IN THE MATTER OF THE ESTATE OF ALICE H. CARPENTER, Deceased.
Submitted on Briefs: November 1, 2017
Court of the Nineteenth Judicial District, In and For the
County of Lincoln, Cause No. DP 14-58 Honorable James
Wheelis, Presiding Judge
Appellants: Robert Terrazas, Elizabeth A. Clark, Attorneys at
Law, Missoula, Montana
Appellee: Amy N. Guth, Attorney at Law, P.C., Libby, Montana
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
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.
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.
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.
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.
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.
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
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).
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