                                                                                         12/28/2017


                                     DA 17-0266
                                                                                     Case Number: DA 17-0266

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                   2017 MT 320N




IN THE MATTER OF THE ESTATE
OF ALICE H. CARPENTER,

         Deceased.




APPEAL FROM:      District Court of the Nineteenth Judicial District,
                  In and For the County of Lincoln, Cause No. DP 14-58
                  Honorable James Wheelis, Presiding Judge


COUNSEL OF RECORD:

           For Appellants:

                  Robert Terrazas, Elizabeth A. Clark, Attorneys at Law, Missoula, Montana

           For Appellee:

                  Amy N. Guth, Attorney at Law, P.C., Libby, Montana




                                              Submitted on Briefs: November 1, 2017

                                                          Decided: December 28, 2017


Filed:

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

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Janice Volkmann, Deanna Greenough, Cathy Ness, and Delbert Carpenter

(collectively “Siblings”) appeal the Nineteenth Judicial District Court’s Order enforcing

the “no contest” clause of their mother’s will and awarding the Estate its attorney fees and

costs. We affirm.

¶3     Alice Carpenter (hereafter “Carpenter”) executed a Last Will and Testament on

February 22, 2007. The Will devised Carpenter’s house and a portion of her real property

to her son Lyle and divided her remaining property “in equal shares” to six of her other

children: Janice, Deanna, Cathy, Delbert, Bobbie Ferguson, and Alice Thomas. The Will

named Carpenter’s daughter Connie Tisher personal representative. The Will did not

devise any property to Tisher because Tisher had “already received her bequest . . . in the

land her home sits on.” Carpenter had also assigned Tisher a durable power of attorney in

August 2006, prior to executing her Will. The Will included a provision that if any child

contested it, that child would receive an inheritance of only one dollar.

¶4     Carpenter died in May 2014 at the age of eighty-six. Her death certificate identified

her cause of death as “progressive dementia” with an onset of “> 7 years.” A month after

Carpenter’s death, Tisher filed an application for informal probate of Carpenter’s Will and


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appointment of personal representative.      The District Court granted the application,

admitted the Will to informal probate, and appointed Tisher as personal representative.

¶5     Tisher filed a petition for determination of testacy, for determination of heirs, and

for settlement and distribution of the Estate. Siblings filed a response, alleging that the

February 2007 Will was a “forgery” and that it was not Carpenter’s last valid will and

testament. Siblings asserted that the signature on the Will was forged or that Carpenter

“was not of sound mind, and/or she was under the undue influence of her daughter, Connie

Tisher,” when she executed the Will.

¶6     The District Court issued an order in December 2016 limiting Siblings’ inheritances

to one dollar each because they had contested the Will. The court reasoned, based on the

evidence presented—which included testimony from hearings held and affidavits

submitted after the will contest was filed—that Siblings lacked “probable cause” under

§ 72-2-537, MCA, to challenge the Will’s validity. The court therefore determined that

the Will’s “no contest” clause applied to their inheritances. The court awarded the Estate

its attorney fees and costs under § 72-12-206, MCA. Siblings appeal.

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

erroneous and its conclusions of law for correctness. In re Estate of Hannum, 2012 MT

171, ¶ 19, 366 Mont. 1, 285 P.3d 463. Siblings argue that the District Court incorrectly

applied the law in determining “probable cause” when it considered facts in the record that

were not known to Siblings at the time they filed their challenge to the Will. They contend

that, under § 72-2-537, MCA, the court’s analysis of Siblings’ probable cause to challenge

the Will should have been limited to the facts known to Siblings at the time they initiated


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the Will contest. Siblings argue that, based on the information they had when they filed

their challenge, the District Court should have agreed that they had probable cause to

initiate the Will contest. They assert that they reasonably believed that Carpenter either

did not sign her Will or that she lacked testamentary capacity and signed it under undue

influence.

¶8     Section 72-2-537, MCA, provides: “A provision in a will purporting to penalize an

interested person for contesting the will or instituting other proceedings relating to the

estate is unenforceable if probable cause exists for instituting proceedings.” (Emphasis

added). “Probable cause” is a “reasonable belief in the existence of facts on which a claim

is based and in the legal validity of the claim itself.” Black’s Law Dictionary 1395 (Bryan

A. Garner ed., 10th ed. 2014).

¶9     For purposes of this appeal, we assume as valid Siblings’ argument that the District

Court applied the wrong standard under § 72-2-537, MCA, when it considered facts

developed after Siblings filed their challenge to the Will in its determination of probable

cause. Even under this assumption, however, we conclude that the record supports the

District Court’s conclusion that Siblings lacked probable cause to contest the Will’s

validity.

¶10    The record shows that when Siblings initiated their challenge, they were aware of

these facts: Carpenter may have begun to experience dementia when she executed her Will;

some of Carpenter’s children had made observations about Carpenter’s occasional

hallucinations, forgetfulness, and other apparent mental limitations; and Carpenter’s May

2014 death certificate noted that she had “progressive dementia” with an onset of


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“> 7 years,” suggesting that this onset may have begun before she executed her Will. But

they also knew that Carpenter’s physician had written a letter two months before Carpenter

signed the Will, opining that she was “still medically competent at making [decisions on

her own].”

¶11   Siblings point to their own affidavits that attorney Russell Barnes told Janice and

Deanna in January 2015 that he did not in fact draft Carpenter’s Will and that he did not

recall meeting with Carpenter to prepare her Will; that Barnes showed Siblings a document,

allegedly in Tisher’s handwriting, that contained “a list of word-for-word changes” that

were incorporated into Carpenter’s Will; and that Tisher improperly distributed

Carpenter’s personal belongings after Carpenter’s death. Siblings contend that these facts

supported their beliefs that Carpenter lacked testamentary capacity, that Tisher exercised

undue influence over Carpenter, and that Carpenter’s Will may have been forged.

¶12   Assuming that all of this evidence—even the hearsay—was admissible for the

purpose of determining whether Siblings had probable cause to challenge the Will, it

supports the District Court’s conclusion that they did not. Barnes’s assertion that he did

not recall drafting Carpenter’s Will did not establish a reasonable belief, without any

objective indication of forgery, that Carpenter’s signature on the Will was forged. The

existence of a document in Tisher’s handwriting containing language identical to that in

Carpenter’s Will similarly did not constitute evidence that the Will was forged or executed

under undue influence. Undue influence requires “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


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362 (citation and internal quotations omitted). At the time they filed their contest, Siblings

lacked objective facts showing specific acts of undue influence.

¶13    A testator possesses testamentary capacity “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 Harris, 2015 MT 182, ¶ 27, 379 Mont.

474, 352 P.3d 20 (citation and internal quotations omitted). That Carpenter may have

begun experiencing dementia prior to February 2007 does not suggest, without more, that

she lacked testamentary capacity to execute a Will. And evidence of Tisher’s alleged

improper distributions of Carpenter’s personal belongings after Carpenter’s death had

nothing to do with Carpenter’s testamentary capacity; nor did it tend to show specific acts

of undue influence at the time Carpenter executed the Will.

¶14    Speculation and conjecture based on the opportunity for influence or the possibility

of diminished capacity do not support a “reasonable belief” that Carpenter’s Will was the

product of forgery or undue influence. See Black’s Law Dictionary 1395 (Bryan A. Garner

ed., 10th ed. 2014). Nor is there support for a reasonable belief in the legal validity of

Siblings’ claim. Carpenter’s Will left her entire Estate equally to be shared among all her

children except for her son Lyle—to whom she devised her house and a specific portion of

real property—and Tisher, who had received an inter vivos distribution. That the terms of

Carpenter’s Will did not benefit Tisher undercuts Siblings’ hypothesis that Tisher exercised

undue influence over her.

¶15    The District Court’s determination that Siblings lacked probable cause under

§ 72-2-537, MCA, to contest the Will therefore was not clearly erroneous. The court


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properly enforced the Will’s “no contest” clause and ordered that Siblings, as challengers

of the Will, inherit only one dollar.

¶16    Siblings also contest the District Court’s award of attorney fees and costs. Section

72-12-206, MCA, provides: “When the validity or probate of a will is contested through

court action, the attorney fees and costs, as provided in 25-10-201, incurred in defending

the validity or probate of the will must be paid by the party contesting the validity or

probate of the will if the will in probate is confirmed.” Siblings contested the validity of

the Will, and Tisher incurred attorney fees and costs in defending its validity. The District

Court confirmed the Will. The court therefore correctly determined, under § 72-12-206,

MCA, that the Estate was entitled to attorney fees and costs.

¶17    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. This appeal presents

no constitutional issues, no issues of first impression, and does not establish new precedent

or modify existing precedent. The District Court’s Order is affirmed.


                                                  /S/ BETH BAKER

We Concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR
/S/ JIM RICE




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