Opinion
DA 23-0666
11-06-2024
IN THE MATTER OF THE ESTATE OF MARTIN W. MACLAY, Deceased.
For Appellant: Don C. St. Peter, Logan Nutzman, St. Peter O'Brien Law Office, P.C., Missoula, Montana For Appellee Jesse Maclay: Nicole L. Siefert, Matthew Rossmiller, Siefert &Wagner PLLC, Missoula, Montana For Appellee Michael Maclay: Cory R. Laird, Riley M. Wavra, Laird Cowley, PLLC, Missoula, Montana
Submitted on Briefs: August 7, 2024
APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DP-21-270 Honorable John W. Larson, Presiding Judge
For Appellant: Don C. St. Peter, Logan Nutzman, St. Peter O'Brien Law Office, P.C., Missoula, Montana
For Appellee Jesse Maclay: Nicole L. Siefert, Matthew Rossmiller, Siefert &Wagner PLLC, Missoula, Montana
For Appellee Michael Maclay: Cory R. Laird, Riley M. Wavra, Laird Cowley, PLLC, Missoula, Montana
MIKE MCGRATH, CHIEF JUSTICE
¶ 1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, 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 Shari Lynn Maclay appeals from the November 2, 2023 Order Denying Motion to Set Aside Settlement Agreement (Motion). We affirm.
¶ 3 Martin Maclay (Marty) executed a valid will in September 2007 (2007 Will), providing equally between his two children-Appellees Jesse and Michael. Shari and Marty were married on December 17, 2020. In late October or early November 2021, Marty was admitted to the ICU at St. Patrick's hospital due to complications with COVID-19. On November 8, 2021, Marty signed a document purporting to be a new will (2021 Will) while in the ICU. This purported will disinherited Jesse and devised a life estate in Marty's primary residence to Shari; the document devised the rest of his estate to Michael. Marty died five days later, while still in the ICU.
¶ 4 Michael opened an informal probate of the 2021 Will on November 18, 2021. On February 15, 2022, Shari and Jesse jointly filed a Petition for Formal Probate to Determine Will and Heirs and Appointment of Personal Representative (Petition). In it, Shari and Jesse challenged the 2021 Will, arguing that the circumstances surrounding it potentially caused it to be invalid under Montana law. For example, they noted that the purported will was only witnessed by one individual; that Marty signed in the other space reserved for a second witness; that at the time he signed it, Marty was very ill in the ICU, on many medications, and was intubated the next day; and that the purported will reflected an unnatural disposition in that it differed from the 2007 Will by entirely disinheriting Jesse and favoring Michael over Shari, where the 2007 Will provided generously for Marty's prior spouse and treated Jesse and Michael equally. Shari and Jesse were "therefore petitioning for a formal determination of whether the purported will is valid, the decedent died intestate, or if an earlier will should be revived."
¶ 5 On August 29, 2022, Shari filed an Unopposed Motion to Dismiss, requesting the court dismiss her from the Petition because she was not contesting the 2021 Will, which the District Court granted. Jesse continued to contest the 2021 Will and Michael continued trying to validate it. On April 11, 2023, Shari emailed Jesse's counsel to explain Marty's relationship with Jesse and Michael and why she felt that Marty would not have disinherited Jesse. She explained that she "realize[d] this could jeopardize [her] position in the case" but felt it was necessary to see justice served. On April 13, Shari-represented by counsel-was deposed in this matter. She testified that she believed Marty's competency to execute a will was questionable given his condition and all the medications he was on in the ICU and that she further understood she would lose her life estate if the 2021 Will was invalidated: "I don't believe that he was thinking clearly." She testified she did not think Marty would have disinherited Jesse and she understood her testimony was not in her best interest.
¶ 6 On May 31, Michael's counsel emailed all parties to propose mediators and a time for mediation, explicitly stating that Shari should feel free to suggest mediators as well. The next day, Shari replied stating that she was "ONLY an INTERESTED PARTY to this case-that means I want to be kept informed of what is going on. That's all." (Emphasis in original.) She replied several more times throughout the next week verifying that she was only an interested party, did not want to participate in the mediation, and did not feel she should have to pay any mediation expenses because of that.
¶ 7 On June 1, 2023, Jesse's counsel emailed Shari: "We are filing a motion early next week on the [2021] Will-our position is that it is not a Will because it does not comport with the statutory requirements. I have to state in my motion if you object or agree with our motion. Do you agree?" Shari replied later that day: "I am in total agreement with your motion." Jesse filed her motion for summary judgment on June 5. In it, Jesse argued that the purported 2021 Will did not meet the statutory requirements to be a will and that Michael could not meet his burden to show Marty intended it to be his will. On June 7, with the subject heading "Brilliant!!!!," Shari again emailed Jesse's counsel that she had "just finished reading your Motion-I love it! You are brilliant."
¶ 8 On June 19, Michael's counsel emailed Shari: "do you object to Michael's motion for summary judgment that the November 8, 2021 will is valid?" Shari replied: "I do object to Mike's motion for summary judgment re the November 8, 2021 Will." Michael filed his motion for summary judgment on June 26, arguing the 2021 Will was a valid will and that Marty was of sound mind and possessed the requisite testamentary capacity to execute the will.
¶ 9 On July 18, the parties engaged in mediation-Shari was present and was represented by counsel in the mediation although she did not participate per her prior comments. As relevant to this appeal, Jesse and Michael agreed during mediation to settle the case by dismissing the motion to formally probate the 2021 Will and instead admitting the 2007 Will to probate. Shari-in contrast with her prior positions-then filed the motion to set aside the settlement agreement, arguing that she was required to agree to the settlement under § 72-3-915(1), MCA, which allows "competent successors [to] agree among themselves to alter the interests, shares, or amounts to which they are entitled under the will of the decedent . . . in any way that they provide in a written contract executed by all who are affected by its provisions." (Emphasis added.) Because she did not sign the settlement agreement, Shari argued the court must set it aside under § 72-3-915(1), MCA. The District Court held a hearing, where Shari again represented that if the beneficiaries wish to settle the case, then she had to be involved in that decision. She acknowledged that she had been present at the mediation with counsel but argued that she had not been given an opportunity to negotiate or agree to the settlement before it was finalized. The District Court found, among other things, that Shari had waived her right to seek enforcement of the 2021 Will and to complain about the settlement agreement based on her statements and actions throughout the case. Shari appeals.
All parties agree that Shari's statutory rights as a surviving spouse are not affected by the settlement.
¶ 10 Waiver is the intentional and voluntary relinquishment of a known right (including personal statutory rights), claim, or privilege. Collection Bureau Servs. v. Morrow, 2004 MT 84, ¶9, 320 Mont. 478, 87 P.3d 1024.
It may be proved by express declarations, or by acts and declarations manifesting an intent and purpose not to claim the supposed advantage, or by a course of acts and conduct, or by so neglecting and failing to act, as to induce the belief that it was his intention and purpose to waive.Morrow, ¶ 11 (quoting Nw. F. &M. Ins. Co. v. Pollard, 74 Mont. 142, 149, 238 P. 594, 596 (1925)).
¶ 11 Shari argues that she could not waive her right under § 72-3-915(1), MCA, until after the settlement was reached and that because she immediately objected to the settlement agreement, her actions clearly show she could not have waived her rights. She argues that she expected to be an active participant in the mediation and ultimate settlement agreement, but that Michael and Jesse instead wholly bypassed her and made an agreement which stripped her of her entitlement to a life estate under the 2021 Will.
¶ 12 But Shari's actions, conduct, and failure to act show an intent to waive her right both to participate in the mediation and to object to the settlement. Initially, counsel emailed Shari so she could be a part of choosing the mediator, the time for mediation, and to participate in the mediation. Shari responded no fewer than three times adamant that she was only an interested party, did not want to participate in the mediation or pay for it, and only wanted to be kept informed of what happened-even after Jesse's counsel told Shari that they would be participating in the mediation in good faith to seek a resolution of the issues. Shari's own words, actions, and inactions belies her argument that she was hedged out of the settlement by the other parties. She was given a full opportunity to participate in the mediation, knowing that the parties hoped to settle the issues without further litigation, and chose to sit on the sidelines.
¶ 13 Additionally, the position she takes now is inconsistent with the position she has shown throughout the entirety of the will challenge and supports that Shari has waived her ability to object to the settlement. First, she and Jesse jointly filed a motion clearly calling into question the validity of the 2021 Will. Although she withdrew from that motion stating that it was not her intent to challenge the validity of the 2021 Will, her continued actions and conduct after that point shows that she still agreed with Jesse's position even knowing it was not in her best interest to do so. She testified that she did not think Marty was competent when he signed the 2021 Will and that she did not believe he would have disinherited Jesse. She objected to Michael's motion for summary judgment seeking to validate the 2021 Will and was "in total agreement with" Jesse's motion for summary judgment seeking to invalidate the 2021 Will-even knowing that she would lose her life estate if Jesse's motion was granted. That she now objects to a settlement that achieved everything she was "in total agreement with," is in opposition to all of her prior actions and conduct throughout the case. Shari waived her right to object to the settlement when she refused to participate in mediation and when it achieved everything she had previously agreed with in Jesse's motion for summary judgment. The District Court did not err.
¶ 14 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review.
¶ 15 Affirmed.
We Concur: JAMES JEREMIAH SHEA BETH BAKER INGRID GUSTAFSON JIM RICE