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In re Valentine E. Weisz Living Trust

Supreme Court of Montana

November 7, 2018

IN THE MATTER OF VALENTINE E. WEISZ LIVING TRUST,
v.
D.A. DAVIDSON TRUST COMPANY, a subsidiary of D.A. DAVIDSON COMPANIES, a Montana Corporation, Trustee.

          Submitted on Briefs: September 26, 2018

          District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DP 16-194 Honorable John W. Larson, Presiding Judge

          For Appellant: Ashley C. Danno, Rebecca Henning-Rutz, Lee Henning, Henning, Keedy & Lee, P.L.L.C., Kalispell, Montana

          For Appellees: Daniel J. Auerbach, Laura E. Walker, Browning, Kaleczyc, Berry & Hoven, PC, Missoula, Montana (for D.A. Davidson Trust Company)

          Julie R. Sirrs, Boone Karlberg, PC, Missoula, Montana (Attorney for David and Lori Weisz)

          INGRID GUSTAFSON JUSTICE.

         ¶1 Valentine E. Weisz (Valentine) appeals from orders of the Fourth Judicial District Court, Missoula County, granting summary judgment in favor of D.A. Davidson Trust Company (Davidson), denying Valentine's motion for partial summary judgment, and ordering sanctions, including attorneys' fees, against Valentine's legal counsel Henning, Keedy & Lee. We affirm the orders granting summary judgment in favor of Davidson and denying Valentine's motion for partial summary judgment, and reverse the sanctions order.

         ¶2 We restate the issues on appeal as follows:

1. Did the District Court err when it determined Davidson properly assumed the role of Successor Trustee and granted summary judgment in its favor?
2. Did the District Court err when it denied Valentine's motion for partial summary judgment?
3. Did the District Court abuse its discretion when it ordered sanctions against Henning, Keedy & Lee?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 On September 22, 2006, Valentine created the Valentine E. Weisz Living Trust (Trust) and named herself as Trustee. On June 9, 2010, she amended the Trust (First Amended Trust) and named Davidson as Successor Trustee.

         ¶4 In late 2011, Valentine and her husband moved in with their grandson, David Weisz (David), and his wife, Lori A. Weisz (Lori), in Missoula County. After Valentine's husband died in October 2012, she continued to reside with David and Lori.

         ¶5 On December 11, 2012, Valentine's daughter Janice Burd (Janice) faxed letters to the law firm that Valentine had used for estate planning. Janice asked the firm to give the letters to Valentine in private and specifically requested the letters not be shared with Lori. In the letters, Janice expressed dissatisfaction with the division of Valentine's husband's estate. She complained that David's inheritance far exceeded her own, and pleaded, "I hope that you use your Trust to make the inheritance to the family more equal." She asked Valentine to include certain family members as Trust beneficiaries, including Janice's son Don Fairchild (Don), who had inherited significantly less from his grandfather's estate than grandson David had.

         ¶6 On January 23, 2013, having had the opportunity to read and consider Janice's letters, Valentine executed a Durable Power of Attorney that appointed Lori as her attorney-in-fact. That same day, Valentine amended the Trust (Second Amended Trust), and again named Davidson as Successor Trustee in the event of Valentine's resignation as Trustee, incapacity, or death. The Second Amended Trust provided for distributions upon Valentine's death to include: 24% of the residuary estate to Janice, 25% of the residuary estate to David, 25% of the residuary estate to Lori, and 2% of the residuary estate to Don.

         ¶7 The Second Amended Trust contains a provision that sets forth criteria for determining Valentine's capacity:

I shall be considered incapacitated if I am unable to manage my property and affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, or other causes. The determination of incapacity shall be made by a court of competent jurisdiction or by the Trustee, if the determination is confirmed in writing by a physician licensed to practice in the state of my domicile who has examined me 30 days before or after the determination. After the determination, or the confirmation, if later, my directions and any attempt by me to exercise any reserved right shall be ineffective until in like manner it is determined that I am no longer incapacitated.

         ¶8 On April 7, 2015, Valentine amended the Second Amended Trust (First Amendment). The First Amendment only modified testamentary distributions. These distributions included real property in Arizona to Janice plus 24% of the residuary estate minus $103, 000 to account for the value of the Arizona property, 25% of the residuary estate to David, 25% of the residuary estate to Lori, and 2% of the residuary estate to Don. The same attorney, Kelly O'Brien, drafted the First Amended Trust, Second Amended Trust, and the First Amendment.

         ¶9 On December 29, 2015, Valentine saw her treating physician, Jeffrey C. Knight, M.D. Dr. Knight noted this examination was a "followup [sic] of family concerns regarding memory, confusion. [H]er recall of family events is good. [S]he drifts off or forgets what she is saying." After examination, Dr. Knight found Valentine's "[f]unctional status has changed." Although he found her "oriented to situation," he assessed her as having an altered mental status with decreased attention.

         ¶10 In February 2016, Janice visited Valentine in Montana. Valentine then returned to California with Janice. Soon afterward, Lori contacted Davidson and advised it she believed Valentine was unable to make her own financial decisions.

         ¶11 On March 9, 2016, Dr. Knight issued a "Doctor Certification" in which he opined that, as of his last examination of Valentine, she "lack[ed] the requisite competence to manage her own financial affairs." Dr. Knight then wrote a letter to Davidson, in which he opined Valentine was not able to independently manage her financial affairs. After receiving Dr. Knight's letter, ...


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