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Wyttenbach v. Wyttenbach - 8/26/2008

Arizona Court of Appeals Division One Holds (1) A.R.S. § 14-3108(4) of the Probate Code Does Not Preclude a Personal Representative from Bringing an Action for Financial Exploitation of a Vulnerable Adult Pursuant to A.R.S. § 46-456 on Behalf of the Estate, Even Though the Personal Representative Was Appointed More Than Two Years After the Decedent’s Death, But (2) Personal Representative Lacked Standing Under A.R.S. § 46-456 to Bring a Claim in an Individual, Rather Than a Representative, Capacity.


Emmett and Esther Wyttenbach created a revocable living trust naming their son, Barry, as the sole beneficiary.  After Esther’s death, Emmett married Nona.  After Emmet died, Barry was eventually appointed the personal representative of the estate almost two and one-half years later.  Barry then filed a complaint against Nona alleging financial exploitation of a vulnerable adult under A.R.S. § 46-456 of the Adult Protective Services Act (APSA).  Barry alleged that Nona, as a de facto conservator and person in a confidential relationship with Emmett, a vulnerable adult, misappropriated funds designated to the trust.  Nona moved for summary judgment.  Nona relied on the decision of In re Estate of Winn, 212 Ariz. 117, 121, 128 P.3d 234, 239 (App. 2006) (Winn I), rev’d 214 Ariz. 149, 150 P.3d 236 (2007) (Winn II), which held that a late-appointed personal representative was precluded from pursuing APSA claims. The probate court agreed and dismissed Barry’s complaint with prejudice.  The court also denied Barry’s earlier request that he be added to the complaint as an individual plaintiff in addition to his standing as personal representative.  Barry appealed.     

The Arizona Appeals Court reversed the order granting summary judgment to Nona, affirmed the denial of Barry’s request to amend the complaint, and remanded for further proceedings.  The trial court’s grant of summary judgment relied on Winn I, but that holding was subsequently reversed by the Supreme Court of Arizona in Winn II, thereby allowing APSA claims by late-appointed representatives (such as Barry) to proceed.  Because the probate court had not decided whether Barry’s claim, in his representative capacity, was timely, however, the Court remanded so that the probate court could make that determination.  The Court then affirmed the probate court’s refusal to allow Barry to amend the complaint to add a claim in his individual capacity, holding that the APSA does not provide a cause of action for such claims.       

Judge Orozco authored the opinion; Judges Barker and Timmer concurred. 

Posted On: 9/2/2008