Lowther v. Stolba (In re Estate of Stolba)

446 P.3d 528
CourtCourt of Civil Appeals of Oklahoma
DecidedJuly 8, 2019
DocketCase No. 116,512
StatusPublished
Cited by1 cases

This text of 446 P.3d 528 (Lowther v. Stolba (In re Estate of Stolba)) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lowther v. Stolba (In re Estate of Stolba), 446 P.3d 528 (Okla. Ct. App. 2019).

Opinion

OPINION BY P. THOMAS THORNBRUGH, JUDGE:

¶1 Daniel W. Lowther, as personal representative of the estate of Margaret J. Stolba, deceased (Decedent), appeals a decision by the district court finding that a restriction on the alienation of property in the Decedent's will was invalid, and distributing the subject property to decedent's heirs.

BACKGROUND

¶2 Decedent's will was admitted for probate in December 2012. It was evidently composed by Decedent without legal assistance. Among its provisions was this:

The home stead will remain in trust, Not to be sold or split. All four of you have got to get along. Work it out, you should be able to have fun doing things there. Everyone should behave themselves. (sic)

In January 2017, probate was still open, and one of Decedent's sons, Mark S. Stolba, filed an application to distribute the remaining property in the form of the homestead1 because either 1) the "trust" failed for lack of required elements, or 2) the homestead provision created an unenforceable perpetuity or restriction on alienation.

¶3 In October 2017, the district court entered a decree of distribution, distributing the homestead to Decedent's four children, per the rules of intestate succession. Representative Daniel Lowther filed a motion for new trial, which was denied. He now appeals.

STANDARD OF REVIEW

¶4 Probate proceedings are of equitable cognizance. In re Estate of Holcomb , 2002 OK 90, ¶ 8, 63 P.3d 9. We will not disturb the trial court's decision unless it is "found to be clearly contrary to the weight of the evidence or to some governing principle of law." In re Estate of Maheras , 1995 OK 40, ¶ 7, 897 P.2d 268. This matter involves questions of statutory interpretation. We are required to review questions of law, such as the construction of statutes, under a de novo standard of review. In re Estate of Jackson , 2008 OK 83, ¶ 9, 194 P.3d 1269.

ANALYSIS

¶5 Appellant states the following questions on appeal, which we reproduce below.

1. Whether the trial court erred in granting Appellee's application for distribution in *530that Appellee did not contest the validity of the admitted will within 90 days and by the operation of 58 O.S. § 67, the probate is conclusive and the trial court did not have jurisdiction to hear and decide the application for distribution.

2. Whether the trial court erred in granting Appellee's application for distribution in that he did not contest the validity of the admitted will within 90 days and by the operation of 58 O.S. § 67, the application for distribution was time barred.

3. Whether the trial court erred in granting Appellee's application for distribution in that the application was not a sworn petition as required by 58 O.S. § 61.4.

4. Whether the trial court erred in granting Appellee's application for distribution in that no citations were served on the executors, legatees, devisees and heirs within the state as required by 58 O.S. § 62.

5. Whether the trial court erred in granting Appellee's application for distribution in that the order admitting the will to probate establishes the will as valid and was never revoked.

6. Whether the trial court erred in granting Appellee's application for distribution in that the testamentary trust in the admitted will contained a power to sell, exchange or otherwise convey the real or personal property vested in Appellant, and by the operation of 60 O.S. § 175.47 the Rule Against Perpetuities is not violated and the testamentary trust may exist in perpetuity.

7. Whether the trial court erred in granting Appellee's application for distribution in that the testamentary trust in the admitted will must be construed and or reformed to avoid invalidity based on the Rule Against Perpetuities by the operation of 60 O.S. § 75.

8. Whether the trial court erred in granting Appellee's application for distribution in that the testamentary trust in the admitted will must be construed and/or reformed to avoid invalidity based on the Rule against Perpetuities by the operation of 60 O.S. § 77.

¶6 The core question before us is whether the "trust" provision of the will represents an unenforceable perpetual ban on the alienation of real property. We will first address Appellant's jurisdictional arguments, however. These arguments appear to arise from a fundamental misunderstanding of the legal nature of the proceedings. Appellant argues that Appellee attempted to contest the validity of the will , thereby rendering it entirely ineffective, and forcing an intestate probate, and that the district court rejected the will and proceeded with an intestate distribution. This is incorrect. Appellee's "application for distribution" specifically requested that the court find the will valid, and requested the court to interpret whether a specific clause of the will was legally enforceable.

I. The Operation of 58 O.S. § 67

¶7 Appellant argues that, by the operation of 58 O.S. § 67, the probate was "conclusive" three months after the will was admitted, and the trial court did not have jurisdiction to hear and decide the application for distribution. This argument arises from a misreading of § 67. Section 67 must be read in conjunction with 58 O.S. § 61, which states:

When a will has been admitted to probate, any person interested therein may at any time within three (3) months from the date the will was admitted to probate contest the same or the validity of the will. For that purpose he must file in the court in which the will was proved a sworn petition in writing containing his allegations, that evidence discovered since the probate of the will, the material facts of which must be set forth, shows:
1. That a will of a later date than the one proved by the decedent, revoking or changing the will, has been discovered, and is offered; or
2. That some jurisdictional fact was wanting in the probate; or
3. That the testator was not competent, free from duress, menace, fraud, or undue influence when the will allowed was made; or
4. That the will was not duly executed and attested.

¶8 Section 61 makes it clear that challenges to the validity of the will in toto, or to probate jurisdiction must be made within *531three months of a will's admission to probate.

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Cite This Page — Counsel Stack

Bluebook (online)
446 P.3d 528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowther-v-stolba-in-re-estate-of-stolba-oklacivapp-2019.