Estate of Quirin

Estate of Quirin, 2013 MT 231 (Aug. 20, 2013) (5-0) (Cotter, J.)

Issue: Whether the district court correctly denied Quirin’s daughter’s motion for substitution of judge as untimely.

Short Answer: Yes. The 30-day period began to run when Speiser petitioned for supervised administration of her mother’s estate.

Affirmed

Facts: Violet Quirin died in January 2011. Her will, executed on June 23, 2010, acknowledged her daughters but made no provision for them. It appointed Kristine Fankell as PR and revoked all prior wills. Fankell filed for informal probate on Jan., 18, 2011, and was appointed PR. On Jan. 24, 2011, Fankell served a Notice and Information to Heirs and Devisees via mail to Quirin’s daughters, Cathie Schmiedeke and Marcy Speiser.

On May 2, 2011, Speiser filed a petition for formal probate and appointment of a PR, attaching a March 2007 will that divided Quirin’s estate evenly between her two daughters. Speiser argued her mother was not competent at the time she executed the June 2010 will.

Schmeideke appeared on Oct. 19, 2012, by filing an objection to the informal probate application, a petition to remove Fankell as PR, and a motion to substitute the judge. Fankell moved to strike Schmeideke’s pleadings, arguing she was not a party and had not moved to intervene.

Procedural Posture & Holding: The district court denied Schmeideke’s motion to substitute as untimely, determining she had 30 days from service of the Notice and Information to Heirs and Devisees to move for substitution of the judge. The court granted Fankell’s motion to strike because Schmeideke failed to timely move to intervene and her interests were adequately represented by Speiser. Schmeideke appeals the denial of her motion to substitute, and the Supreme Court affirms.

Reasoning: Section 3-1-804(1)(a), MCA governs the right of parties in a civil action to move for substitution of the district judge. A motion for substitution must be filed within 30 calendar days after the first summons is properly filed or an adverse party has appeared. Untimely motions are void and must be denied. An informal probate is a non-adjudicative proceeding to which the Montana Rules of Civil Procedure do not apply, while a formal probate is conducted before a judge and the Rules do apply.

The Court recently held that the 30-day timeline for substituting a district judge is triggered when an interested person files a petition that converts an informal probate into a court-supervised administration. Here, Speiser’s petition for supervised administration triggered the 30-day deadline. As it was filed on May 2, 2011, Schmeideke’s motion filed on Oct. 19, 2012, was untimely. Once the deadline passes for the original parties, subsequently joined parties have no right to move for substitution.