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Quick v. Anderson

Court of Appeals of Missouri, Western District, Third Division

August 23, 2016

LYLE QUICK, ET AL., Respondents,
v.
FRANKLIN ANDERSON, ET AL., Appellants.

APPEAL FROM THE CIRCUIT COURT OF JOHNSON COUNTY, MISSOURI THE HONORABLE ROBERT M. LISTON, JUDGE.

          Before: Victor C. Howard, Presiding Judge, Lisa White Hardwick, Judge and Gary D. Witt, Judge.

          VICTOR C. HOWARD, JUDGE.

         This appeal arises from the summary judgment in a will contest declaring that the decedent, Bertha Don Carlos, died intestate. The judgment is affirmed.

         The decedent and her husband, Franklin Don Carlos, had one child, an adopted daughter, Respondent Sheryl Firuccia. They also had a large extended family, who were parties in the underlying will contest. They are Donald Atkinson, a nephew, and his three sons, Russell Atkinson, Daniel Atkinson, and Bobby Atkinson (collectively "the Atkinson Appellants"); Lyle Quick, a nephew, Glen Riffle, a nephew, and Lena Zvacek, a niece (collectively "the Quick Respondents"); Donald Riffle, a nephew, and Rosella Keck, a niece; and Mary Ella Anderson, Mr. Don Carlos's sister, and her children, Richard Anderson and Debbie Anderson Kvasnicka (collectively "the Andersons").

         Mr. Don Carlos predeceased Mrs. Don Carlos. Mrs. Don Carlos died at the age of 90 on September 8, 2009, and left an estate with a value of more than $1 million. On March 24, 2010, the probate division issued letters of administration of the decedent's estate to the public administrator to administer the estate as an intestate estate; on March 31, 2010, the first publication of notice granting letters on the estate occurred. On August 20, 2010, a purported last will and testament of Mrs. Don Carlos dated August 30, 2007, was presented for probate in the probate division, and the probate division admitted the document for probate. A week later, on August 27, 2010, a purported last will and testament of Mrs. Don Carlos dated June 17, 1991, was presented for probate in the probate division, however, the probate division rejected the instrument on August 31, 2010, because the August 2007 instrument had previously been admitted to probate.

         On September 3, 2010, a petition to admit a lost or destroyed purported last will and testament of Mrs. Don Carlos dated February 12, 2007, was filed in the probate court. The petition requested that the February 2007 will be admitted to probate and that the August 2007 will be revoked. Then on September 24, 2010, a petition to admit a lost or destroyed purported last will and testament of the decedent executed in 2003 was filed in the probate court. The petition requested the admission of the 2003 will to probate should the court determine that the August 2007 be revoked. The probate court entered orders designating the proceedings on the purported February 2007 and 2003 wills as adversary probate proceedings within the meaning of section 472.140. The probate court did not accept or reject the purported February 2007 or 2003 wills at this time.

         All four of the purported wills disinherited Respondent Firuccia and her heirs and devised the decedent's property to various extended family members described above and others.

         On February 24, 2011, the Quick Respondents filed their first amended petition under section 473.083 to contest the purported August 2007 will admitted for probate. They alleged that Respondent Firuccia was not the decedent's daughter and that the August 2007 will was invalid because the decedent was not of sound mind and signed it due to the Atkinson Appellants' undue influence. They requested that the trial court declare that the August 2007 document was not the last will and testament of the decedent and was void and that the decedent died intestate. The same month, Respondent Firuccia also filed a petition under section 473.083 to contest the purported August 2007 will. She too alleged that the purported will was invalid due to lack of mental capacity and undue influence and requested the will be declared void and the decedent to have died intestate.

         The Atkinson Appellants and the Andersons each filed answers to the Quick Respondents' petition and Respondent Firuccia's petition denying the invalidity of the August 2007 will. In addition, the Andersons filed a counterclaim/cross-claim praying that should the trial court find the August 2007 will invalid, it should admit the 1991 will and order that distributions from the decedent's estate be governed by it or, alternatively, admit the 2003 will and order that distributions be governed by it. The Atkinson Appellants answered the Andersons' counterclaim/cross-claim admitting all of the allegations of the claim and praying that the court enter all appropriate relief. The two will contests were consolidated.

         On January 11, 2012, on Respondent Firuccia's unopposed motion, the trial court granted partial summary judgment finding that Respondent Firuccia is the sole intestate heir of the decedent and dismissing all parties not named in any of the purported wills.

         On May 3, 2013, Respondent Firuccia moved for summary judgment on the Andersons' counterclaim/cross-claim contesting the rejection of the June 1991 will. She argued that the claim was untimely under section 473.083.1 because an action to contest a will must be filed within six months of the rejection of the will, the 1991 will was rejected on August 31, 2010, six months from which would have been February 28, 2011, and the Andersons' claim was not filed until March 23, 2011.

         The Andersons opposed the motion arguing that their counterclaim/cross-claim was timely because it was a defense or setoff to the Quick Respondents' claim of intestacy, which was timely filed within six months of the will's rejection.

         On September 3, 2013, the trial court entered partial summary judgment against the Andersons on their counterclaim/cross-claim contesting the rejection of the 1991 will finding that the claim was untimely under section 473.083.1. The trial court found that "there is no legal benefit to delaying finality of the judgment." Thereafter, the Andersons filed a notice of appeal to this court but eventually voluntarily dismissed the appeal.

         At a hearing in September 2014, the parties stipulated that the August 2007 document was not the last will and testament of the decedent. The trial court entered judgment decreeing, based on the parties stipulation, that the August 2007 document was not the last will and testament of the decedent.

         In January 2015, Respondent Firuccia moved for summary judgment that Mrs. Don Carlos died intestate. She argued that, because the parties agreed that the August 2007 will was not the decedent's last will and testament, the trial court had ruled that the validity of the 1991 will could not be raised as an alternative to the August 2007 will, and no other purported wills had been timely presented and admitted to probate, there was no genuine dispute or material fact and she was entitled to judgment as a matter of law that the decedent died intestate. The Atkinson Appellants opposed the motion arguing that because the issue of whether to accept or reject the purported 2003 will ...


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