DA 19-0515

IN THE SUPREME COURT OF THE STATE OF MONTANA

2020 MT 153

IN THE MATTER OF THE ESTATE OF:

CHANDLER A. SWANBERG,

 Deceased.

APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County of Cascade, Cause No. ADP-13-043

Honorable Robert G. Olson, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Todd A. Stubbs, Levi G. Stubbs, Stubbs Law, P.C., Manhattan, Montana

For Appellee:

Chris Walker, Bradley E. Dugdale, Keith A. Maristuen, Bosch, Kuhr, 

Dugdale, Martin & Kaze, PLLP, Havre, Montana 

Submitted on Briefs: May 6, 2020

 Decided: June 16, 2020

Filed:

__________________________________________

Clerk

cir-641.—if

06/16/2020

Case Number: DA 19-0515
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Justice Ingrid Gustafson delivered the Opinion of the Court. 

¶1 Tristan Swanberg and Taylor Swanberg (the “Swanbergs”) appeal from the order of 

the Eighth Judicial District Court, Cascade County, denying their petition to reopen the 

estate of their late father, Chandler A. Swanberg (Chandler). Jennifer Wilson (Wilson)

cross-appeals the District Court’s failure to award her attorney fees pursuant to 

§ 72-12-206, MCA, for successfully defending the validity and probate of Chandler’s will. 

We address the following issues on appeal: 

1. Whether the District Court erred in denying the Swanbergs’ petition to reopen 

Chandler’s estate;

2. Whether the District Court erred in failing to address Wilson’s request for 

attorney fees. 

¶2 We affirm on issue 1 and reverse and remand on issue 2 for further proceedings.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 Chandler executed his Last Will and Testament (the “2006 Will”) and a trust 

instrument, creating the Chandler A. Swanberg Trust, on October 12, 2006. Chandler died 

on November 26, 2012, leaving three surviving adult children: the Swanbergs and Wilson. 

On March 7, 2013, Wilson filed a Petition for Formal Probate of Will, Determination of 

Testacy and Heirs, and Appointment of Personal Representative with the District Court, 

seeking to probate the 2006 Will. Under the terms of the 2006 Will and trust, Chandler 

left almost all his real and personal property to Wilson, including his substantial real 

property holdings in Swanberg Farms located in north-central Montana. Wilson provided 

the required notice of the probate proceeding to the Swanbergs. The Swanbergs did not 
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appear at any hearings or file any objections with the court during the original proceeding. 

On March 20, 2013, the court admitted the 2006 Will to formal probate and appointed 

Wilson as the personal representative of the estate. The District Court issued the decree of 

distribution and order approving settlement and distribution of the estate according to the 

terms of the 2006 Will on November 30, 2016. 

¶4 The Swanbergs filed a verified petition to reopen Chandler’s estate on 

November 13, 2018, and an amended petition on December 3, 2018. They alleged

Chandler lacked the necessary mental capacity and competency to fully know and 

appreciate the contents of the 2006 Will and trust, Wilson exerted undue influence on 

Chandler to execute the 2006 Will and trust, or Wilson obtained the execution of the 2006 

Will and trust through fraudulent means. They maintain a prior will left Chandler’s 

property to the three children in equal shares. The Swanbergs allege when they learned of 

the changes in the 2006 Will before the original probate proceeding, they confronted

Wilson, who assured them they would receive their “fair share” of Chandler’s estate. The 

Swanbergs allege they understood this to mean they would receive equal shares of the 

estate notwithstanding the terms of the 2006 Will and trust, and they did not contest the 

2006 Will during the original probate proceeding based on this assurance. The Swanbergs 

maintain they first learned Wilson did not intend to distribute equal shares of the estate to 

them when she filed a separate action to partition Swanberg Farms in July 2018. The 

Swanbergs sought declaratory judgment under § 27-8-101, MCA, that the trust was invalid 

or void due to Chandler’s lack of testamentary capacity, undue influence, and fraud. 
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Alternatively, the Swanbergs sought to set aside the prior probate proceeding under M. R. 

Civ. P. 60(b)(6) based on extrinsic fraud or fraud upon the court. The Swanbergs claimed 

Wilson was liable, both individually and as personal representative of the estate, for deceit 

under § 27-1-712(1), MCA. To support each of their claims, the Swanbergs alleged Wilson 

committed fraud against them, the court, and Chandler. 

¶5 Wilson filed a motion to dismiss the petition under M. R. Civ. P. 12(b)(6). Wilson 

argued, among other things, that the Swanbergs’ claims were time-barred by §§ 72-3-317

and -318, MCA, and sought her attorney fees and costs. The District Court agreed the 

Swanbergs’ claims were time-barred under §§ 72-3-317 and -318, MCA, and dismissed 

the petition. The court did not address Wilson’s request for attorney fees. The Swanbergs 

appeal and Wilson cross-appeals. 

STANDARD OF REVIEW

¶6 This court reviews de novo a district court’s grant or denial of a motion to dismiss 

for failure to state a claim pursuant to M. R. Civ. P. 12(b)(6). Strauser v. RJC Inv., Inc., 

2019 MT 163, ¶ 5, 396 Mont. 348, 445 P.3d 803. The focus of a Rule 12(b)(6) motion to 

dismiss is whether the complaint is facially sufficient to state a cognizable legal claim 

entitling the claimant to relief on the facts pled. Stowe v. Big Sky Vacation Rentals, Inc., 

2019 MT 288, ¶ 12, 398 Mont. 91, 454 P.3d 655. A claim is subject to dismissal under 

Rule 12(b)(6) if it either fails to state a cognizable legal theory for relief or states an 

otherwise valid legal claim but fails to state sufficient facts that, if true, would entitle the 

claimant to relief under the claim. Anderson v. ReconTrust Co., 2017 MT 313, ¶ 8, 
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390 Mont. 12, 407 P.3d 692. The Court takes all well-pleaded factual assertions as true in 

the light most favorable to the claimant. Stowe, ¶ 12. 

DISCUSSION

¶7 1. Whether the District Court erred in denying the Swanbergs’ petition to reopen 

Chandler’s estate. 

¶8 In their opening brief, the Swanbergs explain they brought two specific fraud 

claims: (1) whether Wilson defrauded Chandler at the time he executed the 2006 Will; and 

(2) whether Wilson fraudulently represented to the Swanbergs they would receive their 

equal share of the estate notwithstanding the terms of the 2006 Will and lulled them into 

not participating in the formal testacy proceeding. The Swanbergs argue on appeal the 

District Court erred in determining the time limitations of §§ 72-3-317 and -318, MCA, 

governed their claims of fraud. Rather, they argue their allegations of fraud fall under 

§ 72-1-111, MCA, and the statute of limitations under that statute did not begin to run until 

they discovered Wilson’s fraud when she filed for partition of the farm property in July 

2018. Additionally, they argue the court could have granted them relief from judgment 

under Rule 60(b), because Wilson engaged in fraud upon the court and extrinsic fraud that 

prevented them from having a fair submission of the controversy before the court. 

¶9 Montana has adopted the Uniform Probate Code (UPC) to govern probate 

proceedings in this state. When a petitioner seeks relief from a formal testacy order, the 

petition is subject to appeal and vacation as provided in §§ 72-3-317 and -318, MCA. See 

§ 72-3-317, MCA; In re Estate of Erickson, 2017 MT 260, ¶ 18, 389 Mont. 147, 406 P.3d 1; 

see also § 72-3-314, MCA (“After a final order in a testacy proceeding has been entered, 
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no petition for probate of any other instrument of the decedent may be entertained, except 

incident to a petition to vacate or modify a previous probate order and subject to the time 

limits of 72-3-317.”). 

¶10 Section 72-3-317, MCA, provides that a formal testacy order “is final as to all 

persons with respect to all issues concerning the decedent’s estate that the court considered 

or might have considered incident to its rendition relevant to the question of whether the 

decedent left a valid will” with limited exceptions. The court will “entertain a petition for 

modification or vacation of its order and probate of another will of the decedent” only if 

the proponents of the later-offered will were unaware of the existence of the will at the 

time of the earlier proceeding or were unaware of the earlier proceeding and were given no 

notice of the proceeding. Section 72-3-317(1)(a)-(b), MCA. A petition meeting those 

requirements must be filed prior to the earlier of three time limits: (1) if a personal 

representative has been appointed for the estate, the time of entry of any order approving 

final distribution of the estate or, if the estate is closed by statement, 6 months after the 

filing of the closing statement; (2) when it is no longer possible to initiate an original 

proceeding to probate a will of the decedent under the time limitations of § 72-3-122, MCA; 

or (3) 12 months after the entry of the order sought to be vacated. Section 72-3-317(3)(a)-

(c), MCA. Under § 72-3-318, MCA, the court may also modify or vacate an order in a 

formal testacy proceeding “[f]or good cause shown” within the time allowed for appeal of 

that order. In civil cases, an appeal must be filed within 30 days from the date the court 

entered the order from which the appeal is taken. M. R. App. P. 4(5)(i). 
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¶11 Section 72-1-111, MCA, provides remedies for fraud perpetrated in connection with 

probate proceedings or to avoid or circumvent the provisions or purposes of the UPC. It 

allows a person injured by the fraud to “obtain appropriate relief, including restitution 

against the perpetrator of the fraud or any person benefitting from the fraud.” 

Section 72-1-111(1), MCA. But “[t]his section has no bearing on remedies relating to fraud 

practiced on a decedent during the decedent’s lifetime that affects the succession of the 

decedent’s estate.” Section 71-1-111(3), MCA. A proceeding under § 72-1-111, MCA, 

generally must be commenced within two years after the discovery of the fraud. 

Section 72-1-111(2), MCA. 

¶12 Based on its plain language, § 72-1-111, MCA, “has no bearing” on the Swanbergs’

claims Chandler lacked testamentary capacity or Wilson exerted undue influence or 

defrauded Chandler. Such a claim should have been litigated during the formal probate 

proceeding under the provisions of the UPC governing formal probate proceedings. See 

§§ 72-3-308 through -314, MCA. The 2013 order admitting the 2006 Will to probate was 

a final testacy order entered during a formal probate proceeding. Vacation or amendment 

of this formal testacy order is subject to the limitations of §§ 72-3-317 and -318, MCA.

The Swanbergs do not allege facts that would allow them to meet the requirements of 

§§ 72-3-317 and -318, MCA, to modify or vacate the formal testacy order for fraud against 

Chandler. 

¶13 The Swanbergs also cannot seek relief from judgment for the claim of fraud against 

Chandler under Rule 60(b). The rules of civil procedure govern formal proceedings under 
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the UPC unless those rules are inconsistent with the provisions of the UPC. See § 72-1-207, 

MCA. As we explained in In re Estate of Erickson, ¶ 19, “[§] 72-3-317, MCA, is 

inconsistent with M. R. Civ. P. 60 because no petition for probate of any other instrument 

may be entertained unless the final testacy order is first appealed or vacated as stated in 

§ 72-3-317, MCA.” Thus, a party cannot seek relief from a formal testacy order under 

Rule 60(b). The Swanbergs urge this case is distinguishable from In re Estate of Erickson

because Wilson committed fraud on the court by submitting the allegedly fraudulent 2006 

Will to the court for probate. We disagree. Submitting a will that may be subject to a will 

contest is not fraud on the court. One of the purposes of formal probate proceedings is to 

provide a forum to resolve such disputes. 

¶14 This leaves the Swanbergs’ claim against Wilson for fraudulently representing they 

would receive their “fair share” of the estate. The Swanbergs maintain Wilson’s deceit 

toward them is a cognizable claim under § 72-1-111, MCA, that allows for the reopening 

of Chandler’s estate. In essence, the Swanbergs are arguing Wilson’s misrepresentation 

entitles them to a waiver of the limitations of §§ 72-3-317 and -318, MCA, so they can 

bring a belated challenge to the validity of Chandler’s 2006 Will. As the District Court 

recognized, the Swanbergs’ allegations are not sufficient to toll the time limitations of 

§§ 72-3-317 and -318, MCA, under these circumstances. The Swanbergs were aware of 

the contents of the 2006 Will and the facts that made them believe the 2006 Will was 

invalid at the time of the original proceeding. They allege they confronted Wilson before 

she initiated the formal probate proceeding and she promised them they would receive their 
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“fair share” of the estate. Although the Swanbergs argue they understood this ambiguous 

statement to mean they would receive equal shares, nothing Wilson allegedly said promised 

she would take such action. They received notice of Wilson’s petition to probate the 2006

Will in March 2013. Thereafter, the court admitted the 2006 Will to probate and well over 

three years later issued a decree, distributing the estate in accordance with the provisions 

of the 2006 Will. The Swanbergs did not attend the hearing or file an objection at any point 

in the process. Nor did they inform the court they were not contesting the 2006 Will 

because they had come up with an agreement among themselves to alter the distribution of 

the estate, as allowed under § 72-3-915, MCA. Given the facts of this case, the Swanbergs 

cannot rely on § 72-1-111, MCA, to toll or waive the limitations of §§ 72-3-317 and -318, 

MCA. The District Court correctly determined the Swanbergs’ allegations did not toll the 

timeframe for filing a claim to challenge the probate of Chandler’s 2006 Will. 

¶15 The District Court correctly dismissed the Swanbergs’ petition for failure to state a 

claim under Rule 12(b)(6). 

¶16 2. Whether the District Court erred in failing to address Wilson’s request for 

attorney fees. 

¶17 In her motion to dismiss, Wilson sought attorney fees under § 72-12-206, MCA, 

arguing the Swanbergs’ action is properly characterized as a will contest. The District 

Court determined “the gravamen of [the Swanbergs’] claims sound in a will contest,” but 

did not address Wilson’s request for attorney fees. On cross-appeal, Wilson urges she is 

entitled to attorney fees and costs under the statute and the District Court erred in failing 

to award them to her. We agree. 
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¶18 Section 72-12-206, MCA, provides in pertinent part: 

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. 

The Swanbergs’ claims sought to reopen Chandler’s estate, have the 2006 Will and trust 

declared invalid, and have a prior will probated in place of the 2006 Will. Wilson 

successfully defended the probate of the 2006 Will from the Swanbergs’ challenge and is 

entitled to fees and costs as provided in § 72-12-206, MCA, as a matter of law. In re Estate 

of Harmon, 2011 MT 84A, ¶¶ 63-64, 360 Mont. 150, 253 P.3d 821; In re Estate of Lande, 

1999 MT 179, ¶ 31, 295 Mont. 277, 983 P.2d 316. As such, we remand to the District 

Court to determine Wilson’s reasonable attorney fees and costs. 

CONCLUSION

¶19 The dismissal of the Swanbergs’ petition to reopen the estate is affirmed. The 

failure to award Wilson attorney fees and costs is reversed and remanded to the District 

Court to determine Wilson’s reasonable attorney fees and costs. 

/S/ INGRID GUSTAFSON

We concur: 

/S/ MIKE McGRATH

/S/ JIM RICE

/S/ LAURIE McKINNON

/S/ BETH BAKER