                                                                                         October 1 2013


                                        DA 13-0189

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        2013 MT 283



IN THE MATTER OF THE ESTATE OF
CATHERINE MARIE HARLESS,

         Deceased.



APPEAL FROM:      District Court of the Fifth Judicial District,
                  In and For the County of Beaverhead, Cause No. DP-11-5237
                  Honorable Loren Tucker, Presiding Judge


COUNSEL OF RECORD:

           For Appellant Linda Hyde:

                  Stephanie Gehres Kruer; Kruer Law Firm, P.C.; Sheridan, Montana

           For Appellee Kelli Martin:

                  J. Blaine “J.B.” Anderson, Jr.; Attorney at Law; Dillon, Montana



                                                Submitted on Briefs: September 4, 2013

                                                           Decided: October 1, 2013


Filed:

                  __________________________________________
                                    Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1        Catherine Harless, deceased, was the sister of Linda Hyde and the mother of Kelli

Martin. Martin petitioned to be appointed personal representative to probate her mother’s

estate.     Hyde opposed the petition, asserting Harless had executed a will in 2002

(hereinafter Will) naming Hyde as executrix. The Fifth Judicial District Court ruled that

Harless had revoked the 2002 Will upon which Hyde was relying, and that Harless

therefore died intestate and her daughter was entitled to be appointed personal

representative. Hyde appeals. We reverse and remand.

                    FACTUAL AND PROCEDURAL BACKGROUND

¶2        In May 2002, then-fifty-five-year-old Catherine Harless was preparing to depart

on a season-long work experience aboard a fishing ship working in Alaskan waters. Prior

to departure, she acquired a form “Last Will and Testament” which she completed in her

handwriting on May 28, 2002. In this Will, she expressly devised $1.00 each to her two

daughters (Kelli Martin and Heather Gordon) and $1.00 each to her two grandchildren.

She also expressly declared that her daughters and grandchildren were “not allowed” to

have anything else of her belongings or to be on any real property Harless owned.

¶3        Harless then devised all her personal belongings, real property, dwellings, and

animals to her sister Linda Hyde, or alternatively—if for any reason Hyde was unable to

fulfill Harless’s expressed wishes—to Hyde’s two sons, Ted and Todd Holverson

(hereinafter Ted and Todd). She named Hyde as executrix and the Will was signed by a

notary and two witnesses. However, the parties dispute whether Harless properly signed

the Will.

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¶4     In October 2003, Harless executed a Warranty Deed granting real property she

owned in Montana to Ted. She later claimed she had deeded the property to Ted based

upon a mutual agreement that Ted would return the property to her at any time upon her

request. Harless asserted that in 2007 she asked Ted to return the property but he refused.

As a result of Ted’s refusal, in July 2008, Harless sued Ted for breach of contract, fraud,

and undue influence, among other things. This litigation remains pending.

¶5     Shortly thereafter, Harless wrote a letter to Hyde declaring that she (Harless) was

out of Hyde’s life and the lives of Hyde’s family, including Hyde’s husband and sons Ted

and Todd. In 2009, at a deposition taken in her legal action against Ted, Harless stated

that her 2002 Will was “no longer valid” because it was “a joke.”

¶6     Harless did not execute another will prior to her death in California on October 2,

2010. In December 2010, Hyde commenced probate proceedings in the Superior Court

of California based upon Harless’s 2002 Will. In March 2011, the California Court

dismissed Hyde’s action in a “minute order,” stating that the 2002 Will was not a validly

executed will because it did not contain Harless’s signature.       In May 2011, Martin

petitioned Montana’s Fifth Judicial District Court to (1) adjudicate that her mother died

intestate, (2) appoint her as personal representative, and (3) determine the heirs to her

mother’s estate. Hyde opposed Martin’s petition.

¶7     In February 2013, the District Court ruled that Harless died intestate and Martin

was entitled under the priorities set forth in § 72-3-502, MCA, to be appointed as

personal representative. The court found that Harless had not signed the Will because her

name was printed rather than written in cursive script. The court concluded that the

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California probate court’s determination that Harless’s 2002 Will was not a valid will

was “persuasive” and agreed that the Will was invalid. Additionally, the court concluded

that three separate actions taken by Harless constituted a revocation of the 2002 Will: (1)

suing her nephew who was an heir under the Will; (2) writing Hyde a letter in 2008

denouncing a relationship with her and her family; and (3) stating in her 2009 deposition

that the Will was not valid and was a joke. It is from the District Court’s February 2013

order that Hyde appeals.

                                          ISSUES

¶8     Hyde raises the following issues on appeal:

¶9     Did the District Court incorrectly apply the Montana Uniform Probate Code to the

holographic writing Hyde claims is Harless’s Will?

¶10    Did the District Court err by concluding that Harless revoked the subject Will?

¶11    Did the District Court misapprehend the evidence concerning the testamentary

intent of Harless?

¶12    Did the District Court err by relying on an informal ruling in a separate California

probate case concerning Harless’s estate?

                               STANDARD OF REVIEW

¶13    We review a district court’s findings of fact to ascertain whether they are clearly

erroneous. A finding is clearly erroneous if it is not supported by substantial credible

evidence, if the trial court has misapprehended the effect of the evidence, or if a review of

the record leaves us with the definite and firm conviction that a mistake has been



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committed. We review a district court’s conclusions of law for correctness. In re Estate

of Hannum, 2012 MT 171, ¶ 19, 366 Mont. 1, 285 P.3d 463 (internal citation omitted).

                                      DISCUSSION

¶14    Did the District Court err in its application of the Montana Uniform Probate Code
       to the holographic writing Hyde claims is Harless’s Will?

¶15    Hyde argues that the District Court repeatedly relied upon incorrect statutes in its

determination that Harless’s 2002 Will was not entitled to probate under Montana law.

Rather than recite and analyze the alleged statutory errors, we will look to the correct

statutes and determine if they support the court’s conclusion.

¶16    We note at the outset that, as the proponent of a will in a contested case, Hyde has

the burden of presenting a prima facie case of “due execution” of the will. Section

72-3-310, MCA; In re Estate of Brooks, 279 Mont. 516, 521-22, 927 P.2d 1024, 1027

(1996); In re Estate of Hall, 2002 MT 171, ¶ 11, 310 Mont. 486, 51 P.3d 1134. Section

72-2-522(1), MCA, contains the requirements of a duly executed will and provides:

       (1) Except as provided in 72-2-523, 72-2-526, 72-2-533, and subsection (2)
       of this section, a will must be:
               (a) in writing;
               (b) signed by the testator or in the testator’s name by some other
       individual in the testator’s conscious presence and by the testator’s
       direction; and
               (c) signed by at least two individuals, each of whom signed within a
       reasonable time after having witnessed either the signing of the will as
       described in subsection (1)(b) or the testator’s acknowledgment of that
       signature or acknowledgment of the will.
               (2) A will that does not comply with subsection (1) is valid as a
       holographic will, whether or not witnessed, if the signature and material
       portions of the document are in the testator’s handwriting.
               (3) Intent that the document constitute the testator’s will may be
       established by extrinsic evidence, including, for holographic wills, portions
       of the document that are not in the testator’s handwriting.

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¶17    Hyde asserts that Harless’s Will was duly executed and satisfies the requirements

set forth in § 72-2-522(1)(a)-(c), MCA. She maintains that Harless completed the Will in

her own handwriting, using both block printing and cursive writing, which was typical

for Harless. Hyde acknowledges that Harless may not have signed the Will in the place

designated on the form for her signature but explains that the notary inadvertently signed

the Will “in [Harless’s spot].” Relying on In re Estate of Kuralt, 1999 MT 111, ¶ 3 n. 1,

294 Mont. 354, 981 P.2d 771, in which we concluded that a letter signed with the single

printed initial “C” constituted a valid signature to a will codicil, Hyde maintains that

Harless’s printed signature is adequate to satisfy the requirements of § 72-2-522, MCA.

¶18    Martin counters that her mother did not sign the 2002 document because she did

not intend it to be her will and therefore it is not a valid will. She claims that Harless

knew how to sign a legal document and referred the Court to the Warranty Deed with Ted

and a 2003 landlord-tenant agreement executed by Harless.

¶19    If Harless’s printed name constitutes a valid signature, Harless’s Will satisfies the

requirements of § 72-2-522, MCA. Because the validity of the signature is brought into

question, however, as did the District Court and the parties, we next consider the Will

under § 72-2-523, MCA. As we stated in Edwards, immediately before analyzing the

applicability of § 72-2-523, MCA, to the will in that case:             “Even absent due

execution . . . document still can be admitted to probate as a valid will under certain

circumstances.” Edwards, 279 Mont. at 522, 927 P.2d at 1027. Section 72-2-523, MCA,

captioned “[w]ritings intended as wills,” provides in relevant part:


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       Although a document . . . was not executed in compliance with 72-2-522,
       the document . . . is treated as if it had been executed in compliance with
       that section if the proponent of the document . . . establishes by clear and
       convincing evidence that the decedent intended the document . . . to
       constitute:
              (1) the decedent’s will;
              (2) a partial or complete revocation of the will;
              (3) an addition to or an alteration of the will . . . .

¶20    Both the notary and one of the witnesses to the 2002 Will testified that the two

witnesses and the notary were all present when Harless signed the document in block

printed letters on the second page of the document and that it was presented to them as

her Last Will and Testament. Moreover, the record reflects that Harless acknowledged

the document as her will in 2009 in a sworn deposition. These undisputed facts establish

that Harless intended the 2002 Will to be her will under § 72-2-523, MCA.

¶21    In light of the foregoing, we conclude Harless executed a valid will in 2002 under

either §§ 72-2-522 or -523, MCA. We therefore conclude Hyde, as the proponent of the

Will, has met her burden of presenting a prima facie case of due execution as required by

§ 72-3-310, MCA. We next address whether Harless revoked this Will.

¶22    Did the District Court err by concluding that Harless revoked the subject Will?

¶23    There are finite and specific statutory means by which a will may be revoked.

Section 72-2-527(1)(a), MCA, provides that a will or any part of a will is revoked when

the testator executes a later will expressly revoking all or part of a previous will. Section

72-2-527(1)(b), MCA, alternatively provides that a testator may take an action that

effectively demonstrates his or her intent to revoke a will, by burning, tearing, canceling,

obliterating, marking on, or destroying the will or any part of it. These are the sole means


                                             7
of revocation under the statute. As Hyde notes, Harless took none of these actions. She

did not execute a subsequent will nor did she deface or destroy the 2002 Will. Hyde

maintains that the actions Harless took—suing her nephew, writing a nasty letter to her

sister, and remarking in a deposition that the Will was not “valid” and was a “joke”—

simply are not actions that suffice under law to revoke a duly executed will.

¶24    Martin, on the other hand, asserts that both the letter to Hyde and the complaint in

Harless’s action against Ted are acts that illustrate Harless’s intent to revoke her Will

under §§ 72-2-5221 and -523, MCA. Martin relies on Kuralt but we find that case

distinguishable. In Kuralt, Kuralt’s letter was intended to be a will expressly devising

certain real property to an identified heir; therefore it was appropriately analyzed under

§ 72-2-523, MCA. Here, Harless’s letter to Hyde was not intended to be a will, nor did it

provide for distribution of Harless’s assets upon Harless’s death. Similarly, Harless’s

complaint against Ted was not intended as a will. As such, § 72-2-523, MCA, does not

apply; rather, § 72-2-527, MCA, the statute that specifically describes the method for

revoking a will is applicable.

¶25    As the parties note, and as evidenced by the colorful and adamant language used

by Harless in her correspondence with her family, Harless was disposed to sharp mood

swings and histrionics. It is apparent that she was inclined at times to change her mind.

However, we are not at liberty under the applicable statutes to conclude that Harless’s


1
  Section 72-2-522, MCA, addressing the execution of holographic wills, does not include a
reference to “a holographic revocation of a will,” as argued by Martin. This statute, on its face,
does not address revocation of a will.


                                                8
conduct sufficed to revoke her Will, as our discretion is cabined by the terms of

§ 72-2-527, MCA. Harless did not satisfy the terms of this statute, and neither her letter

to her sister nor her complaint against her nephew qualify as actions sufficient to revoke a

will under the governing statute. We further note that § 72-2-528, MCA, provides that a

change of circumstances does not revoke a will or any part of it. We therefore conclude

that Harless’s 2002 Will is valid, and that it has not been revoked.

                                     CONCLUSION

¶26    Having concluded that Harless’s 2002 Will was a valid will that Harless did not

revoke, we need not address Hyde’s remaining issues. We reverse the order of the

District Court and remand with instructions that Harless’s 2002 Will be probated.



                                                 /S/ PATRICIA COTTER


We Concur:


/S/ MICHAEL E WHEAT
/S/ JIM RICE
/S/ LAURIE McKINNON
/S/ BRIAN MORRIS




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