March 24 2009
DA 08-0226
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 89N
IN THE MATTER OF THE ESTATE OF
LUCILLE R. ANDERSON,
Deceased.
APPEAL FROM: District Court of the Ninth Judicial District,
In and For the County of Glacier, Cause No. DP 08-06
Honorable David Cybulski, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Daniel E. Shannon; Shannon Legal Services, P.C.,
Great Falls, Montana (for Laurie Wilder)
For Appellee:
Patrick R. Watt; Jardine, Stephenson, Blewett & Weaver,
Great Falls, Montana (for Larry Epstein)
Submitted on Briefs: January 22, 2009
Decided: March 24, 2009
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be cited
as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and
its case title, Supreme Court cause number and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 This is an appeal by Laurie Wilder (Wilder) from an order of the District Court of
April 7, 2008, appointing T. Kai Lee (Lee) as special administrator of the Lucille Anderson
estate. We affirm.
¶3 Lucille Anderson died on March 8, 2008 at the age of 101 years. On March 13, 2008,
Wilder filed an application for informal probate of will and appointment of herself as
personal representative of the Anderson estate. No action has been taken on that application.
On March 26, 2008, Lee, the acting court-appointed conservator for Lucille Anderson, filed
an application as provided in § 72-3-701, MCA, for appointment as special administrator of
the Anderson estate. On April 2, 2008, Larry Epstein (Epstein) responded to Wilder’s
application, and filed an application for formal probate of will and appointment of personal
representative for the Anderson estate. Wilder sought to probate a January 2, 2008, will in
which she had been named personal representative while Epstein sought to probate a May
24, 2004, will in which he had been named personal representative. Epstein’s application
contended that the 2008 will was invalid and had been obtained by Wilder by exertion of
undue influence over Anderson in the last months of her life. The District Court appointed
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Lee special administrator, noting that Lee was already acting as conservator for Anderson in
a separate appointment, that there were two Anderson wills before the court, and that
immediate action was necessary to preserve the estate and pay obligations.
¶4 Section 72-3-701, MCA, allows a district court to appoint a special administrator for
the estate of a decedent. Section 72-3-702, MCA, provides:
(1) If a special administrator is to be appointed pending the probate of
a will which is the subject of a pending application or petition for probate, the
person named executor in the will shall be appointed if available and qualified.
(2) In other cases, any proper person may be appointed special
administrator.
Wilder argues that she had absolute preference to be appointed special administrator under
that statute because she was named as personal representative in the 2008 will that was
executed shortly before Anderson’s death. Any preference given by § 72-3-702, MCA, is
based upon the designation of an executor in “a will” that is the subject of a pending
application or petition for probate. Because there were two wills before the District Court,
and because those wills designated different personal representatives, the District Court was
not required to name Wilder as special administrator. The District Court was well within its
power under § 72-3-702(2), MCA, to appoint “any proper person” as the special
administrator, and appropriately exercised that power to appoint former conservator Lee.
¶5 The District Court had before it the record of the conservatorship proceedings
involving Lucille Anderson prior to her death, and cited those proceedings in the order
appointing Lee. That record contained reports to the court detailing allegations that Wilder
exercised undue influence over Anderson and her assets prior to Anderson’s death. Those
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reports were sufficiently strong to cause the court to order that Wilder’s name be removed
from certain of Anderson’s accounts.
¶6 There was an emergency that required the District Court to act to preserve Anderson’s
estate and to pay lawful debts. We find that the District Court’s appointment of Lee as
special administrator was within its power under the applicable statutes and we find no
error.1
¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
1996 Internal Operating Rules, as amended in 2003, which provides for memorandum
opinions. The issues are clearly controlled by settled Montana law.
¶8 Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JIM RICE
1
The parties have raised other issues, including standing, that are not germane to resolution
of the issue on appeal. There are applications to probate two different wills. The District
Court will address the question of which will is valid.
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