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Toon v. Gerth9/21/2000
FOR PUBLICATION
OPINION - FOR PUBLICATION
Case Summary
Appellant-Plaintiff Donald Lee Toon ("Toon"), appeals the circuit court's order granting Appellee-Respondent John D. Gerth's ("Gerth") Motion for Summary Judgment, which effectively dismissed Toon's will contest Complaint. We reverse for further proceedings consistent with this opinion.
Issue
Toon raises three issues on appeal, of which the following issue, as restated, is dispositive:
Whether the circuit court abused its discretion when it denied Toon's motion to amend his Complaint ("Motion to Amend Complaint to Add Interested Parties") to add Jeannine Toon ("Jeannine") and Glenda Stone ("Glenda") as plaintiffs.
Facts
On April 13, 1984, Robert Gantz ("Robert") and Colleen Gantz ("Colleen"), husband and wife, each executed wills. Colleen's will ("1984 Will") left all of her property to her husband, and in the event he did not survive her, she bequeathed her estate in equal shares to her stepdaughters, Jeannine and Glenda. The 1984 wills were intended to be mutual and reciprocal, as indicated by the following provision in the 1984 Will:
My husband, Robert S. Gantz, and I have agreed that we shall each make a separate will bearing the same date disposing of all property that we own together as tenants by the entirety, individually, or otherwise, with the understanding that such wills are mutual and upon the death of either one of us that the survivor can not change his or her will and that the provisions of both of the wills for each other are consideration for each of said wills and that pursuant to this agreement I hereinafter give, devise and bequeath absolutely, my Residuary Estate to the persons hereinafter set out in Article VI of my will. (R. 34.)
Toon, the son of Jeannine, and step-grandson of Colleen, was nominated executor of the 1984 Will in the event that Robert could not so serve.
Robert died on November 15, 1995. On March 28, 1997, with the assistance of an attorney referred to her by her neighbor Gerth, Colleen executed a new will ("1997 Will"). Colleen revoked all prior wills, named her neighbor Gerth as executor, bequeathed $500.00 to Jeannine and $500.00 to Glenda, and devised the remainder of her estate to Gerth. Colleen died April 7, 1997.
Procedure
On April 14, 1997, Toon filed a petition with the circuit court to probate the 1984 Will and issue letters testamentary. A copy of the 1984 Will was attached to Toon's petition. The next day, April 15, 1997, the circuit court admitted the 1984 Will to probate, appointed Toon executor of the estate of Colleen, and directed the court to issue letters testamentary.
On May 15, 1997, Gerth petitioned the circuit court to revoke the 1984 Will, remove Toon as executor, revoke the letters testamentary issued to Toon, require Toon to file an inventory of the estate's assets, probate the 1997 Will, and appoint Gerth as personal representative and executor of the estate. The circuit court set the matter for hearing on June 4, 1997. At the hearing, Jeannine and Glenda filed written objections to the probate of the 1997 Will. Stepdaughters Jeannine and Glenda objected to the probate of the 1997 Will "upon the basis that [Colleen] was of unsound mind at the time of the execution of said will and that said will was executed under duress." On July 3, 1997, the circuit court revoked the 1984 Will, removed Toon as executor of the estate, ordered Toon to file an interim accounting of the estate's assets, admitted the 1997 Will to probate, appointed Gerth executor, and issued letters testamentary to Gerth.
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