288 P.3d 912
N.M. Ct. App.2012Background
- Borland died June 26, 2010, after a protective proceeding was pending for his protection and conservatorship.
- Zia Trust was appointed temporary then permanent conservator for Borland in 2009.
- Zia Trust discovered an executed James A. Borland Revocable Trust with lifetime beneficiary Borland and remainder to Butler, minorities to the step-daughters after Butler’s death.
- Trust provisions indicated no identified funded assets or schedules, and Borland’s trust did not appear funded prior to incapacity.
- A pour-over will allegedly transferring probate assets to the trust was unexecuted.
- Borland’s death occurred while Zia Trust’s petition for instructions about funding the trust remained unresolved, triggering a separate probate proceeding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Forum for funding the trust after death | Callis: protective proceeding should decide | Zia Trust: probate court should decide | probate court decides funding issue |
| Post-death jurisdiction of protective proceeding | Callis: protective proceeding should resolve the disputed asset questions | Zia Trust: probate court better suited | protective court not required to decide; probate court handles testamentary issues |
| Effect of final protective-order language on probate challenge | Callis: order may preclude probate challenges | Zia Trust: undecided issues remain for probate | no preclusion; undecided issues remain for probate court |
Key Cases Cited
- In re Estate of Reinwald, 834 P.2d 1317 (Idaho 1992) (protective proceeding may preserve estate plan evidence; distinguish from this case's facts)
- In re Conservatorship of Britten, 430 N.W.2d 408 (Iowa 1988) (tough facts; not controlling when issues not decided pre-death)
- Pappas, 174 N.W.2d 422 (Iowa 1970) (claims pending but undecided may be triable in estate proceedings)
- State v. Gamlen, 2009-NMCA-073 (N.M. 2009) (authority on procedural alignment between guardianship and probate)
- Estate of Nauert v. Morgan-Nauert, 2012-NMCA-037 (N.M. 2012) (statutory interpretation guiding forum for conservatorship vs probate)
- City of Albuquerque v. Montoya, 2012-NMSC-007 (N.M. 2012) (statutory interpretation; plain language governs)