Will Not Timely Probated, Gets Thrown Out

Every once in a while, I see a case I disagree with.  Today’s case comes from Montana’s supreme court.

Paul lived with his sister, her husband, his niece, and her husband.  His sister and her husband died before he did, and niece and husband continued to care for him.  Niece’s dad left her a small sum ($8,125) payable on Paul’s death.  Paul didn’t have any other known assets except furniture when he died in January 2000, so his estate was handled with a small estate transfer affidavit instead of a full blown probate.

Paul’s niece and husband helped him write up a will in February 1998: according to them, Paul dictated it, husband wrote it down and titled it “Instructions and Last Will and Testament”, and two witnesses signed it after Paul signed it.  As mentioned above, the estate was too small for probate, so the will was never submitted to the court.

Fast forward to February 2013.  Turns out Paul had an interest in some mineral rights (probably inherited, though the case doesn’t say) and now someone wants to develop them. They contacted Paul’s nephew.  Nephew offered to open a probate, but did not know about the Will, so he sought to have Paul’s share of the mineral rights lease go to his 3 surviving siblings and 9 surviving nieces and nephews as an intestacy (probate without a Will). “But wait,” cried the niece, “here’s his Will!”

Montana, like Arizona, has a statute that says there is a limited time to probate a Will (three years in Montana, two in Arizona).  There are two important exceptions, and they say 1) a probate can happen for the limited purpose of passing assets to successors, and 2) probate can happen to get assets of the estate from someone other than decedent.  Nephew claimed “too much time has passed, no exception applies.”  Neice claimed “the second one does.”

Two years of litigation ensued.  Nephew deposed niece and husband, and asked the court for permission to bring extra claims against them based on what he had learned.  The court said yes.  Niece and nephew then sought to include exception one as well as exception two, and the court said no, you should have raised it two years ago.  But even if I let you, I don’t think it applies.  Then the court ruled against niece and husband on summary judgement.

The Montana Supreme court reviewed and upheld the lower court.  They looked for “clear error,” and found none.  But Judges are sworn to uphold the law, not to ignore it.  Even when a party only lists the latter half of a statute, the judge should not strap on blinders and ignore other applicable law, especially when it is raised with enough time for the other side to appropriately respond.  This case was not on the eve of trial; it was decided by summary judgment.  I think trial court got it wrong by allowing nephew to amend but not niece, and by finding that “even if allowed, i don’t think it applies.”  I can only hope an Arizona judge would find differently, since the statute seems clear that the Will is admissible to allow transfer to “successors,” i.e. those identified in the Will.

And thus the Will of Paul falls by the wayside, not because it is found invalid, but because there was no reason to submit it to the court within the three year period.  No reason at all, until the mineral rights turned out to have some value 13 years later.  Sorry, Paul.