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In re Estate of Quirin

Supreme Court of Montana

August 20, 2013

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

Submitted on Briefs: June 19, 2013

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

For Appellant: James P. O'Brien; O'Brien Law Office, P.C.; Missoula, Montana

For Appellee: Harold V. Dye; Dye & Moe, PLLP; Missoula, Montana

OPINION

Patricia O. Cotter Justice

¶1 Cathie Schmiedeke (Schmiedeke) appeals from an order of Montana's Fourth Judicial District Court, Missoula County, denying her Motion for Substitution of Judge as untimely. We affirm.

ISSUE

¶2 Schmiedeke raises the following issue on appeal:

¶3 Did the District Court err in denying as untimely Schmiedeke's Motion for Substitution of Judge?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 Violet H. Quirin (Decedent) died testate on January 10, 2011. Decedent was a widow and had two daughters, Schmiedeke and Marcy Speiser (Speiser). Decedent's June 23, 2010 will acknowledged her daughters but expressly made no provision for them in her will. The will appointed Decedent's friend, Kristine Fankell (Fankell), as the personal representative of Decedent's estate and revoked all prior wills.

¶5 On January 18, 2011, Fankell filed an application for informal probate. The Clerk of Court accepted the application for informal probate and appointed Fankell as personal representative of Decedent's estate. On January 24, 2011, Fankell issued by mail a Notice and Information to Heirs and Devisees. The Notice and Information to Heirs and Devisees was sent to Schmiedeke and Speiser.

¶6 On May 2, 2011, Speiser filed a Petition for Supervised Administration of the Estate and a Petition for Formal Probate of the Will, Determination of Testacy and Heirs, and Appointment of Personal Representative. Speiser attached a March 1, 2007 will of Decedent that divided Decedent's estate equally between her two daughters. Speiser argued that Decedent was not competent at the time she executed the June 23, 2010 will. Discovery commenced on July 27, 2011.

ΒΆ7 Schmiedeke made her first appearance in this action on October 19, 2012. Schmiedeke filed an Objection to Application for Informal Probate of Will and Appointment of Personal Representative and Demand for Jury Trial, a Petition for Removal of Fankell as Personal Representative, and a Motion for Substitution of Judge. On November 5, 2012, Fankell submitted a Motion to Strike Pleadings Filed by Schmiedeke. Fankell argued that Schmiedeke's ...


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