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In re Estate of Chin

Court of Appeals of Oregon

May 24, 2017

In the Matter of the Estate of Young Phillip Chin, Deceased.
v.
Faye LOTLIKAR and Shirley Ma, and Whitney Yazzolino, Personal Representative of the Estate of Young Phillip Chin, Deceased. Respondents. Darby PRICE, Penney Gertsch, and Robert Gertsch, Appellants,

          Argued and submitted December 3, 2015

         Multnomah County Circuit Court 120891121; Amy Holmes Hehn, Judge.

          James R. Cartwright argued the cause for appellant Darby Price. On the briefs were Matthew Whitman and Cartwright Whitman Baer PC.

          John W Whearty argued the cause for appellants Penney Gertsch and Robert Gertsch. On the brief was MacLaren & Whearty, LLP.

          Anna Marie Joyce argued the cause for respondents Faye Lotlikar and Shirley Ma. On the briefs were Paul Bierly, Chad M. Colton, and Markowitz Herbold PC.

          No appearance for respondent Whitney Yazzolino.

          Before Duncan, Presiding Judge, and DeVore, Judge, and Garrett, Judge. [*]

         [285 Or.App. 693] Case Summary:

         The Oregon Probate Code allows an "interested person" to take certain actions with regard to a decedent's estate, including petitioning to reopen an estate for proper cause. The code defines an "interested person" to include "heirs, devises, children, spouses, creditors and any others having a property right or claim against the estate of a decedent that may be affected by the proceeding." ORS 111.005(19). The dispute in this case is over what the final phrase of that sentence modifes-that is, whether the phrase modifes only the term immediately preceding it-"any others"-or, alternatively, whether it modifes all of the preceding terms, so that even "heirs" must "hav[e] a property right or claim against the estate of a decedent that may be affected by the proceedings" to qualify as "interested persons." In the proceeding below, respondents Lotlikar and Ma petitioned to reopen the estate of their deceased brother, Chin, to investigate the transfer of assets from Chin to one of his nephews, appellant Price, who had served as the personal representative of the estate. Price opposed the petition, as did one of Chin's other siblings, appellant Penney Gertsch, who was the estate's sole devise under the will that was probated, and her husband, appellant Robert Gertsch. Appellants argued that Lotlikar and Ma, who did not have any fnancial interest in their brother's estate, were not "interested persons" and therefore could not petition to reopen it. Respondents countered that, as the decedent's sisters, they met the statutory definition of "heirs" and were "interested persons" by virtue of that fact alone. The probate court agreed with respondents' expansive reading of the statute and granted their petition to reopen the estate. The court ruled that, regardless of whether Lotlikar and Ma were asserting a financial interest in the decedent's estate, "interested person" is "defined broadly so that heirs and family members who do not currently have a financial interest in the estate, like [Lotlikar] and [Ma], can vindicate wrongdoing in connection with the disposition of the estate." On appeal, appellants challenge that ruling, arguing that the court misinterpreted the definition of "interested person."

         Held:

         The phrase "having a property right or claim against the estate of a decedent that may be affected by the proceeding" modifes all of the preceding terms in ORS 111.005(19). That is, the "interest" that makes "heirs, devisees, children, spouses, creditors and others" into "interested persons" is a "property right or claim against the estate of a decedent that may be affected by the proceeding." Thus, the probate court erred in ruling that Lotlikar and Ma were "interested persons" based on their familial ties to Chin and their desire to vindicate the rights of his estate. Because there is nothing in the record to suggest that Lotlikar and Ma had a property interest or claim against Chin's estate that may be affected by the proceeding to reopen, the probate court should have dismissed their petition on that ground.

         Reversed.

          [285 Or.App. 694] DUNCAN, P. J.

         The Oregon Probate Code allows an "interested person" to take certain actions with regard to a decedent's estate, including petitioning to reopen an estate for proper cause. The code defines an "interested person" to include "heirs, devisees, children, spouses, creditors and any others having a property right or claim against the estate of a decedent that may be affected by the proceeding!' ORS 111.005(19) (emphasis added).[1] The dispute in this case is over what the emphasized portion of that sentence modifies-that is, whether the phrase modifies only the term immediately preceding it-"any others"-or, alternatively, whether it modifies all of the preceding terms, so that even "heirs" must "hav[e] a property right or claim against the estate of a decedent that may be affected by the proceeding" to qualify as "interested persons."

         In the proceeding below, respondents Lotlikar and Ma petitioned to reopen the estate of their deceased brother, Chin, to investigate the transfer of assets from Chin to one of his nephews, appellant Price, who had served as the personal representative of the estate. Price opposed the petition, as did one of Chin's other siblings, appellant Penney Gertsch, who was the estate's sole devisee under the will that was probated, and her husband, appellant Robert Gertsch. Appellants argued that Lotlikar and Ma, who did not have any financial interest in their brother's estate, were not "interested persons" and therefore could not petition to reopen it. Respondents countered that, as the decedent's sisters, they met the statutory definition of "heirs" and were "interested persons" by virtue of that fact alone.

         The probate court agreed with respondents' expansive reading of the statute and granted their petition to reopen the estate. The court ruled that, regardless of whether Lotlikar and Ma were asserting a financial interest in Chin's estate, "interested person" is "defined broadly so that heirs and family members who do not currently have a financial interest in the estate, like [Lotlikar] and [Ma], [285 Or.App. 695] can vindicate wrongdoing in connection with the disposition of the estate." We disagree with the probate court's construction of the statute and conclude that, to be an "interested person, " even heirs must have some property right or claim against the estate that may be affected by the proceeding. Accordingly, we reverse the limited judgment reopening the estate.

         BACKGROUND

         Although the probate court made extensive findings of fact regarding the circumstances surrounding the petition to reopen, we confine our discussion of the facts to those pertinent to the narrow issues on appeal. The decedent, Chin, died on July 23, 2012. He was survived by his siblings, including Lotlikar, Ma, and Penny Gertsch, as well as his nephew Price, who was the son of one of Chin's other siblings, Jean Chin. In August 2012, Price filed a petition in Multnomah County Circuit Court to probate a will dated February 5, 2003. That will nominated Penny Gertsch to serve as personal representative of the estate and left the entire estate to her; in the event that she was unwilling or unable to serve as personal representative, it named Robert Gertsch to serve. Price's petition represented that both Penny and Robert Gertsch had declined to serve and requested that Price instead be appointed as personal representative.

         In September 2012, the probate court admitted the 2003 will to probate as Chin's final will. At the same time, Price was appointed as personal representative. In October 2012, Lotlikar and Ma were notified that the 2003 will had been admitted to probate and were informed of the need to file any will contest within four months. That deadline passed without a contest, and Price filed a final account and petition for final distribution in February 2013. The same month, the court entered a judgment approving that final account and authorizing the final distribution. Penny Gertsch, as the sole beneficiary under the will, signed a receipt acknowledging her full distributive share of the estate, and the court entered a supplemental judgment on February 26, 2013, that closed the estate proceedings and discharged Price from duties as the personal representative.

         [285 Or.App. 696] Two days after the estate was closed, Lotlikar and Ma filed a petition to reopen it, pursuant to ORS 116.233, which provides, "Upon the petition of any interested person, the court, with such notice as it may prescribe, may order the estate of a decedent reopened if other property is discovered, if any necessary act remains unperformed or for any other proper cause appearing to the court." In declarations and a memorandum in support of the petition, Lotlikar and Ma asserted that Price, claiming to be the decedent's "long lost nephew, " had used undue influence to defraud the decedent and had committed elder abuse through financial exploitation-claims that, they asserted, the ...


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