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Full Opinion
No. 01-668
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 171
IN THE MATTER OF THE ESTATE OF:
JAMES M. HALL, a/k/a JIM HALL,
Deceased.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kathryn S. Syth, Gillen, LaRance & Syth, P.C., Billings, Montana
For Respondent:
Ross W. Cannon, Cannon & Sheehy, Helena, Montana
Submitted on Briefs: March 14, 2002
Decided: July 30, 2002
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.
¶1 Sandra Kay Ault appeals from the Findings of Fact, Conclusions
of Law and Order of the Eighth Judicial District Court, Cascade
County. We affirm.
¶2 The following issue is dispositive of this appeal:
¶3 Did the District Court err in admitting the Joint Will to
formal probate?
BACKGROUND
¶4 James Mylen Hall (“Jim”) died on October 23, 1998. At the
time of his death, he was 75 years old and lived in Cascade County,
Montana. His wife, Betty Lou Hall (“Betty”), and two daughters
from a previous marriage, Sandra Kay Ault (“Sandra”) and Charlotte
Rae Hall (“Charlotte”), survived him.
¶5 Jim first executed a will on April 18, 1984 (the “Original
Will”). Approximately thirteen years later, Jim and Betty’s
attorney, Ross Cannon, transmitted to them a draft of a joint will
(the “Joint Will”). On June 4, 1997, Jim and Betty met at Cannon’s
office to discuss the draft. After making several changes, Jim and
Betty apparently agreed on the terms of the Joint Will. Jim and
Betty were prepared to execute the Joint Will once Cannon sent them
a final version.
¶6 At the conclusion of the meeting, however, Jim asked Cannon if
the draft could stand as a will until Cannon sent them a final
version. Cannon said that it would be valid if Jim and Betty
executed the draft and he notarized it. Betty testified that no
one else was in the office at the time to serve as an attesting
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witness. Jim and Betty, therefore, proceeded to sign the Joint
Will and Cannon notarized it without anyone else present.
¶7 When they returned home from the meeting, Jim apparently told
Betty to tear up the Original Will, which Betty did. After Jim’s
death, Betty applied to informally probate the Joint Will. Sandra
objected to the informal probate and requested formal probate of
the Original Will.
¶8 On August 9, 2001, Judge McKittrick heard the will contest.
He issued the Order admitting the Joint Will to probate on August
27, 2001. Sandra appealed.
STANDARD OF REVIEW
¶9 Sandra argues that the judicial interpretation and
construction of a will are questions of law. This appeal, however,
does not involve interpreting or constructing a will. The
dispositive issue is whether the District Court properly admitted
the disputed will to probate. Determining whether a court properly
admitted a will involves both questions of law and fact. See In re
Estate of Brooks (1996), 279 Mont. 516, 519, 927 P.2d 1024, 1026.
In Brooks, we described our standard as follows:
We will not disturb a district court's findings of fact
unless they are clearly erroneous. A court's findings
are clearly erroneous if they are not supported by
substantial credible evidence, the court has
misapprehended the effect of the evidence, or our review
of the record convinces us that a mistake has been
committed. We review a district court’s conclusions of
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law to determine whether the interpretation of the law is
correct. [Citations omitted.]
Brooks, 279 Mont. at 519, 927 P.2d at 1026.
DISCUSSION
¶10 Did the District Court err in admitting the Joint Will to
formal probate?
¶11 In contested cases, the proponent of a will must establish
that the testator duly executed the will. See § 72-3-310, MCA;
Brooks, 279 Mont. at 519, 927 P.2d at 1026. For a will to be
valid, two people typically must witness the testator signing the
will and then sign the will themselves. See § 72-2-522(1)(c), MCA.
If two individuals do not properly witness the document, § 72-2-
523, MCA, provides that the document may still be treated as if it
had been executed under certain circumstances. One such
circumstance is if the proponent of the document establishes by
clear and convincing evidence that the decedent intended the
document to be the decedent’s will. See § 72-2-523, MCA; Brooks,
279 Mont. at 522, 927 P.2d at 1027.
¶12 Sandra urges this Court not to use § 72-2-523, MCA, “to
circumvent the statute requiring two witnesses to the execution of
a will.” Jim and Betty’s failure to use witnesses, according to
Sandra, was not an innocent omission on their part. She also
expresses concern that the improperly witnessed Joint Will
materially altered a long-standing agreement to divide the
property. She primarily argues, however, that the Joint Will
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should be invalid as a matter of law because no one properly
witnessed it.
¶13 Sandra’s numerous arguments about why the will was improperly
witnessed are irrelevant to this appeal. Neither party disputes
that no witnesses were present at the execution of Jim and Betty’s
Joint Will as required by § 72-2-522, MCA. In the absence of
attesting witnesses, § 72-2-523, MCA, affords a means of validating
a will for which the Montana Legislature expressly provides. The
only question before this Court, therefore, is whether the District
Court erred in concluding that Jim intended the Joint Will to be
his will under § 72-2-523, MCA. We conclude that the court did not
err.
¶14 The District Court made several findings of fact that
supported its conclusion. In particular, it noted that the Joint
Will specifically revoked all previous wills and codicils made by
either Jim or Betty. Furthermore, the court found that, after they
had executed the Joint Will, Jim directed Betty to destroy the
Original Will.
¶15 Sandra does not dispute any of the court’s factual findings.
She argues only that Betty testified that she and Jim had not
executed the will even after they had signed it. In making this
argument, she points to the following testimony:
Question: Do you know if [Jim] gave [Sandra and
Charlotte] a copy of the new will?
Answer: I don’t believe he did, no.
Question: Do you know why?
Answer: Well, I guess because we didn’t have the
completed draft without all the scribbles on
it.
Question: So he thought that will was not good yet?
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Answer: No, he was sure it was good, but he didn’t
give it to the girls. And we didn’t give it
to my son. We didn’t give it to anybody.
Question: Why?
Answer: Because it wasn’t completely finished the way
Ross was going to finish it.
¶16 This testimony may suggest that Betty believed that the Joint
Will was not in a final form because of “all the scribbles on it.”
Nevertheless, she immediately goes on to state that she believed
the will was good. When asked if it were Jim’s and her intent for
the Joint Will to stand as a will until they executed another one,
she responded, “Yes, it was.” The court could reasonably interpret
this testimony to mean that Jim and Betty expected the Joint Will
to stand as a will until Cannon provided one in a cleaner, more
final form. Sandra points to no other evidence that suggests that
Jim did not intend for the Joint Will to be his will.
¶17 For these reasons, we conclude that the District Court did not
err in admitting the Joint Will into final probate. Because Jim
directed Betty to destroy the Original Will, we also conclude that
the District Court did not err in finding that these acts were acts
of revocation of the Original Will under § 72-2-527, MCA.
¶18 Affirmed.
/S/ JIM REGNIER
We Concur:
/S/ KARLA M. GRAY
/S/ TERRY N. TRIEWEILER
/S/ PATRICIA COTTER
/S/ JIM RICE
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