Preview:

No.

94-363

IN THE SUPREMECOURT OF THE STATE OF MONTANA 1995 IN THE MATTER OF THE ESTATE OF EVERETT ALMER THIES, ELEANOR THIES, Petitioner/Appellant,
-V-

BARBARALOWE, PATTY CORAMand JOHN THIES, Respondents/Respondents.

APPEAL FROM:

District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Maurice R. Colberg, Judge presiding.

COUNSEL OF RECORD: For Appellant: Virginia Billings, For Respondents: James P. Healow, Sweeney & Healow, Billings, Montana A. Bryan, Montana Wright, Tolliver & Guthals,

Submitted Filed:

on Brief: Decided:

March 23, 1995 September 21, 1995

Justice This District

James is

C. Nelson an appeal

delivered from

the

Opinion of the

of

the

Court Judicial the will of widow the

a decision county, collect

Thirteenth

Court,

Yellowstone cannot We affirm. the issue on appeal.

declaring against the

(Petitioner/Eleanor) decedent (Everett).

We restate determining was valid, share of the thus, Everett's

Did

the

District Eleanor

Court and her

err Everett elective

in

prenuptial precluding estate?

agreement Eleanor

between from

collecting

Facts Everett and Eleanor her previous entered was was not and Eleanor were married previously. June 27, 1981. Both Everett by The This

had been married marriage into

Eleanor children on June

had one child by his. 26, 1981.

and Everett a prenuptial by

had three agreement

parties agreement Eleanor

prepared represented

Everett's by counsel

attorney in this

(Mr. matter.

Gunderson).

The

second

recital

to

the

prenuptial

agreement

stated: real of the to the of the

WHEREAS, each of the parties owns individual and personal property, the nature and extent holdings of each party having been fully disclosed other; . . Following, prenuptial the first stated: three substantive

paragraphs

agreement

1. After the solemnization of the marriage between the parties, each of them shall separately retain all rights in his or her own property, whether now owned or hereafter acquired, and each of them shall have the to dispose of such absolute and unrestricted right separate property, free from any claim that may be made 2

by the other by reason of their same effect, as if no marriage between them.

marriage and with the had been consummated

2. Notwithstanding the provisions of the next preceding and next succeeding paragraphs, any real or personal property acquired as joint tenants during their marriage shall, at the death of one of the parties, vest in the survivor of them. 3. Each of the parties waives and releases all rights as surviving spouse in the property or estate of the other and waives the right to elect to take against the other's will, whether heretofore or hereafter made. Mr. Gunderson testified agreement inquired understood Eleanor they had. although speak up. Eleanor admits reading the agreement. the gist She testified it was with in Eleanor prior of that to he did not discuss its preparation. and Eleanor the prenuptial Mr. Gunderson they

the

presence

Everett

whether

the agreement recalls that their
claims

and were aware of the assets asked Everett and that

of the other.

Mr. Gunderson assets they

and her whether Everett their silent said they and,

divulged Eleanor

to each other had not

divulged

assets

she knew it

at the time,

she remained

and did not

her understanding,

at the time,

of the agreement which Everett

was that first the the
time

she would not have a claim wife nature
estate.

to anything
claims

and his

had accumulated. of what

Eleanor

nobody explained her elective said nothing

to her share of

was meant by waiving testified

Mr. Gunderson

Eleanor with the

at the she did

to indicate understand signing prior it,
marriage.

she was dissatisfied what she was signing, or it only applied

agreement,

not into

she was pressured to property

or coerced

accumulated

in Everett's

3

At

the

time

of

his

marriage belongings

to

Eleanor,

Everett Jaffray

owned his & Hopwood

home, two cars, retirement

personal valued Eleanor

and a Piper, Eleanor

account

at $143,090.

had approximately owned the home said so.

$7,000 of assets. he had lived Additionally, Piper, claimed through her job Jaffray in for

said she supposed Everett forty years, that

nearly

but he had never

Eleanor

testified

she knew Everett after World benefits Eleanor

had worked at War II but

& Hopwood since

shortly

she did not know he had any retirement his employer. as a relator, During at their Everett's marriage, request,

or savings said she quit on his

and relied

support. Eleanor by Everett, testified, she in 1985-86, an in response as She said to to a comment made the prenuptial told to

consulted

attorney

agreement

and her financial all in

situation.

her attorney ask Everett

her she had signed provide Everett furniture earnings for her

of her rights an irrevocable devising goods, a life that

away and should will. to At Eleanor estate

Eleanor's $10,000

request, in cash,

drafted

a will

and household

in the family

home and

on a bond portfolio for

he would maintain life. The will

in a minimum "[a]~ to this

amount of $100,000 the bequest Will shall

Eleanor's

provided

to my wife, be irrevocable

ELEANOR E. THIES, contained so long as we are married

herein,

and living

together." Eleanor filing
6,

and Everett

had marital for

conflict dissolution

which resulted of marriage

in the on June On

by Eleanor

of a petition separated

1991.

The couple

and Eleanor 4

moved to Colorado.

July

9,

1991,

Everett children

prepared as the sole

a new will heirs

disinheriting estate. action

Eleanor Everett was dismissed

and died by

naming on March reason At $333,692. Eleanor 19,

his 20, of his

to his

1992.

The pending death. Everett's testified for trial the

dissolution

Everett's death, Eleanor

Piper her payment was prenuptial share. Patty Eleanor Discussion

Jaffray net of worth her

account was elective

was valued under share 21, $10,000.

at

filed

a petition A non-jury

on June The

1992.

held

on December agreement

1993.

District from

Court claiming

ruled

precluded

Eleanor in favor of 30,

her elective Barbara this Lowe,

Judgment

was entered

respondents, 1994. From

Coram and John Thies, appeals.

on March

judgment,

Eleanor contained 102,

argues an invalid

the waiver

prenuptial under 72-Z-102, the

agreement, governing

signed statute--

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