Price v. Lotlikar

397 P.3d 54, 285 Or. App. 692, 2017 Ore. App. LEXIS 658
CourtCourt of Appeals of Oregon
DecidedMay 24, 2017
Docket120891121; A156635
StatusPublished
Cited by7 cases

This text of 397 P.3d 54 (Price v. Lotlikar) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Price v. Lotlikar, 397 P.3d 54, 285 Or. App. 692, 2017 Ore. App. LEXIS 658 (Or. Ct. App. 2017).

Opinion

DUNCAN, P. J.

The Oregon Probate Code allows an “interested person” to take certain actions with regard to a decedent’s estate, including petitioning to reopen an estate for proper cause. The code defines an “interested person” to include “heirs, devisees, children, spouses, creditors and any others having a property right or claim against the estate of a decedent that may he affected by the proceeding.” ORS 111.005(19) (emphasis added).1 The dispute in this case is over what the emphasized portion of that sentence modifies—that is, whether the phrase modifies only the term immediately preceding it—“any others”—or, alternatively, whether it modifies all of the preceding terms, so that even “heirs” must “hav[e] a property right or claim against the estate of a decedent that may be affected by the proceeding” to qualify as “interested persons.”

In the proceeding below, respondents Lotlikar and Ma petitioned to reopen the estate of their deceased brother, Chin, to investigate the transfer of assets from Chin to one of his nephews, appellant Price, who had served as the personal representative of the estate. Price opposed the petition, as did one of Chin’s other siblings, appellant Penney Gertsch, who was the estate’s sole devisee under the will that was probated, and her husband, appellant Robert Gertsch. Appellants argued that Lotlikar and Ma, who did not have any financial interest in their brother’s estate, were not “interested persons” and therefore could not petition to reopen it. Respondents countered that, as the decedent’s sisters, they met the statutory definition of “heirs” and were “interested persons” by virtue of that fact alone.

The probate court agreed with respondents’ expansive reading of the statute and granted their petition to reopen the estate. The court ruled that, regardless of whether Lotlikar and Ma were asserting a financial interest in Chin’s estate, “interested person” is “defined broadly so that heirs and family members who do not currently have a financial interest in the estate, like [Lotlikar] and [Ma], [695]*695can vindicate wrongdoing in connection with the disposition of the estate.” We disagree with the probate court’s construction of the statute and conclude that, to be an “interested person,” even heirs must have some property right or claim against the estate that may be affected by the proceeding. Accordingly, we reverse the limited judgment reopening the estate.

BACKGROUND

Although the probate court made extensive findings of fact regarding the circumstances surrounding the petition to reopen, we confine our discussion of the facts to those pertinent to the narrow issues on appeal. The decedent, Chin, died on July 23, 2012. He was survived by his siblings, including Lotlikar, Ma, and Penny Gertsch, as well as his nephew Price, who was the son of one of Chin’s other siblings, Jean Chin. In August 2012, Price filed a petition in Multnomah County Circuit Court to probate a will dated February 5, 2003. That will nominated Penny Gertsch to serve as personal representative of the estate and left the entire estate to her; in the event that she was unwilling or unable to serve as personal representative, it named Robert Gertsch to serve. Price’s petition represented that both Penny and Robert Gertsch had declined to serve and requested that Price instead be appointed as personal representative.

In September 2012, the probate court admitted the 2003 will to probate as Chin’s final will. At the same time, Price was appointed as personal representative. In October 2012, Lotlikar and Ma were notified that the 2003 will had been admitted to probate and were informed of the need to file any will contest within four months. That deadline passed without a contest, and Price filed a final account and petition for final distribution in February 2013. The same month, the court entered a judgment approving that final account and authorizing the final distribution. Penny Gertsch, as the sole beneficiary under the will, signed a receipt acknowledging her full distributive share of the estate, and the court entered a supplemental judgment on February 26, 2013, that closed the estate proceedings and discharged Price from duties as the personal representative.

[696]*696Two days after the estate was closed, Lotlikar and Ma filed a petition to reopen it, pursuant to ORS 116.233, which provides, “Upon the petition of any interested person, the court, with such notice as it may prescribe, may order the estate of a decedent reopened if other property is discovered, if any necessary act remains unperformed or for any other proper cause appearing to the court.” In declarations and a memorandum in support of the petition, Lotlikar and Ma asserted that Price, claiming to be the decedent’s “long lost nephew,” had used undue influence to defraud the decedent and had committed elder abuse through financial exploitation—claims that, they asserted, the estate had not investigated because Price was the personal representative. Lotlikar and Ma asserted that they “filed this petition as named heirs of the estate.”

The probate court ultimately held a three-day hearing on the merits of the petition to reopen, taking testimony from various witnesses. One of the issues then before the probate court was whether Lotlikar and Ma had demonstrated that they were “interested persons” within the meaning of the probate code. Price asserted that they were not, contending that under ORS 111.005(19),

‘“heirs, devisees, children, spouses, [and] creditors’ are all categories of people ‘having a property right or claim against the estate of a decedent that may be affected by the proceeding.’ It is not enough to merely bear one of those labels: someone who fits within one of those enumerated categories only has standing to the extent that he or she also has property rights that the proceeding may affect.”

(Emphasis omitted.) Lotlikar and Ma, meanwhile, contended that they met the statutory definition of “heir” because they would have been entitled to Chin’s property had he died intestate, ORS 111.005(18), and therefore remained “interested persons” under ORS 111.005(19) even after the estate was closed.

The probate court agreed with Lotlikar and Ma, reaching the following conclusions of law regarding whether they were interested persons:

[697]*697“Faye Lotlikar and Shirley Ma are heirs of the decedent, and they continue to have that status for purposes of the petition to reopen the estate.
“The definition of ‘interested persons’ in ORS 116.233 includes, among other persons, ‘heirs’ of the decedent. Because Faye Lotlikar and Shirley Ma are heirs of decedent, they are ‘interested persons’ as defined in ORS 111.005

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Cite This Page — Counsel Stack

Bluebook (online)
397 P.3d 54, 285 Or. App. 692, 2017 Ore. App. LEXIS 658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/price-v-lotlikar-orctapp-2017.