Herman v. Lupoli
2017 MT 10N
| Mont. | 2017Background
- Decedent Loretta S. Watkin executed wills in 2007, 2008, 2009, and 2010; the 2010 Will (informally probated May 20, 2011) reduced step-daughter Greta Herman’s share to $2,000 and named nieces Teri Lupoli and Janice Champlin as co-personal representatives and larger beneficiaries.
- Estate valued at $355,152.76; Champlin and Lupoli each received ~$64,500; Herman received $2,000; estate closed May 14, 2012.
- Herman (pro se) filed suit July 21, 2014, seeking to set aside the 2010 Will as fraudulent/invalid (lack of capacity and undue influence), to reinstate the 2009 Will, to remove Lupoli and Champlin as personal representatives, and to recover the $33,515 she alleged she would have received under the 2009 Will.
- Lupoli and Champlin defended, asserting among other defenses that Herman’s claims were time-barred; they moved to dismiss, which the district court converted to and granted as summary judgment.
- District court dismissed Herman’s complaint as untimely under § 72-3-122, MCA, and awarded fees to Lupoli and Champlin; Herman appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Herman timely filed a contest to an informally probated will under § 72-3-122 | Herman argued the 2010 Will was invalid (lack of capacity; undue influence) and filed within an equitable window | Lupoli/Champlin argued the contest period expired (either 12 months after informal probate or 3 years after death) and Herman filed after both deadlines | Court held Herman’s July 21, 2014 complaint was untimely (informal probate May 2011; estate closed May 14, 2012); dismissal affirmed |
| Whether the court should construe or permit recharacterization of claims (undue influence / breach of fiduciary duty) to toll limitations | Herman urged that her dispute should be viewed as undue influence/breach of fiduciary duty, which could affect timeliness | Defendants contended Herman’s pleading challenged the will and was governed by the probate contest deadlines; recharacterization was not properly raised below | Court refused to consider new theories raised for first time on appeal; pro se status did not excuse failure to raise issues below; affirmed dismissal |
Key Cases Cited
- Grizzly Sec. Armored Express, Inc. v. Bancard Servs., 385 Mont. 307, 384 P.3d 68 (2016) (standard for appellate review of summary judgment)
- Mont. Interventional & Diagnostic Radiology Specialists, PLLC v. St. Peter’s Hosp., 381 Mont. 25, 355 P.3d 777 (2015) (standard of review for district court conclusions of law)
- In re Estate of Mills, 380 Mont. 426, 354 P.3d 1271 (2015) (pro se litigants afforded limited latitude but cannot prejudice opposing party by failing to raise issues)