Matter of Estate of Weidman
In this аppeal, plaintiff Rodney Weidman (Rodney), seeks to contest the will of his mother, Mary Lou Weidman (Mary). The district court dismissed his petition on the basis that plaintiff’s will contest action was not filed within the four-month limitation period prescribed by Iowa Code section 633.309 (1985). We affirm.
Mary executed a new will on December 12, 1986. She died later that day. Mary’s prior will left her property to plaintiff and
The new will was admitted to probate and Pamela was appointed executor of the estate. On December 30, 1986, and January 6, 1987, the standard probate notice was published in a local newspaper in the form required by Iowa Code section 633.-304 (1985). 1
The estate was permitted to remain open in order to investigate a possible medical malpractice claim. On June 5, 1989, while the estate was still pending, plaintiff filed a will contest action against Pamela individually and as executor of the estate. Plaintiff alleged that decedent was “of unsound mind” and influenced by Pamela when she signed the new will. In addition, plaintiffs petition claimed that the statute of limitations for contesting a will was tolled because he was chronically mentally ill and suffered from a schizo-affective disorder at the time of his mother’s death and during the four-month notice period.
On June 26, 1989, defendant moved to dismiss plaintiff’s petition to set aside the will on the ground that it was not filed within four months from the date of second publication of the notice of admission of the will to probate as required by section 633.309. The district court grаnted defendant’s motion and dismissed plaintiff’s petition. Prior to dismissal, Pamela as executor sought and received an ex parte order authorizing her to employ counsel to defend the will contest action and to pay for these services with estate assets. Plaintiff moved to set aside this order. The district court overruled plaintiff’s motion.
On appeal, plaintiff claims that (1) published notice of the time to contest the will is insufficient to meet established due process standards if a known heir-at-law will have his property interest adversely affected; 2 (2) thе amendment of Iowa Code section 633.304, effective July 1, 1989, requires the executor, on a continuing basis, to give actual notice to interested parties of the four-month limitation period for contesting a will; (3) the order admitting the will to probate is a judgment that requires the special procedures of Iowa Rule of Civil Procedure 13 governing a defense by an incompetent; (4) Iowa Code section 633.410 (1985) provides an exception to the four-month limitation period for claimants entitled to equitable relief; and (5) no just cause exists for payment of the executor’s attorney fees out of estate assets.
I.
Published notice and due process.
Under our statutory scheme for probating wills in 1986, the clerk of the district court had discretionary authority to admit a decedent’s will to probate, after the filing of a petition and upon proof of execution of the will, without requiring that notice be given of the hearing.
Plaintiff concedes that defendant as executor complied with the 1986 statutory procedures governing notice. However, plaintiff urges that, as a known heir, his rights to contest the will cannot be extinguished by giving only published notice. In support of his contention that the published notice given was insufficient, plaintiff relies on
Mullane v. Central Hanover Bank & Trust Co.,
Mullane
involved the settlement of trust accounts in which a trustee gave only published notice to trust beneficiaries. The Supreme Court held that since the settlement would affect the property rights of beneficiaries, known or reasonably ascertainable by the trustees, notice must be served on the beneficiaries in a manner reasonably calculated to apprise them of the settlement proceedings and provide an opportunity to be heard.
Mullane,
In
Pierce,
we distinguished a probate proceeding from the trust settlement in
Mullane.
Unlike the governing statute in this case, the 1953 statute in
Pierce
provided for published notice of a hearing on the probate of a will.
Id.
at 24,
The perception in most state jurisdictions that published probate notices passed the test of due process was shattered when the Supreme Court applied the
Mullane
doctrine to probate proceedings in
Pope.
On April 19, 1988, the Supreme Court, in an eight-to-one decision, reversed an Oklahoma ruling which adopted the theory in
Busch
and
Fessler. Pope,
We hold that Oklahoma’s nonclaim statute is not a self-executing statutе of limitations. Rather, the statute operates in connection with Oklahoma’s probate proceedings to “adversely affect” appellant’s property interest. Thus, if appellant’s identity as a creditor was known or “reasonably ascertainable,” then the Due Process Clause requires that appellant be given “[njotice by mail or other means as certain to ensure actual notice.”
Id.
(citing
Mennonite Bd. of Missions v. Adams,
In this case, defendant attempts to distinguish Pope by identifying differences between creditors and heirs who are contestants. Defendant urges that heirs are likely to know of decedent’s death аnd be placed on inquiry notice of a possible hearing on the probate of decedent’s estate. Defendant urges that under these circumstances published notice is reasonable and satisfies due process.
We are tempted to accept defendant’s argument, especially if we consider that the probate notice procedures in this rural state have worked efficiently and have not been significantly criticized. In
Mullane,
the Court discussed balancing the “interest of the State [against] the individual interest sought to be protected by the Fourteenth Amendment.”
In Pope, the Court did not extend its ruling beyond creditors of an estate. The rationale for this determination, however, should also apply to other interested parties, especially parties whose rights may be precluded by published notice. The protection Pope offers to creditors’ interests raises the question of whether the interest of heirs-at-law should be similarly protected, A noted scholar’s comments on Pope’s application to our deсision in Pierce seem to answer this question affirmatively as follows: “The Court’s reasoning could easily be applied to a statute purporting to have the same effect on the right of an interested person to contest or set aside the probate of a will.” S. Kurtz, 1 Kurtz on Iowa Estates § 4.9, at 129 (2d ed. 1989). Another scholar suggests that actual notice must be given to heirs if “there is some indication that there is a legitimate cause of action for the revocation of probate of the will of the decedent.” Allison, Due Process Requirements in Estate Administration: More Than the Law Allows?, 10 Prob.LJ. 1, 45-46 (1990).
Our analysis cаuses us to conclude that the differences between creditors and heirs-at-law are not great enough to support a different notice rule. In the present case, the plaintiff lives nearby and knew of the death of his mother.
3
In many estates, however, the heirs-at-law may not be aware of the death and estate proceedings. In
Pope,
the Court reasoned that an executor with a beneficial interest in an estate has little inclination to call attention to the potential expiration of the time period for filing a creditor’s claim.
Pope,
Defendant prеsents an alternate argument. She contends that even if we adopt the
Pope
doctrine, the ruling should not be applied retroactively to divest her of vested rights. In support of this contention, she cites
Hanesworth v. Johnke,
Certain principles guide our consideration of whether a decision is to be applied retroactively to similar cases. Judicial decisions, including overruling decisiоns, generally operate both retroactively and prospectively.
Beeck v. S.R. Smith Co.,
In our cases dealing with the nonre-troactivity question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or bydeciding an issue of first impressiоn whose resolution was not clearly foreshadowed. Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.”
Id. (citations omitted).
In
Hanesworth,
the Wyoming court denied the retroactive application of
Pope
to final probate proceedings based on its application of the three-part
Chevron
test. It concluded that the first factor, the establishment of a new principle of law, was satisfied because the
Pope
decision addressed a question of first impression and acknowledged rejection of a previous practice widely adopted by state legislatures and courts.
Hanesworth,
Plaintiff argues that
Hanesworth
can be distinguished from this case. Specifically, he argues that the probate proceedings in
Hanesworth
were closed prior to the
Pope
decision but that the estate is still open in this case. He urges that we follow the decision of the Kansas court in
In re Estate of McDowell,
Plaintiff also cites, and we have found, other cases that have adopted the
Pope
notice rule in probate cases.
In re Estate of Kopely,
Furthermore, we think that this case can be distinguished from
McDowell.
In
McDowell,
the claim was filed two months after expiration of the statutory deadline and one day after
Pope.
The Kansas court held that application of
Pope
would not result in inequities or significant hardship.
McDowell,
In this case, the time period for filing a will contest action had expired approximately fifteen months before the
Pope
decision and plaintiff did not file his action for another thirteen months. This twenty-eight month delay standing alone suggests substantial hardship and disruption to the probate proceeding. Moreover, we question the examination of probate proceedings on a case-by-case basis to determine if application of
Pope
would result in inequities, significant hardships, or disruption.
All parties in the present case certainly believed that the four-month time limitation in
Furthermore, in Pierce, we recognized that our notice-by-publication provision was valid and enforceable. We believe that the consequences of applying Pope retroactively could produce inequitable' results. Consequently, we would only apply Pope retroactively to those cases in which: (1) heirs have raised the issue of the invalidity of the notice on due process grounds prior to April 19, 1988; or (2) the time period for filing a will contest action had not expired on April 19, 1988.
Consequently, we hold that the ruling in Pope that due process may invalidate notice given solely by publication is not to be applied retroactively in this case.
II.
Amendments to Iowa Code sections 633.30Ii and 633.309.
Plaintiff claims that amendments to Iowa Code
and at any time during the pendency of administration that the executor has knowledge of the name and address of a person believed to own or possess a claim which will not or may not be paid or otherwise satisfied during administration, provide by ordinary mail to each such claimant at the claimant’s last known address, and as soon as practicable give notice, except to any executor, by ordinary mail to the surviving spouse, each heir of the decedent and each devi-see under the will admitted to probate whose identities are reasonably asсertainable, at such persons’ last known addresses ...
1989 Iowa Acts ch. 35, § 3. Section 633.-309 was amended to change the time for contesting or setting aside a will to the later to occur of four months from the date of second published notice or one month following the mailing of notice. Id. § 5.
Plaintiff filed his will contest on June 5, 1989, more than two years past the expiration of the former four-month limitation period, but almost one month before the effective date of the amendments. These facts raise several questions regarding whether the new mailed-notice requirеment of these statutory amendments: (1) revives a will contest claim previously barred pursuant to the limitation period of “four months from the date of second publication of notice ...” in pre-amended Iowa Code
A review of the case law reveals the follоwing general rule that an Indiana court summarized as follows:
A general rule with respect to statutes of limitations is that the period of limitation in effect at the time suit is brought governs in an action even though it may lengthen or shorten an earlier period of limitation_ However, another general rule ... is that if plaintiff’s suit wasbarred by the running of a statute of limitations prior to the extension of the limitation period, the subsequent statute cannot revive defendant’s liability.
In re M.D.H.,
One reason why most courts refuse to apply statutory amendments retroactively is that the expectations of the parties are already set by the partial expiration of a previous statute of limitations.
See Feest v. Allis-Chalmers Corp.,
If this case presented only the issue of decreasing or increasing the time period for filing a will contest action, then the case law discussed above would bar plaintiffs will contest action. However, plaintiff urges that
Plaintiff urges that the new language, “at anytime during the pendency of administration,” in the amendment to
Clearly, the purpose of the legislature’s amendment of
Our conclusion is supported by the statutory rule of construction that “[a] statute is presumed to be prospective in its operation unless expressly made retrospective.”
The ... amendment ... does not affect:
1. The prior operation of the statute or any prior action taken thereunder;
2. Any validation, cure, right, privilege, obligation, or liability previously acquired, accrued, accorded, or incurred thereunder....
III. Iowa Probate Rule 7. Plaintiff claims that Iowa Probate Rule 7, which this court promulgated and expressly applied to “all estates pending on or after its effective date [September 1, 1988],” also supports his claim of entitlement to mailed notice and a disregard of the existence of his previously barred will contest action. Rule 7 required that “[a]ll notices required to be published by Iowa Code ... 633.304 ... shall likewise be sent by ordinary mail to all known or readily ascertainable creditors....” This rule was applicable from September 1, 1988, until replaced by the statutory amendments which became effective July 1, 1989. This rule refers only to creditors, not to heirs-at-law or any other noncreditor party. Plaintiff is an heir of the decedent, not a creditor. Thus, plaintiffs argument has no merit.
IV. Applicability of Iowa Code section 633410 and Iowa Rule of Civil Procedure 13. Iowa Code section 633.410 (1985) provides as follows:
All claims against a decedent’s estate, other than charges, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise, are forever barred against the estate, the personal representative, and the distributees of the estate, unless filed with the clerk within four months after the date of the second publication of the notice to creditors ... This section does not bar claimants entitled to equitable relief due to peculiar circumstances.
Plaintiff contends that this section provides an exception to the four-month statute of limitations in
The word “claim” generally refers to debts or demands against the decedent which might have been enforced against him during his lifetime by personal actions for the recovery of a sum of money.
See Superior Elec. Co. v. Burski,
Iowa Rule of Civil Procedure 13 likewise does not support plaintiff’s claim. Rule 13 provides as follows:
No judgment without a defense shall be entered against a party then a minor, or confined in a penitentiary, reformatory or any state hospital for the mentally ill, or one judicially adjudged incompetent, or whose physician certifies to the court that he appears to be mentally incapable of conducting his defense. Such defense shall be by guardian ad litem....
Plaintiff claims that the order admitting the will to probate cannot be final without the special procedures allowed by rule 13. We do not believe that rule 13 aids plaintiff. No judgment has been entered against plaintiff. Instead, expiration of the limitation period in Iowa Code section 633.-309 (1985), has made plaintiff unable to prosecute his will contest actiоn and caused the dismissal of his action.
V. Payment of executor’s attorney fees out of the estate pursuant to Iowa Code section 633.315. Finally, plaintiff challenges the court order allowing the defendant-executor’s employment of counsel to defend this action. We have determined that the trial court correctly dismissed plaintiff’s will contest action. Consequently, plaintiff has no interest in the estate and no standing to object to the employment of counsel or the payment of attorney fees out of the estate. Therefore, we need not address the issue.
VI. Summary. In summary, we hold that plaintiff’s cause of action was barred by the time period prescribed in Iowa Code section 633.309 (1985). Neither the ruling in Pope nor later statutory amendments alter this time bar to plaintiff’s action. We need not address the appointment of an attorney and the payment of attorney fees out of the estate. Consequently, we affirm the district court’s dismissal of plaintiff’s action.
AFFIRMED.
Notes
. The notice published stated that "[a]ny action to set aside the will must be brought ... within four months from the date of the second publication of this notice, or thereafter be forever barred."
. We do not discuss the issue of plaintiffs status as a devisee under a prior will because this issue was never raised.
. If plaintiff had actual notice of the probate proceedings, further notice may not be necessary.
See In re Estate of Malone,