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INTERIOR BOARD of INDIAN APPEALS Estate of Lester Louis

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INTERIOR BOARD of INDIAN APPEALS Estate of Lester Louis INTERIOR BOARD OF INDIAN APPEALS Estate of Lester Louis Smith 67 IBIA 114 (07/17/2020) United States Department of the Interior OFFICE OF HEARINGS AND APPEALS INTERIOR BOARD OF INDIAN APPEALS 801 NORTH QUINCY STREET SUITE 300 ARLINGTON, VA 22203 ESTATE OF LESTER LOUIS SMITH ) Order Affirming Denial of Reopening ) and Modifying Decision ) ) Docket No. IBIA 17-028 ) ) July 17, 2020 Margaret Frances Smith (Margaret), Crystal Dawn Decoteau, Leatha Gail Smith, Stephen Neil Smith, Wayne Smith, and Zetra Lynn Wheeler (Zetra) (collectively, Appellants), through counsel, appealed to the Board of Indian Appeals (Board) from an Order Denying Reopening entered on January 9, 2017, by Administrative Law Judge (ALJ) R. S. Chester in the estate of Lester Louis Smith (Decedent).1 Margaret was married to Decedent at the time he executed his June 7, 2007, will (Will) and contends that they never divorced; the remaining appellants are five of Decedent’s nine surviving children. Appellants filed with the ALJ an untimely petition for rehearing,2 which the ALJ considered as a petition for reopening. The Order Denying Reopening left in place the ALJ’s September 15, 2015, Decision approving Decedent’s Will and ordering that Decedent’s trust or restricted estate property be distributed according to the Will’s terms. The Will expressly leaves nothing to Margaret and $50 to each of the remaining appellants. The Will also contains a no-contest clause, which provides that any devisee who contests the Will shall receive only $1. We affirm the Order Denying Reopening and modify the Decision. On appeal, as in their petition for reopening, Appellants argue that the original Will approved by the ALJ is not the will that was prepared by the scrivener. They maintain that an affidavit filed by the scrivener does not support the finding that the Will was prepared by the scrivener, because the affidavit does not include a copy of the Will and the Will does not identify the scrivener or his law firm. But Appellants do not dispute that the ALJ sent the 1 Decedent, who was also known as Lester McCurdy, was a Blackfeet Indian. His probate case is assigned Probate No. P000121819IP in the Department of the Interior’s probate tracking system, ProTrac. 2 Zetra did not join in the petition and was not represented by counsel for the remaining appellants until the instant appeal. For ease of reference, we refer to Zetra and the other appellants collectively as “Appellants.” 67 IBIA 114 scrivener a copy of the Will, the affidavit describes the Will and its execution, and the scrivener’s name appears on the Will because he notarized it and the Will names the scrivener’s law firm as a place where a copy was retained. Appellants request an opportunity to interview the scrivener, but their argument is based on misstatements of the facts and speculation, which the ALJ properly found does not support reopening. Appellants also continue to aver that Decedent did not sign the Will, as the testator’s signature includes the suffix “Sr.,” which Appellants contend is incorrect and was never used by Decedent. Appellants have not explained their delay in raising this issue until after issuance of the Decision, they have offered no evidence that the signature is fraudulent, and they do not dispute Decedent’s testamentary capacity to execute the Will. The apparent mistake in including the suffix, standing alone, is not grounds to declare the Will invalid. Nor do Appellants show error in the ALJ’s conclusion that whether Margaret was married to Decedent at the time of his death is irrelevant to the probate of Decedent’s trust estate because Margaret was intentionally omitted from the Will and thus, even if they remained married, she would not be a pretermitted spouse. Because Appellants fail to meet their burden on appeal to show error by the ALJ in denying their petition, we affirm the Order Denying Reopening. And, because we grant in part a motion by another child of Decedent, Mary Jo Smith-Issues (Mary Jo), to enforce the no-contest clause against Appellants, we modify the Decision. Background Decedent died testate in the State of Montana on March 16, 2014, possessed of trust or restricted property located on the Blackfeet Indian Reservation and funds in his Individual Indian Money (IIM) account. Decision, Sept. 15, 2015, at 1 (Administrative Record (AR) 5); Certificate of Death, Sept. 3, 2014 (AR 15). Decedent was predeceased by a son, William Irvin Smith, and was survived by nine children and Margaret. Decision at 1; Data for Heirship Finding and Family History (OHA-7), Jan. 12, 2015, at 1-2 (AR 15). At the time of the execution of the Will, Decedent was married to Margaret. See Last Will and Testament, June 7, 2007, at 1 ¶ 3 (Will) (AR 8). The Will states that Decedent was “in the process of obtaining a divorce from . MARGARET SMITH,” and that it was his “intent to leave MARGARET SMITH nothing under this Will.”3 Id. The Will also identifies Decedent’s nine surviving children and includes a specific devise of 3 The Will was preceded by two other wills, which were executed on January 12, 2006, and January 4, 2007. See AR 6-7. The January 4, 2007, will states that Decedent had been separated from Margaret since 1989 and devised her $50 from the sale of his assets. AR 6 at 1-2. The January 12, 2006, will devised Margaret $100. AR 7. 67 IBIA 115 money to each of them but Mary Jo; the Will devises $50 to each of the five children who are appellants.4 Id. at 1 ¶ 3, 2 ¶ 7. The Will devises to Mary Jo the remainder of Decedent’s trust or restricted estate property. Id. at 2 ¶ 8. The Will includes an in terrorem clause, commonly known as a no-contest or anti-contest clause, stating that if any devisee contests the Will, then that person will receive $1 and forfeit all other interests in the Will, and that person’s interests will be distributed pro-rata among the other devisees. Id. at 2 ¶ 11. Decedent’s typewritten name in the Will is “Lester L. Smith, Sr.,” and his signature on each page is written the same way. Id. at 1-3. The Will is signed by two witnesses and notarized by the scrivener, Robert Olson (Olson). Id. at 3. Following the ALJ’s receipt of the Will with original signatures on April 8, 2015, an initial probate hearing was held on April 23, 2015, to determine the validity of the Will and to settle Decedent’s trust or restricted estate. Hearing Transcript (Tr.), Apr. 23, 2015 (AR 16). At the hearing, counsel for Mary Jo testified that Decedent and Margaret divorced in March 2008, and that she would provide a copy of the tribal court’s divorce decree. Id. at 5, 10-11 (unnumbered). Appellants’ counsel and Margaret attended the hearing and did not object to that testimony. The ALJ explained that the two primary bases for challenging a will are lack of testamentary capacity and undue influence, and that he would issue an order requiring any party who wished to present evidence to indicate what that evidence was, including identification of witnesses and the facts to which they would testify. Id. at 7-8. The ALJ advised that if he did not receive information sufficient to justify a supplemental hearing, he would not schedule one and would issue the decision based on the existing record. Id. at 8. Appellants’ counsel stated that he planned to file a brief alleging that Decedent lacked testamentary capacity. Id. at 11. After the hearing, the ALJ issued the order directing the parties to identify any witnesses, documents, or other evidence that they wished to present, and advising that failure to respond by June 1, 2015, would result in the issuance of a decision based on the record. Order to Present Evidence, May 12, 2015, at 2-3 (AR 11). The ALJ also requested that the Will’s scrivener and notary, Olson, file an affidavit describing the Will and its execution. Letter from ALJ to Olson, May 14, 2015, and Enclosure (affidavit form) (AR 10). In his affidavit, Olson states that Decedent was an existing client in his law practice, that Decedent asked him to draft the Will and he did so, and that Decedent signed the Will in the presence of Olson and the two attesting witnesses, Kai Lee and Denise Matz, at Olson’s office on June 7, 2007. Olson Affidavit (Aff.), June 3, 2015, at 1 ¶¶ 1-3 (AR 10). The ALJ provided a copy of Olson’s affidavit to Appellants and their counsel. Letter from ALJ to Interested Parties, June 8, 2015 (AR 10). 4 Decedent’s three other children are Myrna Smith, Linda Sleeman, and Leslie Shaw. Each is devised $500, $500, and $5,000, respectively. Will at 2 ¶ 7. 67 IBIA 116 In response to a request by counsel for Appellants, the ALJ subpoenaed Decedent’s medical records from the Blackfeet Community Hospital. See AR 11. As support for approving the Will, counsel for Mary Jo submitted a neuropsychological assessment of Decedent from the same hospital. Notice of Entry as Counsel of Record and Notice of Filing, May 9, 2015, Exhibit (Ex.) B (Blackfeet Community Hospital Neuropsychological Assessment, May 4, 2007) (AR 12). She also submitted the divorce decree issued by the Blackfeet Tribal Court (Tribal Court) on March 31, 2008, dissolving the marriage between Decedent and Margaret. Id., Ex. A (Decree of Dissolution, In re the Marriage of Lester Louis Smith and Marguerite Frances Smith,5 No.
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