An inheritance dispute involving a 100-year-old woman who died in 2017 has left some of her family members richer, but they have to pay the nearly $350,000 in attorney fees they incurred to get the money, the Arizona Court of Appeals ruled recently.
The unanimous July 1 opinion overturned a ruling by a Pima County Superior Court judge which awarded $347,687 for attorney fees to Amber Miller Adwell, Grant Miller, and Gentry Miller, who were successful in challenging their exclusion from a trust established by their great aunt, longtime Green Valley resident Crystal Lorene West.
Court records show West, who did not have children, set up a trust decades ago under which her assets would be distributed when she died. She amended the trust documents four times before 2014, with the longstanding plan being that one-half of the trust’s assets would go to Nancy Moore, the daughter of West’s sister, and the other half would be split among three children of Larry Miller, the son of West’s sister.
But in August 2014, a then 97-year-old West executed a fifth addendum to her trust, completely eliminating Larry Miller’s children from any inheritance. Instead, the new version of West’s trust distributed nearly all of the assets to Moore, who was also named to handle the trust once West died.
After West died in April 2017, the three Miller heirs petitioned a Pima County judge to invalidate the fifth amendment and restore the prior version of the trust. Judge Kenneth Lee presided over an eight-day trial in early 2019 at which he determined Moore “had unduly influenced” her aunt into disinheriting the other three family members.
Lee then declared the previous amended trust as the controlling version, reinstating the 50 percent share to Moore and 50 percent to be split among the three Miller heirs. That version also named Grant Miller as the person West wanted to have control the trust when she died.
As the prevailing party, the Millers obtained a court order in September 2019 for reimbursement of the attorney fees they spent challenging the trust. The fees would have been charged to the trust before the remaining assets were paid out to Moore or the Millers.
In Moore’s appeal, she argued that the Millers failed to state in their initial legal challenge to the trust that they intended to seek attorney fees, and therefore were not entitled to reimbursement under current court rules. Earlier this month the Arizona Court of Appeals agreed with Moore in a 3-0 opinion.
“When interpreting a rule of civil procedure, we seek to give effect to our supreme court’s intent in promulgating the rule,” the decision states. “Therefore, if a rule is clear and unambiguous, we need not look beyond its language to determine intent, and we will give the language its ordinary meaning unless doing so would cause an absurd result.”
The appellate judges noted that Rule 54(g)(1) clearly reads that a claim for attorney’s fees “must be made in the pleadings” or in a separate filing before the party being sued has responded to the litigation.
“The rule is intended to give parties notice of the risk that they may bear the burden of their opponent’s legal fees, encouraging out-of-court settlement to avoid that risk,” the decision states. “Thus, the Millers’ claim for attorney fees was forfeited and the award of fees was barred.”
The Millers have until July 31 to file a petition for review with the Arizona Supreme Court. Until then the appellate opinion is on hold and apparently so are West’s trust assets.
In the meantime, Moore submitted a statement of costs to the court of appeals as the prevailing party on appeal. This week the court issued an order requiring the Millers to pay her costs.