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In re Estate of Erickson

Supreme Court of Montana

October 31, 2017

IN THE MATTER OF THE ESTATE OF BRUCE A. ERICKSON, Deceased.

          Submitted on Briefs: August 9, 2017

         APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DP-15-187B Honorable Rienne H. McElyea, Presiding Judge.

          For Appellant: W. Bjarne Johnson, Steven M. Johnson, Eric B. Biehl, Church Harris Johnson & Williams PC, Great Falls, Montana

          For Appellee, Cross-Appellant and Personal Representative: David M. Wagner, Griffin B. Stevens, Crowley Fleck PLLP, Bozeman, Montana

          For Appellees: John T. Jones, Kathryn J. Maehl, Cole A. Derks, Moulton Bellingham PC, Billings, Montana

          OPINION

          Michael E Wheat, Justice.

         ¶1 This appeal comes from the District Court's denial of a motion for relief from a judgment or order under M. R. Civ. P. 60(b).

         ¶2 We restate the issues on appeal as follows:

Issue One: Did the District Court err in determining M. R. Civ. P. 60(b) did not apply?
Issue Two: Did the District Court err in denying Gail's motion to modify a formal testacy order under § 72-3-317(4), MCA?
Issue Three: Did the District Court err in denying Gail's request for imposition of a constructive trust?
Issue Four: Is the Personal Representative entitled to attorney fees and costs pursuant to § 72-12-206, MCA?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 Bruce A. Erickson (Decedent) died on November 18, 2015. At that time, he was married to Gail Erickson (Gail); he had two grown children, Tyler Erickson (Tyler) and Taylor Wortman. Gail is not the biological parent of either child. Decedent executed a Last Will and Testament on May 2, 1995. After his first wife died, Decedent executed a Codicil to the Last Will and Testament on February 5, 2008. The Codicil nominated Tyler to act as Personal Representative of the Estate.

         ¶4 On December 16, 2015, Gail filed an Application for Informal Appointment of Personal Representative in Intestacy. The District Court Clerk granted Gail's application and appointed her Personal Representative.

         ¶5 On December 18, 2015, Tyler filed a Petition for Formal Probate of Will, Determination of Testacy and Heirs, and Appointment of Personal Representative. At that time, the Last Will and Testament and Codicil were submitted collectively as the Decedent's Will. The District Court issued an order setting a hearing on the Formal Petition for January 26, 2016, and directed anyone who intended to contest the Will and/or object to the appointment of Tyler as the Personal Representative was required to give written notice to the attorneys and the District Court no later than January 5, 2016. A copy of the order was provided to Gail personally, as well as counsel.

         ¶6 On January 22, 2016, Gail's counsel notified Tyler's counsel that Gail would not object to the probate of the Will and Codicil, the appointment of Tyler as Personal Representative, or the determination that Montana is the situs for the probate. On January 25, 2016, the day before the hearing, Tyler's counsel provided Gail's counsel with drafts of a Proposed Order and Letters of Appointment that would be presented to the Court for issuance. That same day Gail's counsel sent an email to Tyler's counsel providing him with a draft of "the Idaho document I mentioned, " told him that § 72-3-314, MCA, addresses the probate of more than one document, and that the parties could discuss it at the hearing.

         ¶7 At the January 26, 2016 hearing, Gail's counsel advised the court that he had reviewed the Proposed Order and Letters of Appointment from Tyler's counsel, and had no objection. No party raised any issues related to the "the Idaho document" (hereinafter referred to as the 6 Point Document). Thus, without objection, the District Court issued an Order of Formal Probate and appointed Tyler as Personal Representative. Gail did not appeal the order.

         ¶8 Almost five months later, on June 3, 2016, Gail's counsel filed a Verified Creditor's Claim asserting the 6 Point Document is a written contract by the Decedent to make payments of money and provide benefits to or on behalf of Gail, and that it is a contract to make a will or devise that provides for said payment of money and provision of benefits. On August 16, 2016, Gail's counsel filed a Petition for Elective Share, Homestead Allowance, Exempt Property, and Family Allowance. On September 15, 2016, Tyler as the Personal Representative, filed a Notice of Disallowance of the Verified Creditor's Claim.

         ¶9 On September 16, 2016, Gail obtained new counsel. On November 14, 2016, Gail's counsel petitioned the District Court to allow her creditor claim. However, on November 21, 2016, before the court could rule on that motion, Gail's counsel filed a Motion for Relief From Formal Testacy Order entered 1/26/2016; or alternatively for Imposition of Constructive Trust. Gail's counsel argued the 6 Point Document should have been included in the Order of Formal Probate of the Will. The issue was fully briefed. On January 9, 2017, Gail withdrew her creditor claim against the Estate. ¶10 On January 18, 2017, the District Court denied Gail's Motion for Relief From Formal Testacy Order entered 1/26/2016; or alternatively for Imposition of Constructive Trust. Gail appeals the denial of her Motion for Relief. We affirm.

         STANDARD OF REVIEW

         ¶11 We review a district court's ruling denying a motion to alter or amend its judgment pursuant to Rule 60(b), M. R. Civ. P., for an abuse of discretion. Heller v. ...


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