IN RE: the ESTATE OF Melissa EVANS (2025)

FACTUAL & PROCEDURAL HISTORY 1

¶1 Melissa Evans (Decedent) executed a last will and testament dated December 6, 2001. In Section 1.1 of the will, Decedent declared that she was married to Scott J. Evans (Scott). Section 5.2 of the will provides: “I give the balance of my residuary estate to [my spouse], if he survives me by at least thirty (30) days.”  ² The will also states that Decedent and Scott had, collectively, three minor children, identified as Joshua Evans (Appellant), Ryan Evans (Ryan), and Tamra Evans (Tamra). According to the pleadings and briefs on appeal, Decedent was a stepparent and not biologically related to Tamra. In Section 1.5, Decedent nominated Scott as the personal representative, with Appellant to serve as the successor in the event Scott failed to qualify. Section 5.3 of the will specifies that if Scott fails to survive the Decedent by at least thirty days, the residuary estate is to be distributed per stirpes to her surviving descendants. Although the will states that the Decedent was married, she and Scott were divorced on July 25, 2014, in Rogers County Case No. FD-2014-218.

¶2 Decedent died in a motor vehicle accident on September 3, 2020. Shortly thereafter, Appellant initiated probate proceedings in Rogers County, filing the original will and a Petition for Probate, Appointment as Personal Representative, Determination of Heirs, Devisees, and Legatees and Issuance of Letters Testamentary. The petition identified only Appellant and his brother Ryan as potential heirs or beneficiaries; it did not acknowledge that Tamra and Scott were specifically identified in the will as potential beneficiaries. Neither of these individuals received notice of the petition or the hearing scheduled for November 4, 2020. An affidavit of mailing reflects that only Appellant and Ryan were served with notice. According to the parties, the November 4 hearing was rescheduled for November 25, 2020; but again, the record does not reflect service on Tamra or Scott.  ³ Nevertheless, on November 17, 2020--prior to the continued hearing date--the court entered an order approving Appellant's petition. This order determined that Appellant and Ryan were Decedent's sole heirs, devisees, and legatees.

¶3 On November 28, 2022, the lower court removed Appellant as personal representative. Kathy Knox was appointed by the court to serve as a neutral third party representative. Knox resigned on October 30, 2023, and was succeeded by James J. Greer on November 13, 2023.

¶4 The parties represent that on January 5, 2024, Greer filed a motion to partially vacate the November 2020 order.  ⁴ On March 25, 2024, the trial court granted the request and vacated only that portion of the order identifying heirs, devisees, and legatees.  ⁵ Appellant did not appeal the lower court's order vacating the prior order.  ⁶

¶5 On April 2, 2024, Greer filed a petition seeking a corrected determination of Decedent's heirs, devisees, and legatees. The petition was set for hearing on May 13, 2024, with notice provided to Appellant, Ryan, Tamra, and their respective attorneys. After hearing argument, the court found that although Decedent named her former spouse, Scott, as personal representative and beneficiary in her will, he could not be an heir because the couple divorced in 2014.  ⁷ The trial judge also found that because the will identified Tamra as Decedent's child, she was entitled to notice and should be treated as a beneficiary. The trial judge recognized from the bench that the will identified the Decedent and Scott as having three children, without distinguishing Tamra as a stepchild. Additionally, the judge explained that the existing probate record did not support any conclusion other than Tamra being declared Decedent's child. Nevertheless, the judge emphasized that the issue was subject to change prior to a final decree and distribution:

Now, if we get on down the road and she -- you know, further investigation is done and it shows that she was not -- everything you're saying, that she was not adopted, she is not truly an heir at law -- then that's fine and she can -- then I would suspect that there would be a declination. But all of that needs to be in the court file. Because at this point it says, “we have three children.”  8

Following this explanation, the trial court pronounced from the bench that Appellant, Ryan, and Tamra were Decedent's sole heirs. However, the written order entered the same day conflicts with the judge's pronouncement, finding Appellant and Ryan are the sole heirs-at-law. Further, the memorialized order concluded that Appellant, Ryan, and Tamra were each a beneficiary under the will.

¶6 Appellant then initiated the present appeal on June 11, 2024, attaching only a copy of the May 13, 2024, Order Determining Heirs, Beneficiaries, Devisees and Legatees. In his Brief in Chief, Appellant raises two arguments which are summarized as follows: (1) Greer's motion to vacate was untimely and lacked proper grounds; and (2) the trial court erroneously determined Tamra was an heir and beneficiary under the terms of Decedent's will. We retained this matter but now dismiss the appeal because any challenge to the March 25, 2024, Order to Vacate is untimely, and the May 13, 2024, determination of heirs, devisees, and legatees is not an interlocutory ruling appealable as of right.

STANDARD OF REVIEW

¶7 This appeal presents two primary issues. The first--whether the personal representative's motion to vacate was untimely under 12 O.S.2021, § 1038, thereby depriving the trial court of authority to alter its order determining heirs, devisees, and legatees--raises a pure question of statutory interpretation. Appellant alternatively contends in his first proposition that even if timely, the motion lacked evidentiary support and failed to satisfy any statutory ground. These are each subject to de novo review. See Matter of Estate of Fulks, 2020 OK 94, ¶ 9, 477 P.3d 1143, 1147 (holding that statutory interpretation and harmonization are legal issues subject to de novo review). Under this standard, appellate courts exercise “plenary, independent, and non-deferential authority to examine the issues presented.” Harmon v. Cradduck, 2012 OK 80, ¶ 10, 286 P.3d 643, 648.

¶8 The second question presented on appeal--whether the trial judge erred by determining Tamra was an heir and beneficiary under the terms of Decedent's will--involves both a review of the trial court's factual determinations and interpretation of a testamentary instrument. When reviewing a lower court's interpretation of a last will and testament, we are guided by the cardinal rule mandating “[construction] according to the intention of the testator.” 84 O.S.2021, § 151. We have noted many times, “[p]robate proceedings are of equitable cognizance. While the Court will examine the whole record and weigh the evidence, the trial court's findings will not be disturbed on review unless they are clearly against the weight of the evidence or some governing principle of law.” Matter of Estate of Sneed, 1998 OK 8, ¶ 8, 953 P.2d 1111, 1115.

¶9 Another threshold issue is whether the matters raised by Appellant fall within the narrow class of rulings subject to interlocutory review. When a case is brought before this Court on appeal, we have an independent duty to inquire into our own jurisdiction as well as that of the trial court. Matter of S.J.W., 2023 OK 49, ¶ 7, 535 P.3d 1235, 1240. No appeal lies from a non-final, interlocutory order entered while a case remains pending unless the order falls within a category expressly made appealable by statute prior to the entry of final judgment in the underlying action. Dennis v. Lathrop, 1951 OK 87, ¶¶ 3--4, 204 Okla. 684, 233 P.2d 969, 970.

ANALYSIS

 Joshua Evans's appellate challenge of the March 25, 2024, Order to Vacate was untimely.

¶10 Appellant first challenges the timing and merits of Greer's motion to vacate the order determining heirs, devisees, and legatees originally filed on November 17, 2020. Citing 12 O.S.2021, § 1038, he argues that any challenge to the order had to be brought within three years. Greer responds that Appellant failed to comply with the notice requirements of the Oklahoma Probate Code, rendering the order void and therefore subject to modification at any time under § 1038. As noted earlier, Appellant failed to include the January 5, 2024, motion to vacate in the appellate record.  ⁹ More importantly, Appellant did not contest the Order to Vacate within thirty days of its filing, and therefore any interlocutory challenge by appeal is untimely.

¶11 An appeal from an interlocutory order appealable by right must be commenced by filing a petition in error, together with a cost deposit or pauper's affidavit, within thirty (30) days of the filing date of the subject order. 12 O.S.2021, § 993(A)(8); see also Okla. Sup Ct. R. 1.61. This time limit cannot be extended by the filing of a motion or petition for new trial, reconsideration, re-examination, rehearing, or to vacate a judgment except as provided in Okla. Sup. Ct. Rule 1.22. See Okla. Sup. Ct. R. 1.40(e). The trial court's Order to Vacate was filed on March 25, 2024, and Appellant did not file his petition in error until June 11, 2024.  ¹⁰ This was forty-eight days beyond the thirty-day deadline to bring an interlocutory appeal of the Order to Vacate.  ¹¹ Thus, any challenge to the trial court's order vacating the November 2020 order determining heirs and beneficiaries is out of time. Appellant will have the opportunity to dispute the correct identity of heirs, devisees, and legatees either before entry of a final decree or by initiating an appeal of the final accounting and decree of distribution.  ¹² See Estate of Sneed, 1998 OK 8, ¶ 13, n.15, 953 P.2d at 1116; Okla. Sup. Ct. R. 1.40(f).

 The trial court's modified order determining heirs, devisees, and legatees is not an order affecting a substantial right under 58 O.S.2021, § 721(10), and therefore, is not immediately appealable.

¶12 In his second assignment of error, Appellant contends the trial court erred in its May 13, 2024, order by recognizing Tamra Evans as a beneficiary. He argues Tamra does not fall within the will's definition of “descendant” and thus has no claim to the residuary estate. Greer responds by arguing that (1) Appellant has never presented any evidence showing Tamra was only Decedent's stepchild; and (2) the will refers to Tamra as Decedent's child, entitling her to a share of the residuary estate. However, we must initially determine whether this ruling qualifies as an interlocutory order appealable by right.

¶13 An order determining the identity of heirs, devisees, and legatees prior to entry of an order distributing estate assets is not a final judgment. Title 58 O.S.2021, § 240(D) underscores the provisional nature of such determinations:

Any determination of heirs, legatees and devisees made pursuant to this section shall be conclusive for the purpose of acting upon any petition or application purporting to include waivers or consents of all heirs, devisees, and legatees, but shall not establish the proportional interest of any person entitled to receive any distribution of assets or property from the estate; nor shall it prevent any person or entity from later establishing identity or rights as an heir, devisee or legatee. (emphasis added).

This statutory section makes clear that preliminary orders identifying heirs and beneficiaries are interlocutory and subject to modification. They may be relied upon for administrative convenience, but they do not bind the court as to the parties’ ultimate rights or shares in the estate. Accordingly, a request to amend or revisit a prior determination concerning heirs, devisees, or legatees may be presented any time before entry of a final judgment in the probate proceeding. The respective rights of all heirs and beneficiaries are not final until entry of a decree distributing an estate in accordance with 58 O.S.2021, § 632.  ¹³ Any prior determinations as to the identities of heirs, devisees, and legatees remain provisional until that point.

¶14 As mentioned above, the Oklahoma Probate Code sets forth certain interlocutory orders, which are appealable prior to entry of a final decree of distribution. Title 58 O.S.2021, § 721 reads:

An appeal may be taken from the following judgments or orders of the district court:

1. Granting, or refusing, or revoking letters testamentary or of administration, or of guardianship, or conservatorship;

2. Admitting, or refusing to admit, a will to probate;

3. Against or in favor of the validity of a will or revoking the probate thereof;

4. Against or in favor of setting apart property, or making an allowance for a widow or child;

5. Against or in favor of directing the partition, sale or conveyance of real property;

6. Settling an account of an executor, or administrator or guardian;

7. Refusing, allowing or directing the distribution or partition of an estate, or any part thereof or the payment of a debt, claim, legacy or distributive share;

8. Refusing or allowing the release of estate tax liability;

9. An order determining liability for estate taxes made pursuant to Section 268 of this title; or

10. From any other judgment, decree or order of the court in a probate cause, or of the judge thereof, affecting a substantial right.

(emphasis added).

A challenge to a ruling identifying the heirs, devisees, and legatees does not fall within any of the specific interlocutory orders appealable by right under 58 O.S. § 721(1)--(9). The threshold question, then, is whether the trial court's May 13, 2024, order constitutes a decision “affecting a substantial right” under subsection (10).

¶15 Although case law construing the phrase “affecting a substantial right” is limited in both the number of cases and scope of discussion, we have recognized that this subsection is broader than the preceding provisions addressing specific probate orders. Matter of Hicks Estate, 1941 OK 184, ¶ 7, 116 P.2d 905. We have said that when a substantial right is impacted by an order in a probate proceeding, the aggrieved party may appeal regardless of it not being a final disposition of the case. In re Mize's Guardianship, 1943 OK 321, ¶ 21, 193 Okla. 164, 142 P.2d 116, 119. Nevertheless, our prior decisions also make clear that something more than a procedural inconvenience must be at stake to render the interlocutory probate ruling appealable.

¶16 For example, in Guardianship of Berry, 2014 OK 56, 335 P.3d 779, we converted an original jurisdiction proceeding requesting an extraordinary writ to an interlocutory appeal authorized by § 721. At issue was the right of two wards to select their own attorneys in a guardianship dispute. The trial court had rejected the wards’ choice of counsel. In recasting the original action as an appeal, we noted that “a choice-of-counsel adjudication affect[s] a substantial right,” and therefore was immediately appealable by virtue of Section 721(10). See also Towne v. Hubbard, 1999 OK 10, 977 P.2d 1084(allegation of due process violation stemming from removal of counsel in guardianship constituted an appealable interlocutory guardianship decision under 58 O.S.1991, § 721(10)). Similarly, Lebus v. Carden, 1978 OK 91, 583 P.2d 503, involved the appeal of a trial court judge's refusal to vacate an earlier order adjudicating an individual incompetent. The appellant argued the guardianship order had been entered ex parte and without notice, raising due process concerns. Because the ruling directly implicated constitutional rights, the Court determined the matter involved a substantial right and allowed the matter to proceed as an interlocutory appeal under § 721. By contrast, we have rejected appeals involving routine probate management orders which do not encroach on a substantial right. See, e.g., State ex rel. Reirdon v. Marshall Cnty., 1938 OK 424, 183 Okla. 274, 81 P.2d 488, (order continuing hearing on estate distribution was not an appealable interlocutory order as it did not affect a substantial right); Smith v. Gould, 1967 OK 207, ¶¶ 13, 434 P.2d 176, 179 (order declining to remove administrator not appealable); Bank of Hartshorne v. Davis, 1931 OK 476, ¶ 0, 2 P.2d 582(order declining to quash citation directing former administrator to deliver assets not appealable).

¶17 In In re Tayrien's Estate, 1952 OK 384, 207 Okla. 401, 250 P.2d 16, the Court addressed a similar issue, considering whether an order denying a claimed omitted heir's motion for partial distribution was immediately appealable. The Court held that the order did not satisfy the “substantial right” requirement of 58 O.S. § 721, and thus could not be appealed as a matter of right. Id. ¶ 5, 250 P.2d at 17. The Court reasoned that (1) the order failed to finally determine the parties’ rights; (2) the omitted heir's interests could still be fully protected by an appeal from the ultimate decree of distribution; and (3) the order did not impair any substantial right of the heir. Id. Accordingly, the Court treated the ruling as a non-appealable interlocutory order and dismissed the case. Id. ¶ 6, 250 P.2d at 17.  ¹⁴

¶18 Because the Legislature expressly enumerated specific interlocutory probate orders which are immediately appealable, subsection (10) should be narrowly construed to apply only where a substantial right would be irreparably lost absent immediate review. Limiting subsection (10) to exclude review of preliminary determinations of heirship or beneficiary status--absent an adverse effect on a substantial right--better comports with the statutory text, aligns with § 721’s structure and purpose, and promotes judicial economy in probate proceedings. By reading the statutory section in this way, we best preserve the integrity and orderly progression of probate proceedings while still ensuring any alleged error remains subject to review following entry of a final decree. Further, to hold otherwise would expand § 721(10) beyond its text and invite interlocutory review of virtually any substantive ruling in estate administration.

¶19 Under this set of facts, neither Appellant's brief nor the face of the trial court's order reflects an impact to a substantial right sufficient to invoke this Court's appellate jurisdiction under 58 O.S.2021, § 721(10). As previously noted, Appellant failed to present sufficient evidence at the hearing to re-determine the Decedent's heirs and beneficiaries and neglected to furnish this Court with a complete record on appeal. More importantly, the trial court informed Appellant that should the proper evidence be introduced later to support his claim that Tamra is not a child, heir, or beneficiary, that the court could enter an order in conformity with that evidence.  ¹⁵ Based on the trial court's statement, the identities of heirs, devisees, and legatees remain fluid until a final decree is entered.  ¹⁶

CONCLUSION

¶20 Appellant's challenge to the order vacating the initial determination of heirs, devisees, and legatees was untimely. In addition, the modified order determining heirs, devisees, and legatees does not qualify as an appealable interlocutory order under 58 O.S.2021, § 721(10). The identity of heirs and beneficiaries remains subject to revision until entry of a final decree of distribution or upon conclusion of any appeal therefrom. For these reasons, the appeal must be dismissed.

APPEAL PREVIOUSLY RETAINED ON THIS COURT'S OWN MOTION; APPEAL DISMISSED.

FOOTNOTES

2.   Last Will and Testament of Melissa R. Evans, O.R. in Appeal 120,854, at 9.

3.   The court minute entered on November 4, 2020, was not included in the appellate record by either party.

4.   Appellant did not include a copy of the motion in the appellate record.

5.   Although no transcript of this hearing was included in the record, the trial judge noted at a later hearing that she believed notice to Tamra was the “best practice.” Tr. May 13 2024, p. 13, lines 6-17. Later in the same hearing, the judge reiterated her view regarding notice to Tamra, stating: “pursuant to [84 O.S.2021 §§] 158 and 159, the will says ‘children,’ and therefore I believe she should have been given notice pursuant to the language of the will.” Id. at p 18, lines 1-7.

6.   Appellant waited until this appeal to challenge the trial court's authority to vacate the original order determining heirs, devisees, and legatees. Although he raised the issue in his Brief in Chief, Appellant failed to attach a copy of the March 25, 2024 Order to Vacate to either his petition in error or his amended petition in error.

7.   As previously noted, Section 5.2 of the will bequeaths the Decedent's residuary estate to Scott, contingent upon his surviving the Decedent by at least thirty (30) days. However, any interest Scott held in the Decedent's estate was nullified upon the finalization of their divorce. Title 84 O.S.2021, § 114 provides:A. If, after making a will, the testator is divorced, all provisions in such will in favor of the testator's spouse so divorced are thereby revoked. Annulment of the testator's marriage shall have the same effect as a divorce. In the event of either divorce or annulment, the testator's former spouse shall be treated for all purposes under the will as having predeceased the testator. Provided, however, this section shall not apply if the decree of divorce or of annulment is vacated or if the testator remarries his former spouse, or following said divorce or annulment, executes a new will or codicil which is not revoked or held invalid.B. This section shall apply to any will of a decedent dying on or after November 1, 1987. (emphasis added).The Decedent's 2001 will was executed well before the parties’ divorce in 2014; consequently, any interest Scott may have held under the will was extinguished by operation of law.

8.   Tr. May 13, 2024, p. 18, lines 8-21.

9.   Appellant's failure to include the relevant documents in the appellate record is, by itself, a sufficient basis to deny the first assignment of error. It is the Appellant's sole obligation to ensure the appellate record contains everything necessary to support a claim for corrective relief. That responsibility includes making certain that all materials relied upon in the appeal are properly included in the record submitted to the appellate court. As this Court has explained, “[a]n appellant has the undivided responsibility for producing an appellate record necessary to show the error in a trial court's decree. An appellant must include in the record on appeal ‘all materials necessary for corrective relief.’ ” Duke v. Duke, 2020 OK 6, ¶ 35, 457 P.3d 1073, 1085; see also State v. Price, 2012 OK 51, ¶ 8, n.7, 280 P.3d 943, 946.

10.   Personal representative Greer's counsel filed an affidavit on March 26, 2024, reflecting service of the Order to Vacate on each of the parties and counsel of record. This would mean the time to bring an interlocutory appeal would have commenced on March 25, 2024, and any appeal must have been filed by April 24, 2024. See Owens v. Owens, 2023 OK 12, ¶ 30, 529 P.3d 905, 915.

11.   This Court does not construe the Order to Vacate as an interlocutory order appealable by right under either 12 O.S.2021, § 993 or 58 O.S.2021, § 721. See LCR v. Linwood Properties, 1996 OK 73, 918 P.2d 1388. Even if it were deemed an appealable ruling, Appellant's challenge was filed well beyond the prescribed time limit. Moreover, Appellant did not attach any copy of the Order to Vacate to his petition in error.

12.   Title 58 O.S.2021, § 240 authorizes the court to determine the identity of all heirs and beneficiaries early in the administration, but subsection (D) expressly provides that such findings are not conclusive as to the ultimate rights or shares in the estate. Although these determinations may be relied upon for administrative convenience, they remain subject to amendment at any time before final judgment. See, infra. Under Oklahoma law, probate proceedings are governed by their own statutory scheme, and both the Probate Code and our precedent distinguish between interlocutory rulings and final orders. See Matter of Estate of Landing, 2023 OK 117, ¶ 8, 539 P.3d 1286, 1289.

13.   Section 632 provides:In the order or decree, the court must name the persons and the proportions or parts to which each shall be entitled, and such persons may demand, sue for and recover their respective shares from the executor or administrator, or any person having the same in possession. Such order or decree is conclusive as to the rights of heirs, legatees or devisees, subject only to be reversed, set aside, or modified on appeal.

14.   By contrast, in Matter of Estate of Nation, 1992 OK 91, 834 P.2d 442, the Court concluded that a similar order involving a claimant's status as an omitted heir was immediately appealable under § 721(10). The majority, however, dismissed the appeal as untimely and made no mention of In re Tayrien's Estate. However, in a special concurrence, Justice Summers candidly acknowledged a potential conflict, stating, “I would go a step further and expressly overrule In re Tayrien's Estate to the extent it is inconsistent with today's order.” Id. (Summers, J., specially concurring). This divergence underscores the apparent lack of harmony between Tayrien's Estate and Estate of Nation.

15.   According to the Appellant's brief, Tamra Evans also executed a disclaimer of any interest in the estate; however, like so many other documents, this was not included in our record on appeal. See supra note 9.

16.   When the trial court enters its final decree it will be conclusive. 58 O.S.2021, § 632.

GURICH, J.

ALL JUSTICES CONCUR