Green v. Nelson

ZARNOCH, J. In this statute of limitations case, appellant Albert Green attempts to contest a will that was originally admitted to probate six years ago by the Orphans’ Court for Allegany County. In 2003, the late Kenneth Green executed a will in which he made his friend, Betty McClintock, the prime beneficiary. In 2009, he executed a second will — later determined to have been procured by fraud and undue influence — in which he revoked the earlier will and gave all of his assets to his brother, Green. Apparently unaware of the second will, Linda Malamis and Donald Nelson (“appellees” or the “Estate”), filed a petition to open Kenneth’s estate and to probate the earlier will.

The orphans’ court issued an administrative probate order appointing Nelson and Malamis as personal representatives, and admitted the earlier will to probate. Almost two months later, Green petitioned the orphans’ court for judicial probate, asserting that the second will was Kenneth’s last will and testament. That will was also admitted to probate and a personal representative was appointed. ⁷⁰³ McClintock challenged the second will, contending that it had been procured by fraud and undue influence. After a five-day hearing in the Circuit Court for Allegany County, the second will was found to have' been fraudulently procured, a determination affirmed by this Court.

See Green v. McClintock, 218 Md.App. 336 , 97 A.3d 198 , cert. denied, 440 Md. 462 , 103 A.3d 594 (2014). While the circuit court’s finding of fraud was on appeal in this Court, Green filed a petition to caveat the 2003 will on September 3, 2013 — almost three and a half years after the appointment of Malamis and Nelson under the earlier will. The orphans’ court denied the petition as untimely. Green appealed, and the Circuit Court for Allegany County upheld the decision of the orphans’ court.

Green filed an appeal to this Court on July 13, 2015, and presents the following question for our review: “Whether the Circuit Court incorrectly determined, as a matter of law, that the Petition to Caveat was untimely filed.” Because the plain language of § 5-207 of the Estates and Trusts Article (“E.T.”) of the Maryland Code (1974, 2011 Repl.Vol.) requires that a caveat be filed within six months of the appointment of personal representatives under the will, we hold that Green’s petition to caveat the earlier will was not timely filed, and affirm the judgment of the circuit court. BACKGROUND In 2003, the decedent, Kenneth Green, executed a will (the “2003 Will”) in which he made his friend, Betty McClintock, the prime beneficiary. Their friendship continued, and in 2006, when Kenneth was diagnosed with cancer, McClintock took him to his chemotherapy treatments. After a relapse in 2009, Kenneth was in a great deal of pain and was prescribed opiate medication.

While ill, his brother, Albert Green, took him from Maryland to Kentucky and held him there incommunicado. In Kentucky, Kenneth executed a second will (the “2009 Will”) revoking the earlier will and giving all of his ⁷⁰⁴ assets to his brother, even though he had an acrimonious relationship with the Green family and had previously instructed Malamis and Nelson, that he wanted McClintock to inherit all of his assets and that he wanted to leave nothing to his brother and his family. On September 8, 2009, Albert Green filed the 2009 Will with the Register of Wills for Allegany County for safekeeping. Kenneth died at his brother’s home in Kentucky on January 19, 2010.

On April 5, 2010, Malamis and Nelson filed a petition to open Kenneth’s estate, seeking to probate the 2003 Will, and, that day, the orphans’ court issued an administrative probate order appointing Nelson and Malamis as personal representatives, and admitted the 2003 Will to probate. Green was listed as an heir and received notice of the probate proceeding via mail, which advised that “All persons having any objection to the appointment (or to the probate of the decedent’s will) shall file their objections with the Register of Wills on or before the 5th day of October, 2010.” Rather than filing a petition to caveat the 2003 Will, on May 21, 2010, Green petitioned the orphans’ court for judicial probate asserting that the 2009 Will was Kenneth’s last will and testament. 1 The orphans’ court apparently agreed with Green, admitted the 2009 Will to probate, and appointed Andrew Green, Albert Green’s son, as personal representative. 2 On September 9, 2010, McClintock filed a petition to caveat the 2009 Will, alleging that the will was procured as a result of fraud, undue influence, or duress imposed by Green or Green’s ⁷⁰⁵ family members, and asserted that the 2003 Will was, in fact, Kenneth’s last will and testament. McClintock, a friend, was not an heir at law, and was only able to file her caveat as a legatee under the 2003 Will. Accordingly, the petition requested that the court “pass an Order admitting to probate the Will of March 5, 2003, as being the valid Last Will and Testament” of the decedent.

Andrew, acting for the Estate, petitioned to transfer the caveat proceeding to the circuit court in accordance with Maryland Rule 6-434, which allows the orphans’ court to transmit contested issues of fact for trial in the circuit court. However, the only issues presented to the circuit court were those related to the validity of the 2009 Will. The Greens did not contest the validity of the 2003 Will. After a five-day hearing, the Circuit Court for Allegany County found the 2009 Will to have been procured by fraud and undue influence, as a result of Kenneth’s poor health, prescription drug use, and Albert’s behavior, which included, among other things, misuse of Kenneth’s funds and sequestering Kenneth from his friends in Maryland. 3 We affirmed the circuit court’s findings in a reported opinion, Green v. McClintock, 218 Md.App. 336 , 97 A.3d 198 , cert. denied, 440 Md. 462 , 103 A.3d 594 (2014).

The 2003 Will then became the decedent’s last will and testament, pursuant to an order issued by the orphans’ court on July 16, 2013. The orphans’ court also appointed Malamis and Nelson as special administrators of the estate. 4 Almost three and a half years after the initial appointment of Malamis and Nelson under the 2003 Will and three years after the deadline to caveat, Albert Green filed a petition to caveat the 2003 Will, asserting that the will “was not executed by the decedent or the execution of the 2003 Will was procured by fraud, duress and/or undue influence.” He request ⁷⁰⁶ ed that the court declare the estate intestate, presumably because he would be entitled to the proceeds of the estate as Kenneth’s only living heir. The orphans’ court denied the petition on September 17, 2013. Unaware of the orphans’ court decision, on September 19, 2013, Nelson opposed the caveat as untimely filed under E.T. § 5-207 — the same ground relied upon by the orphans’ court.

The Circuit Court for Allegany County upheld the decision of the orphans’ court on April 30, 2015. Within 10 days of the entry of the circuit court decision, Green filed a motion to alter and amend judgment. The court denied the motion on June 11, 2015, and Green filed this timely appeal on July 13, 2015. 5 DISCUSSION Green argues that, when viewed properly, his caveat was timely filed under E.T. § 5-207(a). Alternatively, he argues that public policy considerations dictate that we allow the late-filing of his petition to caveat.

The Estate argues that because Nelson and Malamis were first appointed as personal representatives under the 2003 Will in 2010, the plain language of the statute dictates that the time for filing a caveat to that will expired six months after their initial appointment. The Estate also contends that no public policy excuses late-filing in the instant case, and that res judicata bars Green’s ⁷⁰⁷ caveat, because he could have caveated the 2003 Will during the prior proceeding. 6 We review a court’s interpretation of statutory provisions de novo. Maryland-Nat’l Capital Park & Planning Comm’n v. Anderson, 395 Md. 172, 181 , 909 A.2d 694 (2006). To reach an appropriate construction, we examine the plain language of the statutory text, the statutory purpose, and the consequences of different statutory interpretations.

Town of Oxford v. Koste, 204 Md.App. 578, 585 , 42 A.3d 637 (2012), aff'd, 431 Md. 14 , 63 A.3d 582 (2013). “Text is the plain language of the relevant provision, typically given its ordinary meaning, viewed in context, considered in light of the whole statute, and generally evaluated for ambiguity.” Id. (Citations omitted). The purpose of the statute, gleaned either from the text or from external sources, informs our reading of the statute. Kaczorowski v. Mayor & City Council of Baltimore, 309 Md. 505, 512-15 , 525 A.2d 628 (1987).

Finally, “[a]n examination of interpretive consequences, either as a comparison of the results of each proffered construction, or as a principle of avoidance of an absurd or unreasonable readiiig, grounds the court’s interpretation in reality.” Koste, 204 Md.App. at 586 , 42 A.3d 637 (Citations omitted). The purpose of probate and Maryland testamentary law is “to simplify the administration of estates, to reduce the expenses of administration, to clarify the law governing estates of decedents, and to eliminate any provisions of prior law which are archaic, often meaningless under modern procedure and no longer useful.” E.T. § 1-105. The law promotes the prompt probate of wills and the speedy administration and settlement of estates. Carney v. Kosko, 229 Md. 112, 118 , 182 A.2d 28 (1962) (citing Watkins v. Barnes, 203 Md. 518, 523 , 102 A.2d 295 (1954)).

E.T. § 1-105 further provides that ⁷⁰⁸ “[t]his article shall be liberally construed and applied to promote its underlying purpose.” Id. Because of the arcane nature of trusts and estate law, we begin with a brief overview of the probate process. A probate proceeding provides a vehicle for identifying and collecting the decedent’s property, paying the debts of the decedent and the estate in an orderly way, and distributing the remainder of the estate to those entitled to share in the estate either under the decedent’s will or according to intestate distribution. In re Estate of Trigg, 368 S.W.3d 483, 496 (Tenn.2012) (Citation omitted).

To “probate a will” means “to prove before the proper judicial officer all the documents comprising the last will and testament of the decedent.” Schlossberg v. Schlossberg, 275 Md. 600, 625 , 343 A.2d 234 (1975). An interested person 7 may initiate administrative probate by filing a petition with the register of wills, E.T. § 5-301, or may opt for judicial probate by filing a petition with orphans’ court. 8 After the appointment of a personal representative and the issuance of letters of administration, E.T. § 6-103, the personal representative may begin to settle the accounts of the estate. However, if an interested person suspects that a will was not, in fact, executed, or was procured by fraud, ⁷⁰⁹ duress, or undue influence, he or she may contest the validity of the will by filing a petition to caveat. E.T. § 5-207.

The case before us presents the issue of the proper time to file a caveat of a will. E.T. § 5-207(a) provides: Regardless of whether a petition for probate has been filed, a verified petition to caveat a will may be filed at any time prior to the expiration of six months following the first appointment of a personal representative under a will, even if there be a subsequent judicial probate or appointment of a personal representative. If a different will is offered subsequently for probate, a petition to caveat the later offered will may be filed at a time within the later to occur of: (1) Three months after the later probate; or (2) Six months after the first appointment of a personal representative of a probated will. Under § 5-207, whether or not a will has been probated, a would-be caveator must file a petition to caveat a will within six months after the initial appointment of a personal representative under a will.

The statute makes clear that in a normal proceeding, i.e., one without mistake or irregularity, this requirement is immutable — even if there is a subsequent judicial probate or appointment of different personal representatives, a caveator has just six months to file a petition. See Sherman v. Robinson, 319 Md. 445, 449 , 573 A.2d 34 (1990) (citing Schlossberg v. Schlossberg, 275 Md. 600, 619-25 , 343 A.2d 234 (1975)) (“Absent fraud, material mistake, or substantial irregularity in the appointment of the personal representative or the probate proceedings, the six-month time limit will be neither tolled nor extended”). Timely filed caveats further the purpose of testamentary law because the prompt resolution of will validity allows the personal representative to expeditiously settle the estate. Green attempts to side-step the plain language of the statute by arguing that 1) the register made a mistake of fact in the administrative probate of the 2003 Will; 2) the judicial probate of the 2009 Will operated to void the appointment of ⁷¹⁰ personal representatives under the 2008 Will and, 3) the 2003 Will was actually a “later offered will” because it was not “effectively” probated until after the will that he offered, the 2009 Will, was determined to be fraudulent procured.

We address each contention in turn. According to Green, because he filed the 2009 Will for the register’s safekeeping, the existence of the 2009 Will should have automatically triggered a judicial probate when the 2003 Will was offered. E.T. § 5-402(c) provides that the register shall initiate a judicial probate proceeding “[i]f it appears to the court or the register that the petition for administrative probate is materially incomplete or incorrect in any respect[.]” It was the duty of the proponents of the 2009 Will to bring that will to the attention of the register. 9 Putting a will on file with the register does not give the register constructive notice in all administrative probate proceedings, and does not render another will submitted for probate materially incomplete or incorrect. Here, there is no indication that the petition for administrative probate of the 2003 Will was materially incomplete or incorrect in any respect.

We, thus, reject Green’s argument. Green also argues that the Court of Appeals in Schlossberg v. Schlossberg, 275 Md. 600 , 343 A.2d 234 (1975), held that when letters of administration should not to have been granted in the first place, an appointment as personal representative is void ab initio, the proceedings should be disregarded entirely by the orphans’ court and new administration should be granted as if the prior one had never taken place. However, in Schlossberg , the appellant’s concealment of a codicil was a “fraud” that “caused the Register to ‘render an erroneous judgment’ when the appellant made oath that there was no other “will.’ ” Schlossberg, 275 Md. at 626 , 343 A.2d 234 . The Court determined that since the appointment of the personal representative had been “obtained by fraudu ⁷¹¹ lent means, not only must the means be condemned, but the result produced by them must be annulled.” Id.

(Citations omitted). In contrast, the present circumstances are more similar to those found in Hayman v. Messick, 252 Md. 384, 391-92, 249 A.2d 695 (1969), where the mistaken appointment of a personal representative not induced by fraud or deceit did not invalidate the prior actions taken by the personal representative. Here, Malamis and Nelson did not perpetrate a fraud upon the register. Instead, with representatives and the register apparently unaware of the 2009 Will, the register appointed Malamis and Nelson as personal representatives under the 2003 Will.

Thus, because the personal representatives did not receive their appointments through fraud, the actions taken by the register were not nullified or void ab initio. Cf. Messick, 252 Md. at 391-92, 249 A.2d 695 . For these reasons, we reject Green’s contention that the act of revoking or modifying an action taken by the register during administrative probate, such as the appointment of a personal representative in this case, resets the time for a person to file a caveat of a will.

Second, Green argues that the order of the orphans’ court, dated June 25, 2010, operated to void the appointment of personal representatives under the 2003 Will. Green maintains that, because the appointment of the personal representatives was revoked by the orphans’ court, the six-month period to caveat the 2003 Will was also rendered void. 10 We find no support for this proposition in the statute or in case law. Section 5-207 specifically contemplates the existence of a later judicial probate and of a change in the personal representatives. Even if those circumstances occur, they do not ⁷¹² extend the