Estate of G. Williams

05/02/2023

DA 22-0206
Case Number: DA 22-0206

IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 72

IN THE MATTER OF THE ESTATE OF

GERRY WILLIAMS, same person as
GERALD MARCUS WILLIAMS, same
person as GERRY M. WILLIAMS,

Deceased.

APPEAL FROM: District Court of the Seventeenth Judicial District,
In and For the County of Phillips, Cause No. DP-2020-18
Honorable Yvonne Laird, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

William M. Solem, Burns Solem & MacKenzie, Chinook, Montana

Dylan McFarland, Knight Nicastro MacKay, LLC, Missoula, Montana

Rachel H. Parkin, Milodragovich, Dale & Steinbrenner, P.C., Missoula,
Montana

For Appellee:

John R. Christensen, Joseph L. Breitenbach, Christensen, Fulton & Fliz,
PLLC, Billings, Montana

Oliver J. Urick, Urick Law Firm, PLLC, Stanford, Montana

Submitted on Briefs: November 16, 2022

Decided: May 2, 2023

Filed:

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__________________________________________
Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Vicki Hofeldt (Vicki) appeals from the March 24, 2022 Findings of Fact,

Conclusions of Law, and Order of Formal Probate, Order Removing Personal

Representative, and Order Appointing Special Administrator issued by the Seventeenth

Judicial District Court, Phillips County. The District Court’s order granted petitions made

by Lorri Williams (Lorri) to formally probate the estate of her ex-husband Gerry Williams

(Gerry) and to remove Vicki as Personal Representative of Gerry’s estate.

¶2 We restate the issues on appeal as follows:

1. Whether the District Court, sitting in probate, lacked jurisdiction to interpret the
Marital Property Settlement Agreement.

2. Whether the District Court erred in its interpretation of the Marital Property
Settlement Agreement.

3. Whether the District Court abused its discretion by removing Vicki as Personal
Representative.

4. Whether the District Court abused its discretion by disallowing Vicki’s attorney
fees beyond those required to file the documents necessary to open the probate.

¶3 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 Gerry and Lorri were married in 1978. Throughout their marriage, Gerry and Lorri

acquired a significant amount of real estate and other property as they developed a large

ranch in Phillips County. They also became the sole shareholders and operators of the

Williams Land and Cattle Company (WLCC). Gerry and Lorri had two daughters, Brittany

Williams (Brittany) and Vicki, during their marriage, both of whom are now adults. In

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2001, Gerry executed his Last Will andyh Testament. Gerry’s Will devised his entire estate

to Lorri, and in the event Lorri did not survive him, the estate would pass to Brittany and

Vicki in equal shares. Gerry’s Will named Lorri as his personal representative, and in the

event Lorri did not survive him, Vicki would be his personal representative.

¶5 In early 2020, Gerry and Lorri decided to divorce and Lorri met with a divorce

attorney. Gerry and Lorri then decided that Lorri would use the law firm the two of them

had used since 1984: Bosch, Kuhr, Dugdale & Brown. Brad Dugdale, their attorney, did

not do divorces and suggested another attorney at the firm, Jamie Vines, could handle it.

Vines informed Gerry that she represented Lorri, not him, in the divorce and that he could

seek his own counsel. Gerry did not seek independent counsel, but instead signed a waiver

of conflict which stated, in part, that Gerry’s “interests are considered directly adverse to

Lorri’s interests in the dissolution action.” Vines met with Lorri individually, as well as

with Lorri and Gerry together several times, and ultimately drafted a Stipulated Marital

and Property Settlement Agreement (MPSA). Vines went through the MPSA “line by line”

with both Gerry and Lorri.

¶6 On July 29, 2020, Gerry and Lorri filed a Joint Petition for Dissolution of Marriage,

along with the MPSA which they had signed on July 24, 2020. The MPSA provided for

the distribution of Gerry and Lorri’s real and personal property. In addition to specific

distributions of assets, the MPSA also provided Gerry and Lorri were to “execute

documents or deeds sufficient to ensure that joint tenancy with rights of survivorship

continue on each and every piece of property which is jointly owned as of the date of

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dissolution,” as well as for “each and every interest in mineral, water or other similar

rights,” and for the “remainder interest in an estate for years.” The MPSA also provided

that the $150,000 per year lease payments made by Vicki and her husband under a 2015

lease agreement with option to purchase property owned by WLCC, Gerry, and Lorri

would be distributed with $60,000 going to WLCC and the remainder split equally between

Gerry and Lorri. As for WLCC itself, the MPSA stated Gerry and Lorri would “each retain

their own interests and agree to execute a Shareholder agreement which provides, among

other things for equal voting interest and which provides that upon one [party’s] death, the

other party’s Shares shall be ceded to the corporation, without payment, immediately upon

death,” and that WLCC should conduct a farm auction to sell equipment to satisfy WLCC’s

debts.

¶7 On July 31, 2020, the Hill County district court issued its Findings of Fact,

Conclusions of Law and Entry of Decree of Dissolution. The Decree adopted and

incorporated the MPSA and ordered that “[a]ll real and personal property and liabilities are

to be divided according to [the MPSA] and the parties are ordered to perform and comply

with the terms and conditions contained in the [MPSA].” The deeds to transfer the property

into joint tenancy with rights of survivorship were not ready to be signed when the

dissolution was finalized.

¶8 After their divorce was finalized, Gerry and Lorri continued to live together and met

with a builder to discuss building a new house. On the day they were leaving for a vacation

in Idaho, Gerry and Lorri were contacted by Vines’s assistant informing them the deeds to

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transfer the real property into joint tenancy with rights of survivorship were ready to be

signed. Gerry and Lorri indicated they would stop by the office and sign the deeds when

they returned from their vacation. On September 7, 2020, while on vacation with Lorri in

Salmon, Idaho, Gerry died unexpectedly. Lorri paid for Gerry’s funeral expenses.

¶9 On October 20, 2020, Lorri contacted Vicki to see if Gerry’s probate had been

opened. Vicki responded that it had not. On October 21, 2020, Vicki filed an Application

for Informal Probate of Will and Appointment of Personal Representative in the Phillips

County District Court. Both Gerry and Vicki’s divorce decree and the MPSA were

attached to Vicki’s application for informal probate. Vicki did not provide notice to Lorri.

Vicki’s application asserted her appointment as Gerry’s personal representative was proper

because a provision of Montana’s revocation upon divorce statute, § 72-2-814(2)(a)(iii),

MCA, revoked Gerry’s Will’s nomination of Lorri to serve as his PR. Lorri ultimately

discovered that Gerry’s Will was being probated and filed a Notice of Appearance and

Demand for Notice on February 4, 2021. WLCC filed the same on February 8, 2021. On

February 12, 2021, Lorri filed a Creditor’s Claim, claiming $8,885.55 in funeral expenses.

¶10 On February 19, 2021, Lorri, individually and as President of WLCC, filed a

Petition for Formal Probate, asserting she should have been identified as an interested

person in Vicki’s petition for informal probate and that Gerry and Lorri’s divorce Decree

and MPSA revoked numerous provisions in Gerry’s Will. Lorri asserted the Decree was a

testamentary instrument which needed to be probated along with the Will. On February 24,

2021, the District Court issued an Order Granting Petition for Formal Probate and Setting

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Hearing, which granted Lorri’s petition for formal probate, ordered Vicki to refrain from

exercising the PR’s power to make distributions of the estate during the pendency of the

formal proceeding, and set a hearing on the petition for formal probate. Vicki filed a

declaratory judgment action in the Hill County district court on July 16, 2021. That same

day, she also filed a Response to Petition for Formal Probate in the Phillips County District

Court. Vicki’s response asserted the District Court, sitting in probate, lacked jurisdiction

to interpret or enforce the terms of the MPSA. Lorri filed a reply brief on August 2, 2021.

¶11 On September 8, 2021, Lorri filed a Verified Petition for Removal of Personal

Representative and for Appointment of a Special Administrator. Lorri asserted several

reasons Vicki should be removed as PR and a Special Administrator appointed instead,

including failing to give notice, conflicts of interest, and failing to prepare an inventory.

Due to the conflict between the parties, Lorri requested a “neutral, uninterested, and

unbiased person” be appointed as special administrator of Gerry’s estate. On September

15, 2021, the District Court issued an Order which continued the hearings on the Formal

Probate Petition and Lorri’s petition to remove Vicki as PR until October 27, 2021, to allow

the parties time to brief the petition for removal. Vicki filed a response to the petition for

removal on September 22, 2021, asserting there was not sufficient cause to remove her as

PR. Lorri filed a reply on September 29, 2021.

¶12 On October 27, 2021, the District Court held a combined hearing on the petition for

formal probate and the petition to remove Vicki as personal representative of Gerry’s

estate. At that hearing, the court heard testimony from Mark Handley, with whom Gerry

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and Lorri had discussed building the new house; Attorney Vines; Lorri; Bill Solem, Vicki’s

attorney in the probate matter; and Brittany. Attorney Vines testified, in relation to the

WLCC provision in the MPSA, that she had made a scrivener’s error in the section which

stated, “upon one [party’s] death, the other party’s Shares shall be ceded to the corporation,

without payment, immediately upon death,” and it should have instead said that the

decedent’s shares shall be ceded to the corporation upon death, so that whoever remained

living would remain the owner of WLCC. At the conclusion of the hearing, the District

Court ruled from the bench that it was granting the petition for formal probate, that the PR

had the duty to stand in the shoes of Gerry and fulfill the terms of the MPSA, and granted

the petition to remove Vicki as PR because it was in the best interests of the estate due to

the conflict involved with Vicki disputing the MPSA and standing to gain personally from

rejecting the terms of the MPSA. The court determined it would appoint a special

administrator, but allowed the parties time to determine if they were OK with the one

suggested by the court.

¶13 The District Court issued its Findings of Fact, Conclusions of Law, and Order of

Formal Probate, Order Removing Personal Representative, and Order Appointing Special

Administrator on March 24, 2022. The court found the terms of the MPSA were binding

upon Gerry’s PR and it was the PR’s responsibility “to stand in the shoes of the decedent

and fulfill the terms of the judgment left unfulfilled at the time of Gerry’s death”; that Lorri

was awarded property as joint tenant with rights of survivorship upon Gerry’s passing; that

Gerry’s shares were ceded to WLCC, making Lorri sole shareholder in the company; and

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that Vicki “failed to separate her personal desires and opinions” regarding what should

have happened from what did happen and was seeking to “advance her own personal

interests.” The District Court found the conflict between the heirs of Gerry’s estate, Vicki

and Brittany, and Lorri made it “impossible for the Estate to move forward with Vicki

acting as the PR,” removed Vicki as PR for cause, and appointed Bruce O. Bekkedahl, an

attorney at Patten, Peterman, Bekkedahl & Green, PLLC, in Billings as special

administrator of Gerry’s estate. The District Court further ordered that Vicki “shall not

receive compensation for attorney fees incurred beyond those required to file the

documents needed to open the probate on October 21, 2020, and she shall reimburse the

estate for all attorney fees paid for by the estate after such period, unless the Special

Administrator deems the expenses to be legitimate Estate expenses.” Bekkedahl was

issued Letters of Special Administration on May 4, 2022.

¶14 Vicki appeals. Additional facts will be discussed as necessary below.

STANDARD OF REVIEW

¶15 “Whether a court has subject matter jurisdiction is a question of law that we review

for correctness.” In re Estate of Cooney, 2019 MT 293, ¶ 4, 398 Mont. 166, 454 P.3d 1190

(citing In re Estate of Haugen, 2008 MT 304, ¶ 8, 346 Mont. 1, 192 P.3d 1132).

¶16 We review a district court’s findings of fact to determine whether they are clearly

erroneous. In re Estate of Kuralt, 2000 MT 359, ¶ 14, 303 Mont. 335, 15 P.3d 931 (Kuralt

II). A district court’s findings are clearly erroneous if they are not supported by substantial

credible evidence, if the court has misapprehended the effect of the evidence, or if a review

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of the record leaves us with the definite and firm conviction that a mistake has been made.

Kuralt II, ¶ 14. We review a district court’s conclusions of law to determine whether the

court’s interpretation of the law is correct. In re Estate of Kuralt, 2003 MT 92, ¶ 15, 315

Mont. 177, 68 P.3d 662 (citations omitted) (Kuralt IV). An appellant bears the burden of

establishing error by the district court. In re Estate of Lande, 1999 MT 162, ¶ 30, 295

Mont. 160, 983 P.2d 308, overruled, in part, on other grounds by In re Estate of Bradshaw,

2001 MT 92, ¶ 16, 305 Mont. 178, 24 P.3d 211.

¶17 We review a district court’s decision to remove an estate’s personal representative

to determine whether the court abused its discretion. In re Estate of Hannum, 2012 MT

171, ¶ 18, 366 Mont. 1, 285 P.3d 463 (citing In re Estate of Anderson-Feeley, 2007 MT

354, ¶ 6, 340 Mont. 352, 174 P.3d 512). A district court abuses its discretion when it acts

arbitrarily without employment of conscientious judgment or exceeds the bounds of reason

resulting in substantial injustice. In re Estate of Hannum, ¶ 18 (citing In re Marriage of

Everett, 2012 MT 8, ¶ 11, 363 Mont. 296, 268 P.3d 507).

¶18 “The review of fees paid or taken by a personal representative is left to the sound

discretion of the District Court.” In re Estate of Stone, 236 Mont. 1, 4, 768 P.2d 334, 336

(1989).

DISCUSSION

¶19 1. Whether the District Court, sitting in probate, lacked jurisdiction to interpret the
Marital Property Settlement Agreement.

¶20 Vicki asserts the District Court, sitting in probate, did not have jurisdiction to

interpret Gerry and Lorri’s MPSA. Relying on In re Estate of Cooney, Vicki contends the

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MPSA was not a testamentary instrument over which the District Court had jurisdiction

and therefore the court could not interpret and apply the terms of the MPSA in the probate

proceeding. Lorri, meanwhile, contends the MPSA meets the statutory definition of a

“governing instrument” subject to the District Court’s probate jurisdiction. We agree with

Lorri that the District Court had jurisdiction to interpret the MPSA in this case.

¶21 The administration of an estate is a special proceeding. In re Estate of Cooney, ¶ 7.

A district court sitting in probate has the subject matter jurisdiction conferred to it by

statute:

(1) To the full extent permitted by the constitution, the court has jurisdiction
over all subject matter relating to:

(a) estates of decedents, including construction of wills and
determination of heirs and successors of decedents, and estates of protected
persons; and

(b) protection of minors and incapacitated persons.

(2) The court has full power to make orders, judgments, and decrees and take
all other action necessary and proper to administer justice in the matters
which come before it.

Section 72-1-202, MCA. Montana has long held that a “‘district court sitting in probate

has only the special and limited powers conferred by statute, and has no power to hear and

determine any matters other than those which come within the purview of the statute or

which are implied as necessary to a complete exercise of those expressly conferred.’” In

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re Estate of Haugen, ¶ 9 (quoting In re Graff’s Estate, 119 Mont. 311, 316-17, 174 P.2d

216, 218 (1946)).1

¶22 Montana has adopted the Uniform Probate Code (UPC), which provides that the

“code shall be liberally construed and applied to promote its underlying purposes and

policies.” Section 72-1-101(2)(a), MCA. One of the underlying purposes and policies of

the UPC is to “discover and make effective the intent of a decedent in distribution of the

decedent’s property[.]” Section 72-1-101(2)(b)(ii), MCA. Ultimately, “Montana courts

are guided by the bedrock principle of honoring the intent of the testator.” Kuralt II, ¶ 17

(collecting cases).

¶23 When filing her application for informal probate, Vicki attached a copy of Gerry

and Lorri’s divorce Decree and the MPSA. Because Gerry and Lorri divorced prior to

Gerry’s death, the probate of Gerry’s estate is subject to Montana’s revocation upon

divorce statute:

Except as to a retirement system established in Title 19 or as provided by the
express terms of a governing instrument, a court order, or a contract relating
to the division of the marital estate made between the divorced individuals
before or after the marriage, divorce, or annulment, the divorce or annulment
of a marriage:

1
It has been noted that Montana is an outlier among states who have adopted the Uniform Probate
Code in this regard and has been criticized for “continu[ing] to use pre-UPC case law to limit the
jurisdiction and powers of the court sitting in probate.” In re Estate of Camacho, 2012 MP 8, ¶ 21,
9 N. Mar. I. 62. The majority of UPC states which have assigned subject matter jurisdiction for
probate matters to their courts of general jurisdiction “have concluded that assignments to sit in
probate do not deprive ordinary subject matter jurisdiction from the court of general jurisdiction.”
In re Estate of Camacho, ¶ 20 (collecting cases); see also In re Estate of Fields, 219 P.3d 995,
1006 (Alaska 2009) (“Nothing in the probate statutes or rules suggests that a superior court
exercising probate jurisdiction is an inferior court without authority to decide questions of a
decedent’s interest in property or to issue equitable relief.”).

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 (a) revokes any revocable:

(i) disposition or appointment of property made by a divorced
individual to the individual’s former spouse in a governing instrument
and any disposition or appointment created by law or in a governing
instrument to a relative of the divorced individual’s former spouse;

(ii) provision in a governing instrument conferring a general or
nongeneral power of appointment on the divorced individual’s former
spouse or on a relative of the divorced individual’s former spouse; and

(iii) nomination in a governing instrument that nominates a
divorced individual’s former spouse or a relative of the divorced
individual’s former spouse to serve in any fiduciary or representative
capacity, including a personal representative, executor, trustee,
conservator, agent, or guardian; and

(b) severs the interests of the former spouses in property held by them
at the time of the divorce or annulment as joint tenants with the right of
survivorship and transforms the interests of the former spouses into tenancies
in common.

Section 72-2-814(2), MCA. The plain language of the revocation upon divorce statutes

provides that no revocation upon divorce occurs where a governing instrument expressly

provides otherwise. In the probate statutes, a “governing instrument” is defined as “a deed;

will; trust; insurance or annuity policy; account with POD designation; security registered

in beneficiary form (TOD); pension, profit-sharing, retirement, or similar benefit plan;

instrument creating or exercising a power of appointment or a power of attorney; or

dispositive, appointive, or nominative instrument of any similar type.” Section

72-1-103(20), MCA; see also Reader v. Kelly (In re Estate of Kelly), 2014 MT 254, ¶ 17,

376 Mont. 361, 334 P.3d 911.

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¶24 Here, we agree with the District Court that the MPSA is a governing instrument

within the terms of the statute. “If two or more instruments are offered for probate before

a final order is entered in a formal testacy proceeding, more than one instrument may be

probated if neither expressly revokes the other or contains provisions which work a total

revocation by implication.” Section 72-3-314(1), MCA. The language of the MPSA does

not expressly, or by implication, totally revoke Gerry’s Last Will and Testament, but rather

evidences a testamentary intent, specifically that the surviving ex-spouse, whether that be

Gerry or Lorri, would inherit all real property not specifically divided in the MPSA as joint

tenant with rights of survivorship. This language of the MPSA works to disclaim the

revocation upon divorce statute’s decree that would “sever[] the interests of the former

spouses in property held by them at the time of the divorce or annulment as joint tenants

with the right of survivorship and transform[] the interests of the former spouses into

tenancies in common.” Attorney Vines testified that was the intent of Gerry and Lorri in

the MPSA, to have all property pass to the other for the remainder of their lifetime, which

could then be passed to their children when the surviving ex-spouse passed away.

¶25 Vicki’s reliance on In re Estate of Cooney is misplaced in this case. In that case,

we addressed whether a district court, sitting in probate, had jurisdiction to consider the

equitable claim of parties to a succession contract. In In re Estate of Cooney, the decedent

and his wife divorced in 1980 and entered into a property settlement agreement which

provided that the decedent would distribute his real property equally to their two daughters

and to any future children of the decedent upon his death. The decedent had another

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daughter and a son after the divorce, ultimately leaving the entirety of his real property to

his son in a will executed in 2011. In re Estate of Cooney, ¶ 2. The decedent’s will was

admitted to formal probate, where the daughters sought to invalidate the portions of the

will leaving all real property to the decedent’s son, because it contravened the 1980

separation agreement. The district court determined it lacked jurisdiction over the

daughters’ claims while sitting in probate. In re Estate of Cooney, ¶ 3. We reiterated that

succession contracts, where a person makes a valid contract to dispose of his or her property

by will, are allowed in Montana, and that the 1980 separation agreement met the

requirements of a valid succession contract. In re Estate of Cooney, ¶¶ 8-9. We determined

the daughters, as third-party beneficiaries to the contract, did not seek a construction of the

will or a determination of heirs and successors, but instead had a breach of contract claim

which must be brought in an “action.” In re Estate of Cooney, ¶¶ 13-14. Ultimately, we

concluded that a “probate court lacks jurisdiction to adjudicate a party’s rights under a

succession contract.” In re Estate of Cooney, ¶ 16.

¶26 Here, however, we are not presented with a succession contract, but instead an

MPSA evidencing Gerry’s testamentary intent to leave the real property he jointly owned

with Lorri to Lorri upon his death. This document is in concert with Gerry’s Will, which

would have left his estate to Lorri, and specifically rejected the portion of the revocation

upon divorce statute which would have transformed any property held as joint tenants with

rights of survivorship into a tenancy in common. The District Court therefore correctly

held that the MPSA “is a binding, governing instrument which provides for the distribution

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of property subsequent to the dissolution but does not expressly revoke the Decedent’s

Will.” The District Court properly exercised its subject matter jurisdiction to probate the

multiple instruments offered for probate in this formal testacy proceeding and did not lack

jurisdiction to interpret the MPSA under the facts of this case.

¶27 2. Whether the District Court erred in its interpretation of the Marital Property
Settlement Agreement.

¶28 Vicki asserts that, if this Court determines the District Court properly exercised

jurisdiction over the MPSA, the District Court nevertheless improperly applied and rewrote

disputed terms of the MPSA, specifically those terms relating to ownership of real property

and the division of the WLCC shares. Lorri contends the District Court made no error

when it determined the MPSA was a binding judgment the PR was required to follow or

when it interpreted and modified the MPSA consistent with Gerry’s intent.

¶29 On appeal, Vicki bears the burden of establishing error by the District Court, In re

Estate of Lande, ¶ 30, and we will not overturn the court’s factual findings unless they are

clearly erroneous. Kuralt II, ¶ 14. While we review the court’s conclusions of law for

correctness, Kuralt IV, ¶ 15, our review of the record demonstrates neither clear error in

the District Court’s findings nor an incorrect application of the law to those findings. In

addition, though Vicki quibbles with the thoroughness of the court’s findings in this case,

this Court “adheres to the doctrine of implied findings which states that where a court’s

findings are general in terms, any findings not specifically made, but necessary to the

judgment, are deemed to have been implied, if supported by the evidence.” Interstate

Brands Corp. v. Cannon, 218 Mont. 380, 384, 708 P.2d 573, 576 (1985).

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¶30 Vicki’s first asserted error relates to the distribution of real property jointly owned

by Gerry and Lorri at the time of Gerry’s death. This property is specifically addressed by

the MPSA and its requirement that Gerry and Lorri “execute documents or deeds sufficient

to ensure that joint tenancy with rights of survivorship continue on each and every piece of

property which is jointly owned as of the date of dissolution,” for “each and every interest

in mineral, water or other similar rights,” and for the “remainder interest in an estate for

years.” Vicki notes that, at the time of Gerry’s death, the property was held by Gerry and

Lorri as tenants in common and that the two did not sign the necessary deeds to make them

joint tenants with rights of survivorship. True, though Gerry and Lorri were first informed

the necessary deeds were ready to be signed while already on the road to their vacation in

Idaho together and planned to sign the deeds upon their return. Gerry’s untimely

unexpected death in Idaho prevented the deeds from being completed, but the District

Court correctly found that, under the terms of the MPSA, the PR was required to step “into

[Gerry’s] shoes with respect to his legal obligations” under the MPSA. Baker v. Berger,

265 Mont. 21, 27, 873 P.2d 940, 943 (1994). Vicki contends the MPSA was

unconscionable because Gerry was unrepresented during its signing. The District Court

heard testimony on this issue and impliedly rejected it. We find this implied rejection of

Vicki’s argument regarding the validity of the MPSA is supported by the evidence and do

not disturb its conclusion in this regard.

¶31 Vicki’s second asserted error relates to Gerry and Lorri’s interest in WLCC. Vicki

argues that, under the plain terms of the MPSA, Lorri’s shares were ceded to WLCC upon

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Gerry’s death, leaving the Estate as sole shareholder in WLCC. Attorney Vines testified

at the hearing that this language of the MPSA was a scrivener’s error, and that the intention

of Gerry and Lorri was to have the decedent’s shares ceded to the corporation, leaving the

survivor as sole shareholder in WLCC. The District Court quite reasonably accepted the

testimony of Attorney Vines, the author of the MPSA, in this regard and reformed the terms

of the MPSA to reflect Gerry’s intent. Vicki’s argument that she was prejudiced as a third

party who acquired rights in good faith and for value is entirely unpersuasive as she is an

heir to Gerry’s estate who acquired nothing for value. In addition, rejecting the scrivener’s

error argument—made by the attorney who drafted the clause at issue, under oath—would

provide Vicki with a windfall by revoking her mother’s interest in WLCC and reducing the

payments Vicki and her husband owed to WLCC for their leased property. The District

Court did not commit clear error nor make an incorrect legal conclusion by reforming the

MPSA regarding the WLCC shares to correct the scrivener’s error.

¶32 3. Whether the District Court abused its discretion by removing Vicki as Personal
Representative.

¶33 Vicki also contests her removal as PR of Gerry’s estate, asserting she provided all

required notice and that no conflict of interest would prevent her from serving as personal

representative. Lorri asserts the District Court was well within its discretion to remove

Vicki as PR because Vicki’s actions in this matter were sufficient to warrant her removal.

¶34 “A trial judge has broad discretion to remove a personal representative provided the

grounds for removal are valid and supported by the record.” In re Estate of Hannum, ¶ 28

(citing In re Estate of Greenheck, 2001 MT 114, ¶ 19, 305 Mont. 308, 27 P.3d 42). A

17
district court has authority to remove a personal representative when it determines removal

would be in the “best interests of the estate.” In re Estate of Bennett, 2013 MT 228, ¶ 11,

371 Mont. 270, 312 P.3d 400 (quoting § 72-3-526(2)(a), MCA). “[A]n order of removal

is harsh and severe, and irregularities that are not directly harmful will be overlooked, and

if the court can remedy the matter readily, no removal will be ordered.” In re Estate of

Hannum, ¶ 28 (citing In re Estate of Townsend, 243 Mont. 185, 188-89, 793 P.2d 818, 820

(1990)).

¶35 Upon our review of the record, it is apparent the District Court’s decision to remove

Vicki as PR was valid and supported by the record. In re Estate of Hannum, ¶ 28. Vicki

did not provide direct notice to Lorri as a known creditor of Gerry’s estate, as Lorri was

the one who paid for all of Gerry’s funeral expenses, instead publishing notice only in the

newspaper. “[N]otice by publication is insufficient to protect a creditor’s property interest

where the identity of a creditor is known or reasonably ascertainable: instead, a creditor

must be given notice by mail or other means as certain to ensure actual notice.” Wood v.

Anderson, 2017 MT 180, ¶ 17, 388 Mont. 166, 399 P.3d 304 (internal quotation marks

omitted) (citing Tulsa Prof’l Collection Servs., Inc. v. Pope, 485 U.S. 478, 491, 108 S. Ct.

1340, 1348 (1988)). Further, the significant deterioration in the relationship between Vicki

and Lorri and Vicki’s desire to use beneficial provisions of the MPSA to her benefit while

disclaiming provisions which would benefit Lorri was apparent to the District Court. The

District Court noted Vicki refused to step into Gerry’s shoes and perform his legal

obligations under the MPSA. Ultimately, the record demonstrates that the removal of Vicki

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as PR and the appointment of a neutral, uninterested, and unbiased special administrator

was necessary in this case. Leaving Vicki as PR to continue fighting with Lorri in multiple

jurisdictions certainly would not “enable an expeditious settlement and closure of the

estate.” In re Estate of Greenheck, ¶ 20. The District Court did not abuse its discretion by

removing Vicki as PR and appointing a special administrator under the facts of this case.

¶36 4. Whether the District Court abused its discretion by disallowing Vicki’s attorney
fees beyond those required to file the documents necessary to open the probate.

¶37 Finally, Vicki asserts the District Court abused its discretion by disallowing Vicki’s

attorney fees beyond those required to file the documents necessary to open the probate.

The award, or denial, of attorney fees to a personal representative is left to the sound

discretion of the district court. In re Estate of Stone, 236 Mont. at 4, 768 P.2d at 336.

¶38 Here, we cannot find an abuse of discretion with the District Court’s order because,

while it disallowed Vicki’s attorney fees beyond those needed to open the probate, it

provided that the court-appointed special administrator could allow Vicki to recover the

attorney fees determined by the special administrator to be legitimate estate expenses. “If

a personal representative or person nominated as personal representative defends or

prosecutes a proceeding in good faith, whether successful or not, the personal

representative is entitled to receive from the estate the personal representative’s necessary

expenses and disbursements, including reasonable attorney fees incurred.” Section 72-3-

632, MCA. If the special administrator determines Vicki’s actions were taken in good

faith, she may recover such fees. If her actions were not taken in good faith, they may be

properly denied. See In re Estate of Evans, 217 Mont. 89, 97, 704 P.2d 35, 40 (1985). As

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this matter has been appealed, the special administrator has not yet made any decision to

either allow or disallow Vicki’s claimed attorney fees based on whether they were

“legitimate Estate expenses” as contemplated by the District Court’s order. The special

administrator, upon remand, may determine which of Vicki’s actions may have furthered

the probate and which were contrary to the purposes of the probate and the intent of the

decedent. The court’s order regarding Vicki’s attorney fees was not an abuse of discretion.

CONCLUSION

¶39 The District Court had jurisdiction over the MPSA in the probate matter and did not

err in its interpretation of the MPSA. In addition, the District Court did not abuse its

discretion by removing Vicki as personal representative of the estate or by disallowing

Vicki’s attorney fees.

¶40 Affirmed.

/S/ INGRID GUSTAFSON

We concur:

/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR

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