In the Matter of the Estate of Torres

Opinion

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IN THE MATTER OF THE ESTATE ) Probate Case No.

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4 DECISION AND ORDER LUISA F. TORRES, re: adequacy ofnotice 5 Deceased.

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7 This matter came before the Honorable Judge Michael J. Bordallo on April 13,2009.

8 The Petitioners Joleen Flores Respicio and Melissa V. Torres were represented by Attorney 9 Daniel J. Berman. Francisco Calvo Torres Jr., was represented by Attorney Arthur B. Clark.

l0 Having heard the arguments and reviewed the memorandum and papers presented, the court lt now issues the following decision finding Petitioners have failed to adequately publish t2 notice for this hearing.

13 BACKGROUND

l4 The instant matter arises out of an petition for letters of administration with the will 15 annexed.

t6 DISCUSSION

L7 Francisco Calvo Torres Jr., (hereafter F.C. Torres)objects to the adequacy of the notice 18 provided by Petitioners. Objection at l. F.C. Torres supports his objection by arguing that t9 the notice requirements of the statute are jurisdictional and asserts that Petitioners failed to 20 publish adequate notice because they were published 2 days sooner than required.t In 2l response Petitioners argue that the cases relied upon by F.C. Torres are distinguishable and 22 not relevant to the case at hand. Resp. at2.

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24 ' Because F.C. Torres' second argument, that the notice was also insufficient because it was 25 not posted in the village the Decedent resided, was not raised in his memorandum prior to the hearing, it will not be analyzed by this decision.

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I The court is unpersuaded by Petitioners' attempt to distinguish the legal authority cited

2 by F.C. Torres. A hearing regarding the issuance of letters of administration with the will a J annexed, has yet to be held by this court. Prior to a court acquiring jurisdiction over a

4 person's estate a petitioner is required to comply with the notice provisions dictated by

5 statute. see, Taitano v. Calvo Finance Corp., 2008 Guam 12,1p2 (Guam Sup Ct. 200g); In

6 re wise's Estate,2l0P.2d 497, 500 (cal 1949); see, Huggins v. powell,2g3 Ga.App. 436,

7 667 5.8.2d219,08 FCDR 2841, Ga. App., August 27,2009 .

8 Objections to adequate notice are jurisdictional and maybe raised by aparty at

9 anytime. Guam R. Civ. P. 60(b) (2008). F.C. Torres's objection is relevant to whether the

10 court has jurisdiction. Section 3401 requires that notice of the hearing for letters of

11 administration and proof of a will be grven by petitioner, "by publishing notice of such

t2 hearing in a daily newspaper of general circulation in the territory of Guam for three (3)

l3 consecutive days, the last of which publications shall be not more than ten (10) calendar

t4 days prior to the date set for such hearing." l5 Guam code Ann.

$3401 (200g).

l5 In this case the Petitioners' January 26 declaration provides that the amended notice of

t6 hearing on petition for probate of will was published on January 22,23, and,24. The notice

T7 provided that a hearing would be held on February 5, 2008; l2 days after the final notice.

l8 Petitioners have not provided the court with any evidence that the notice of the hearing was

r9 provided according to the mandates of $ 3401. Absent such a showing, the court is without

20 jurisdiction to entertain the Petition. In this case the court is bound by the statutorv

2l mandates and is without the discretion to depart from them.

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I CONCLUSION 2 For the reasons above the objection of F.C. Torres is sustained. Prior to acquiring a J jurisdiction Petitioners shall be required to comply with the notice provisions of the Guam

4 Probate Code. The hearing previously set by this court for further proceedings in this matter

5 is vacated.

6 SO ORDERED this fr^rof May 2009. 7

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9 , Superior Court of Guam

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