Summary 2010 WY 63

Summary of Decision issued May 18, 2010

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: In re Estate of Johnson

Citation: 2010 WY 63

Docket Number: S-09-0040

Appeal from the District Court of Uinta County, the Honorable Dennis J. Sanderson, Judge.

Representing Kelliann Johnson: Matthew A. Bartlett of Bartlett & Webster, Riverdale, Utah.

Representing Larry Johnson: V. Anthony Vehar of Vehar Law Offices, PC, Evanston, Wyoming.

Facts/Discussion: This is an appeal from a probate court order denying the petition of a decedent’s wife (Wife) to revoke the appointment of the decedent’s father (Father) as personal representative of the decedent for the filing of a wrongful death claim.

Does Wife have standing to challenge appointment: Father declared that Wife lacked standing to bring the appeal because Wife could not prove that she would suffer any harm from Father’s appointment as personal representative. The Court has used the phrases “personal stake in the outcome” and “tangible interest” in describing standing. The Court had no trouble declaring that Wife had standing to challenge Father’s appointment.
Does probate court govern appointment of personal representative: The statutes set forth the order of preference the probate court is to follow in selecting an administrator. The Court noted that the wrongful death act lies at the heart of the dispute as well. The Court stated that the separate purposes of the statutes are entirely distinct. The purpose of an intestate succession statute is to provide for the distribution of a decedent’s estate. The purpose of the wrongful death act was to prescribe limitations and a remedy for a cause of action which did not exist at common law. The Court stated the central theme of the cases reviewed was that an intestate estate probate code administrator and a wrongful death action civil code personal representative have different functions and different duties and there is not and should not be any necessary connection between them. In Bircher, the Court stated that the only person who could bring an action for wrongful death was the personal representative of the deceased, the executor or administrator of decedent’s estate. The Court overruled Bircher prospectively to the extent that it requires a wrongful death action to be brought in probate court, and to the extent that it requires a wrongful death action to be brought in probate court, and to the extent that it requires a wrongful death personal representative to be the administrator or executor of the decedent’s estate in probate. The Court held that inasmuch as the Wyoming wrongful death act does not require the personal representative to be the probate estate’s administrator or executor, it is not up to the Court to insert that requirement. The district court determined that the appointment of a wrongful death act personal representative had nothing to do with the appointment of an executor or administrator under the probate code. Having correctly determined that the wrongful death act appointment of a personal representative was not the appointment of a probate code estate administrator, the district court should have dismissed the probate code action and should not have allowed Father’s appointment to stand.
What governs appointment of personal representative: The only test of who is appointed as personal representative, despite the lack of guidance in the wrongful death act, cannot simply be who first gets to the courthouse. Wife alleged that Father did not provide her notice of the filing of his petition. Upon remand, the district court should consider that lack of notice, and the reason for it, as another factor in making the appointment.

Conclusion: Wife had standing to contest the appointment of Father as personal representative under the wrongful death act because she has a tangible interest in and a personal stake in the outcome. A personal representative should be appointed by the district court within the wrongful death action, rather in a separate probate action. The district court should consider the functions and purposes of the wrongful death act in the light of the facts and circumstances relating to the petitioner and anyone contesting the appointment.

Reversed and remanded.

C.J. Voigt delivered the decision.

J. Hill dissenting, joined by J. Golden: The Justices argued that the majority opinion misused the applicable rules of statutory construction so as to perpetuate irrational “complexities” and to create new “ambiguities” where none exist. The action deprives the surviving spouse of her “entitlement” to serve as the personal representative in the wrongful death action. Father has had three opportunities to raise any issues with respect to Wife’s “entitlement” to serve. The Justices saw no reason why the Court should allow Father a fourth opportunity to attempt to deprive Wife of her statutory entitlement.

Link: http://tinyurl.com/39zs9cp .

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