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DA 21-0011

IN THE SUPREME COURT OF THE STATE OF MONTANA

2021 MT 254

IN THE MATTER OF THE CONSERVATORSHIP OF:

H.D.K.,

 A Protected Person.

APPEAL FROM: District Court of the Fourth Judicial District,

In and For the County of Missoula, Cause No. DG-19-52

Honorable Shane A. Vannatta, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Elliott Dugger, Dugger Law Firm, PLLC, Missoula, Montana

For Appellee:

Trent N. Baker, Datsopoulos, MacDonald & Lind, P.C., Missoula, Montana

Julie R. Sirrs, Boone Karlberg, P.C., Missoula, Montana

Submitted on Briefs: September 8, 2021

 Decided: October 5, 2021

Filed:

__________________________________________

Clerk

10/05/2021

Case Number: DA 21-0011
2

Justice Laurie McKinnon delivered the Opinion of the Court. 

¶1 Appellant T.K. (Tony) appeals the Findings of Facts, Conclusions of Law, and 

Order issued by the Fourth Judicial District Court, Missoula County, concerning the

conservatorship and estate planning efforts of his elderly mother, H.D.K. Appellees 

H.D.K. and her daughter, S.K.H. (Sofeea), submitted briefs in response. We affirm.

¶2 We restate the following issues on appeal:

1. Whether the District Court deprived Tony of procedural due process or abused its 

discretion by declining to issue a scheduling order, quashing a subpoena for the file 

of H.D.K.’s attorney, and concluding the conservatorship hearing after three days.

2. Whether the District Court erred in finding that H.D.K. intended to allocate 

60 percent of her estate to Tony and 40 percent of her estate to Sofeea.

3. Whether the District Court erred by not determining the present values of the 

properties in H.D.K.’s estate.

4. Whether the District Court erred in finding that H.D.K. had testamentary capacity.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 H.D.K. is an 85-year-old woman who, along with her late husband, Jim, acquired 

several properties in and around Missoula. The value of these properties exceeds three 

million dollars, including several rental properties which provide H.D.K. with substantial 

monthly income. H.D.K. has two children, Tony and Sofeea. To put it mildly, Tony and 

Sofeea do not get along. H.D.K. lives with Tony’s daughter in Missoula. Tony, his wife, 

and his son also reside in Missoula. Sofeea and her family live outside of Montana, and 

Sofeea returns to visit H.D.K. several times per year. 

¶4 H.D.K. and Jim’s estate planning began in 2009, when the couple met with 

Dirk Williams (Williams) to discuss estate planning. During these sessions, H.D.K. 
3

articulated that, following the death of the last surviving spouse, 60 percent of their assets 

should go to Tony and 40 percent to Sofeea (the 60/40 Plan). In his Initial Report (Report)

to the District Court, Williams noted that H.D.K. never wavered from her desire to 

implement the 60/40 Plan. H.D.K. and Jim intended to leave more to Tony in recognition 

of his assistance managing the properties. 

¶5 In 2014, Jim and H.D.K. executed a trust (Trust) and pour-over wills. The Trust 

would hold the membership interests of three limited liability companies (LLCs). Two 

LLCs, Dara Properties and South First 615, would transfer to Tony upon the death of 

H.D.K. and Jim. The remaining LLC, Victor Properties, would pass to Sofeea. Around 

the time of the Trust’s execution, H.D.K. prepared the following list of properties each 

child’s LLC would receive:

Tony: Sofeea:

320 S. 6th St. W. 330 Tremont

302 S. 6th St. W. 710 Edith

612 S. 1st St. W. 400 Rollins

535 S. 2nd St. W. 418 Hazel

410 Hazel 800 Chestnut

615 S. 1st St. W. Cramer Creek

Mountain Shadows lot1 Mountain Shadows lot

H.D.K.’s home at 307 S. 6th Street West would be held in the Trust to pass equally upon 

her death to Sofeea and Tony.

 

1 The street addresses of the Mountain Shadows lots are 919 and 923 Simons.
4

¶6 In 2015, H.D.K. deeded the following properties to each LLC:

Dara: Victor:

241 S. 2nd St. W. (aka 410 Hazel) 535 S. 2nd St. W.

302 S. 6th St. W. 330 Tremont

320 S. 6th St. W. 710 Edith2

612 S. 1st St. W. 400 Rollins

800 Chestnut

418 Hazel

Shortly after the deeds to Victor Properties were recorded, Williams learned that another 

entity had already registered the LLC’s name. The District Court concluded that, but for 

this error, H.D.K.’s intended 60/40 Plan would have been achieved. Regardless, H.D.K. 

subsequently executed a deed transferring the same properties to a new LLC. Williams 

later reported that H.D.K. refused to allow him to file the articles of organization for the 

new LLC. H.D.K. also refused to allow Williams to record the new deed. Jim died in 

2016, leaving H.D.K. to resume the estate planning. After Jim’s death, Williams believed 

Tony was influencing H.D.K. and opposed her estate planning efforts.3 Because H.D.K. 

refused to transfer the properties to the new LLC, the deeded properties would remain in 

H.D.K.’s residuary estate. As a result, Williams indicated that, absent remedial action, 

Tony would receive nearly 73 percent of H.D.K.’s estate. H.D.K. cancelled several 

meetings with Williams until July 2018, when H.D.K. sent a letter, written by Tony, 

terminating Williams’s services. 

 

2 H.D.K. sold this property in 2017. Tony received a portion of the proceeds as compensation for 

his work on the property.

3 Due to this conflict, Tony filed a grievance against Williams with the Commission on Practice. 
5

¶7 A few weeks later, H.D.K. and Sofeea reestablished services with Williams to 

complete H.D.K.’s estate planning. After reengaging with Williams, H.D.K. began an 

extended visit with Sofeea and, between October 2018 and February 2019, only briefly

returned to Missoula twice. In December 2018, H.D.K. wrote a letter to Tony and Sofeea

indicating the properties she intended for each child in 2014 had changed, but her desire to 

implement the 60/40 Plan remained. The letter referenced an updated list of properties and 

indicated Tony would receive H.D.K.’s home at 307 S. 6th Street West and Sofeea would 

receive the property at Cramer Creek.4 During the conservatorship proceedings, H.D.K. 

authenticated the letter and testified that it reflected her current wishes. The updated list 

reflected the following distribution:

Tony: Sofeea:

320 S. 6th St. W. 330 Tremont

302 S. 6th St. W. 612 S. 1st St. W.

418 Hazel 535 S. 2nd St. W.

410 Hazel 400 Rollins

615 S. 1st St. W. 800 Chestnut

307 S. 6th St. W. Cramer Creek

Mountain Shadows lot Mountain Shadows lot

¶8 In May 2019, H.D.K. executed two beneficiary deeds to bring the estate distribution 

closer to the 60/40 Plan. The first deed was recorded on May 10, 2019, and named Sofeea 

as the beneficiary upon H.D.K.’s death of the home at 307 S. 6th Street West and the rental 

properties 330 Tremont and 400 Rollins. The second deed would have transferred 

615 South 1st Street West to Tony, but the deed has not been recorded. Williams later 

 

4 Cramer Creek is referred to, variously, as “Borboula” or “Beavertail” throughout the letter and 

the proceedings.
6

reported that, had both deeds been recorded, the estate would distribute 64 percent to Tony 

and 36 percent to Sofeea. 

¶9 Sofeea filed a petition for the appointment of a temporary conservator in July 2019, 

citing the need to protect H.D.K. from the influence of other family members during her 

estate planning. The District Court issued an order appointing the Western Montana 

Chapter for the Prevention of Elder Abuse (Conservator) as H.D.K.’s temporary 

conservator and naming Williams as H.D.K.’s attorney. H.D.K. was examined by a 

court-appointed neuropsychologist, Dr. Loretta Bolyard, in August 2019, who determined 

H.D.K. met diagnostic criteria for a major neurocognitive disorder, possibly Alzheimer’s 

disease. Dr. Bolyard expressed grave concerns about H.D.K.’s financial, estate, and legal 

matters and recommended the District Court appoint a new attorney for H.D.K and name 

the Conservator as full guardian and conservator. Dr. Bolyard also indicated that H.D.K. 

was easily persuaded by both children, and that her beliefs could vary depending on who 

she was communicating with. 

¶10 Tony filed a notice of appearance as an interested person in September 2019. 

Williams filed his Report shortly after. The Report noted that H.D.K. was susceptible to 

influence by her children, depending on which child was last with her. Williams also

included an exhibit he believed closely represented the original intentions of H.D.K. and 

Jim, which would result in 62 percent of the estate passing to Tony and 38 percent passing 

to Sofeea. The exhibit provided the following distribution:
7

Tony: Sofeea:

241 S. 2nd St. W./410 Hazel 800 Chestnut

302 S. 6th St. W. 535 S. 2nd St. W.

320 S. 6th St. W. 330 Tremont

612 S. 1st St. W. 400 Rollins

418 Hazel Cramer Creek

919 Simons 923 Simons

615 S. 1st St. W.

307 S. 6th St. W.

Williams also recommended that, due to his personality clash with Tony and the likelihood 

that Williams would have to testify during the proceedings, the District Court appoint a 

different attorney to represent H.D.K. Tony and Sofeea stipulated to this recommendation, 

and the District Court appointed new counsel for H.D.K. Tony later moved to strike 

Williams’s Report, arguing that Williams could not serve as an advocate and a witness in 

the same case, that Williams had a conflict of interest with Tony, and that Williams lacked 

credibility. The District Court denied Tony’s motion to strike, finding Tony’s discontent 

with the Report was an invalid reason to strike the Report, that any conflict between Tony 

and Williams was a personality conflict and not a conflict of interest, that the absence of 

supporting documents did not invalidate the Report, and that H.D.K.’s rights of 

confidentiality may not be abrogated lightly.

¶11 One year after the initial petition, the court-appointed visitor met with H.D.K. The 

visitor found that H.D.K. exhibited mild cognitive impairment. The visitor noted that 

H.D.K.’s 60/40 Plan remained consistent through 2014 when the Victor Properties, LLC 

mistake occurred. The visitor noted that H.D.K.’s mind appeared made up for many years 

and recommended that the District Court implement H.D.K.’s estate plan from when her 

mental status was intact.
8

¶12 Neither Tony nor Sofeea contested the appointment of the Conservator or the 

examinations by the neuropsychologist and the visitor. The only contested issue was 

H.D.K.’s testamentary capacity and estate plan. As a result, the District Court held a 

hearing on H.D.K.’s testamentary capacity and allowed Tony and Sofeea to present 

evidence and testimony. The hearing was originally scheduled for three hours but 

ultimately encompassed over five hours of testimony spanning three days. 

¶13 Prior to the hearing, the District Court met with H.D.K. in-chambers to assess her 

testamentary capacity and mental acuity. Following the in-chambers meeting, H.D.K. 

underwent “gentle” cross-examination with only counsel present to avoid any influence 

from her children. H.D.K. testified correctly regarding the identities of her children, 

grandchildren, and deceased husband. H.D.K further testified that she owned several rental 

properties and identified over half of the properties. She estimated her monthly income 

from the properties was about $13,000 and that she received an additional $1,000 monthly 

from Social Security.5 H.D.K. correctly identified every non-rental property she owned, 

specifically her home in Missoula, a cabin at Cramer Creek, and two lots in the 

Mountain Shadows subdivision on Simons Drive. 

 

5 Tony testified that the properties returned $10,000 per month, and the Conservator provided an 

affidavit indicating that the properties returned $14,000 per month and that H.D.K.’s 

Social Security benefits totaled $1,173 monthly, generally in line with H.D.K.’s testimony.
9

¶14 Following H.D.K.’s testimony, Williams, Sofeea, Sofeea’s daughter, and Tony 

testified. All four testified that H.D.K. had exhibited some decline in mental status, 

primarily in short-term memory lapses, beginning in 2019. Williams and Sofeea testified 

regarding H.D.K.’s intended 60/40 Plan. Tony testified that, in June 2019, he had his son 

direct H.D.K to fill out a “proposed deal” wherein Sofeea would receive only the following 

properties:

612 S. 1st St. W.

535 S. 2nd St. W.

400 Rollins

330 Tremont

Tony testified that he believed H.D.K wanted him to receive all other property, except 

possibly the Mountain Shadows lots. 

¶15 After Tony’s testimony, the District Court concluded the hearing and allowed the 

parties to submit affidavits in lieu of live testimony. Tony submitted four affidavits totaling 

more than 300 pages, while Sofeea submitted one affidavit. Following the hearing, the 

District Court appointed the Conservator on a permanent basis. The District Court also 

issued its Findings of Fact, Conclusions of Law, and Order. The District Court found that 

H.D.K. intended to distribute her estate pursuant to the 60/40 Plan but was susceptible to 

the influence of both children. The District Court concluded H.D.K. possessed 

testamentary capacity and that substantial evidence supported H.D.K.’s proposed 

60/40 Plan. The District Court ordered the Conservator to effect the following distribution 

of properties, subject to valuation and redistribution as necessary, to achieve the 60/40 Plan

upon H.D.K.’s death:
10

Tony/Dara: Sofeea/Victor:

320 S. 6th St. W. 330 Tremont

302 S. 6th St. W. 612 S. 1st St. W.

410 Hazel/241 S. 2nd St. W. 400 Rollins

615 S. 1st St. W. 535 S. 2nd St. W.

418 Hazel 800 Chestnut

307 S. 6th St. W. Cramer Creek

919 Simons 923 Simons

Tony appeals.

STANDARDS OF REVIEW

¶16 We review a district court’s evidentiary rulings, rulings regarding discovery, and 

control of pretrial and trial proceedings for an abuse of discretion. City of Missoula v. 

Mountain Water Co., 2016 MT 183, ¶ 18, 384 Mont. 193, 378 P.3d 1113. To establish an 

abuse of discretion, the appellant must demonstrate that the district court acted arbitrarily 

without conscientious judgment or exceeded the bounds of reason. Mountain Water Co., 

¶ 18 (citations and quotations omitted). 

¶17 We review a district court’s findings of facts to determine if they are clearly

erroneous. In re Estate of Quirin, 2015 MT 132, ¶ 10, 379 Mont. 173, 348 P.3d 658. A 

court’s findings are clearly erroneous if they are not supported by substantial evidence, the 

court misapprehended the effect of the evidence, or we are convinced by our review of the 

record that the district court made a mistake. In re Estate of Quirin, ¶ 10. We review a 

district court’s conclusions of law for correctness. In re Estate of Quirin, ¶ 10. 

Testamentary intent is a question of fact. In re Estate of Johnson, 2002 MT 341, ¶ 18, 

313 Mont. 316, 60 P.3d 1014. Existence of testamentary capacity is a question of fact. 

In re Estate of Quirin, ¶ 17. 
11

DISCUSSION

¶18 1. Whether the District Court deprived Tony of procedural due process or abused 

its discretion by declining to issue a scheduling order, quashing a subpoena for the 

file of H.D.K.’s attorney, and concluding the conservatorship hearing after three 

days.

¶19 Tony first argues that the District Court’s decisions not to issue a scheduling order, 

to quash his subpoena for the file of H.D.K.’s attorney, and to end the conservatorship

hearing after three days violated his due process rights. H.D.K. and Sofeea contend that 

conservatorship proceedings focus on the individual to be protected and therefore Tony 

lacks standing to assert a due process violation. 

¶20 Article II, Section 17, of the Montana Constitution provides that “[n]o person shall 

be deprived of life, liberty, or property without due process of law.” The 

Fourteenth Amendment to the United States Constitution provides a similar guarantee. The 

guarantee of due process has both procedural and substantive components. 

Montanans v. State, 2006 MT 277, ¶ 29, 334 Mont. 237, 146 P.3d 759. Under both state 

and federal jurisprudence, procedural due process requires notice and an opportunity for a 

hearing appropriate to the nature of the case. Montanans, ¶ 30.

¶21 Tony has alleged a procedural due process violation. However, Tony did not raise 

his due process argument to the District Court. Moreover, Tony does not allege he was 

deprived of notice or of an opportunity to be heard. Rather, Tony argues that the 

District Court’s rulings left him unprepared for the conservatorship hearing and that he was 

unable to present as much testimony as he planned. In so doing, Tony misconstrues the 

nature of a conservatorship proceeding. A conservatorship proceeding is not adversarial, 
12

but rather “established to promote the best interests of the protected person.” Estate of 

Bayers, 2001 MT 49, ¶ 14, 304 Mont. 296, 21 P.3d 3 (rejecting the argument that the

Montana Rules of Civil Procedure govern discovery and discovery disputes in a 

conservatorship proceeding). Regardless of any underlying dispute, H.D.K.’s best 

interests, not Tony’s, were the focus of the proceeding. We further note that, at the 

conclusion of the hearing, the District Court asked Tony, Sofeea, and H.D.K. to submit 

their proposed findings of fact and conclusions of law. The record contains voluminous 

affidavits filed by Tony, but no proposed findings of fact and conclusions of law. Tony 

had notice, participated throughout the proceeding, testified at the hearing, and failed to 

file his proposed findings of fact and conclusions of law with the District Court. 

Accordingly, we decline to address his due process argument further.

¶22 Alternatively, Tony argues that even if he has failed to present a due process claim, 

the District Court’s rulings constituted an abuse of discretion requiring reversal. Tony 

bears the burden of proving that the District Court acted arbitrarily without conscientious 

judgment or exceeded the bounds of reason. Mountain Water Co., ¶ 18. We address each 

ruling in turn.

Scheduling Order

¶23 Montana has adopted the Uniform Probate Code (UPC) to govern the affairs of 

decedents, missing persons, protected persons, minors, and incapacitated persons. 

Section 72-1-101(2)(b)(i), MCA. The UPC’s general provisions, applicable to all UPC 

proceedings, broadly provide the following permitted pleadings: (a) an application, 

petition, report, or account filed pursuant to this title; and (b) an objection or response filed 
13

pursuant to this title to an application, petition, report, or account. 

Section 72-1-310(1)(a)-(b), MCA. These general provisions further dictate that the 

Rules of Civil Procedure govern formal proceedings unless specifically provided 

otherwise. Section 72-1-207, MCA. 

¶24 M. R. Civ. P. 16 governs pretrial management. Pertinently, Rule 16(b) provides 

that upon request, “except in categories of actions exempted by district court rule, the judge 

must issue a scheduling order after consulting with the parties’ attorneys[.]” Accordingly, 

a district court has the authority to “make and amend rules governing its practice not 

inconsistent with these rules or other rules prescribed by the supreme court.”

M. R. Civ. P. 83. Consonant with these Rules, Montana Fourth Judicial District Local Rule

8(B) provides that conservatorships and guardianships are exempt from the discovery 

procedure “unless such a case becomes a contested case.” 

¶25 The provisions of the UPC governing guardianship and conservatorship 

proceedings are codified in Title 72, chapter 5, MCA. The purpose of a conservatorship is 

to promote the effective management of the property and best interests of the person to be 

protected. Estate of Bayers, ¶ 14; § 72-5-401, MCA. To promote those interests, a petition 

to appoint a conservator may be filed by: the person to be protected; any person who is 

interested in that person’s estate, affairs, or welfare; or any person who would be 

adversely impacted by mismanagement of the person’s property and affairs. 

Section 72-5-401, MCA. After the appointment of a conservator, an interested person may 

file a petition for the following orders: (a) requiring bond or security, additional bond or 

security, or reducing bond; (b) requiring an accounting of the trust’s administration; 
14

(c) directing distribution; (d) removing the conservator and appointing a temporary or 

successor conservator; or (e) granting other appropriate relief. Section 72-5-413, MCA. 

¶26 Tony argues that, while he did not contest the appointment of the Conservator, the 

District Court nevertheless was aware of an underlying dispute regarding the 

conservatorship and therefore the proceeding was contested and subject to the discovery 

procedures of Rule 16(b). We disagree. The Montana Rules of Civil Procedure govern 

UPC proceedings unless otherwise provided. The Rules further delegate authority to 

district courts to exempt certain actions. Pursuant to this delegation, the Fourth Judicial 

District Court has exempted conservatorship and guardianship proceedings unless they are 

contested. Tony has not demonstrated that H.D.K.’s conservatorship proceeding was 

contested, and the record does not support such a finding. The record indicates the only 

contested issue was H.D.K.’s testamentary capacity. Moreover, as the District Court’s 

ruling setting forth the procedural history of the case indicated, Tony consented to the 

temporary conservatorship and, when he requested the scheduling order, had only filed a 

Notice of Appearance. The District Court further noted that neither Tony nor any other 

interested party had filed a petition to remove the temporary conservator or filed any other 

petition pursuant to § 72-5-413, MCA. The District Court concluded that, absent a dispute, 

a scheduling order was premature. 

¶27 Regardless of any underlying familial issues, Tony failed to present any dispute 

regarding the conservatorship, as required by the Rules of Civil Procedure and local court 

rules. Tony consented to the conservatorship and did not file any pleading beyond a Notice

of Appearance when he requested the scheduling order. Because the conservatorship itself
15

was not contested, the local court rule exempting conservatorships from scheduling orders 

applies. Tony has not demonstrated that the District Court acted arbitrarily. The 

District Court did not abuse its discretion when it declined to issue a scheduling order.

Subpoena

¶28 Section 72-5-450, MCA, provides the following framework to produce a protected 

person’s estate planning documents:

(1) As used in this section, ‘estate plan of the protected person’ includes but 

is not limited to:

(a) the protected person’s will;

(b) any trust of which the protected person is the settlor or beneficiary;

(c) any power of appointment created by or exercisable by the 

protected person; and

(d) any contract, transfer, or joint ownership arrangement with 

provisions for payment or transfer of benefits or interests at the 

protected person’s death to another or others that the protected 

person may have originated.

(2) Notwithstanding 26-1-803 or any case law relating to the attorney-client 

privilege, the court in its discretion may order that any person having 

possession of any document constituting all or part of the estate plan of the 

protected person shall deliver the document to the court for examination by 

the court and, in the discretion of the court, by the attorneys for the persons 

who have appeared in the proceedings under 72-5-444 through 72-5-450 in 

connection with the petition filed under 72-5-444 through 72-5-450.

(Emphasis added.)

¶29 M. R. Civ. P. 45(d)(3)(A)(iii) requires a court, upon motion, to quash a subpoena 

that requires disclosure of privileged or other protected matter if no exception or waiver 

applies. We have frequently recognized the well-accepted rule that “this Court will not 
16

review an issue that was not raised in the district court. It is fundamentally unfair to fault 

the trial court for failing to rule correctly on an issue it was never given the opportunity to 

consider.” Martz v. Beneficial Montana, Inc., 2006 MT 94, ¶ 25, 332 Mont. 93, 

135 P.3d 790. 

¶30 H.D.K., through her attorney, filed a motion to quash noting the broad request 

implicated documents subject to the attorney-client privilege between Williams and his 

clients, H.D.K. and Jim, who had never waived the privilege. On appeal, Tony argues that, 

had he been able to reply to H.D.K.’s objection, he would have argued that H.D.K. waived 

the privilege and that Williams should produce a privilege log. However, Tony never 

raised his concerns at the hearing held on September 18, 2020—when the District Court 

explained its ruling—that the documents should be produced. Moreover, he failed to 

present this argument prior to the second hearing as well. The District Court had no 

opportunity to consider this argument, and it would be fundamentally unfair to say the 

District Court erred on an issue it could not consider. See Martz, ¶ 25. We decline to 

address arguments Tony would have raised. 

¶31 The District Court consistently recognized H.D.K.’s rights of confidentiality. 

H.D.K.’s objection to the subpoena raised attorney-client privilege, requiring the 

District Court to quash the subpoena if no waiver or exception applied. At a hearing after 

quashing Tony’s subpoena, the District Court noted that H.D.K.’s mild cognitive disability 

did not mean that attorney-client privilege lapsed. In its order denying Tony’s motion to 

strike Williams’s Report, the District Court noted that it would not casually abrogate 

H.D.K.’s confidential relationship and constitutional right to privacy. We will not hold the 
17

District Court erred for failing to consider hypothetical arguments Tony would have made. 

The District Court did not abuse its discretion by quashing Tony’s subpoena for Williams’s

file.

Hearing Duration

¶32 A district court retains broad discretion in determining issues related to trial 

administration. Fink v. Williams, 2012 MT 304, ¶ 18, 367 Mont. 431, 291 P.3d 1140. One 

matter of trial administration is the district court’s establishment of “a reasonable limit on 

the time allowed to present evidence” under M. R. Civ. P. 16(c)(2)(O). 

¶33 Tony contends the District Court’s decision to end the conservatorship hearing after 

three days of testimony, including Tony’s, prevented him from introducing live testimony 

from his daughter. This misrepresents what actually occurred. At the September 23 

hearing, Sofeea suggested three hours for the hearing on testamentary capacity. Tony 

responded that the hearing may take less than three hours. The hearing ultimately spanned 

three days with over five hours of testimony. At the close of the hearing, Tony objected to 

the hearing’s conclusion. Recognizing Tony’s objection, the District Court allowed the 

parties to submit affidavits regarding H.D.K.’s testamentary intent in lieu of testimony. 

Tony submitted several affidavits, including one from his daughter. Given that Tony 

testified at the hearing and was able to present affidavits in lieu of live testimony, he has 

not demonstrated that the District Court abused its discretion when it concluded the hearing 

on October 6. 
18

¶34 The District Court did not abuse its discretion when it declined to issue a Rule 16 

scheduling order, quashed Tony’s subpoena, and concluded the conservatorship hearing 

after three days.

¶35 2. Whether the District Court erred in finding that H.D.K. intended to allocate 

60 percent of her estate to Tony and 40 percent of her estate to Sofeea.

¶36 There is no definite fixed rule for determining testamentary intent, but each case 

must stand on its own peculiar facts and circumstances. In re Estate of Johnson, ¶ 18. 

“Testamentary intent is a question of fact to be decided by the District Judge or a jury, 

pursuant to § 72-1-208, MCA.” In re Estate of Johnson, ¶ 18. Testamentary intent requires

a testator to intend that a document will dispose of their property after death. 

In re Estate of Lambert, 2006 MT 229, ¶ 21, 333 Mont. 444, 143 P.3d 426. It is well 

established that “it is exclusively within the province of the trier of fact, and not this Court, 

to weigh evidence, including conflicting evidence, and judge the credibility of the 

witnesses.” Owen v. Skramovsky, 2013 MT 348, ¶ 22, 372 Mont. 531, 313 P.3d 205. 

Accordingly, we will not second guess a district court’s determinations regarding the 

strength and weight of conflicting testimony. Owen, ¶ 22. 

¶37 Tony argues the District Court’s finding that H.D.K. intended to implement the 

60/40 Plan is not supported by substantial evidence. Alternatively, Tony argues that, even 

if substantial evidence existed, the District Court misapprehended the effect of the 

evidence. The District Court heard testimony from Williams that, during his estate 

planning work with the couple, H.D.K. and Jim’s plan allocated 60 percent of the estate to 

Tony and 40 percent to Sofeea. The District Court also noted that H.D.K. authenticated a 
19

letter she wrote to Tony and Sofeea in December 2018. The letter indicated H.D.K. had 

changed her mind regarding the specific properties that each child would receive, but her 

intention to implement the 60/40 Plan remained. The District Court found the visitor 

recommended that H.D.K.’s estate planning wishes from when her mental status was intact 

be maintained, including the desire to execute the 60/40 Plan. H.D.K. reiterated that 

allocation in her testimony at the in-chambers examination. 

¶38 The District Court also heard testimony from Tony and Sofeea regarding H.D.K.’s 

testamentary intent. At the close of the hearing, the District Court allowed the parties to 

submit additional affidavits regarding H.D.K.’s testamentary intent in lieu of testimony. 

Tony submitted four affidavits totaling over 300 pages. Sofeea submitted one 

seventeen-page affidavit. Tony argues that the District Court did not consider his affidavits 

or Dr. Bolyard’s report on the question of H.D.K.’s testamentary intent, but instead relied 

on Sofeea’s affidavit. The District Court was presented with conflicting testimony and 

voluminous affidavits. It was the District Court’s responsibility to determine the credibility 

of the witnesses and weigh the evidence presented, and we decline to second guess that 

determination. See Owen, ¶ 22. Likewise, Tony has presented minimal conflicting 

evidence and has failed to demonstrate that the District Court misapprehended the effect 

of the evidence presented. The District Court did not err in finding that H.D.K. intended 

to allocate 60 percent of her estate to Tony and 40 percent to Sofeea. 
20

¶39 3. Whether the District Court erred by not determining the present values of the 

properties in H.D.K.’s estate.

¶40 Tony next contends that no evidence of valuation supported how or why the 

District Court’s ordered distribution effectuates a 60/40 division of H.D.K.’s property. 

Tony analogizes the division of property to marital dissolution proceedings, where courts 

must first value property for the purposes of distribution. Sofeea and H.D.K. argue that 

the District Court relied on documents prepared by H.D.K. for its ordered distribution. 

They further argue that current values of the property would prove irrelevant, as the 

properties would not actually be distributed until H.D.K.’s death—potentially years in the 

future. We agree. 

¶41 The District Court relied on property lists prepared by H.D.K. identifying the 

properties each child would receive upon her death. The District Court recognized property 

valuations could fluctuate, and the Conservator may need to sell property to support 

H.D.K.’s needs. Accordingly, the District Court ordered the Conservator to use its best 

efforts to maximize rental property income before selling any properties. If properties must 

be sold, the District Court ordered the Conservator to select properties in a manner 

consistent with H.D.K.’s intent to effectuate the 60/40 Plan. The District Court further 

ordered the Conservator to value H.D.K.’s property on her death and make distributions as 

needed to fulfill H.D.K.’s intended distribution. The District Court’s Order recognizes a 

present property valuation would prove irrelevant, as Tony and Sofeea may not receive any 

distribution until several years later. Tony advances no applicable authority and presents 

no evidence supporting his argument that property valuations are required when 
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distribution will not occur until years later. The District Court did not err by not 

determining the present values of the properties in H.D.K.’s estate. 

¶42 4. Whether the District Court erred in finding that H.D.K. had testamentary 

capacity.

¶43 Testamentary capacity requires the testator be aware of the following three 

elements: (1) the nature of the act to be performed, (2) the nature and the extent of the 

property to be disposed of, and (3) the objects of their bounty. In re Estate of Quirin, ¶ 14. 

Independent consideration of the testator’s mental capacity to understand these elements is 

not required. In re Estate of Quirin, ¶ 16. We also do not require an independent 

consideration of the testator’s strength and clearness of mind or memory. In re Estate of 

Quirin, ¶ 16. The Quirin Court noted that conflicting evidence regarding testamentary 

capacity may exist in most cases, but “it is not the role of this Court to weigh conflicting 

evidence or to determine whether there is support for findings that were not 

made . . . [w]here conflicting evidence exists, we will not substitute our judgment for the 

district court’s.” In re Estate of Quirin, ¶ 22 (citations omitted). The Quirin Court further 

noted that the mere presence of conflicting evidence does not render the district court’s 

finding clearly erroneous. In re Estate of Quirin, ¶ 22. 

¶44 The District Court’s finding that H.D.K. was aware of each of the three elements 

was supported by substantial evidence. First, H.D.K.’s awareness of the nature of the act 

to be performed, namely the designation of who would receive her properties upon death, 

was supported by substantial evidence. The District Court noted the following actions 

taken by H.D.K. regarding her estate planning: executing a trust, amending that trust, 
22

executing a beneficiary deed, and writing a letter explaining her choices to her children. 

The District Court also examined H.D.K. in-chambers and heard testimony regarding 

H.D.K.’s estate planning efforts from Williams. Substantial evidence indicates that H.D.K. 

understood the nature of the act to be performed.

¶45 Second, H.D.K.’s awareness of the nature and extent of her property was also 

supported by substantial evidence. Tony does not dispute the District Court’s finding on 

this element and acknowledges that H.D.K. generally correctly identified her properties to 

be disposed of. Substantial evidence indicates that H.D.K. was aware of the nature and 

extent of her property.

¶46 Finally, H.D.K.’s awareness of the objects of her bounty was also supported by 

substantial evidence. The District Court noted that H.D.K. accurately identified the objects 

of her bounty as her children, Tony and Sofeea. Tony argues that the District Court’s 

finding that H.D.K. was aware of the objects of her bounty “ignores the point of the entire

proceeding—to determine which sibling would receive which properties.” (Emphasis in 

original.) In essence, Tony argues that, to possess testamentary capacity, H.D.K must 

specifically allocate each piece of property to the intended beneficiary. Preliminarily, we 

reiterate that conservatorship proceedings are not adversarial, but instead “are established 

to promote the best interests of the protected person.” Estate of Bayers, ¶ 14

(emphasis added). Moreover, Tony misconstrues the fundamental meaning of the objects 

of a testator’s bounty. Black’s Law Dictionary defines a synonymous term, “natural 

object,” as “[a] person likely to receive a portion of another person’s estate based on the 

nature and circumstances of their relationship.” Natural Object, Black’s Law Dictionary
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(11th ed. 2019). Our jurisprudence has long supported this understanding. See, e.g., 

In re Estate of Bodin, 144 Mont. 555, 560, 398 P.2d 616, 619 (1965) (restating the third 

Quirin element as “the names and identity of the persons who are to be the objects of his 

bounty, and his relation towards them.”) (citations and internal quotations omitted). Tony 

does not dispute that H.D.K. was aware of Tony and Sofeea or that H.D.K. was aware that 

they were her children and would receive her property. The District Court weighed the 

evidence and found that H.D.K. was aware of the objects of her bounty. 

¶47 Tony contends that the District Court incorrectly found H.D.K. “retain[ed]” 

testamentary capacity. Tony’s argument rests on evidence indicating H.D.K. had not yet 

made up her mind regarding the distribution of her properties. However, the mere 

existence of conflicting evidence does not render the District Court’s finding clearly 

erroneous. The District Court had the opportunity to weigh all the evidence and testimony, 

and we decline to substitute our judgment for the District Court’s. See In re Estate of 

Quirin, ¶ 22. The District Court correctly found H.D.K. possessed testamentary capacity. 

CONCLUSION

¶48 The District Court did not abuse its discretion when it declined to issue a scheduling 

order, quash Tony’s subpoena for the file of H.D.K.’s attorney, and concluded the 

conservatorship hearing after three days. The District Court did not err when it found 

H.D.K. intended to allocate 60 percent of her estate to Tony and 40 percent to Sofeea. Nor 

did the District Court err by not determining the present values of the properties in H.D.K.’s 

estate. Finally, the District Court did not err when it found H.D.K. had testamentary 
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capacity. The District Court’s Findings of Facts, Conclusions of Law, and Order is

affirmed.

/S/ LAURIE McKINNON

We concur: 

/S/ MIKE McGRATH

/S/ BETH BAKER

/S/ INGRID GUSTAFSON

/S/ DIRK M. SANDEFUR