Probate lawyers can use this one to guide their drafting. Our interest is why CA2 did something that we were hoping against hope that the Supreme Court might note but it didn’t.

Mary Riley left her estate to her many children, two of whom were appointed PRs and spent ten years administering it. When they went to close it another of the kids objected, claiming excessive costs of administration. He became the new PR, apparently by agreement. The new and old PRs then signed a settlement agreement, as part of which one of the old PRs gave up his claim on the estate. Over the objection of still other kids, the probate court approved this. The objectors appealed.

The Court of Appeals, sua sponte, raised the issue of whether the agreement violated 14-3952 (probate compromise must be signed by “all competent persons . . . having claims”) since the objecting kids hadn’t signed. After allowing briefing on the point the court held the settlement agreement void for lack of all the heirs’ signatures.

The Supreme Court accepted review and comes to almost but not quite the same conclusion, so it vacates the CA2 opinion. It holds that the agreement is not binding on the non-signors but (contra CA2) is not necessarily void for all purposes. Mostly, though, the court gently points out that the agreement might have been structured in ways that avoided the statute.

Our question is: why did CA2 chose to suggest to the objectors a substantive argument they hadn’t made – and that the court had, probably already, decided was the wining argument for them? It wasn’t a jurisdictional thing. CA2 noted that the other side didn’t argue that the issue hadn’t been raised in the court below. But what if it did? Would the court have ignored the issue it ordered briefed? Or would it have constructed an excuse to decide the parties’ lawsuit on an issue they never put in it? And why weren’t the CA2 judges listed at the beginning of the opinion – as counsel for some of the parties – rather than merely at the end?

(link to opinion)