Flaig v. Emert

ORS 115.145 and ORS 115.165 do not authorize the summary determination of counterclaims by a personal representative.

Claimant Eldon Flaig appealed a decision by the probate court that allowed a counterclaim by the personal representative in a summary-determination hearing. Flaig made a claim against his mother’s estate for expenses that he paid on her behalf. The personal representative of the estate disallowed the claim and the claimant asked for a summary-determination proceeding in probate court. The personal representative filed an "Answer and Counterclaim" asserting that Flaig received insurance proceeds that belonged to the estate. The probate court agreed and ordered Flaig to return the proceeds. Flaig appealed, arguing that counterclaims by the personal representative in summary-determination proceedings are disallowed under the probate code and previous cases. The Court determined that the legislature did not intend to enable counterclaims under the statute. The text does not mention counterclaims and legislative history is silent to such a procedure. The personal representative argued that the legislature did intend to allow counterclaims because she is to “move or plead” to the claim. The Court disagreed because if that language permitted counterclaims, then the claimant would also be entitled to answer to the counterclaim, which is not mentioned in the statute, nor are any procedural protections in place. Vacated and remanded.