                                                                                           04/25/2017


                                     DA 16-0137
                                                                                       Case Number: DA 16-0137

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     2017 MT 93



IN THE MATTER OF THE ESTATE OF
HELEN EDWARDS,

         Deceased.


APPEAL FROM:      District Court of the Fifth Judicial District,
                  In and For the County of Madison, Cause No. DP 29-2013-21
                  Honorable Loren Tucker, Presiding Judge

COUNSEL OF RECORD:

           For Appellant:

                  Ward E. “Mick” Taleff, Connor J. Murphy, Taleff & Murphy, P.C., Great
                  Falls, Montana

                  Timothy B. Strauch, Strauch Law Firm, PLLC, Missoula, Montana

           For Appellees:

                  Stephanie Gehres Kruer, Kruer Law Firm, P.C., Sheridan, Montana
                  (Attorney for Nancy Shulz)

                  Lyman H. Bennett, III, Attorney at Law, Virginia City, Montana
                  (Attorney for Paul Degel)

           For Amicus Curiae:

                  John B. Horrell, Horrell Law Office, PLLC, Missoula, Montana
                  (Attorney for Interim Personal Representative & Special Fiduciary)


                                               Submitted on Briefs: February 15, 2017

                                                          Decided: April 25, 2017

Filed:

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

¶1     In September 2010, Helen Edwards executed a will and created a trust (2010 Will

and 2010 Trust), leaving most of her estate to her niece, G.G. Verone. She executed a new

will and amended her trust in 2012 (2012 Will and 2012 Trust), leaving much of her estate

to her housekeeper, Nancy Schulz, and to her handyman, Paul Degel. Helen died in 2013.

Schulz petitioned for probate of the 2012 Will. Verone objected and cross-petitioned for

probate of the 2010 Will and for validation of the 2010 Trust. The District Court appointed

Andrew Suenram, an attorney, as a neutral personal representative of the estate until it

could be decided which of the two wills should be admitted to probate.

¶2     Following trial, a Madison County jury found in a special verdict that Schulz or

Degel procured the 2012 Will and 2012 Trust by “undue influence, fraud, or duress.”

Verone then moved to admit the 2010 Will to probate, to validate the 2010 Trust, and for

attorney fees. The court denied her requests, and Verone appeals those denials. Schulz

cross-appeals the court’s appointment of Suenram as a neutral personal representative,

several evidentiary rulings at trial, and the jury’s special verdict.

¶3     We address the parties’ claims in the following issues:

       1. Whether the District Court erred in appointing a neutral personal representative
       who was not required to defend the 2012 Will against Verone’s challenge;

       2. Whether the District Court abused its discretion in its evidentiary rulings at trial;

       3. Whether substantial credible evidence existed to support the jury’s findings that
       the 2012 Will and the 2012 Trust were procured by undue influence, fraud, or
       duress;

       4. Whether the District Court erred in refusing to admit the 2010 Will to probate
       or to enforce the 2010 Trust following the jury’s special verdict;


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       5. Whether the District Court erred in refusing to award Verone attorney fees and
       certain costs.

¶4     We affirm on Issues 1, 2, and 3, and reverse and remand on Issues 4 and 5.

                  PROCEDURAL AND FACTUAL BACKGROUND

¶5     Helen died at the age of 96 in May 2013. Prior to her husband Jim’s death, Helen

and Jim executed wills naming Verone the primary beneficiary. Verone had maintained a

close relationship with Helen and Jim for many years.

¶6     Helen executed a new will and created the Helen Edwards Trust in September 2010.

The 2010 Will included a pour-over clause distributing the residue of Helen’s estate into

the Trust. The 2010 Will and 2010 Trust devised most of Helen’s estate to Verone. The

2010 Will named Verone personal representative of the estate, and the 2010 Trust named

Helen and Verone co-trustees. The 2010 Trust also prescribed a procedure for amending

the terms of the trust.

¶7     Verone hired Schulz in 2011 to work as a housekeeper for Helen.              Degel

occasionally worked as a handyman for Helen. Helen executed a new will and amended

her trust in November 2012, leaving much of her estate to Schulz and Degel, and reducing

Verone’s gift to $25,000. The 2012 Will appointed Schulz and R.D. Corette, an attorney,

as co-personal representatives, and the 2012 Trust removed Verone as a co-trustee. The

2012 Trust provided also for a $300,000 gift to the Ruby Valley Hospital.

¶8     After Helen’s death, Schulz and Corette petitioned for formal probate of the 2012

Will. The court appointed Corette as special administrator of the estate. Verone filed

objections to probate of the 2012 Will, arguing that Schulz and others procured that will



                                            3
by undue influence. Verone simultaneously offered the 2010 Will for probate and asserted

that it and the 2010 Trust represented Helen’s last, valid dispositional intentions.

¶9     The court appointed Suenram as interim personal representative of the estate and

special fiduciary of the trust. It declared that, because the case sought to determine which

of the two sets of testamentary documents was valid, Suenram would not advocate for one

set over the other. Suenram informed the parties that he intended to remain neutral as to

the validity of the competing sets of testamentary documents.

¶10    The case proceeded to trial in November 2015. At trial, the court made multiple

evidentiary rulings over Schulz’s and Degel’s objections. First, it admitted into evidence

documentation of a settlement agreement between Verone and Ruby Valley Hospital, in

which Verone agreed to grant the Hospital a $300,000 gift even if the jury invalidated the

2012 testamentary documents. Second, it sustained Verone’s objections to testimony by

Helen’s attorneys regarding what she allegedly told them about her estate plans. Third, it

barred one of Schulz’s witnesses, Dr. Megan Evans, from testifying altogether.

¶11    At the close of trial, the jury returned a special verdict finding that Schulz or Degel

had procured the 2012 Will and 2012 Trust by “undue influence, fraud, or duress.” The

jury found also that the 2012 Trust did not violate the 2010 Trust’s requirements for

amendment or revocation. The special verdict form did not ask the jury to make any

findings on the 2010 Will or the 2010 Trust.

¶12    Verone filed a bill of costs and statement of fees. The court denied her request for

attorney fees and partially denied her request for costs. It reasoned that Verone was

statutorily barred from recovering attorney fees because the trial addressed only the validity


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of the 2012 Will, Verone “contested” that will, and only parties who successfully

“defended” a will were entitled to fees.

¶13    Verone also petitioned the court to admit the 2010 Will to probate and to declare the

2010 Trust valid, binding, and enforceable. When the court entered judgment, it denied

Verone’s requests, reasoning that the litigation “decided nothing about the validity” of the

2010 Will or the 2010 Trust.

¶14    Verone appeals the court’s denial of her requests regarding the 2010 Will and the

2010 Trust and its denial of her request for attorney fees and costs. Schulz cross-appeals

the court’s appointment of Suenram as a neutral personal representative, the court’s three

evidentiary rulings at trial, and the jury’s special verdict finding “undue influence, fraud,

or duress.”

                               STANDARDS OF REVIEW

¶15    We review a district court’s appointment of a personal representative to determine

whether the court correctly interpreted the law. In re Estate of McMurchie, 2004 MT

98, ¶ 7, 321 Mont. 21, 89 P.3d 18. A district court’s evidentiary rulings, including the

admission of expert testimony, are reviewed for abuse of discretion.            Beehler v. E.

Radiological Assocs., P.C., 2012 MT 260, ¶ 17, 367 Mont. 21, 289 P.3d 131.

¶16    We review a jury’s verdict in a civil case to determine if it is supported by substantial

credible evidence. D.R. Four Beat Alliance, LLC v. Sierra Prod. Co., 2009 MT 319, ¶ 23,

352 Mont. 435, 218 P.3d 827; Murray v. Whitcraft, 2012 MT 298, ¶ 7, 367 Mont. 364,

291 P.3d 587. Substantial credible evidence is evidence that a reasonable mind could

accept as adequate to support a conclusion. D.R. Four Beat Alliance, LLC, ¶ 23. We view


                                               5
the evidence in a light most favorable to the prevailing party below. Murray, ¶ 7. If

conflicting evidence exists, the credibility and weight given to the evidence is in the jury’s

province, Campbell v. Canty, 1998 MT 278, ¶ 19, 291 Mont. 398, 969 P.2d 268, and we

do not retry the case because the jury chose to believe one party over the other,

Murray, ¶ 26.

¶17    We review a party’s entitlement to judgment as a matter of law de novo. Johnson

v. Costco Wholesale, 2007 MT 43, ¶ 18, 336 Mont. 105, 152 P.3d 727. A district court’s

determination whether legal authority exists for an award of attorney fees is a conclusion

of law, which we review for correctness. Mlekush v. Farmers Ins. Exch., 2015 MT 302, ¶ 8,

381 Mont. 292, 358 P.3d 913. If legal authority exists to award attorney fees, we review a

district court’s decision to grant or deny fees to a party for an abuse of discretion. Wohl v.

City of Missoula, 2013 MT 46, ¶ 29, 369 Mont. 108, 300 P.3d 1119.

                                       DISCUSSION

¶18 1. Whether the District Court erred in appointing a neutral personal representative
who was not required to defend the 2012 Will against Verone’s challenge.

¶19    The court initially appointed Corette as special administrator of the Estate, but

authorized him only to marshal assets and accounts, to open an estate bank account, and to

pay estate bills. Given the two competing wills, the court entered an order stating that it

was “inclined to appoint a neutral person/party [as personal representative]” rather than

someone “who may have an interest in the interpretation or validity of [the] disputed

documents.” Verone and special administrator Corette filed a joint motion requesting that

the court appoint Suenram as interim personal representative. They suggested that, because



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the proceedings “involve a Will contest to determine which of two Wills should be

probated,” Suenram should be appointed “until there has been a legal determination of

which Will shall be probated.” The court then issued an order appointing Suenram as

interim personal representative and terminating Corette’s appointment as special

administrator.

¶20    Suenram petitioned the court for appointment as special fiduciary of Helen’s Trust.

He filed a notice of issue pertaining to this appointment and served copies on Schulz and

Degel. The court granted Suenram’s petition and appointed him special fiduciary of the

Trust. Suenram then filed a notice and information to heirs and devisees, confirming his

appointment as interim personal representative, and served copies on Schulz and Degel.

¶21    Suenram mailed a letter to Schulz and to Degel’s attorney in which he stated that he

did not intend to “advocate for one testamentary document over another,” because to do so

would contradict his role as a “neutral and disinterested party.” Suenram requested that

the parties stipulate that he had “no fiduciary obligation to advocate for any of the

testamentary documents prepared for Helen Edwards.” He informed the parties that, if

they did not agree to the stipulation, he would “petition the Court for a declaratory ruling

regarding [his] fiduciary obligation.” When neither Schulz nor Degel’s attorney signed the

stipulation, Suenram petitioned the court to declare that he was not obligated to defend the

validity of any particular testamentary documents, including the 2012 documents.

Suenram served this petition on Schulz’s and Degel’s attorneys.

¶22    Schulz and Degel both formally objected to Suenram’s petition. Schulz argued that

Suenram “should advance and advocate for the [2012] Will and against the current


                                             7
challenge to the Will.” The District Court granted Suenram’s petition. The Final Pretrial

Order, signed by counsel for all parties, stipulated that, pursuant to court orders, “Mr.

Suenram is a neutral third party in this matter. His role is that of a fiduciary to preserve

and maintain the assets of the estate and further distribute the assets pursuant to Court

Order. Mr. Suenram will not advocate for any interested party.”

¶23    Schulz argues on cross-appeal that the District Court erred in failing to appoint a

personal representative charged with defending the 2012 Will against legal attack. Schulz

claims that neither she nor Degel received notice of, or consented to, Suenram’s

appointment as a neutral interim personal representative who would not defend the 2012

Will against Verone’s objections.

¶24    Montana law provides that a personal representative has a “duty to settle and

distribute the estate of the decedent in accordance with the terms of any probated and

effective will,” and that the personal representative shall use his authority “for the best

interests of successors to the estate.” Section 72-3-610, MCA.1 A personal representative

should not take actions that “benefit some of the successors at the expense of others.” In

re Estate of Evans, 217 Mont. 89, 96, 704 P.2d 35, 40 (1985). With regard to trusts, the

law provides that “[i]f a trust has two or more beneficiaries, the trustee shall act impartially

in investing, managing, and distributing the trust property, giving due regard to the

beneficiaries’ respective interests.” Section 72-38-803, MCA.




1
  The law defines “successors” as “persons, other than creditors, who are entitled to property of a
decedent under the decedent’s will.” Section 72-1-103(48), MCA.


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¶25    At the time of Suenram’s appointment, neither the 2010 Will nor the 2012 Will was

“probated and effective.” Section 72-3-610, MCA. The identities of the “successors to the

estate” were undetermined. Section 72-3-610, MCA. Indeed, the very purpose of the

litigation was to determine which of the two competing wills should be admitted to probate.

¶26    Verone filed objections to Schulz’s and Corette’s petition for formal probate of the

2012 Will and simultaneously offered the 2010 Will for probate.             In her amended

objections to probate of the 2012 Will, Verone requested “adjudication and judgment that

the [2010 Trust] is a valid, binding, and enforceable irrevocable Trust” and “adjudication

and judgment . . . admitting the [2010 Will] to formal probate.” In Schulz’s response to

Verone’s amended objections, Schulz denied Verone’s contentions that the 2010 Will and

2010 Trust were “validly executed,” that they “met all legal requirements,” and that they

“represent[ed] the last valid dispositional intentions of Helen Edwards.”

¶27    In Verone’s and special administrator Corette’s joint motion for appointment of a

personal representative, the two stated, “These proceeding[s] involve a Will contest to

determine which of two Wills should be probated.” In the Final Pretrial Order, Verone

identified as an issue of law, “Which of Helen Edwards’ two wills (2010 or 2012) should

be admitted to formal probate?”      In that same order, Schulz and Degel denied “all

contentions” of Verone and took the position that the 2012 Will was valid and that it

revoked the 2010 Will. Schulz and Degel identified as issues of law, “Should Helen

Edwards’ 2012 Last Will and Testament be admitted to probate? . . . If not, should Helen

Edwards’ 2010 Last Will and Testament be admitted to probate?”




                                             9
¶28      In an order on motions, the court acknowledged that Verone had “filed objections

to probate of the 2012 Will and petitioned for formal probate of the 2010 [W]ill” and that,

“[i]n light of these competing petitions, the parties agreed that the Court should appoint

Andrew Suenram . . . ‘as interim personal representative.’” (Emphasis added.) In that

same order, the court noted that “Verone has challenged the 2012 Will and offered the 2010

Will. The Court must determine the validity of the competing wills.” (Emphasis added.)

Finally, the court acknowledged in its order on costs and fees that “Verone filed objections

to the probate of the 2012 Will, alleging that it had been procured by undue influence,

fraud, or duress. In the same document, Verone petitioned for formal probate of the 2010

Will.”

¶29      As shown by the parties’ pleadings and the court’s treatment of the case, this

litigation represented a contest between two competing wills to determine which should be

admitted to probate. The court committed no legal error when it appointed Suenram as a

neutral personal representative and held that he had no duty to defend either will until a

determination had been made as to which will was valid and effective. See In re Estate of

McMurchie, ¶ 7.

¶30      Schulz’s claim that she and Degel did not receive proper notice that Suenram would

be appointed as a neutral personal representative lacks support in the record. Special

administrator Corette—who had jointly petitioned with Schulz for probate of the 2012

Will—stipulated to Suenram’s appointment as interim Personal Representative after the

court stated that it was “inclined to appoint a neutral person/party to serve as the Personal

Representative.” Schulz and Degel were notified that the court had appointed Suenram as


                                             10
personal representative. Suenram notified Schulz and Degel in writing that he intended to

seek a court ruling that he was not obligated to advocate for the 2012 testamentary

documents. When Suenram petitioned the court for such a ruling, he served his petition on

Schulz and Degel. Schulz and Degel formally objected to that petition. They later

stipulated in the Final Pretrial Order to Suenram’s appointment as “a neutral third party”

who would not “advocate for any interested party.” Schulz and Degel thus had notice of

Suenram’s appointment as a neutral personal representative and special fiduciary. The

District Court did not err in its appointment of Suenram.

¶31    2. Whether the District Court abused its discretion in its evidentiary rulings at trial.

¶32    Schulz appeals three evidentiary rulings that the District Court made at trial: the

court’s admission into evidence of a settlement agreement between Verone and Ruby

Valley Hospital; the court’s refusal to permit Helen’s former attorneys from recounting

certain statements Helen allegedly made about her estate plans; and the court’s decision to

bar Schulz’s expert witness Dr. Megan Evans from testifying.

       A. Verone’s settlement documents with the Hospital.

¶33    Helen’s 2012 Trust included a $300,000 gift to the Ruby Valley Hospital. Her 2010

testamentary documents contained no such bequest. Verone entered into a settlement

agreement with the Hospital agreeing to give the Hospital $300,000 if she prevailed in

admitting the 2010 Will to probate and in enforcing the 2010 Trust. Verone and the

Hospital filed a joint petition for approval of their settlement with the court, and the court

approved the agreement.




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¶34    At trial the court barred the parties from discussing the settlement agreement in the

presence of the jury. During the testimony of Bethany Clark, an Adult Protective Services

worker who conducted an investigation for financial exploitation of Helen, Schulz’s

attorney asked the witness, “if you were to learn subsequently that Ms. Verone doesn’t

have any objection to the gift to the hospital [in the 2012 Trust], does that change the

outcome of your investigation?” Verone’s attorney objected to the question for assuming

facts not in evidence, and the court sustained the objection.

¶35    Verone subsequently sought to admit documentation of her settlement agreement

with the Hospital into evidence, and the court allowed her to do so. The court reasoned

that “Ms. Verone’s attitude about a gift to the hospital has been brought into question by

[Schulz’s attorney’s] inquiry.” It stated further, “The inquiry is before the jury, so the

Court is inclined to allow Ms. Verone to address it however she wishes.”

¶36    Schulz argues that the court erred in admitting evidence of the settlement between

Verone and the Hospital. In Schulz’s view, Verone sought to introduce this settlement for

the purpose of proving that the parties agreed to the settlement, which M. R. Evid. 408

prohibits.

¶37    Montana law provides that evidence pertaining to settlement negotiations is

inadmissible to prove liability or the validity of a claim or its amount. M. R. Evid. 408;

Kiely Constr. L.L.C. v. City of Red Lodge, 2002 MT 241, ¶ 95, 312 Mont. 52, 57 P.3d 836.

Under the “opening the door” doctrine, however, “the introduction of inadmissible

evidence by one party allows an opponent, in the court’s discretion, to introduce evidence




                                             12
on the same issue to rebut any false impression that might have resulted from the earlier

admission.” Stevenson v. Felco Indus., 2009 MT 299, ¶ 40, 352 Mont. 303, 216 P.3d 763.

¶38    The District Court found that when Schulz suggested to Bethany Clark that Verone

did not object to the 2012 Trust’s $300,000 gift to the Hospital, she broached a subject that

the court had barred from discussion—Verone’s settlement with the Hospital. Because

Schulz raised this topic, the court permitted Verone to “introduce evidence on the same

issue” by showing the jury that she entered into an agreement with the Hospital to convey

the $300,000 gift no matter the outcome of the litigation. Stevenson, ¶ 40. The court did

not abuse its discretion in concluding that Schulz opened the door to admission of the

settlement documents into evidence. Beehler, ¶ 17.

       B. Testimony of Helen’s attorneys.

¶39    The District Court prevented Helen’s former attorneys from recounting statements

that Helen may have made about her dispositional intentions when she executed the 2012

Will and the 2012 Trust. For instance, Schulz asked William Kebe, one of Helen’s former

attorneys, whether Helen had discussed with him “the changes that she wanted to make to

her will and her trust” during a September 2012 meeting. The court sustained Verone’s

objection. Responding to another question, Kebe testified, “The primary thrust of the

conversation was she wanted to change . . . .” The court again sustained Verone’s hearsay

objection. The court also prevented Kebe from answering questions about whether Helen

said that she wanted to cut Verone out of the 2012 Will and the 2012 Trust. The court did

permit testimony by Helen’s attorneys about their interactions with her, their observations




                                             13
of her, the work they did in preparing her wills and trust documents, and their standard

practices in preparing testamentary documents.

¶40    Schulz argues that the District Court wrongly barred Helen’s attorneys from

commenting on Helen’s statements that may have reflected her testamentary intent. In her

view, Helen’s statements to her attorneys were admissible under M. R. Evid. 804(b)(5)

because they contained “circumstantial guarantees of trustworthiness,” and under

M. R. Evid. 803(3) because they showed Helen’s “state of mind.” Schulz contends also

that these statements were admissible under the “verbal act doctrine,” because the

testimony sought to prove merely that Helen made the statements, as opposed to proving

the truth of the matter asserted within the statements.

¶41    Hearsay statements are inadmissible unless they fall under an exception.

M. R. Evid. 802. The “then-existing state of mind” exception of M. R. Evid. 803(3) does

not permit the admission of a testator’s declarations “as to the existence or revocation of

the will and the testator’s attitude toward the contestee of the will.” In re Estate of Harmon,

2011 MT 84A, ¶ 32, 360 Mont. 150, 253 P.3d 821 (internal quotes and citation omitted).

The exception of M. R. Evid. 804(b)(5) for hearsay statements that have “comparable

circumstantial guarantees of trustworthiness” as other hearsay exceptions applies narrowly

in estate disputes. Harmon, ¶ 37. “Given the often highly contentious nature of estate

distribution . . . Montana law has historically been hostile to the admissibility of out-of-

court statements made by the testator regarding his or her testamentary intentions when a

valid will exists and the testator’s mental capacity is not at issue.” Harmon, ¶ 37. The

“verbal act doctrine,” which allows for admission of statements “for the purpose of


                                              14
establishing the fact that the words had been said,” applies only “where the issue is the

existence of statements, not the truth of the matters asserted within them.” Phillip R.

Morrow, Inc. v. FBS Ins. Mont.-Hoiness Labar, Inc., 236 Mont. 394, 399, 770 P.2d 859,

862 (1989) (internal quotes and citation omitted).

¶42    Helen’s statements to her attorneys about her dispositional intentions—including

what she may have said about wanting to reduce Verone’s gift—pertain to “the testator’s

attitude toward the contestee of the will,” and as such are not admissible under the state of

mind exception of Rule 803(3).       Harmon, ¶ 32.      This case deals with the “highly

contentious” distribution of Helen’s estate, and Helen’s alleged statements are “out-of-

court statements made by the testator regarding his or her testamentary intentions.”

Harmon, ¶ 37. As such, Helen’s statements to her attorneys do not contain “comparable

circumstantial guarantees of trustworthiness.” M. R. Evid. 804(b)(5); see Harmon, ¶ 37.

The verbal act doctrine does not apply here because the issue is not whether Helen

discussed her dispositional intentions with her attorneys—“the existence of statements”—

but rather what she told them—“the truth of the matters asserted within [the statements].”

Morrow, 236 Mont. at 399, 770 P.2d at 862; see also In re Estate of Mead, 2014 MT 264,

¶¶ 23-24, 376 Mont. 386, 336 P.3d 362 (holding that the verbal act doctrine applied to the

testator’s out-of-court statement acknowledging his signature on the will because “the

existence of” that statement was “material” to determining the validity of the witness’s

signature”).   The District Court therefore did not abuse its discretion in sustaining

objections to testimony by Helen’s attorneys regarding Helen’s statements of her

dispositional intentions. Beehler, ¶ 17.


                                             15
       C. Testimony of Dr. Megan Evans.

¶43    Schulz sought to call Dr. Megan Evans, who evaluated Helen for competency in

October 2012, as an expert witness at trial. Before trial, the court granted Verone’s witness

sequestration motion, in which Verone had asked the court to “instruct all parties and

witnesses not to divulge to other witnesses any aspect of their trial testimony or evidence

presented during trial prior to the witness being excused by the Court.”

¶44    A few days before Dr. Evans’s scheduled testimony, Dr. Bill Rosen, a medical

doctor, testified as an expert witness for Verone. Dr. Rosen opined that Helen was unduly

influenced. During his testimony, he referenced a three-page document that he claimed

constituted medical literature in support of his testimony. Dr. Rosen gave a copy of this

document to Schulz’s counsel.

¶45    On the day of Dr. Evans’s testimony, Verone’s counsel noticed that Dr. Evans was

in possession of the three-page document to which Dr. Rosen had referred during his

testimony.   When Verone’s counsel asked where Dr. Evans obtained the document,

Dr. Evans answered that Schulz’s counsel had provided the document to her and asked her

to review it before testifying. Verone’s counsel informed the court of this interaction, and

Schulz’s counsel did not deny that she gave the document to Dr. Evans. The court

admonished Schulz’s counsel for violating its witness sequestration ruling, and Verone

asked the court to bar Dr. Evans from testifying.

¶46    After significant deliberation with Verone’s and Schulz’s counsel, the court elected

to proceed with voir dire of Dr. Evans. Dr. Evans stated in voir dire that she only evaluated

Helen for competency, but not for her ability to withstand influence. Dr. Evans did note,


                                             16
however, that she made “observations” about Helen’s mental condition that led her to an

opinion about Helen’s ability to withstand influence.

¶47    The court decided to bar Dr. Evans from testifying at trial. It noted that Dr. Evans

“did not evaluate Helen Edwards for matters of undue influence . . . she made observations.

But her observations are of no utility unless she made an evaluation.” The court reasoned

that it did not wish to “risk confusing the jury by allowing her to testify about

her . . . observations.” It stated its concern that Dr. Evans’s status as a doctor might cause

the jury to give undue weight to her mere “observations.”

¶48    Schulz argues that the District Court abused its discretion by preventing Dr. Evans

from testifying. She contends that Dr. Evans’s testimony was relevant to the jury’s

consideration of Helen’s susceptibility to undue influence. Exclusion of this testimony, in

Schulz’s view, prejudiced Schulz by possibly affecting the outcome of the trial.

¶49    “A district court has broad discretion over the admissibility of evidence and control

of pretrial and trial proceedings.” Folsom v. City of Livingston, 2016 MT 238, ¶ 16,

385 Mont. 20, 381 P.3d 539 (internal quotes and citation omitted). “[T]rial administration

issues” likewise fall within the discretion of the district court. State v. Price, 2006 MT

79, ¶ 17, 331 Mont. 502, 134 P.3d 45. A court may exclude relevant evidence “if its

probative value is substantially outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury.” M. R. Evid. 403. “A district court does not abuse its

discretion in excluding evidence that it reasonably determines . . . would likely lead to

unnecessary confusion.” S & P Brake Supply, Inc. v. STEMCO LP, 2016 MT 324, ¶ 51,

385 Mont. 488, 385 P.3d 567 (internal quotes and citation omitted) (hereafter S & P).


                                             17
¶50    “Even if a court abuses its discretion in an evidentiary ruling, that abuse does not

necessarily constitute reversible error.” S & P, ¶ 51 (internal quotes and citation omitted).

Reversible error occurs only when “a substantial right of the party is affected.” Reese v.

Stanton, 2015 MT 293, ¶ 25, 381 Mont. 241, 358 P.3d 208 (citing M. R. Evid. 103). “[A]

substantial right of a party is not affected unless the challenged evidence is of such

character to have affected the result of the case.” S & P, ¶ 51 (internal quotes and citation

omitted).

¶51    Numerous professional witnesses and friends of Helen provided testimony that

Helen was not susceptible to undue influence. William Kebe, who met with Helen to

prepare her 2012 testamentary documents, testified that he observed that Helen was

“deliberate” and that she “knew what she was doing [and] why she was doing it.” Maria

Kegie-Shutey, another attorney present when Helen signed her 2012 testamentary

documents, testified that she saw no signs that Helen was unduly influenced or was

changing her will and trust by anything other than her own free will. Gayla Allhands, a

friend of Helen, testified that Helen was “sharp as a tack,” that she always exercised free

will, and that she was not susceptible to undue influence. Dr. Roman Hendrickson, Helen’s

physician from 2006 to 2009 and again in 2012, testified that Helen seemed independent,

that she was not susceptible to other people telling her what to do, and that she appeared in

charge of her own affairs, such as maintaining her household, keeping her appointments,

and entertaining visitors. He testified that he did not observe any signs of undue influence.

Ken Fenno, Chief Executive Officer at Helen’s bank, testified that, when Helen came into




                                             18
the bank in 2012, he was impressed by “how sharp she was for her age” and that she did

not appear distressed or susceptible to undue influence.

¶52    Schulz presented considerable evidence, including testimony both from friends and

from professionals who had worked with Helen, attesting to their observations about

Helen’s susceptibility, or lack thereof, to undue influence. In the face of this evidence, we

cannot conclude that the exclusion of Dr. Evans’s testimony affected the outcome of the

case. Dr. Evans would have supplied her own observations on the same point, which

largely would have been cumulative of the other evidence. The District Court made a

discretionary ruling to preclude her testimony based in part on its conclusion that the jury

would afford undue weight to Dr. Evans’s observations over those of other witnesses. We

conclude that its ruling, even if arguably in error, is not cause for reversing the verdict.

Reese, ¶ 25; S&P, ¶ 51.

¶53 3. Whether substantial credible evidence existed to support the jury’s findings that
the 2012 Will and the 2012 Trust were procured by undue influence, fraud, or duress.

¶54    Schulz argues on appeal that Verone presented no evidence that Schulz or Degel

committed any acts of undue influence, fraud, or duress and therefore that the jury’s special

verdict was unsupported by substantial credible evidence. Schulz contends that evidence

that she and Degel had the “opportunity” to unduly influence Helen or that there was

suspicion of undue influence was insufficient without proof of specific acts by Schulz or

Degel with the purpose of affecting changes to Helen’s will and trust.




                                             19
¶55    Montana law provides that a finding of either undue influence, fraud, or duress may

invalidate a will or a trust. Section 72-38-406, MCA; see § 72-3-310, MCA. The statute

defines undue influence as:

       (1) the use by one in whom a confidence is reposed by another person or who
       holds a real or apparent authority over the other person of the confidence or
       authority for the purpose of obtaining an unfair advantage over the other
       person;

       (2) taking an unfair advantage of another person’s weakness of mind; or

       (3) taking a grossly oppressive and unfair advantage of another person’s
       necessities or distress.

Section 28-2-407, MCA. Will contestants have the burden of establishing undue influence,

fraud, or duress in the execution of the will. Section 72-3-310, MCA.

¶56    “To establish undue influence, a party 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.” Mead, ¶ 27 (citing Harmon, ¶¶ 21-22) (internal quotes omitted). A

trier of fact should consider “the opportunity for undue influence, including the testator’s

susceptibility to influence, and whether the disposition of property was natural.”

Mead, ¶ 27. The mere “opportunity to exercise undue influence on the testator is not

sufficient to prove undue influence and invalidate a will. Rather, the opportunity to

exercise undue influence is to be considered and correlated with the alleged acts of

influence to determine if the acts amount to undue influence.” In re Estate of Harms,

2006 MT 320, ¶ 36, 335 Mont. 66, 149 P.3d 557. Likewise, the existence of a confidential

relationship, without evidence of a specific act of undue influence, is insufficient to show

“that the relationship was used for the purpose of obtaining an unfair advantage.”


                                            20
Harmon, ¶ 47 (emphasis in original). A finding of undue influence may be based on

circumstantial evidence. See In re Estate of Lightfield, 2009 MT 244, ¶¶ 40-42, 351 Mont.

426, 213 P.3d 468.

¶57    The testimony at trial established that, prior to Schulz’s employment as Helen’s

housekeeper, Verone maintained a close relationship with Helen throughout Verone’s

childhood and adult life. Helen and her late husband Jim treated Verone “like their

daughter.” Helen spoke on the phone with Verone almost daily. Verone was the primary

beneficiary in Helen’s and Jim’s 2007 wills and in Helen’s 2010 testamentary documents.

Testimony from Verone and Helen’s friends alleged that Schulz was not a significant part

of Helen’s life prior to her employment in 2011. Indeed, some of Helen’s longtime friends,

such as Van Crosby, testified that they had never heard of Schulz prior to 2011.

¶58    Helen’s friends Betty Staley, Doris Ryan, Crosby, and Diane Orr testified that, when

they would visit Helen at home or in the hospital, Schulz typically would not leave the

room or give them privacy, and when she did, she did so reluctantly. Schulz would answer

Helen’s phone when these friends called her, and Schulz often would not allow them to

speak with Helen. Crosby testified that Schulz was “dominating” Helen. Testimony from

Staley, Ryan, Verone, and Vicki Gordon established that Helen engaged in behavior with

Schulz that the witnesses viewed as disturbing and uncharacteristic of Helen.         This

behavior included Schulz and Helen rubbing noses, sticking their tongues out at each other,

and speaking “baby talk” to each other.

¶59    Dr. Rosen testified that Helen experienced “social isolation,” that she was

susceptible to undue influence, and that the estate plan described in her 2012 testamentary


                                            21
documents was consistent with a finding of undue influence. Testimony from Bethany

Clark, who relayed notes from Helen’s former doctor, Dr. Googe, established that Helen

was “highly vulnerable” and “easily manipulated” by persons in close contact with her.

¶60    After Schulz began working as Helen’s housekeeper, Orr noticed that Helen became

unusually quiet and less “open” than she used to be and that she began to “curl into herself.”

Orr testified that she previously knew Helen to be “outgoing” and “vivacious.” Staley

testified that Helen started acting differently in 2012 and appeared “more distressed,”

“more insecure,” and “anxious.”

¶61    Gordon testified that Helen seemed “dependent” on Schulz and that Helen did not

seem to be “in charge” or making her own decisions. Staley’s and Kebe’s testimony

established that Helen attempted to remove Staley as a beneficiary of her will shortly after

Staley got into an argument with Schulz in April 2013. Verone testified that in August

2012 she heard Schulz order Helen to “get those papers; we need to have those papers

signed,” referring to documents that Schulz wanted Verone to sign. Verone claimed that,

around that same time, Schulz began writing herself checks from Helen’s bank account for

her work as Helen’s housekeeper, rather than submitting her timesheets to Verone as she

had done before. In October 2012, Schulz accompanied Helen to the bank, where Helen

added Schulz as a signatory on her checking account. Around the same time, Helen gave

Schulz two powers of attorney.

¶62    Testimony from Verone and Degel established that Degel wanted Helen’s property

“on the mountain”—property that Helen ultimately gifted to him in her 2012 Trust. Degel

testified that he, Schulz, and Helen visited the mountain property in 2012 and generally


                                             22
discussed Helen’s estate planning there. On two occasions in 2012, Schulz drove Helen to

her attorney’s office—approximately a two-hour round-trip drive—where she had

appointments to discuss changes to her testamentary documents.

¶63    Schulz and Degel testified that they believed Verone wanted to put Helen in a

nursing home. Degel stated that he knew Helen believed Verone wanted to put her in a

nursing home, and he admitted that he did nothing to ease Helen’s concerns that Verone

would do that. Crosby, who knew Degel well, testified that Degel constantly criticized

Verone and made derogatory comments about her. Testimony from Verone and Staley

established that Helen became more critical of Verone in 2012 than she had ever been.

Verone testified that Helen became “cold” and “distant” towards her and did not want to

talk to her.

¶64    The evidence before the jury that Schulz or Degel exercised undue influence on

Helen was substantial. The testimony established that Schulz and Helen had a confidential

relationship and that Schulz held “real or apparent authority over” Helen, including, among

other things, Schulz’s status as a housekeeper, her screening of Helen’s phone calls, her

failure to leave the room when Helen’s friends came to visit, and the fact that she had

obtained Helen’s powers of attorney and the right to sign checks from Helen’s account.

Section 28-2-407(1), MCA. There also was substantial evidence showing that Schulz and

Degel had “the opportunity to exercise undue influence” on Helen. Estate of Harms, ¶ 36.

This included testimony that Schulz isolated Helen socially, testimony that Dr. Rosen

believed that Helen was susceptible to undue influence, and testimony that Dr. Googe

believed that Helen was “vulnerable” and “easily manipulated.” The jury could have


                                            23
inferred from the evidence that Helen’s “disposition of property was [not] natural,” given

Helen’s closeness to Verone for so many years, her inclusion of Verone as the primary

beneficiary in her 2007 and 2010 testamentary documents, and the testimony that Helen

and Schulz were not close prior to Schulz’s employment in 2011. Mead, ¶ 27.

¶65     The testimony also provided the jury with substantial circumstantial evidence to

conclude that Schulz or Degel had committed “specific acts” in order to “procure the

execution of the will.” Mead, ¶ 27. The testimony established that Schulz’s and Degel’s

increasing involvement in Helen’s life leading up to the execution of her 2012 Will and her

2012 Trust coincided with Helen’s change in personality and a deterioration of her

relationship with Verone. The jury could have inferred from the testimony that Schulz and

Degel deliberately acted to convince Helen to replace Verone with them as primary

beneficiaries to her estate. The circumstantial evidence supported a finding that Schulz

and Degel may have acted to exacerbate Helen’s fear that Verone would put her in a nursing

home despite evidence that Verone acted to reduce the need to move Helen into a nursing

home.    Verone hired Schulz to assist Helen with household maintenance, and she

remodeled Helen’s home to improve its accessibility. The jury also could have inferred

from the evidence that Schulz and Degel used their exclusive access to Helen—driving her

to appointments with her attorneys and to her mountaintop property to discuss her estate

plans—to pressure Helen to change her estate plan in their favor. Thus, by considering

“the opportunity to exercise undue influence” together with both direct and circumstantial

evidence of the “alleged acts of influence,” the jury reasonably could have determined that

Schulz’s and Degel’s actions amounted to undue influence. In re Estate of Harms, ¶ 36.


                                            24
¶66    Viewing the evidence in a light most favorable to Verone, we conclude that the

jury’s findings that the 2012 Will and the 2012 Trust were procured by “undue influence,

fraud, or duress” were supported by substantial credible evidence. Murray, ¶ 7; D.R. Four

Beat Alliance, LLC, ¶ 23. Schulz and Degel presented evidence to the contrary, but it was

within the province of the jury to determine the weight and credibility to give to the

conflicting evidence. Campbell, ¶ 19. “[W]e do not retry the case because the jury chose

to believe” Verone’s evidence over Schulz’s and Degel’s. Murray, ¶ 26.

¶67    Finally, Verone appeals the jury’s finding that the 2012 Trust “substantially

[complied] with the method provided to alter, amend, or revoke” the 2010 Trust. Because

the jury’s invalidation of the 2012 Will and the 2012 Trust was supported by substantial

credible evidence, whether the 2012 Trust complied with the required procedures for

amendment of the 2010 Trust is moot.

¶68 4. Whether the District Court erred in refusing to admit the 2010 Will to probate
or to validate the 2010 Trust following the jury’s special verdict.

¶69    Following the jury’s verdict, Verone requested judgment admitting the 2010 Will

to probate and recognizing the 2010 Trust as “valid, binding, and enforceable.” The

District Court entered judgment invalidating the 2012 Will and the 2012 Trust but refused

Verone’s requests regarding the 2010 Will and the 2010 Trust. The court reasoned that the

2010 testamentary documents were not at issue in this case. It stated that the 2010 Will

had not been submitted “to scrutiny by the Court and potential objectors” and that the jury’s

special verdict “did not confirm the validity of the 2010 Will.”




                                             25
¶70    Schulz and Degel argue that the trial resolved only the issue whether the 2012

testamentary documents were valid and that the 2010 testamentary documents were not at

issue in this case. They assert that a separate probate hearing would be required in order

to determine the validity of the 2010 Will.

¶71    A party may initiate formal probate of a will by petitioning the court for testacy

proceedings. Section 72-3-301, MCA. The petition must request “an order as to the testacy

of the decedent in relation to a particular instrument . . . and determining the heirs” and

must state “whether the original of the last will of the decedent is in the possession of the

court or accompanies the petition.” Section 72-3-301(1), MCA. “A formal testacy

proceeding may be commenced by an interested person filing a petition . . . as described in

72-3-301(1) in which the person requests that the court, after notice and hearing, enter an

order probating a will.” Section 72-3-302(2), MCA. Once the court sets a hearing, the

petitioner must give notice of the hearing to all interested parties. Section 72-3-305, MCA.

“Any party to a formal proceeding who opposes the probate of a will for any reason shall

state in the pleadings the party’s objections to probate of the will.” Section 72-3-308,

MCA. “If a will is opposed by the petition for probate of a later will revoking the former,

it shall be determined first whether the later will is entitled to probate.” Section 72-3-311,

MCA. After the court conducts a hearing and other procedural requirements have been

met, the court “shall determine . . . the decedent’s state of testacy. Any will found to be

valid and unrevoked must be formally probated.” Section 72-3-313, MCA.

¶72    Our de novo review of Verone’s entitlement to judgment as a matter of law leads us

to conclude that the District Court erred in refusing to admit the 2010 Will to probate and


                                              26
to enforce the terms of the 2010 Trust. It is undisputed that Schulz and Corette fulfilled

the procedural requirements for initiating formal probate proceedings under §§ 72-3-301,

-302, and -305, MCA. Verone objected to probate of the 2012 Will, in compliance with

§ 72-3-308, MCA, and cross-petitioned for probate of the 2010 Will. When Verone

petitioned the court to enter judgment admitting the 2010 Will to probate, she joined the

issue of the 2010 Will’s validity to the petition for probate of the 2012 Will.

¶73    The litigation before the District Court constituted a contest between the 2010 Will

and the 2012 Will. Because Schulz and Degel opposed probate of the 2010 Will through

the “petition for probate of a later will revoking the former [will],” the court was required

to determine “first whether the later will [was] entitled to probate.” Section 72-3-311,

MCA. The jury’s special verdict answered this question when it invalidated the 2012 Will.

¶74    Once the jury issued its verdict, the court was required to determine “the decedent’s

state of testacy” and formally probate “[a]ny will found to be valid and unrevoked.”

Section 72-3-313, MCA. Verone had admitted the 2010 Will into evidence without

objection. Schulz and Degel stipulated in the Final Pretrial Order that the 2010 Will was

“properly witnessed and notarized” and that Helen “did not lack Testamentary Intent or

Capacity” when she executed that will.

¶75    Only an “interested person” possesses legal standing to contest a will. Section

72-3-302(2), MCA; Stoican v. Wagner (In re Estate of Lawlor), 2015 MT 54, ¶ 16,

378 Mont. 281, 343 P.3d 577. A party qualifies as an “interested person” if he or she has

“a property right in or claim against . . . the estate of a decedent.” Section 72-1-103(25),




                                             27
MCA. “That is, a party has standing to contest a will if he or she stands to gain from a

successful contest.” Stoican, ¶ 16.

¶76    Aside from their claims under the 2012 Will, Schulz and Degel did not have

standing to challenge the 2010 Will. That will did not name them as beneficiaries, and

they would not have been entitled to an intestate share of Helen’s estate, because they are

not related to her. See generally §§ 72-2-111 to -124, MCA. They did not “stand[ ] to gain

from a successful contest” of the 2010 Will. Stoican, ¶ 16. Thus, once the jury declared

the 2012 Will invalid, the 2010 Will became the only “valid and unrevoked” will before

the court. Section 72-3-313, MCA. Helen’s “state of testacy” at that point was that her

2010 Will was the only will that represented her dispositional intentions. Section 72-3-313,

MCA. The court was statutorily required to admit the 2010 Will to probate. Section

72-3-313, MCA.

¶77    The Montana Rules of Civil Procedure provide that a judgment “should grant the

relief to which each party is entitled.” M. R. Civ. P. 54(c); Goodover v. Lindey’s,

255 Mont. 430, 438, 843 P.2d 765, 770 (1992). Questions of law must be decided by a

court, rather than by a jury. Section 26-1-201, MCA.

¶78    Verone asserted the validity of the 2010 Trust, and Schulz and Degel did not object

to the 2010 Trust’s validity other than by asserting that the 2012 Trust amended it. When

the jury issued its verdict invalidating the 2012 Trust, the only valid trust remaining before

the court was the 2010 Trust.

¶79    The District Court was obligated in issuing its judgment not only to enforce the

mandate of the jury’s special verdict, but to “grant the relief to which each party [was]


                                             28
entitled.” M. R. Civ. P. 54(c); Goodover, 255 Mont. at 438, 843 P.2d at 770. Because the

parties pleaded, and the litigation involved, a contest between two sets of competing

testamentary documents, and the jury invalidated the 2012 set, Verone was legally entitled

to probate of the 2010 Will and validation of the 2010 Trust.

¶80    The validity of the 2010 testamentary documents was not a fact that the parties put

at issue for the jury to decide. Admission of the 2010 Will to probate and enforcement of

the 2010 Trust—the only valid testamentary documents before the court after the jury

issued its verdict—was a question of law to be decided by the court, not by the jury. See

§ 26-1-201, MCA.

¶81    We reverse and remand with instructions that the court admit the 2010 Will to

probate and enforce the terms of the 2010 Trust.

¶82 5. Whether the District Court erred in refusing to award Verone attorney fees and
certain costs.

¶83    After the jury’s special verdict, Verone filed a bill of costs and statement of fees in

which she requested a total of $903,468.56, which included $892,018.63 in attorney fees

and $11,449.93 in costs. The District Court denied Verone’s request for attorney fees and

partially denied her request for costs. In denying Verone’s request for attorney fees, the

court reasoned that the relevant statute—§ 72-12-206, MCA—“limits recovery of attorney

fees to only those parties who successfully defended a will. It specifically precludes parties

who contest a will from recovering attorney fees even if successful.” The court found that

Verone had contested probate of the 2012 Will, but that Schulz and Degel had not contested

probate of the 2010 Will. Further, the court reasoned that the statute permitted recovery of



                                             29
attorney fees by the party defending a will only “if the will in probate is confirmed.”

Because Verone contested the 2012 Will but did not defend the 2010 Will, and because

neither will was admitted to probate, the court concluded that the statute barred Verone

from recovering attorney fees.

¶84    Verone argues that the court erred in not awarding her attorney fees.2 She asserts

that she defended the 2010 Will and therefore that § 72-12-206, MCA, did not bar her from

recovering attorney fees. Verone requests that this Court remand for a determination and

award of the appropriate fees to be awarded to her. She contends also that she is entitled

to attorney fees under § 72-3-632, MCA, because the 2010 Will nominated her personal

representative.

¶85    Schulz and Degel assert that the District Court was correct in its ruling on attorney

fees because Verone contested—rather than defended—the 2012 Will, which in their view

was the only will at issue in the case. They argue that the 2010 Will was not litigated

before the District Court, that they did not contest that will, and therefore that the statute

bars Verone’s request for attorney fees.

¶86    The statute governing awards of attorney fees to parties in a will contest 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. If the probate is
       revoked, costs, as provided in 25-10-201, but not attorney fees, must be paid
       by the party who resisted the revocation or out of the property of the
       decedent, as the court directs.

2
   Verone asserts in her issue statement that the District Court also erred in partially denying her
request for costs, but she makes no argument on this point separate from her argument regarding
attorney fees. As such, we do not address the court’s partial denial of her costs.


                                                30
Section 72-12-206, MCA (emphasis added). In contrast, a personal representative who

“defends or prosecutes a proceeding in good faith, whether successful or not . . . is entitled

to receive from the estate the personal representative’s necessary expenses and

disbursements, including reasonable attorney fees incurred.” Section 72-3-632, MCA.

¶87    As an initial matter, the court correctly interpreted the meaning of § 72-12-206,

MCA. This Court has rarely applied or interpreted this statute, which long predates

Montana’s adoption of the Uniform Probate Code (UPC). The UPC does not appear to

contain a corollary provision. The statute’s history does suggest, however, that it has

always required that only a successful “defender” of a will in contest—and not a successful

“contestant”—may recover attorney fees. See In re Kesl’s Estate, 117 Mont. 377, 161 P.2d

641 (1945) (concluding that an earlier version of this statute, Section 10047, R.C.M.

(1935), required that the party who unsuccessfully contests a will must pay attorney fees,

but that the party who unsuccessfully defends a will need only pay costs). The Montana

Legislature most recently amended § 72-12-206, MCA, in 1993 to include language that if

a will challenge is successful and probate is revoked, costs, “but not attorney fees,” must

be paid by the party who defended the will. 1993 Mont. Laws 1835. The history of this

statute makes clear that if a party successfully contests a will, she is entitled to costs, but

not attorney fees, whereas if a party successfully defends a will, she is entitled to both

attorney fees and costs.

¶88    On the record of this case, however, the District Court’s determination that

§ 72-12-206, MCA, barred Verone’s claim for attorney fees was incorrect. Mlekush, ¶ 8.



                                              31
This case involved a petition for probate of a will and a cross-petition for probate of an

earlier will. The personal representative remained a “neutral third party” and did not

defend the validity of either will. Had Suenram defended either of these wills, he would

have been entitled to fees from the Estate under § 72-3-632, MCA. But because the

appointed personal representative did not advocate for one of these wills over the other,

§ 72-3-632, MCA, does not apply.

¶89    As discussed earlier, the court and the parties treated the case from the beginning as

a contest between two competing wills. The court described in an order the “competing

petitions” for probate of the 2012 Will and the 2010 Will and stated that it “must determine

the validity of the competing wills.” The court correctly determined that Verone contested

the 2012 Will and that Schulz and Degel defended it. But, as reflected in the pleadings and

in the Final Pretrial Order, Schulz and Degel also contested the 2010 Will, and Verone

defended it. In the pleadings, Schulz denied Verone’s contention that the 2010 Will

represented “the last valid dispositional intentions of Helen Edwards.” In the Final Pretrial

Order, Schulz and Degel took the position that the 2012 Will revoked the 2010 Will, and

they listed as an issue of law whether the 2010 Will should be admitted to probate.

¶90    Once the jury issued its verdict, the District Court should have admitted the 2010

Will to probate as a matter of law. At that point, § 72-12-206, MCA, would have applied

to the 2010 Will, because that will would have been a “will in probate” that was

“confirmed.” Because Verone successfully defended that will, the statute did not bar her

from seeking attorney fees that she “incurred in defending the validity or probate” of the

2010 Will. Section 72-12-206, MCA. The District Court thus erred in determining that


                                             32
Verone was statutorily barred from recovering attorney fees. Mlekush, ¶ 8. The amount

of any fees to which Verone may be entitled for her defense of the 2010 Will is a matter

for review and determination by the District Court. We remand for further proceedings on

Verone’s request for attorney fees.

                                      CONCLUSION

¶91    We affirm the District Court’s appointment of Suenram as a neutral personal

representative, the court’s three evidentiary rulings that Schulz appealed, and the jury’s

special verdict finding “undue influence, fraud, or duress.” We reverse the court’s decision

not to admit the 2010 Will to probate or to validate the 2010 Trust and its denial of Verone’s

request for attorney fees. We remand with instructions that the court initiate probate

proceedings of the 2010 Will and for further proceedings on Verone’s request for attorney

fees, consistent with this Opinion.

                                                  /S/ BETH BAKER


We Concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ MICHAEL E WHEAT




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