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In re Estate of Carpenter

Supreme Court of Montana

December 28, 2017


          Submitted on Briefs: November 1, 2017

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

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

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


          Beth Baker, Justice

         ¶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 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 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 ...

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