DA 15-0796

IN THE SUPREME COURT OF THE STATE OF MONTANA

2016 MT 188

IN THE MATTER OF THE ESTATE OF:

PAUL L. KURTH,

 Deceased.

MARTY PURYER and SINDA PURYER,

 Petitioner, Counter-Defendant, and Appellants,

 vs.

BRUCE BARSTIS,

 Objector and Appellee.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and For the County of Flathead, Cause No. DP-13-043(A)

Honorable Amy Poehling Eddy, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Evan F. Danno, Esq., Danno Law Firm, P.C., Kalispell, Montana

For Appellee:

Matthew Hutchison, Kaufman, Vidal, Hileman, Ellingson, P.C., Kalispell, 

Montana 

Submitted on Briefs: April 20, 2016

 Decided: August 9, 2016

Filed:

__________________________________________

Clerk

08/09/2016

Case Number: DA 15-0796
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Justice Patricia Cotter delivered the Opinion of the Court. 

¶1 Paul L. Kurth died at the age of 82 on January 26, 2000, in a Missoula, Montana, 

hospital. Prior to his death, Kurth had resided with his niece and her husband, Sinda and 

Marty Puryer, in Kalispell for several years. On February 19, 1998, Marty hand wrote a 

document entitled “Instructions and Last Will and Testament of Paul L. Kurth.” Marty 

claims Kurth dictated the contents of this document to him and then signed it in his 

presence, as well as in the presence of a long term caregiver. The Puryers did not petition 

to probate this will until March 8, 2013. The will was challenged by Bruce Barstis, 

Kurth’s nephew. Following lengthy discovery and litigation, the Eleventh Judicial 

District Court, Flathead County, ruled that Kurth had died intestate. Puryers appeal. We 

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Paul Kurth never married nor had children. He was survived by three of his five 

siblings and nine nieces and nephews. For the last several years of his life, he lived with 

niece Sinda Puryer and her husband, Marty. According to Marty, approximately two 

years before Kurth’s death, Kurth instructed him to take down his testamentary 

instructions leaving everything he owned to Sinda and Marty. Marty and Sinda assert 

that Kurth signed the handwritten holographic statement and intended it to be his last will 

and testament.

¶3 During many of the years Kurth lived with Sinda and Marty, Sinda’s parents, 

Mike and Mary Mattovich (Mary was Kurth’s sister) also lived with them. Mary died in 

October 1997 and Mike died in June 1998. Mike left Kurth $8,214, distributable after 
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Kurth’s death. Following Kurth’s death in 2000, Sinda hired an attorney in 2001 to 

administer Kurth’s estate. The attorney collected the funds from the Mattovich estate and 

distributed them to Kurth’s estate. The attorney collected the personal assets of Kurth’s 

estate for distribution to the Puryers, pursuant to an affidavit signed by Sinda in which 

she attested that she was Kurth’s heir under the terms of the holographic will and had 

received these distributions. Thereafter, the Puryers did not probate Kurth’s will. 

Subsequently, Sinda and her sister and co-representative of their father’s estate signed 

statements closing the Mattovich Estate.

¶4 In addition to the personal property Kurth held upon his death, he also held a real 

property interest in mineral rights in eastern Montana. The attorney hired by Sinda did 

not pursue probate or effect the transfer of these real property interests to Puryers. 

¶5 In February 2013, an oil and gas company wanting to lease minerals in Roosevelt 

and Sheridan Counties contacted Bruce Barstis, one of Kurth’s nephews. Barstis retained 

an attorney and notified all of Kurth’s heirs that Kurth’s estate needed to be probated to 

effect transfer of Kurth’s real property interests. Barstis offered to act as the estate’s 

personal representative. In response to the notice, on March 8, 2013, Marty filed a 

Petition for Formal Probate of Will, and Appointment of Personal Representative. 

Claiming that under § 72-3-122(1)(e), MCA, the time for probating the will had not 

expired, Marty attached Kurth’s holographic will to the Petition and asserted that the 

requested probate was “to establish an instrument to direct or control the ownership of 

property distributable after decedent’s death, pursuant to the decedent’s Will.”
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¶6 Barstis challenged the alleged will on multiple grounds, including that the time for 

probate had passed and no exceptions to the time limitations applied. Discovery and 

litigation ensued and in April 2015, Barstis moved for partial summary judgment 

expressly arguing that Marty had waited too long to seek probate of the alleged will and 

the exceptions set forth in § 72-3-122(1)(d) and (e), MCA, did not apply. Barstis 

therefore maintained that as a matter of law, Kurth died intestate.

¶7 On November 24, 2015, the District Court granted Barstis’s motion for partial 

summary judgment. The court’s dispositive ruling in this case determined that 

§ 72-3-122(1), MCA, barred probate of Kurth’s alleged will. Section 72-3-122(1), MCA, 

requires that probate of a will, with some exceptions, must take place within 3 years after 

the decedent’s death. The court analyzed the two potentially applicable exceptions set 

forth in § 72-3-122(1)(d) and (e), MCA, and ruled that neither exception applied. Having 

so concluded, the District Court held that Kurth died intestate and the Estate must 

proceed under Montana’s intestacy statutes. The District Court awarded costs to Barstis.

¶8 Puryers appeal.

ISSUES

¶9 A restatement of the dispositive issues on appeal is:

¶10 Did the District Court err in granting Bruce Barstis’s motion for summary 

judgment on intestacy?

¶11 Did the District Court err by awarding litigation costs to Barstis following 

summary judgment on intestacy?
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STANDARDS OF REVIEW

¶12 The interpretation of a statute is a question of law which we review de novo for 

correctness. Kulko v. Davail, Inc., 2015 MT 340, ¶ 9, 381 Mont. 511, 363 P.3d 430. See 

also In re Estate of Harris, 2015 MT 182, ¶ 9, 379 Mont. 474, 352 P.3d 20.

¶13 We review a district court’s summary judgment ruling de novo, applying the same 

rule, M. R. Civ. P. 56(c)(3), that a district court does when making a summary judgment 

ruling. Summary judgment “should be rendered if the pleadings, the discovery and 

disclosure materials on file, and any affidavits show that there is no genuine issue as to 

any material fact and that the movant is entitled to judgment as a matter of law.”

M. R. Civ. P. 56(c)(3); Victory Ins. Co. v. Mont. State Fund, 2015 MT 82, ¶ 10, 378 

Mont. 388, 344 P.3d 977 (citations omitted).

¶14 We review a district court’s ruling on a motion for leave to amend for an abuse of 

discretion. Seamster v. Musselshell Cnty Sheriff’s Office, 2014 MT 84, ¶ 6, 374 Mont. 

358, 321 P.3d 829 (citation omitted).

¶15 We review for correctness a district court’s conclusion regarding the existence of 

legal authority to award attorney fees. If legal authority exists, we review a district 

court’s order granting or denying attorney fees for abuse of discretion. Mont. Immigrant 

Justice Alliance v. Bullock, 2016 MT 104, ¶ 15, 383 Mont. 318, 371 P.3d 430. 
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DISCUSSION

¶16 Did the District Court err in granting Bruce Barstis’s motion for summary 

judgment on intestacy?

 

¶17 Puryers present multiple arguments to support their claim that Kurth’s will is 

legitimate, valid, and capable of being probated thirteen years after Kurth’s death. We 

address their claim that the statutory exceptions to the 3-year time bar set forth in 

§ 72-3-122(1), MCA, are applicable.

¶18 Section 72-3-122(1)(d) and (e), MCA, provide:

(1) No informal probate or appointment proceeding or formal testacy or 

appointment proceeding . . . may be commenced more than 3 years after the 

decedent’s death, except:

. . .

(d) an informal appointment or a formal testacy or appointment proceeding 

may be commenced after the time period if no proceedings concerning the 

succession or estate administration have occurred within the 3-year period 

after the decedent’s death, but the personal representative has no right to 

possess estate assets provided in 72-3-606 beyond that necessary to confirm 

title to the property in the successors to the estate, and claims other than 

expenses of administration may not be presented against the estate; and

(e) a formal testacy proceeding may be commenced at any time after 3 

years from the decedent’s death for the purpose of establishing an 

instrument to direct or control the ownership of property passing or 

distributable after the decedent’s death from one other than the decedent 

when the property is to be appointed by the terms of the decedent’s will or 

is to pass or be distributed as a part of the decedent’s estate or its transfer is 

otherwise to be controlled by the terms of the decedent’s will.

¶19 In Marty’s petition to probate Kurth’s will filed in March 2013, he claimed that 

probate was not time-barred because § 72-3-122(1)(e), MCA, applied and extended the 

time allowed for seeking probate. Significantly, Marty did not refer to or rely upon 

§ 72-3-122(1)(d), MCA. Barstis objected to the proposed probate and to the appointment 
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of Marty as personal representative. The District Court set a December 25, 2013 deadline 

for amending pleadings or joining additional parties.

¶20 On February 3, 2014, Barstis moved to amend his objection. Claiming newly 

discovered evidence revealed in Marty’s January 16, 2014 deposition, Barstis sought to 

add Sinda as a party and to present new counterclaims against both Marty and Sinda. On 

April 29, 2014, the District Court granted Barstis’s motion to amend over Puryers’ 

objection. Following further proceedings, Puryers filed their answer to Barstis’s 

counterclaims on January 12, 2015, asserting for the first time that the time for formal 

probate had not expired under the provisions of § 72-3-122(1)(d), MCA. 

¶21 In April 2015, Puryers moved for leave to amend their petition to add 

§ 72-3-122(1)(d), MCA, as a defense. Shortly thereafter, Barstis moved for partial 

summary judgment arguing Kurth had died intestate. On June 5, 2015, the District Court 

denied Puryers’ motion to amend their petition noting that Puryers were seeking to 

change the legal theory upon which their original petition—filed two years earlier—had 

been based. The court reasoned that the motion was untimely under the deadlines set in 

the scheduling order and that the Puryers failed to show good cause justifying the 

amendment. The District Court noted that the couple did not claim newly discovered 

evidence nor did they assert that the defense available under § 72-3-122(1)(d), MCA, was 

neither known nor available to them at the time Marty filed his original petition in March 

2013 or prior to the December 25, 2013 deadline for amending pleadings. The court 

disagreed with the Puryers’ assertion that their original petition was based upon 
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§ 72-3-122(1)(d), MCA, by pointing out several record-based examples that refuted such 

a claim. Lastly, the District Court ruled that Barstis would be unduly prejudiced by the 

Puryers’ proposed amendment. Even though the District Court denied Puryers’ motion to 

amend the probate petition, it nonetheless addressed the applicability of § 72-3-122(1)(d), 

MCA, to the case at bar and determined that the statute did not provide the Puryers with 

an exception to the 3-year filing deadline. Thereafter, it granted Barstis’s motion for 

summary judgment.

¶22 Puryers argue on appeal that the District Court erred in refusing to allow them to 

amend their petition, given that the court had allowed Barstis to amend his objection to 

their petition for probate. They maintain that had the court ruled correctly on these 

motions, genuine issues of fact would have precluded summary judgment in favor of 

Barstis.

¶23 It is well established that a “court should freely give leave [to amend] when justice 

so requires.” M. R. Civ. P. 15(a)(2). “Although district courts have discretion in 

granting leave to amend, we have held that Rule 15(a) ‘favors allowing amendments.’” 

Seamster, ¶ 14. Further, “[w]e have articulated circumstances justifying a court’s denial 

of a motion to amend. Such situations include when the denial is ‘for an apparent reason 

such as undue delay, bad faith or dilatory motive on the part of the movant, repeated 

failure to cure deficiencies by amendments previously allowed, undue prejudice to the 

opposing party by allowance of the amendment, futility of the amendment, etc.’” 

Seamster, ¶ 14 (internal citations omitted).
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¶24 In reviewing Barstis’s motion for leave to amend, the District Court analyzed the 

foregoing factors and found no evidence of bad faith, intentional delay, improper 

purpose, or prejudice. Given that the newly discovered evidence upon which Barstis 

based his motion to amend had come to light in Marty’s deposition taken two weeks 

earlier, the court concluded the motion to amend was timely and reasonable. Addressing 

futility, the District Court stated it was “satisfied that it cannot be said that Mr. Barstis 

will be unable to develop facts entitling him to the relief sought.” We conclude the court 

did not abuse its discretion in granting Barstis’s motion to amend.

¶25 Conversely, in denying the Puryers’ motion to amend, the District Court set forth 

facts indicative of both undue delay and undue prejudice, as well as bad faith or a dilatory 

motive. The court found that Puryers sought to amend their petition in order to assert a 

defense that was available at the time Marty filed his original petition. The court noted 

that Marty could have asserted the applicability of § 72-3-122(1)(d), MCA, at any time 

between March 8, 2013, and the scheduling order deadline for pleading amendments of 

December 25, 2013, but failed to do so. The court noted that Puryers’ petition for 

probate of the Kurth will was not filed until thirteen years after his death, and yet more 

than two years later, Puryers continued to allege inconsistent facts and shift theories in an 

effort to secure title to the property at issue. Finally, it concluded that because Barstis 

had conducted discovery for over two years premised upon § 72-3-122(1)(e), MCA, he 

would be unduly prejudiced by such a late change in legal theories. We find the District 

Court’s analysis reasonable, and conclude it did not abuse its discretion in denying 
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Puryers’ motion to amend their petition. Therefore, we decline to consider 

§ 72-3-122(1)(d), MCA, as grounds for tolling the 3-year statute of limitations period for 

the probate of the Kurth will.

¶26 Puryers also argue on appeal that the District Court erred in declining to apply the 

exception contained in § 72-3-122(1)(e), MCA, so as to allow late probate of the will. 

They argued in the District Court that this exception was available to them because Sinda 

testified in her deposition that the $8,214 left to the Kurth estate by the Mattovich estate 

still remained to be distributed to the Kurth estate. The District Court acknowledged that 

this exception would allow late probate of the Kurth estate had such distribution not taken 

place. However, the court noted that Sinda had filed a sworn statement to close the 

Mattovich estate in 2001, stating therein that she had received this distribution, and 

further that Puryers had not pursued recovery of these funds for the ensuing thirteen 

years. The court concluded that Puryers had failed to establish that genuine issues of 

material fact precluded summary judgment in favor of Barstis on the application of this 

statute, citing the multiple inconsistent positions taken by Puryers. 

¶27 We have previously cautioned that parties cannot create a material factual issue by 

taking a contrary position to an earlier position. In Stott v. Fox, 246 Mont. 301, 805 P.2d 

1305 (1990), we instructed that Stott’s contradiction between his deposition and his 

affidavit did not create a genuine issue of material fact. We stated:

While the district courts must exercise extreme care not to take 

genuine issues of fact away from juries, ‘[a] party should not be allowed to 

create issues of credibility by contradicting his own earlier testimony.’

Ambiguities and even conflicts in a deponent’s testimony are generally 
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matters for the jury to sort out, but a district court may grant summary 

where a party’s sudden and unexplained revision of testimony creates an 

issue of fact where none existed before. Otherwise, any party could head 

off a summary judgment motion by supplementing previous depositions ad 

hoc with a new affidavit, and no case would ever be appropriate for 

summary judgment.

Stott, 246 Mont. at 309, 805 P.2d at 1309-10 (internal citations omitted). 

¶28 Based upon the foregoing, we conclude that the District Court did not abuse its 

discretion in its disposition of the procedural petitions filed by the parties. We further 

conclude that the District Court did not err in concluding that because neither of the 

statutory exceptions set forth in § 72-3-122, MCA, applied, Barstis was entitled to 

summary judgment on his contention that the estate must proceed under Montana’s 

intestacy statutes.

¶29 Did the District Court err by awarding litigation costs to Barstis following 

summary judgment on intestacy?

¶30 Section 72-12-206, MCA, expressly provides:

When the validity or probate of a will is contested through court 

action, the attorney fees and costs, as provided in 25-10-201, incurred in 

defending the validity or probate of the will must be paid by the party 

contesting the validity or probate of the will if the will in probate is 

confirmed. If the probate is revoked, costs, as provided in 25-10-201, but 

not attorney fees, must be paid by the party who resisted the revocation or 

out of the property of the decedent, as the court directs.

¶31 The District Court correctly interpreted and applied this statute. We affirm the 

court’s award of costs.
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CONCLUSION

¶32 For the foregoing reasons, we affirm the District Court’s conclusion that Kurth 

died intestate and that Kurth’s estate must be distributed in accordance with Montana’s 

intestacy statutes. We further affirm the court’s statutory award of costs.

/S/ PATRICIA COTTER

We Concur: 

/S/ MIKE McGRATH

/S/ LAURIE McKINNON

/S/ MICHAEL E WHEAT

/S/ JIM RICE