*1 IN THE OF THE MATTER ESTATE G. HANNUM,
OF LOUIS SR., Deceased. DANo. 12-0003. 27, 2012.
Submitted on Briefs June
August 10,
Decided
MT 171.
Mont. 1.
JUSTICE (Louis Jr.) by an issued Hannum, appeals from Order Jr. Louis G. ¶1 County, him Court, Sanders District the Twentieth Judicial Louis G. representative of the of as the for cause (Louis Sr.). Hannum, We affirm. Sr.
BACKGROUND 12, 2010, by and is survived away August on passed Louis Sr. Monika, Jr., Mark; children, grandchildren, Mike and and his Louis Michelle, Naomi, Jim. Sr. was Veronica, Zachary, Esther and Louis Gallagher, was Cheryl who Esther’s predeceased daughter, Jim’s mother. 2005, 6, Sr. executed his Last Will and On October Louis (2005 Will). Louis Sr.’s specifically The 2005 Will revoked
Testament son, Jr., 1995, appointed Louis as the prior will from Will, each of representative of Louis Sr.’s estate. Pursuant to the $1,000. The surviving grandchildren was to receive Louis Sr.’s seven equally Louis estate was to be distributed remainder of Sr.’s children, Cheryl’s to be to her equally his four share distributed children, Esther and Jim. for informal of will and application Louis Jr. of Louis. estate on
appointment of Sr.’s day, September following pleading 2010. The Louis filed a Information to Heirs and Devisees” inform Louis labeled “Notice surviving appointed relatives that Louis Jr. had been Sr.’s Jr., Mike, notice sent to representative of the estate. The was Mark, Jim, Naomi remaining grandchildren. but not to the Esther did, however, know because Naomi is Louis of Louis Jr.’s acting as his counsel. It is unclear whether daughter she son, Notably, Zachary, proceedings. was aware Monika, did not send notice to Louis Sr.’s Veronica and Michelle. filed, July Louis Jr. on was entitled The next document Testacy, For Accounting,
“Final Petition for Determination Heirs, and Distribution Determination For Settlement (Final Accounting). The Representative” Testate Personal Jr., Mike, Mark, served Esther and on Louis Jim, but again, remaining once Jr. did serve the Jr., however, affirmatively grandchildren. Louis stated mailed all persons he had under the will. interested Inventory Louis Jr. attached an to the Final
purportedly everything to be disbursed under 2005 Will. $625,000 total, The included two valued at However, owed allegedly to the estate. date, terms, contained no reference to the payment actually balance due, interest rate or other aspect Significantly, notes. Will, notes were not mentioned in Louis Sr.’s but rather his 1995 According will. Jim the promissory notes had fully paid been off. The Inventory also included 31 Warehousing shares Pitman $189,689. valued unilaterally
Stock1 determined the stock was undervalued when was sold Louis Sr. in and because undervaluation, of this he increased the value of estate by *3 money Sr. allegedly amount Louis should have received from the shares, Esther, of stock. sale Of the 31 been sold had and 16 to William Messenger. William Mike’s ex-son-in-law and has legal no relationship to Esther. $542,500 Additionally, the allegedly worth of Sr., gifts
invalid made Louis account, out of his Vanguard family to various members. unilaterally gifts Louis Jr. declared the invalid, attempt and made no gifts through to invalidate the a court proceeding. These gifts given included monies Jim and gifts wife, as well as to Mike’s Mike’s children their spouses, Bobby Doody, Gallagher. and a Teresa total, In Louis Jr.’s unverified additions to the increased $1,357,189, its value and raised the total value of the assets $1,624,959.84. increase, upon Based this Louis Jr. claimed and $32,899.20 the approve asked court to fees $49,348.80 for himself and in attorney fees for his daughter/counsel. $1,624,959.84, From the Louis Jr. subtracted his claimed fees, fees, daughter’s attorney his and administrative Warehousing family S-corporation Jersey. Pitman is a Hannum located New distribution,” which “total available for final expenses to arrive there, he the amounts of the $1,542,109.30. deducted From to himself and his specific bequests notes in the form of Mark, notes were devised in the despite admission brother his left not mentioned in the 2005 Will. This 1995 will revoked $917,109 to be distributed. beneficiary’s each final distribution. Jr. next calculated Louis estate deducted from Esther’s share computations, Louis Jr. compensate owed to the estate for
money allegedly that Esther Warehousing purchased, Pitman stocks she undervalued Messenger purchased, gifts for the shares William invalid undervalued received, gifts Bobby Doody received. This left she and for the invalid Jr., however, $267,889. Louis owing the estate purportedly Esther $114,638 he factor in the calculated estate owed forgot to Similarly, deducting Jr. reduced Jim’s distribution Esther. Louis Gallagher. owing Jim gifts to Jim Teresa This left gifts estate. Louis also deducted from Mike’s distribution wife, daughters, son-in-law, Mike’s and two ex-sons-in-law. deductions, $52,825. supposedly After these Mike owed the estate 1,000 did Jr. mention Nowhere $ provided as in the 2005 Will. bequests to estate, including After these reimbursements Louis Jr. $541,775, calculated he would would his brother Mark. receive as figures, specifically requested Using be distributed” the court to approve “should as outlined asked Accounting in for relief. prayer actions, 15,2011, August response On Esther motion to Louis Jr. personal representative Jim filed a remove as 6, 2011, September joined Louis Sr.’s estate. On Mike Esther’s and motion to Louis Jr. and in support. Jim’s remove brief Both objected expressly Inventory. briefs to Louis Jr.’s Final hearing on the remove The District held a motion to 1, 2011, personal representative on November and on December the District Court issued its Order Louis Jr. as attorney appointing John Mercer as personal representative.2 successor *4 Order, In its District Court concluded that Jr. violated appointed The District Court Mercer because the familial successor personal
representatives concluded, expressed right appointed, had either their to be or as the waived being personal representative. no interest in result, fiduciary duties, as a removal cause was numerous his for required appropriate. The court treated as that MCA, 72-3-607, 72-3-1005, as that § § law, its conclusions of determined probate according Jr. had failed in duty his Will, by 72-34-101, MCA, duty imposed the 2005 when he included alleged the value of the and distributed them promissory notes authority himself and Mark under the 2005 Will. The without additionally duty found that Louis Jr. failed in his to avoid court interest, ordinary prudence, conflicts of to use skill and discretionary powers reasonably, to exercise and in his file or deliver parties, otherwise to interested within nine months of appointment, of estate a full assets every true value of the interest item in the decedent’s listed inventory. Jr. appeals removal for cause. We restate the issue on as appeal follows: Did the District Court err when it removed Louis Jr. cause Louis Sr.’s estate?
STANDARD OF REVIEW We review a district court’s decision regarding the removal of an estate’s personal to determine whether the court abused its discretion. In Anderson-Feeley, 354, re Estate 2007 MT ¶ 6,340 352, 174 Mont. P.3d 512. A trial court its abuses discretion when it acts arbitrarily without employment of judgment conscientious or exceeds the bounds of resulting reason injustice. substantial In re Everett, 8, 11, 2012 MT ¶ 363 Mont. P.3d 507. We review a district findings court’s of fact to ascertain whether
they clearly McDermott, erroneous. In re 2002 MT ¶ 310 Mont. 51 P.3d A finding clearly 486. is if it erroneous supported by evidence, substantial if the trial court has misapprehended evidence, the effect if or a review of the record leaves us with the definite and firm that a conviction mistake has been McDermott, committed. 22. The district ¶ court’s conclusions law are McDermott, reviewed for correctness.
DISCUSSION argues the District Court erred when it treated his petition as a to the court for formal approval instead of a proposed as allowed Pursuant probable “After the charges *5 or known, may mail the estate are
against to right a persons to all who have for proposal deliver a object proposed distribution.” to from the notwithstanding, it is clear arguments distribution, a but merely proposed Accounting
Final that it was not mailing approval. of for formal Instead petition rather a to the court 72-3- parties, as outlined in § other interested Accounting to 903, MCA, to the assets of Louis Jr. asked the court distribute Inventory and without Accounting accordance with his Final object prior filing. time to parties the other interested giving addition, “proposal” once mentioned the word Louis Jr. never letter, hearing that at the removal document or its cover admitted never and suggested proposal, in the document was a nothing Accounting correct errors. submitted an amended Final not err it treated the Accordingly, District Court did when 72-3-1005, MCA, Inventory by required as that § 72-3-607, by required as that § of additionally argues Findings that the Court’s
Fact, by substantial supported ¶¶ findings evidence. Those state: Hannum, Inventory G. Representative] [Personal
9. Jr.’s Montana law required was after the 9 month deadline (Mont. content, 72-3-607), provide Code Ann. and does not § Inventory not in the accuracy, and ascertainment of values. The Hannum, Representative] [Personal G. Jr. did proper form. inventory to all interested parties. not send Hannum, Representative] [Personal 10. Louis G. oath, content, form, accuracy,
is insufficient completeness. point, family [Louis Sr.’s] At this neither of the branches of
trusts other. petition Louis Jr. asserts that the District Court erred because his merely proposal, did not need to abide that it therefore agree requirements in the code. Because we with that Louis Jr.’s proposal, not a he was request approval, constituted formal 72-3-607, MCA, comply requirements § with 72-3-1005, inventory prepare MCA. A must an within nine months of his that includes property the decedent’s and its fair market value the time 72-3-607, A accounting decedent’s death. Section final must be showing “under oath money made the amount of received and by of all expended personal representative, the amount claims estate, against presented the names the claimants and all necessary other matters show the state its affairs.” Section 72-3- 1005, MCA. MCA, comply Louis Jr. failed to filing appointment. more than nine months after Louis Jr. also comply requirements
failed with the he did not bequests grandchildren, include to Louis Sr.’s and he highly speculative values in his accounting. Accordingly, the *6 Findings Court’s supported District of Fact Numbers 9 and 10 are substantial credible evidence. regards In Finding to of Fact Number Court District
in best to position hostility determine if existed between the parties testimony, interactions, because it heard the parties’ observed briefing and read their at the District Court. The District Court’s record, is in supported conclusion which demonstrates that the parties not on terms. good attempt to collect over $300,000 from Jim and while simultaneously awarding $600,000 nearly himself is certainly not evidence of love and Thus, cooperation parties. Finding of Fact Number 16 is evidence, supported by substantial credible and is therefore not clearly erroneous. argues legal grounds further that there were no for his He incorrectly
removal. states that Court District relied on a beneficiaries, conflict interest between himself and the other was a proposal, and that any errors in the Inventory could be supervision. Esther, remedied with court Jim and argue Mike that Louis Jr.’s appropriate removal was because he trust, duty breached his to administer duty to avoid conflicts of duty loyalty. interest and his may A district court remove a if it in
cause is the best interests of the estate or if it is shown that a personal representative perform any duty has “failed to pertaining to added). 72-3-526(2), Thus, office.” Section (emphasis MCA breach of a single duty justify is sufficient removal for cause. A a under according estate the terms of probated probate and effective will and the code. The fiduciary Section duties of a apply trustee also personal representative a probate matter, including
8 will. Section 72-3- according to the decedent’s the estate
administer 72-34-101, MCA. 610, MCA; § to remove judge has broad discretion A trial valid and for removal are grounds provided Greenheck, 114, 19, 2001 MT In re by the record.
supported However, of removal is harsh and 27 order 305 Mont. P.3d directly will severe, are not harmful be irregularities remedy readily, no removal overlooked, if can matter and the court 188-89, Townsend, Mont. 793 In Estate be ordered. re will (1990). P.2d mind, that the we conclude With rules to administer the estate correctly that Louis Jr. failed ruled probate code. The 2005 Will in accordance with the 2005 Will and Sr.’s was to receive states that each Louis explicitly death; bequests not include these Louis Jr. did upon addition, Will did not Inventory. yet Louis Jr. included them the include the two Inventory. Louis Jr. even admitted of the notes was based on the revoked will. Accordingly, according to the Louis Jr. failed administer the 2005 Will. failed to administer the estate in accordance also code, days Louis Jr. had 30 probate code. Pursuant appointment notify all heirs and devisees of his
after his identity of the court in which the had 72-3-603, MCA. There is evidence that Louis been filed. Section no *7 devisees, required notice least three or his counsel sent the to at Monika, Veronica and Michelle. Jr., 72-3-607, MCA, pursuant was also file parties, deliver to within nine months after
or otherwise
interested
inventory
full
appointment, an
assets that
includes “a
every
true value of
decedent’s interest
item listed
Filing
in which assets
inventory.”
are omitted and
subject
question
requirement.
does not fulfill
valuations
this
Townsend,
determined that breached his the estate in accordance with the 2005 Will and the code. We need not address Louis remaining arguments that he did not breach other fiduciary duties because a district court only personal must find that a representative perform any duty failed to in order to remove the personal representative 72-3-526(2)(b), cause. Section decision, In reaching its the District Court relied on substantial evidence. Though we disfavor personal representative, the District Court has broad discretion in its decision remove a representative, and we conclude that the District Court did not abuse that discretion when it removed Louis Jr. for cause.
CONCLUSION above, For the reasons stated we affirm the District Court’s Order
removing Louis Jr. for cause as the
estate of Louis Sr.
CHIEF McGRATH, JUSTICE JUSTICES MORRIS and BAKER concur. NELSON,
JUSTICE specially concurring. I concur in the result of Opinion, the Court’s but not in all that is said. It is clear that Louis Jr. was malfeasant in conducting his duties and that he properly removed as by the District Court. my While analysis for reaching legal this conclusion would differ from Court’s, that of the necessary is not I set out that analysis, since the Court has reached the correct result event. Therefore, I specially concur.