Summary 2012 WY 20

Summary of Decision February 14, 2012


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Case Name: Davis Russell and Dana Russell, and John H. Kellersman, Jr., v. Lloyd Sullivan

Citation: 2012 WY 12

Docket Number: S-11-0128

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465088

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

Representing Appellant (Defendant): M. Jalie Meinecke of Meinecke & Sitz, LLC, Cody, Wyoming.

Representing Appellee (Plaintiff): S. Joseph Darrah of Darrah, Darrah & Brown, Powell, Wyoming.

Date of Decision: February 14, 2012

Facts: 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.

Issues: Appellants state the issues as follows:

The order does not comport with the standard of applicable law, specifically, W.R.C.P Rule 17(a) states that a ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest, therefore, the Court improperly applied the facts of this case to the law as set forth in Merrill v. District Court [of Fifth Judicial District], 272 P.2d 597, 599 (Wyo. 1954).

The order does not comport with the standard of applicable law, specifically, the Court erred when holding that had the Appellant Mr. Kellersman, Jr. filed a petition to revoke the will it would have been untimely.

Holdings: 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. The Court also recognized that there may be information that was not provided to the Court on appeal. The Court reversed and remanded the case for further proceedings consistent with this opinion.

Justice Hill delivered the opinion for the court.