                                                                                     June 30 2015


                                    DA 14-0605
                                                                                   Case Number: DA 14-0605

         IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    2015 MT 182



IN THE MATTER OF THE ESTATE OF
DOROTHEA E. HARRIS,

          Deceased.


APPEAL FROM:      District Court of the Eleventh Judicial District,
                  In and For the County of Flathead, Cause No. DP 13-124(D)
                  Honorable David M. Ortley, Presiding Judge


COUNSEL OF RECORD:

           For Appellant:

                  Stephen R. Brown, Garlington, Lohn & Robinson, PLLP, Missoula,
                  Montana

           For Appellee:

                  C. Mark Hash, Hash, O’Brien, Biby & Murray, PLLP, Kalispell, Montana



                                              Submitted on Briefs: March 4, 2015
                                                         Decided: June 30, 2015


Filed:

                  __________________________________________
                                    Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     The surviving adult children (Contestants) of decedent Dorothea Harris (Dorothea)

dispute both the informal probate process brought by their stepfather Lincoln Harris

(Harris) as well as the validity of a will that devised to Harris all of the mineral rights

from their mother’s estate. Contestants appeal an order of the Eleventh Judicial District

Court, Flathead County, granting summary judgment in favor of Harris and concluding

that Contestants had not offered sufficient evidence to challenge Dorothea’s testamentary

capacity or to support their allegations of undue influence. We restate the issues on

appeal as follows:

       1. Whether the District Court’s order allowing probate of Dorothea’s estate
       complies with § 72-3-122, MCA.

       2. Whether the District Court erred in granting summary judgment to Harris on
       Contestants’ objections.

¶2     We affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     Dorothea married Harris in 1965 after the death of her first husband, Frank

Kinniburgh, in 1963. Frank Kinniburgh is the natural father of the three Contestants.

Dorothea and Frank Kinniburgh also had a fourth child, Theodore, who died in 1997.

¶4     Dorothea’s maiden name was Whiteman.           Dorothea inherited certain mineral

interests in Richland County from her Whiteman ancestors. On March 4, 1983, Dorothea

executed a will (1983 Will) that devised in equal shares to her children, Contestants and

Theodore, and her husband, Harris, all of her mineral interests in Richland County.


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During 1997, Theodore became ill from a heart condition and died. Dorothea acted as

Theodore’s primary caregiver while he was ill. Dorothea also was sick during the time

she cared for Theodore and, following his illness and death, Dorothea’s health declined.

Dorothea died two years later, in 1999.

¶5     On April 9, 1997, during the time that Dorothea was caring for Theodore, she

executed a new will (1997 Will). The 1997 Will left Dorothea’s entire estate to Harris,

including all of the mineral interests in Richland County, and named Harris as Personal

Representative. Harris believed that he and Dorothea held all assets jointly with rights of

survivorship and therefore that he did not need to probate Dorothea’s 1997 Will.

Earnings from the oil and gas royalties apparently were made payable to both Dorothea

and Harris during their marriage.

¶6     Fourteen years later, in 2013, while preparing to drill a well involving the

Richland County interests, Diamond Resources, an oil and gas company, determined that

Harris was not, in fact, the legal owner of the mineral interests. Diamond Resources

informed Harris that a Montana probate proceeding would be required before proceeds

from those interests could be distributed. Specifically, Diamond Resources required a

deed of distribution conveying Dorothea’s mineral interests. Accordingly, in July 2013,

Harris filed an application for informal probate of the 1997 Will and for appointment as

Personal Representative.

¶7     The Clerk of Court granted Harris’s application, admitted the 1997 Will to

informal probate, and—as specified in the will—appointed Harris as Personal


                                            3
Representative. After receiving notice of the informal probate, Contestants filed pro se

requests for a hearing to contest the transfer of all the mineral interests to Harris.

Contestants maintained that it was their mother’s intent that they inherit the mineral

rights in Richland County. Responding to Contestants’ filings, the District Court ordered

that no hearing would be held until Contestants filed verified objections under

§ 72-1-310, MCA. Contestants filed objections and the District Court held a status

conference, at which time the court determined that no distribution of the mineral

interests would occur until the objections were resolved.

¶8     A few months later, Harris, in his capacity as Personal Representative, moved for

summary judgment and requested that the court allow informal probate of the estate in

accordance with the 1997 Will. Contestants, through counsel, opposed the motion on the

grounds of untimeliness of the probate of the will, undue influence, and lack of

testamentary capacity. Both parties submitted affidavits.      Following a hearing, the

District Court determined that there were no genuine issues of material fact regarding

Dorothea’s testamentary capacity when she executed the 1997 Will, or any genuine

issues regarding whether Harris exerted undue influence on Dorothea. The District Court

entered a written order allowing Harris to continue with probate of the estate.

Contestants appeal.

                              STANDARDS OF REVIEW

¶9     The interpretation of a statute is a matter of law that we review de novo. Reichert

v. State, 2012 MT 111, ¶ 19, 365 Mont. 92, 278 P.3d 455. We also review a district


                                            4
court’s summary judgment rulings de novo. Victory Ins. Co. v. Mont. State Fund, 2015

MT 82, ¶ 10, 378 Mont. 388, 344 P.3d 977. Summary judgment “should be rendered if

the pleadings, the discovery and disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” M. R. Civ. P. 56(c)(3); Victory, ¶ 10.

                                        DISCUSSION

¶10 1. Whether the District Court’s order allowing probate of Dorothea’s estate
complies with § 72-3-122, MCA.

¶11    Contestants argue that, under the Uniform Probate Code (UPC) § 72-3-122, MCA,

the District Court erred by permitting Harris to initiate probate proceedings on

Dorothea’s estate fourteen years after her death. Under the UPC (and with one exception

not applicable here), “to be effective to prove the transfer of any property . . . , a will

must be declared to be valid by an order of informal probate by the clerk or an

adjudication of probate by the court.” Section 72-3-102, MCA. Section 72-3-122(1),

MCA, states that, generally, no formal or informal probate or appointment proceeding

“may be commenced more than 3 years after the decedent’s death,” but proceeds to list

exceptions to this rule. See also § 72-3-203(1)(d), MCA (“An application for informal

probate of a will must state . . . that the time limit for informal probate . . . has not expired

either because 3 years or less have passed since the decedent’s death or, if more than 3

years from death have passed, the circumstances as described in 72-3-122 authorizing

tardy probate have occurred”). Harris invokes the exception found in § 72-3-122(1)(d),

MCA. That subsection states,

                                               5
       an informal appointment or a formal testacy or appointment proceeding
       may be commenced after the time period if no proceedings concerning the
       succession or estate administration have occurred within the 3-year period
       after the decedent’s death, but the personal representative has no right to
       possess estate assets as provided in 72-3-606 beyond that necessary to
       confirm title to the property in the successors to the estate, and claims other
       than expenses of administration may not be presented against the estate.

¶12    Subsection (d) therefore permits an informal appointment or formal testacy

proceeding to be initiated more than three years after the decedent’s death with three

limitations. First, the subsection is inapplicable if there has been any other proceeding

regarding succession or estate administration during the three-year period. Second, no

claims other than for expenses of administration may be considered in a late-filed

proceeding. Third, the personal representative’s right to possess estate assets is limited to

the possession necessary to confirm title to the estate’s assets in the estate’s successors.

We examine whether Harris’s initiation of the probate proceedings in this case runs afoul

of any of subsection (d)’s requirements.

¶13    As to the first requirement, the record establishes that there was no proceeding

regarding succession or estate administration during the three-year period following

Dorothea’s death. Harris’s action therefore does not overstep the first limitation.

¶14    Regarding the second limitation, a “claim” is a liability of the decedent or of the

estate arising at or after the decedent’s death, including funeral expenses and expenses of

administration, but does “not include . . . demands or disputes regarding title of a

decedent or protected person to specific assets alleged to be included in the estate.”

Section 72-1-103(6), MCA. A claim against the estate is made for matters such as a debt


                                             6
owed by the decedent or by the estate, or for fees of the personal representative. See In re

Estate of Barber, 239 Mont. 129, 140, 779 P.2d 477, 484 (1989). The definition of a

“claim” is distinct from the definition of a “devise,” which “means a testamentary

disposition of real or personal property.” Section 72-1-103(11), MCA. See also Estate

of Yogiji, 311 P.3d 1224, 1228 (N.M. Ct. App. 2013) (holding that a wife’s action seeking

to identify assets representing her share of community property is not a “claim” against

husband’s estate).    Harris is not pursuing a debt owed by Dorothea or her estate.

Accordingly, he has not overstepped the limitation that no claims other than for expenses

of administration may be considered.

¶15    Our focus therefore turns to the third limitation, which permits a personal

representative to possess estate assets only to the extent “necessary to confirm title to the

property in the successors1 to the estate.” Section 72-3-122(1)(d), MCA. Under the

UPC, both real and personal property devolve to a devisee immediately upon the

testator’s death, “subject to” the estate’s administration. Section 72-3-101(2), MCA.

Section 72-3-606(1), MCA, provides a personal representative the general authority to

take possession or control of devised property when “necessary for purposes of

administration.” This section ensures that a personal representative retains the power to

sell property of the estate, even property that has been specifically devised in the will, if

necessary to pay the decedent’s debts, the expenses of administration, or a family

allowance. Northland Royalty Corp. v. Engel, 2014 MT 295, ¶ 11, 377 Mont. 11, 339


1
 “Successors” include “persons, other than creditors, who are entitled to property of a decedent
under the decedent’s will.” Section 72-1-103(48), MCA.
                                              7
P.3d 599; Shephard v. Widhalm, 2012 MT 276, ¶¶ 24-25, 367 Mont. 166, 290 P.3d 712.

A deed of distribution “releases the property from any conditions to which it was subject

during probate.” Shephard, ¶ 26. Section 72-3-122(1)(d)’s third limitation prevents a

personal representative from taking control of devised property to pay claims against the

estate, as § 72-3-606(1), MCA, otherwise would allow.

¶16    The history of subsection (d)’s enactment confirms our interpretation.             The

original version of the UPC adopted by the Legislature in 1974 placed strict time limits

on when a will could be submitted for probate. It disallowed proceedings to establish a

will after three years following the decedent’s death, consistent with the UPC’s policy to

“promote a speedy and efficient system for liquidating the estate of the decedent and

making distribution to its successors.” Section 72-1-102(2)(c), MCA (1983) (repealed by

1993 Mont. Laws ch. 494, sec. 134). In Estate of Taylor, 207 Mont. 400, 675 P.2d 944

(1984), we held that, in light of this policy, if a will is not probated within three years of

death, the assumption of intestacy is final. Taylor, 207 Mont. at 404, 675 P.2d at 946.

¶17    The Montana Legislature adopted subsection (1)(d) of § 72-3-122, MCA,

following a 1993 UPC revision by the Uniform Laws Commission. The 1993 version of

§ 72-3-102 allowed a duly executed will that had not been probated to be admitted as

evidence of a devise if there was no previous court proceeding concerning the succession

or administration of the estate, and if either of two narrow exceptions was satisfied:

       (a) The devisee or his successors and assigns possessed the property
       devised in accordance with the provisions of the will; or
       (b) The property devised was not possessed or claimed by anyone by virtue
       of the decedent’s title during the time period for testacy proceedings.

                                              8
Section 72-3-102(2), MCA (1993).

¶18    The 1995 Legislature enacted general revisions to Montana’s probate code,

including revisions to §§ 72-3-102 and 72-2-122, MCA. University of Montana School

of Law Professor E. Edwin Eck, also a member of the Uniform Laws Commission,

provided to the House Judiciary Committee a written explanation of the amendments

regarding revisions to the three-year bar on probate and appointment provisions.

E. Edwin Eck, Written Comments to Mont. House Jud. Comm. on S.B. No. 132 (Feb. 28,

1995) (Eck Comments). It explained that “the original § 72-3-102 exception permitted

proof, otherwise than via a probate proceeding, of wills that were not probated within

three years following death because of specified circumstances tending to justify the

failure to act in the permitted time.” Eck Comments at 6. The Joint Editorial Board for

the UPC (JEB-UPC), a committee of the Uniform Laws Commission, recommended

revising the UPC to remove the time bar on proceedings to establish wills, though the

three-year period would remain operative to limit contests seeking to upset a prior

informal probate or an administered intestate succession. As Professor Eck’s comments

explained,

      Experience has taught that specification of limited circumstances excusing
      timely probate of a will was a mistake. As originally framed, the
      § 72-3-122 exceptions as derived from original § 72-3-102 bristled with
      potential proof problems that invited litigation. Also, it is far from clear
      that reasons behind the original UPC policy of definite settlement of certain
      unopened estates within an arbitrary time period served any policy
      important enough to block discovery and effectuation of duly executed
      wills.


                                           9
Eck Comments at 6. Montana already had adopted its own amendment to § 72-3-122 in

1989 in an attempt to permit late limited proceedings in cases where no probate of a will

or administration had occurred during the three-year period. See § 72-3-122(1)(d), MCA

(1989). Professor Eck explained that this deviation, and similar measures in other states,

demonstrated that late-offered wills occur frequently “and that UPC’s effort to classify

such estates as intestate unless original UPC § 3-102’s exception applies is not acceptable

to important numbers of practicing attorneys.” Eck Comments at 6. Under the provision

recommended by the JEB-UPC, “informal appointment proceedings can be used to

generate title-perfecting paperwork in successors, whether testate or intestate, when no

probate or appointment proceeding occurred within three years.” Eck Comments at 7.

Professor Eck noted that the former version of § 72-3-122 permitted this result, “but only

in the narrowly described and troublesome to prove situations deemed sufficient to

excuse timely proceedings.” Eck Comments at 7.

¶19    Applying the foregoing to Harris’s initiation of probate proceedings, we determine

that Harris has not overstepped the limitation that he possess Dorothea’s estate only as

necessary to generate title perfecting work in the estate’s successors. Harris opened the

probate to confirm title to the mineral interests in accordance with the provisions of the

1997 Will. No other proceedings had been opened since Dorothea’s death. The general

three-year time bar does not bar probate of the estate. To the extent that Estate of Taylor

conflicts with this holding, it relies on abrogated law, and it is therefore overruled.




                                              10
¶20 2. Whether the District Court erred in granting summary judgment to Harris on
Contestants’ objections.

¶21   Contestants objected to the probate of the 1997 Will on the grounds that, when the

will was drafted, Harris exerted undue influence on Dorothea and Dorothea lacked

testamentary capacity. Harris responded by arguing that Contestants failed to submit

evidence necessary to support these objections, and, in any event, Contestants’ objections

were barred by laches. The District Court granted summary judgment to Harris on

Contestants’ objections to the 1997 Will because it determined that Contestants failed to

submit evidence raising a dispute of material fact about undue influence and testamentary

capacity.

¶22   On appeal, Harris argues that the District Court correctly concluded that

Contestants failed to support their claims adequately at the summary judgment stage. He

also argues that, regardless, laches should apply to bar Contestant’s objections. Laches

exists where a “party is actually or presumptively aware of his rights but fails to act,”

resulting in a delay of “such duration or character as to render the enforcement of an

asserted right inequitable.” Larson v. Undem, 246 Mont. 336, 340, 805 P.2d 1318, 1321

(1990).

¶23   We agree that laches would bar Contestants from probating the 1983 Will. At

least one of the contestants filed an affidavit explaining that he was aware that Dorothea

had a will that disposed of the mineral interests in a way that benefited Contestants.

Despite that knowledge, for fourteen years following Dorothea’s death, Contestants never

sought to probate the 1983 Will.

                                           11
¶24    Laches could not, however, resolve Contestants’ objections to probate of the 1997

Will. Before Harris initiated informal probate proceedings in 2013, Contestants were

unaware of 1997 Will.        After Harris sought the 1997 Will’s probate, Contestants

registered timely objections.

¶25    The application of laches to probate of the 1983 Will does not resolve this case.

Even if Contestants are barred from enforcing the 1983 Will, a successful challenge to

the 1997 Will on the grounds of undue influence or lack of capacity would result in a

declaration of intestacy. Under such a declaration, Contestants likely would be entitled to

a share in the mineral interests because they are not Harris’s descendents.            See

§§ 72-2-112, -113, MCA.

¶26    We thus proceed to examine whether the District Court correctly determined that

Contestants failed to raise a genuine issue of material fact with respect to their undue

influence and testamentary capacity claims. The party contesting a will on the ground of

undue influence “must present specific acts showing that undue influence actually was

exercised upon the mind of the testator directly to procure the execution of the will.” In

re Estate of Mead, 2014 MT 264, ¶ 27, 376 Mont. 386, 336 P.3d 362 (internal quotation

marks and citation omitted). “Mere suspicion” or “[g]eneral allegations of poor health

are not sufficient to show undue influence.”       Mead, ¶¶ 29, 31 (citation omitted).

Contestants submitted affidavits that demonstrated the opportunity for undue influence.

These affidavits, however, do not show specific acts of undue influence sufficient to

establish a triable dispute on that claim.


                                             12
¶27    Contestants’ proof of lack of testamentary capacity presents a closer question, but

still is not sufficient to withstand summary judgment. A testator is competent to execute

a will if he or she is “aware of: (1) the nature of the act to be performed; (2) the nature

and extent of the property to be disposed of; and (3) the objects of his or her bounty.” In

re Estate of Harms, 2006 MT 320, ¶ 14, 355 Mont. 66, 149 P.3d 557. After a will

proponent gives prima facie proof of due execution, the burden is on a will contestant to

show lack of testamentary capacity. Harms, ¶ 15.

¶28    Here, Harris met his initial burden by submitting affidavits from two legal

assistants who observed Dorothea sign the 1997 Will at the office of Dorothea’s attorney,

and who signed the will as witnesses. Both witnesses attested that they would not have

signed the 1997 Will if they had any question about Dorothea’s testamentary capacity.

¶29    Contestants countered with affidavits from two of Dorothea’s children stating that

Dorothea was under “mental stress” and “not in a good frame of mind” in 1997. These

allegations do not show that Dorothea did not understand the natures of her act, property,

or relations when the 1997 Will was executed. Elaine Thompson’s affidavit does state

that the 1997 Will referred to Thompson by her name from a previous marriage, but that

was the name used in Dorothea’s 1983 Will. The Thompson affidavit also points out that

the 1997 Will mistakenly refers to Tamra Sue Patzer as Harris’s “child by a previous

marriage,” when Patzer is actually Harris’s child by a previous relationship, not a

marriage. Thompson alleges that this was “not a mistake my mother would have made if

she was of sound mind.” “A suspicion, regardless of how particularized it might be, is


                                            13
not sufficient to sustain an action or defeat a motion for summary judgment.” Abraham

v. Nelson, 2002 MT 94, ¶ 22, 309 Mont. 366, 46 P.3d 628. Once a party moving for

summary judgment meets its initial burden, the party opposing summary judgment must

present “material and substantial evidence” that raises a genuine issue of material fact.

MacKay v. State, 2003 MT 274, ¶ 14, 317 Mont. 467, 79 P.3d 236. Material facts are

identified by looking at the substantive law governing a claim. McGinnis v. Hand, 1999

MT 9, ¶ 6, 293 Mont. 72, 972 P.2d 1126.          Contestants’ affidavits do not present

substantial evidence material to their contention that Dorothea was not cognizant of her

property, relations, and testamentary act when she signed the 1997 Will. We agree with

the District Court that the affidavits do not present a triable issue on testamentary

capacity.

                                    CONCLUSION

¶30   We affirm the District Court’s order permitting probate of Dorothea’s estate and

granting summary judgment to Harris on Contestants’ objections. In light of Contestants’

previous petition to prevent informal probate, we remand for formal testacy proceedings

on the 1997 Will. See §§ 72-3-215(2), -302(1)-(2), MCA.


                                                /S/ BETH BAKER

We concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON


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