Chapter 113

      113.035

NOTES OF DECISIONS

      The admission of a subsequently filed will to probate in “common form” prior to the consideration of questions of testamentary capacity and undue influence raised by a previously appointed personal representative was not error. Schrei v. Frye, 25 Or App 191, 548 P2d 1001 (1976)

      Even if personal representative is later appointed, this will not revive claims against estate within exclusive jurisdiction of small estate proceedings. Givan v. Dept. of Human Services, 289 Or App 125, 410 P3d 311 (2017)

      113.055

NOTES OF DECISIONS

      Will contests are still reviewed de novo despite 1979 amendment replacing reference to suit in equity with reference to action tried without jury. Sanders v. U.S. National Bank, 71 Or App 674, 694 P2d 548 (1984), Sup Ct review denied

      Amendment inserting reference to action tried without jury did not convert formerly equitable suit into action at law requiring constitutional right to jury. Rantru v. Unger, 73 Or App 680, 700 P2d 272 (1985)

      113.065

NOTES OF DECISIONS

      For probate court to have subject matter jurisdiction over out-of-state decedent’s will executed in Oregon, there must be property in this state upon which probate may operate, and promissory note secured by trust deed was personal property having out-of-state situs, notwithstanding its physical presence in Oregon. West v. White, 92 Or App 401, 758 P2d 424 (1988), aff’d307 Or 296, 766 P2d 383 (1988)

      113.075

NOTES OF DECISIONS

      An action seeking to invalidate a portion of a will because of a restriction on charitable gifts is not governed by this section’s limitation period. Buresh v. First Nat. Bank, 10 Or App 463, 500 P2d 1063 (1972)

      When will was offered for probate in solemn form and contestant was party to that proceeding, this section did not allow relitigation of issues which were determined in first proceeding. McGilvray v. Martin, 49 Or App 5, 618 P2d 1287 (1980)

      Party may not avoid statutory four-month limitation for will contest by designating action as one on claim or for declaratory judgment based on purported invalidity of will. Martin v. Kenworthy, 92 Or App 697, 759 P2d 335 (1988)

      113.085

ATTY. GEN. OPINIONS: Division of State Lands authority to dispose of money and property of intestate decedent without heirs, (1974) Vol 37, p 255

      113.145

NOTES OF DECISIONS

      Where personal representative fails to provide notice to all beneficiaries of pending estate proceeding, this section does not deprive court of authority to rule on validity of will. Eddy v. Eddy, 95 Or App 733, 770 P2d 969 (1989), Sup Ct review denied

      Where defendant personal representative did not send notice to Oregon Health Authority under ORS 115.003 and defendant knew within three months after defendant was appointed personal representative of estate that authority asserted claim against estate, notice sent under this section was insufficient. Oregon Health Authority v. Cue, 268 Or App 350, 342 P3d 98 (2014), Sup Ct review denied

LAW REVIEW CITATIONS: 26 WLR 277 (1990)

      113.155

LAW REVIEW CITATIONS: 26 WLR 277 (1990)

      113.165

LAW REVIEW CITATIONS: 26 WLR 275, 291 (1990)

      113.195

NOTES OF DECISIONS

      Under section authorizing removal of personal representative for “good cause,” court may remove personal representative to prevent problems from arising in probate, including discord between personal representative and beneficiaries. Warkentin v. Shirey, 308 Or App 1, 480 P3d 289 (2020), on reconsideration 309 Or App 314, 481 P3d 444 (2021) (former opinion adhered to as modified)