                                                                                           May 19 2015


                                      DA 14-0394
                                                                                       Case Number: DA 14-0394

             IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     2015 MT 132



IN THE MATTER OF THE ESTATE OF
VIOLET H. QUIRIN, a/k/a VI QUIRIN,

          Deceased.




APPEAL FROM:       District Court of the Fourth Judicial District,
                   In and For the County of Missoula, Cause No. DP-11-14
                   Honorable Karen S. Townsend, Presiding Judge


COUNSEL OF RECORD:

            For Appellant:

                   Linda Osorio St. Peter, St. Peter Law Office, P.C.; Missoula, Montana

            For Appellee:

                   Harold V. Dye, Dye & Moe, PLLP; Missoula, Montana



                                                Submitted on Briefs: April 8, 2015
                                                           Decided: May 19, 2015


Filed:

                   __________________________________________
                                     Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1       Mavoureen Speiser (Speiser) appeals from the order of the Montana Fourth

Judicial District Court, Missoula County, confirming probate of Violet Quirin’s June 23,

2010 will. We affirm.

                                           ISSUES

¶2       We review the following issues:

         1. Did the District Court err when it confirmed probate of the 2010 will?

         2. Did the District Court err by issuing an order inconsistent with its pretrial
order?

                   FACTUAL AND PROCEDURAL BACKGROUND

¶3       Violet Quirin (Quirin) died on January 10, 2011. She was survived by two adult

daughters, Speiser and Cathie Schmiedeke (Schmiedeke). Prior to her death, Quirin had

executed three wills. The first was signed on November 16, 2005, the second was signed

on March 1, 2007, and the third was signed on June 23, 2010. In the 2005 and 2007 wills

Quirin divided her property equally between her daughters. However, in the 2010 will,

Quirin wrote, “I acknowledge my love and respect for my daughters, [Speiser] and

[Schmiedeke], but make no provision for them in this will,” and she instead divided her

estate among several friends and charitable organizations.

¶4       The 2010 will was the product of Quirin’s interactions with attorney Nancy Moe.

Quirin contacted Moe on June 2, 2010, and asked her to draft a new will for Quirin. Moe

met with Quirin for around an hour and a half on June 4, 2010. Quirin told Moe that her

daughters were the current beneficiaries of her will and that she no longer wished for


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them to benefit from her estate. She told Moe that she would like to change her will to

benefit organizations and individuals with whom she had long, trusting relationships.

Moe advised Quirin that a will contest might result from such a change, but Quirin

persisted, stating that she and her daughters were “not close.” Quirin told Moe that she

wanted to leave her house to her church, to leave the money in her bank accounts to

Missoula Aging Services, and to dispose of certain personal property to several friends.

Quirin also told Moe that she had given her friend Kristine Fankell $100,000 to use for

Quirin’s benefit, and that she wished for Fankell to keep any portion of the $100,000 that

remained at the time of Quirin’s death.

¶5     Moe concluded that Quirin intended to make a new will, understood that she was

making a new will, understood her assets, and otherwise understood the consequences of

what she was doing. Moe, therefore, drafted a will based on her June 4 discussion with

Quirin. She mailed a draft of the will to Quirin on June 18, 2010. On June 23, 2010,

Moe, accompanied by two paralegals from her office, visited Quirin’s home. Moe and

the paralegals observed that Quirin was dressed and articulate and that there was nothing

to suggest that Quirin did not have testamentary capacity. Quirin and Moe spoke about

the will and their June 4 conversation. Quirin signed the will prepared by Moe during

this visit. The paralegals signed the will as witnesses.

¶6     When Fankell visited Quirin several months later, Quirin discussed the 2010 will

and told Fankell that she was adamant about keeping the will as it was. Quirin also told

Fankell that the 2010 will named Fankell personal representative of Quirin’s estate.



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¶7     On January 18, 2011, following Quirin’s death, Fankell submitted the 2010 will

for informal probate and asked that, according to the terms of the will, she be appointed

personal representative of Quirin’s estate. The Clerk of the District Court granted these

requests, ordering informal probate and appointing Fankell personal representative. On

May 3, 2011, Speiser petitioned for formal probate of the will Quirin executed on March

1, 2007. She claimed that Quirin lacked testamentary capacity when she signed the 2010

will and that Quirin’s estate should be distributed according to the terms of the 2007 will.

¶8     Prior to the matter going to trial, the parties agreed and stipulated to numerous

facts and to admission of several exhibits. The parties also quoted language from In re

Estate of Lightfield, 2009 MT 244, 351 Mont. 426, 213 P.3d 468, and stipulated that the

language provided the test for determining testamentary capacity. The court entered a

pretrial order on April 10, 2014, that listed the stipulated facts, exhibits, and test for

testamentary capacity. The order also identified fourteen issues of fact that remained to

be litigated and specified that no issues of law were contested.

¶9     On June 20, 2014, following a trial, the District Court issued findings of fact,

conclusions of law, and an order. The District Court ultimately decided that Speiser

failed to show that Quirin lacked testamentary capacity, and it confirmed probate of the

2010 will. Speiser appeals.

                              STANDARDS OF REVIEW

¶10    We review a district court's findings of fact to determine if they are clearly

erroneous. In re Estate of Lambert, 2006 MT 229, ¶ 9, 333 Mont. 444, 143 P.3d 426. A

court's findings are clearly erroneous if they are not supported by substantial evidence,
                                             4
the court misapprehended the effect of the evidence, or we are convinced by our review

of the record that the district court made a mistake. Lambert, ¶ 9. We review a district

court’s conclusions of law for correctness. Lambert, ¶ 9.

                                      DISCUSSION

¶11    1. Did the District Court err when it confirmed probate of the 2010 will?

¶12    Speiser contends that Quirin lacked testamentary capacity to execute the 2010

will. She contends that the District Court erred when it found otherwise, arguing that it

applied an incorrect standard of law and that its finding was clearly erroneous. We

disagree.

¶13    Proponents of a will have the burden of establishing prima facie proof of its due

execution. Once a duly executed will is submitted for probate, the testator’s competence

is presumed, and any contestants have the burden of establishing lack of testamentary

capacity. Lightfield, ¶ 28. Here, the District Court decided that the 2010 will was duly

executed. Speiser does not contest this decision, and she, therefore, had the burden to

establish lack of testamentary capacity.

¶14    For over fifty years, we have stated that the test for determining testamentary

capacity is:

       [A] testator is competent if he is possessed of the mental capacity to
       understand the nature of the act, to understand and recollect the nature and
       situation of his property and his relations to persons having claims on his
       bounty whose interests are affected by his will . . . . The testator must have
       sufficient strength and clearness of mind and memory to know, in general,
       without prompting, the nature and extent of the property of which he is
       about to dispose, and the nature of the act which he is about to perform, and
       the names and identity of the persons who are to be the objects of his
       bounty, and his relation towards them.
                                             5
E.g., Lightfield, ¶ 27; In re Estate of Prescott, 2000 MT 200, ¶ 34, 300 Mont. 469, 8 P.3d

88; In re Estate of Lien, 270 Mont. 295, 299, 892 P.2d 530, 532 (1995); In re Estate of

Bodin, 144 Mont. 555, 560, 398 P.2d 616, 619 (1965). In more recent cases, we have

retained this test while restating it as “testamentary capacity requires that the testator be

aware of three elements: (1) the nature of the act to be performed, (2) the nature and the

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

Lightfield, ¶ 28; In re Estate of Harms, 2006 MT 320, ¶ 14, 335 Mont. 66, 149 P.3d 557;

Prescott, ¶ 34.

¶15    Speiser contends that awareness of these three elements is an additional

component rather than a restatement of the test for testamentary capacity.          Speiser,

therefore, argues that the District Court erred when it based its testamentary capacity

finding solely on Quirin’s awareness of the three elements.         She states that before

reaching such a decision, the District Court was also required to consider whether Quirin

possessed the “mental capacity to understand” and “sufficient strength and clearness of

mind and memory to know” the elements.

¶16    This is incorrect. In Prescott, we affirmed the decision of a district court granting

summary judgment on the question of whether the testator lacked testamentary capacity.

Prescott, ¶¶ 20, 34, 39, 42, 46, 48. In that case, we limited our analysis to evidence

concerning the testator’s awareness of the three elements. We did not independently

consider the testator’s mental capacity to understand the elements. We also did not

independently consider the testator’s strength and clearness of mind and memory to know

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the elements. We concluded that the District Court did not err by granting summary

judgment based solely on uncontroverted evidence of the testator’s awareness of the three

elements. Prescott, ¶¶ 35-48. Similarly, the District Court in this case did not err by

basing its testamentary capacity finding solely on Quirin’s awareness of the three

elements.

¶17    Speiser also contends that the District Court’s testamentary capacity finding was

incorrect. Whether a testator has testamentary capacity is a question of fact, which we

review for clear error. Lightfield, ¶¶ 24, 29. We will only reverse a district court’s

finding regarding testamentary capacity if it is not supported by substantial evidence, the

court misapprehended the effect of the evidence, or we are convinced by our review of

the record that the district court made a mistake. Lambert, ¶ 9. Here, the District Court’s

testamentary capacity finding was supported by substantial evidence, the effect of which

the District Court did not misapprehend.

¶18    As discussed above, testamentary capacity exists if, at the time the will is

executed, a testator is “aware of . . . (1) the nature of the act to be performed, (2) the

nature and the extent of the property to be disposed of, and (3) the objects of his or her

bounty.” Lightfield, ¶ 28. The District Court found that Quirin was aware of each of the

three elements at the time of execution, and this finding was supported by substantial

evidence.

¶19    First, Quirin’s awareness of the nature of the will execution was supported by

substantial evidence. Quirin arranged, specifically and of her own volition, to meet a

lawyer and have her will changed. She then kept track of and persisted in the process for
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almost a month. The three people present when the will was executed testified that

Quirin understood what she was doing. Also, several months after the 2010 will was

executed, Quirin discussed the will, the changes she had made, and expressed her desire

to leave the will unchanged.

¶20     Second, Quirin’s awareness of the nature and extent of her property was also

supported by substantial evidence. During the months surrounding execution of the 2010

will, Quirin had several interactions with her banks, withdrawing money and changing

the names on accounts. She kept large amounts of money in her house but was able to

recall where the money was kept and approximately how much money was hidden.

When discussing with Moe the changes to make to her will, Quirin was able to identify

her assets, including her cash, the amount of money she had given to Fankell for her care,

her bank accounts, and her house.

¶21     Finally, Quirin’s awareness of the objects of her bounty was also supported by

substantial evidence. Quirin specifically requested removal of her daughters from her

will.   After she was advised against doing so, Quirin persisted.      As such, the will

specifically mentioned Speiser and Schmiedeke and specifically excluded them from

succeeding to the estate. For the months following execution of the will, Quirin seemed

to understand that she had removed her daughters from her will, describing this to

Fankell and stating that preventing them from succeeding to her estate continued to be

her wish.     Moreover, Quirin’s removal of Speiser and Schmiedeke did not seem

accidental.   Instead, it was knowing conduct that followed a pattern of increasing

estrangement between Quirin and her daughters.        It followed Quirin moving out of
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Speiser’s house, Quirin accusing Speiser of stealing money from her, Quirin changing the

locks to her house so that neither Speiser’s nor Schmiedeke’s keys would work, and

Quirin removing Speiser’s name from her bank accounts.

¶22    Speiser does not contend that evidence supporting the foregoing facts does not

exist. Instead, she argues that some evidence contradicted the District Court’s findings

and, particularly, that some evidence indicated that Quirin did not understand the nature

and extent of her property. However, it is not the role of this Court to weigh conflicting

evidence or to determine whether there is support for findings that were not made. In re

Estate of Bradshaw, 2001 MT 92, ¶¶ 11, 20, 305 Mont. 178, 24 P.3d 211. Where

conflicting evidence exists, we will not substitute our judgment for the district court’s.

Harms, ¶ 12. Thus, the mere presence of conflicting evidence does not mean that the

District Court’s finding of testamentary capacity was clearly erroneous, nor does it alter

our conclusion that the District Court’s finding of testamentary capacity was supported

by substantial evidence. See Harms, ¶ 35.

¶23 2. Did the District Court err by issuing an order inconsistent with its pretrial
order?

¶24    Speiser contends that the District Court deviated from the pretrial order when it

entered its order confirming probate of the 2010 will. She contends that the District

Court applied a different legal standard for testamentary capacity than the one specified

in the pretrial order and that the District Court did not rule on all of the factual issues

identified in the pretrial order. For these reasons, she argues that the District Court

violated M. R. Civ. P. 16(d) and failed to afford her due process.

                                             9
¶25    The District Court did not err by applying a different legal standard than the one

specified in the pretrial order. Instead, the District Court applied the standard specified in

the pretrial order. As discussed above, the District Court applied the test identified in

Lightfield, which was also the test quoted in the pretrial order and the test that Speiser

argues the District Court should have applied.

¶26    The District Court also did not err by not specifically addressing each factual issue

identified in the pretrial order. Speiser contends that district courts are required to

address every factual issue identified in a pretrial order. However, this Court has never

adopted such a rule, and Speiser does not provide any reasons why we should do so now.

Instead, she recommends this rule in conclusory statements and bare citation to Baston v.

Baston, 2010 MT 207, 357 Mont. 470, 240 P.3d 643; and Weimar v. Lyons, 2007 MT

182, 338 Mont. 242, 164 P.3d 922. As these cases do not stand for such a rule and are

distinguishable from the present case on their facts, and as we are not required to develop

legal analysis to support Speiser’s conclusory statements, we hold that the District Court

did not err when it did not specifically address each of the factual issues identified in the

pretrial order.

¶27    In Baston and Weimar, we required the district courts and parties to limit

evidence, arguments, and decisions at trial to matters identified in a pretrial order.

Baston, ¶¶ 19-20; Weimar, ¶¶ 20-21. We reasoned that the purpose of a pretrial order is

to “prevent surprise, simplify the issues and permit counsel to prepare their case for trial

on the basis of the pretrial order.” Baston, ¶ 19; accord Weimar, ¶ 20.             We have

repeatedly reached similar conclusions based on this same rationale.           E.g., Murphy
                                             10
Homes, Inc. v. Muller, 2007 MT 140, ¶¶ 44-45, 337 Mont. 411, 162 P.3d 106;

Zimmerman v. Robertson, 259 Mont. 105, 111, 854 P.2d 338, 342 (1993). However, we

have never required district courts to address every factual issue identified in a pretrial

order.    See Baston, ¶¶ 19-20; Weimar, ¶¶ 20-22; Murphy Homes, Inc., ¶¶ 44-45;

Zimmerman, 259 Mont. at 111, 854 P.2d at 342. Nor does the rationale of the foregoing

cases require adoption of such a rule. Unlike in Baston and Wiemar, the District Court in

this case did not address any issues beyond the scope of the pretrial order. Instead, it did

not explicitly consider several factual issues that it identified as unresolved in its pretrial

order. Unlike in Baston and Weimar, this did not create surprise issues, hamper the

parties’ efforts to prepare for trial, or otherwise prejudice the parties. As Speiser does not

provide any arguments for adopting such a rule, beyond bare citation to these

distinguishable cases, we hold that the District Court did not err when it did not

specifically address every factual issue identified in its pretrial order.

¶28      It also did not deprive Speiser of due process by not addressing those factual

issues. Due process “requires a reasonable notice as to give everyone interested their

opportunity to be heard.” Baston, ¶ 18. The District Court did not address any issues not

identified in the pretrial order. By virtue of the pretrial order, Speiser was aware of all of

the potential issues to be litigated and the legal standards that would be applied. She was

given notice of these issues at a time that left her with ample opportunity to prepare her

case. The District Court’s decision to not explicitly address all of the issues did not

deprive her of notice or the opportunity to be heard.



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                                     CONCLUSION

¶29    The District Court did not err when it determined that Quirin possessed

testamentary capacity at the time she executed the 2010 will. This finding was based on

the correct legal standard and was supported by substantial evidence. The District Court

also did not err by not specifically addressing each of the factual issues identified in the

pretrial order. For these reasons, the District Court’s order confirming probate of the

2010 will is affirmed.

                                                 /S/ MICHAEL E WHEAT

We Concur:

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




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