This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 LELAND W. HACKETT, 2 Petitioner-Appellant, 3 v. No. 32,386 4 DOROTHY JANET WADE, Personal 5 Representative, 6 Respondent-Appellee, 7 IN THE MATTER OF THE ESTATE OF 8 BILLY JOE HELM, Deceased

. 9 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 10 Jane Shuler Gray, District Judge 11 Leland W. Hackett 12 Artesia, NM 13 Pro Se Appellant 14 Wilfred T. Martin, Jr. 15 Carlsbad, NM 16 for Appellee 17 MEMORANDUM OPINION 18 FRY, Judge. 192 Petitioner appeals from the district court order dismissing his petition to set 1 aside the informal probate of Billie Joe He lm’s last will and te stament. Petitioner 2 identifies four issues on appeal: (1) the district court erred in finding the oral 3 agreement between Helm and Petitioner unenforceable; (2) th e district court erred in 4 finding Petitioner was not an interested person as defined by NMSA 1978, Section 45- 5 1-201(A)(26) (2011); (3) the district court erred in concluding that Petitioner had no 6 standing to bring an action to have Helm’s will set aside; and (4) the district court 7 erred in its determination that Petitioner’s claim of tortious interference had nothing 8 to do with the probate of the will. [DS 5-6] This Court issued a calendar notice 9 proposing to reverse. Respondent has filed a memorandum in opposition to this 10 Court’s proposed disposition, which we have duly considered. Unpersuaded, we 11

reverse. 12 In this Court’s calendar notice, we poi nted out that Section 45-1-201(A)(26) of 13 the Uniform Probate Code defines an “inter ested person” to include: “heirs, devisees, 14 children, spouses, creditors, beneficiaries and any others having a property right in or 15 claim against a trust estate or the estate of a decedent.” We further pointed out that 16 Petitioner had alleged a claim of tortious interference with expected inheritance. [CN 17 3; RP 75] We noted that “w here matters relating to the validity of the testamentary 18 instrument are present, the courts have de termined that the probate proceeding is the 191 This Court directs Respondent-Appellee to Rule 12-305(B)(3) NMRA, which 18 requires that documents filed with this Court be “paginated with consecutive page 19 numbers at the bottom.” 20 3 proper place to pursue such issues.” Peralta v. Peralta , 2006-NMCA-033, ¶ 13, 139 1 N.M. 231, 131 P.3d 81. [CN 4] We therefore proposed to conclude that Petitioner 2 had “an interest in the probate proceedi ngs and the district court erred in not 3 addressing the impact of Petitioner’s cl aim for tortious interference with an 4 expectation of inheritance in determining that dismissal was appropriate.” [CN 5] 5 In her memorandum in opposition, Respondent points out that Petitioner argued 6 his tortious interference with inheritance cl aim at the hearing, but the district court 7 considered Petitioner’s claim and still determined Petitioner lacked standing. [MIO 8 unpaginated 2] 1 Respondent does not, however, address this Court’s proposed 9 disposition to the extent we proposed to conc lude that Petitioner had an interest in the 10 probate proceedings based on his allegations of tortious interference with an expected 11 inheritance. [CN 4 (“[W]e suggest that, given Petitioner’s allegations of undue 12 influence and his inability to recover through probate, he may havea claim available 13 to him of tortious interference with anexpected inheritan ce.”)] While Respondent 14 asserts that the district court consideredPetitioner’s claim of tortious interference, 15 Respondent does not argue why the districtcourt’s determination that Petitioner 16 lacked standing was correct or, likewise, why this Court’s suggestion that Petitioner 174 had established that he had standing by alleging a tortious interference with 1 inheritance claim was in error. See Hennessy v. Duryea , 1998-NMCA-036, ¶ 24, 124 2 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar 3 cases, the burden is on the party opposing th e proposed disposition to clearly point out 4 errors in fact or law.”). 5 Moreover, to the extent Respondent c ontends that Petitioner does not have 6 standing because he cannot establish he is an heir, Respondent again fails to address 7 the analysis contained in our proposed di sposition. [MIO unpaginated 2-3] The tort 8 of intentional interference with expect ed inheritance “will not lie when probate 9 proceedings are available to address th e disposition of disputed assets and can 10 otherwise provide adequate relief.” Wilson v. Fritschy , 2002-NMCA-105, ¶ 35, 132 11 N.M. 785, 55 P.3d 997. Thus, Respondent’s argument that Petitioner cannot 12 demonstrate that he can inherit through intestacy does not address this Court’s 13 proposed conclusion that Petitioner’s claim of tortious interference with expected 14 inheritance provides him standing. Because this Court has previously held that “where 15 matters relating to the validityof the testamentary instru ment are present . . . the 16 probate proceeding is the proper place to pursue such issues[,]” Peralta , 2006-NMCA17 033, ¶13, and because in order to establish a claim of tortious interference with 18 expected inheritance Petitioner would have to challenge th e validity of the codicil, id. 195 ¶ 16, we conclude that the district court erred in dismissing Pe titioner’s petition to set 1 aside informal probate. See also NMSA 1978, § 45-3-401(A)(2) (1975) (providing 2 that “[a] formal testacy proceeding may becommenced by an interested person filing[] 3 . . . a petition to set aside an informal probate of a will or to prevent informal probate 4 of a will which is the subject of a pendi ng application”); S ection 45-1-201(A)(26) 5 (defining an “interested person” as incl uding “any others havi ng a property right in 6 or claim against a trust estate or the estate of a decedent”). 7 For the reasons stated above and in th is Court’s notice of proposed disposition, 8 we reverse and remand for further pro ceedings consistent with this opinion. 9 IT IS SO ORDERED. 10

11 CYNTHIA A. FRY, Judge 12 WE CONCUR: 13

14 MICHAEL E. VIGIL, Judge 15

16 TIMOTHY L. GARCIA, Judge 17