R. Carlson v. Nickels Estate ( 2023 )

03/28/2023
DA 22-0588
Case Number: DA 22-0588
IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 56NROBIN W. CARLSON,
Plaintiff and Appellant,
v.
ESTATE OF JACK W. NICKELS,
Defendant and Appellee.
APPEAL FROM: District Court of the Seventh Judicial District,
In and For the County of McCone, Cause No. DV-22-3
Honorable Katherine M. Bidegaray, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Robin W. Carlson, Self-Represented, Laramie, Wyoming
For Appellee:
David L. Irving, Irving Law, PLLC, Glasgow, Montana
Aaron W. Nicholson, Crowley Fleck PLLP, Billings, Montana
Submitted on Briefs: February 22, 2023
Decided: March 28, 2023
Filed:
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__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Jack W. Nickels (Jack) was born September 24, 1920. He married his first wife,
Peggy, in 1950. They had three children together: Holly L. Nickels (Holly), Sally Jo Eide
(Sally), and Jack W. Nickels, Jr. (Jack Jr.). Peggy died in 1991. In 1997, Jack married
Pearl Carlson Nickels (Pearl), who was born in 1931. Pearl had four children from two
prior marriages: Ernest Carlson (Ernie), Robin Carlson (Robin), Bradley Carlson
(Bradley), and Todd Wagner (Todd). The Appellant Robin Carlson is Jack’s adult step-son
through Jack’s marriage to Pearl.
¶3 On May 1, 2002, Jack created the Jack W. Nickels Trust (original Trust). The
original Trust did not mention Robin.
¶4 On November 20, 2003, Jack executed an Amendment & Restatement to the
Jack W. Nickels Trust (First Amendment to Trust). In the First Amendment to Trust, Jack
mentioned Pearl and his three children from his prior marriage but did not mention any of
Pearl’s children.
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¶5 On January 24, 2008, Jack executed his Second Amendment & Restatement to the
Jack W. Nickels Trust (Second Amendment to Trust), in which he mentioned Pearl, his
three children from his prior marriage, and Pearl’s four children from her prior marriages.
Jack specifically excluded Jack Jr. and Robin from receiving any Trust property. Further,
Jack directed that his daughters, Holly and Sally, only receive $30,000 each from the Trust.
In his Second Amendment to Trust, Jack expressed that it was his and Pearl’s intent “to
combine our assets, provide for each other upon the death of the first of us as provided in
each of our trusts, and upon the death of the survivor of us, the balance of our trust estates
shall be distributed to ERNIE, BRAD and TODD . . . .” Jack expressly provided his
rationale for the changes: (1) Jack Jr. had filed lawsuits against Jack and Pearl; (2) Holly
and Sally did not offer Jack and Pearl any support regarding the lawsuits; and (3) Robin
had inherited a ranch from his father that was substantially greater in value than what other
beneficiaries would receive.
¶6 Jack passed away on August 31, 2021, at age 100. In Jack’s Will, he made no
specific devise and devised the residue of his estate to the Trust, as amended and restated
on November 20, 2003, and January 24, 2008.
¶7 Robin filed a complaint in March 2022, and an amended complaint in April 2022,
alleging Jack was incapacitated when he executed the 2008 Second Amendment to Trust
and that Pearl exerted undue influence on Jack to exclude Robin from being a beneficiary
of Jack’s Trust. The Estate of Jack W. Nickels (Estate) filed a motion to dismiss, arguing
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Robin failed to state a claim upon which relief could be granted and that Robin lacked
standing. The District Court conducted a hearing on July 26, 2022. On September 16,
2022, the District Court granted the Estate’s motion to dismiss concluding that Robin had
not presented sufficient evidence of incapacity or undue influence, and that he lacked
standing.
¶8 We review de novo a district court’s ruling on a motion to dismiss pursuant to
M. R. Civ. P. 12(b)(6). Plouffe v. State, 2003 MT 62, ¶ 8, 314 Mont. 413, 66 P.3d 316. In
considering a Rule 12(b)(6) motion, the complaint is construed in the light most favorable
to the plaintiff, and all allegations of fact are taken as true. Meagher v. Butte-Silver Bow
City-County, 2007 MT 129, ¶ 13, 337 Mont. 339, 160 P.3d 552.
¶9 “The capacity required to create, amend, revoke, or add property to a revocable trust
or to direct the actions of the trustee of a revocable trust is the same as that required to
make a will.” Section 72-38-601, MCA. Under Montana law, once “a will ha[s] been
admitted to probate. . . the presumption is that the deceased was competent and of sound
mind.” In re Estate of Bodin, 144 Mont. 555, 559, 398 P.2d 616, 618-19 (1965).
¶10 The District Court found that “Robin presented no compelling evidence of [Jack’s]
mental condition shortly before or after the execution of the Second Amendment to Trust
to rebut the presumption of [Jack’s] competency.” The District Court noted that Robin’s
main evidence of Jack’s incompetency was that Jack excluded him as a beneficiary to the
Trust but did not exclude his two brothers or half-brother. Regarding Robin’s allegations
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that his mother exerted undue influence over Jack, the District Court determined that
general allegations that Pearl “poisoned” Jack’s mind do not amount to facts alleging undue
influence and are insufficient to survive a motion under Rule 12(b)(6).
¶11 We agree. Excluding a child in estate planning is not, in and of itself, unnatural or
sufficient to require the setting aside of a will or trust. In re Estate of Tipp, 281 Mont. 120,
126, 933 P.2d 182, 185 (1997). We first observe that Jack excluded, in addition to Robin,
his son—Jack, Jr.—and also made limited distributions from the Trust to his two daughters.
Jack expressly provided his reasons for the exclusions and limitations to these family
members and why he wanted the property distributed in the manner he had specified.
Further, Robin has failed to allege any specific act or fact supporting his allegations that
his mother poisoned Jack or exercised undue influence over Jack to keep Robin from
receiving property from the Trust. The District Court noted Robin’s “circumstantial
evidence” for what it was: a general claim of “poisoning” which failed to adequately set
forth a claim for which relief could be granted.
¶12 Robin’s claims of Pearl’s undue influence and Jack’s incapacity were properly
dismissed pursuant to M. R. Civ. P. 12(b)(6). We do not need to address the issue of
standing.
¶13 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
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Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶14 Affirmed.
/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ INGRID GUSTAFSON
/S/ JIM RICE
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