/Counter–Appellees,

v.Archie Dicksion, Appellee/Counter–Appellant.

No. 107,295.

Supreme Court of Oklahoma.

June 25, 2012.

Rehearing Denied June 25, 2012.

As Corrected July 9, 2012.

CERTIORARI TO THE COURT OF CIVIL APPEALS DIVISION IV;Honorable John A. Blake, Trial Judge

¶ 0The appellee/counter-appellant, Archie Dicksion(Dicksion/personal representative) filed a petition for the probate of the holographic will of his brother in the District Court of Garvin County, Oklahoma.Subsequently, Thomas Powell(Powell/son) asserted that he was a pretermitted heir of the deceased.With the family's cooperation, DNA genetic testing was conducted and the tests determined that Powell was the son of the decedent.The trial court determined that Powell was an unintentionally omitted child and entitled to his statutory share of the estate.Powell and his half-sister, the decedent's daughter, also challenged the admittance of the holographic will to probate and the personal representative's appointment.The application to vacate the order was denied.Both Powell and the personal representative appealed and the Court of Civil Appeals reversed and remanded.We granted certiorari to address the application of paternity testing to intestate and probate proceedings.We hold that: 1) under the facts presented, the objections to admission of the holographic will were not untimely; 2) the paternity statute, 84 O.S.2001 215, applies to intestate and probate proceedings; and 3) 58 O.S.2001 122 prohibits the appointment of a business partner as personal representative only when the proceedings are intestate or when the business partner is not named personal representative in a will.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; CAUSE AFFIRMED IN PART/REVERSED IN PART AND REMANDED.

Yasodhara M. Means, Norman, Nancy K. Anderson, Oklahoma City, Oklahoma, for Appellants/Counter–Appellees.

James W. Carlton, Jr., Brett Agee, Pauls Valley, Oklahoma, for Appellee/Counter–Appellant.

Cameron L. Miller, Denton, Texas, Pro se.

Jeanie Mendes, Wailuki, Hawaii, Interested Party.

KAUGER, J.:

¶ 1 The three dispositive issues presented by this appeal and counter-appeal are whether: 1) the objection to admission of the holographic will was timely; ¹ 2) the paternity statute, 84 O.S.2001 215,² applies to intestate and probate proceedings; and 3) 58 O.S.2001 122³ prohibits the appointment of a business partner as personal representative when the will does not make any provisions for such an appointment.We hold that: 1) under the facts presented, the objection to the admission of the holographic will was not untimely; 2) 84 O.S.2001 215 applies to intestate and probate proceedings; and 3) 58 O.S.2001 122 prohibits the appointment of a business partner as personal representative only when the proceedings are intestate or when the business partner is not named personal representative in a will.

FACTS

¶ 2 On December 20, 2006, the appellee/counter-appellant, Archie M. Dicksion, (Dicksion/personal representative) filed a petition for the probate of the holographic will of his brother, Valatus Merral Dicksion, in the District Court of Garvin County, Oklahoma.The will was written in ink on four pages of heavily stained notebook paper.The provision naming his daughter as administrator of the estate was marked out.The will was partially dated and purportedly signed by the decedent.⁴

¶ 3 On January 18, 2007, the will was admitted to probate and Dicksion was appointed personal representative of his brother's estate.According to the petition for probate, the heirs of the decedent consisted of a deceased wife, Estella G. Dicksion, and two adult daughters, Kolleen Mailloux of Los Angeles, California, and Kelli Laine, of Corona, California (Mailloux/Laine).The petition does not mention the decedent's adult son, Thomas Powell of Shreveport, Louisiana (Powell/son).The son was born out of wedlock to Inex Wahlstrom and the decedent in California in 1952 and placed for adoption one year later.⁵

¶ 4 On February 8, 2007, Mailloux, objected to any further proceedings until the proposed sale of certain real property had been appraised and the circumstances surrounding the execution of the alleged holographic will had been fully and fairly litigated.On March 8, 2007, the trial court determined that the real property in question was not an asset of the estate, but rather belonged to Whispering Pines Ranch, L.L.C. as the record owner.Consequently, it determined that it had no jurisdiction over the sale of the real property.On March 9, 2007, the personal representative filed an application to determineheirs, noting that Powell alleged that he was the son of the decedent and entitled to his share of the estate.The application requested that the court make a determination as to whether the son was the legal heir of the deceased.

¶ 5 On March 29, 2007, Powell filed the application for his share of the estate as an unintentionally omitted child alleging that he was the biological son of the deceased.DNA genetic testing was conducted and the tests determined that Powell was the son of the decedent.On July 3, 2007, at the hearing on Powell's application, the court granted the application finding that Powell was an pretermitted heir and entitled to his statutory share of the estate.

¶ 6 On December 4, 2007, the personal representative filed a petition for an order allowing a final account of the estate, a determination of heirship, and a petition for final decree of distribution and discharge.On January 10, 2008, the appellants, Powell and Mailloux, filed objections to the final accounting and included a list of concerns regarding the estate and the transfer of various properties from the estate.

¶ 7 At this stage of the proceeding, several continuances were granted, objections to a final accounting were filed by additional heirs and the heirs of the deceased's widow, and ultimately the trial court added Whispering Pines L.L.C. and the personal representatives as parties to the probate proceeding.Whispering Pines L.L.C., was owned in half by the decedent and his wife and half by the personal representative/brother.The trial court determined that the assets of the company were so intertwined with the estate assets that the company had to be included as a party to the proceedings.

¶ 8 By November 3, 2008, the objections had been overruled, the final accounting was approved for distribution according to the terms of the will, with the exception of Powell who was awarded his share as an unintentionally omitted heir.The final probate order was filed on December 9, 2008.Two days later, Powell asked for an extension of time and stay of the final accounting so that he could secure a new lawyer.

¶ 9 On December 29, 2008, Powell filed a motion for new trial pro se challenging the December 9, 2008, order.Subsequently, on January 20, 2008, Powell, through his new lawyer, filed an amended motion for new trial arguing that: 1) the accounting of the assets of the estate was erroneous; 2) the Court had never ruled on the objections to the holographic will; and 3) the personal representative, as a business partner of the decedent should not have been appointed as personal representative.We treat the motion for new trial as a timely application to correct, open, modify, or vacate the order pursuant to 12 O.S.2001 1031.1.

¶ 10 On May 26, 2009, the application to vacate the order was denied and an order reflecting the ruling was filed on June 8, 2009.On June 11, 2009, the trial court denied the personal representative's oral motion to tax Powell for additional attorney fees incurred by the estate.Instead, it allowed the Powell's attorney fees from his previous lawyer to be paid from Powell's share of the estate.

¶ 11 Powell appealed the trial court's denial of the new trial motion on July 8, 2009, asserting that the trial court committed reversible error: 1) by admitting the holographic will; 2) by appointing the brother/partner as personal representative; and 3) in its valuation and distribution of the estate.Two days later, the personal representative filed a counter-appeal alleging that the trial court erred when it: 1) determined that Powell was an omitted heir; 2) awarded Powell a portion of the estate; and 3) awarded Powell attorney fees instead of imposing fees against Powell.

¶ 12The Court of Civil Appeals reversed and remanded both appeals for further proceedings, determining that trial court erred when it allowed post-death determination of paternity as a basis for inheritance.On September 8, 2010, Powell filed a petition for certiorari and we granted the petition on December 14, 2010.

I.¶ 13 UNDER THE FACTS PRESENTED, THE OBJECTION TO THE ADMISSION OF THE HOLOGRAPHIC WILL WAS NOT UNTIMELY.

¶ 14 The personal representative argues that no timely objection to the admissionof the holographic will was made because the document that the objection was contained in did not conform to the requirements of 58 O.S.2001 61.⁶The son insists that the objection was timely; but no evidentiary hearing was ever held regarding the will contest or the will's admission.

¶ 15We note at the outset that this is not a case in which an unintentionally omitted heir appeared and attempted to contest a will which had already been probated.Had this been the case, 58 O.S.2001 242⁷ which provides that if no person contests a will within 60 days after a will has been admitted, the will is conclusive, would have prevented such a result.Rather, the pretermitted heir in the instant cause has been involved in this proceeding since the will was admitted to probate, and 58 O.S.2001 61⁸ sets forth the time limits and form of contesting an admitted will to probate.It is true the precise petition provided by § 61 was not filed.However, the...