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Davis Russell and Dana Russell v. Lloyd Sullivan

February 14, 2012

DAVIS RUSSELL AND DANA RUSSELL, APPELLANTS (PETITIONERS), AND JOHN H. KELLERSMAN, JR., APPELLANT (PROSPOSED INTERVENOR),
v.
LLOYD SULLIVAN, APPELLEE (RESPONDENT).



Appeal from the District Court of Park County The Honorable Steven R. Cranfill, Judge S-11-0128

The opinion of the court was delivered by: Hill, Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] John Kellersman Sr., (decedent) died on April 16, 2005 and was survived by a son and a daughter. His home was his only remaining asset. Lloyd Sullivan, a developer who claimed to have purchased the property from the decedent's daughter, filed a petition for probate without administration of an alleged will of Mr. Kellersman. The Russells, neighbors who lived across the street from the property, filed a petition to revoke the probate of the will alleging, among others things, that the will was invalid and that the probate court improperly admitted the will to probate without sufficient proof of its validity. The decedent's son filed a motion to intervene and join as a petitioner seeking to revoke the probate. The probate court concluded that it did not have jurisdiction to hear the neighbors' "Petition to Revoke" because they did not have standing and granted the developer's motion to dismiss the petition to revoke the will. The court found that because the son had filed a motion to intervene rather than his own petition challenging the will, the court's jurisdiction was not properly invoked. We reverse and remand the case for further proceedings consistent with this opinion.

FACTS

[¶2] On August 23, 2010, a petition for probate of the decedent's alleged will was filed by the developer claiming he was entitled to the property by virtue of a written contract with the decedent's daughter executed on August 18, 2010. The day after the petition for probate was filed, the probate court ordered the will admitted to probate without administration. The developer published notice of the probate for three weeks with the first publication on August 31, 2010. The period for challenge ended November 30, 2010.

[¶3] The will was a one-page typewritten document dated April 18, 2003, signed by the decedent and notarized by a notary public. In its entirety the will provides:

I John Kellersman give to Joanne Evans my home located at 405 N Bent, Powell, Wyoming along with my belongings and my accounts located at Community First Bank upon my death.

[¶4] The will contained only the signature of the decedent and the notary. Also attached to the petition was the "Testimony of Subscribing Witness on Probate of Will" signed by the notary, which provides:

I reside in the County of Park, State of Wyoming; I met with the testator on the 18th day of April, 2003, the date of the instrument, the original or exact reproduction of which is attached hereto as Exhibit "A", now shown to me, and purporting to be the last will and testament of said John H. Kellerman [sic]; I am a subscribing witnesses [sic] to said instrument; and on the said date of said instrument, said instrument was exhibited to me by the testator as his last will, and was signed by the testator at Powell, in the County of Park, State of Wyoming, on the date shown in said instrument, in the presence of myself and I then and there, at the request of the testator, in the presence of said testator and in the presence of each other, acted thereto as witness to the signing of the will by John H. Kellersman.

[¶5] The developer claimed to have purchased the property from decedent's daughter, pursuant to an "Agreement to Convey Interest in Real Property" signed by her on August 18, 2010. Paragraph 4 of the agreement provides:

4. Evans irrevocably assigns, transfers and coveys [sic] all of her right[,] title and interest, including her interest as an heir under the will of John Kellersman and further as an heir of her parents in and to the following real estate to and in favor of Lloyd Sullivan: Lot 9, Block 26, Original Town (Now City) of Powell, Wyoming according to the plat recorded in Book "C" of plats, Page 28, Records of Park County, State of Wyoming.

[¶6] The final paragraph of the agreement, in pertinent part, provides:

I, Joanne Evans, specifically authorize the Probate Court to order that the subject matter real property be conveyed to Lloyd Sullivan at the conclusion of any probate proceeding which arises out of this agreement. I also specifically waive, disclaim and relinquish all right to notice of any proceeding in probate related to the subject real property and any such proceedings may proceed without my presence.

(Emphasis in original.)

[¶7] On October 19, 2010, the neighbors filed a "Petition to Invalidate Decedent's Will, Revoke Probate and Invalidate Affidavit of Survivorship" alleging that the decedent's daughter entered into an oral agreement with them on August 5, 2010, promising to sell them the property, and that the will was invalid because it was not properly signed by two subscribing witnesses.

[¶8] On November 19, 2010, the developer answered the neighbors' petition to revoke the probate and filed a motion to dismiss it. In the motion, the developer admitted that "the Wyoming Supreme Court has made it clear that this case cannot proceed without [daughter] or her brother," citing Rule 19 of the Wyoming Rules of Civil Procedure and stated,

Both Joanne and her brother may be necessary and indispensable parties as they are heirs. This case cannot be resolved without them. They certainly have rights which need to be protected as it pertains to their interest in the real property. Furthermore, the alleged negotiations were with Joanne Evans individually for selling the subject property. The negotiations were not made with the personal representative. The case needs to be dismissed for that reason.

The statements in the motion seem to admit that if the decedent's son and daughter were not made parties to this matter, the ...


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