Before Husband’s death in 2006, Husband and Wife named Patrick Farnen as their attorney in fact. Husband died that year. In 2009, Wife’s health failed and she was admitted to the hospital. Farnen began exercising his powers of attorney during the hospitalization. A few weeks after she was admitted, Wife’s niece and nephew caused her to execute a new durable power of attorney naming themselves as attorneys-in-fact.
Wife died a few months later and Respondent was appointed as personal representative of the estate. Appellant filed a petition for a discovery of assets of decedent’s estate, believing Niece and Nephew used an invalid power of attorney to move assets out of the estate. Niece, Nephew, and Farnen moved to dismiss the petition.
Audrain County Circuit Court, Broniec, J., Held:
The court granted Respondents’ motion to dismiss the petition. Appellant appealed.
Court of Appeals, P.J. Ahrens, P.J., Held:
Reversed and remanded. The probate division possessed the statutory authority, under Section 473.340, to entertain the petition for discovery of assets. The court rejected Respondent’s argument that the petition was really a claim of breach of fiduciary duty belonging in the circuit court. While breach of fiduciary duty is implicated, discovery of assets was the primary thrust of the petition; Appellant sought restoration of the missing assets, not damages for violation of Respondents’ fiduciary duties.
Further, Appellant stated a valid claim by pleading all requisite elements of Section 473.340. The statute does not require him to identify specific estate property that was wrongly withheld, only known property that was wrongly withheld. Finally, the court erred by considering evidence outside the pleadings when granting the motion to dismiss. While a motion to dismiss can be treated as a motion for summary judgment (where evidence outside the pleadings is allowed), the court must notify the parties of this intent and allow them a reasonable opportunity to present all pertinent materials.