The Utah Supreme Court reversed a lower court’s ruling, holding that it erred in applying a general savings statute to extend the three-year limit for commencing a probate or testacy proceeding set forth in Utah’s probate code. In re Estate of Davies, No. 20231140 (Utah Aug. 21, 2025).
In 2018, Jodi Kittinger filed a petition to probate her grandmother’s will within three years after her grandmother’s 2015 death, but in 2021, the petition was dismissed for failure to prosecute. In 2022, Jodi refiled the petition within one year after the dismissal, asserting that it was timely under Utah’s savings statute, Utah Code § 78B-2-111(1), which states that a plaintiff may commence a new action within one year after a dismissal not based on the merits.
Other grandchildren moved for partial summary judgment on the basis that the second petition was untimely under Utah’s probate code, Utah Code § 75-3-107. They argued that because the new petition was filed more than three years after their grandmother’s death, the statutory presumption of intestacy was final. According to the other grandchildren, the savings statute did not apply because the probate code’s timing statute was a statute of repose, not a statute of limitations, and could not be tolled. The district court denied their motion for partial summary judgment, and they sought an interlocutory review of its decision.
The Utah Supreme Court determined that it did not need to decide whether the timing statute in the probate code was a statute of limitations or statute of repose; rather, it was more appropriate to assess whether the legislature intended the savings statute to apply to the timing statute. The court examined the plain language of both statutes. The court determined that the language of the timing statute affirmatively prohibited a person from initiating a probate or testacy proceeding within three years after a decedent’s death and imposed a final presumption of intestacy if a party failed to initiate the proceeding within that period.
The court noted that many statutes of limitations and repose indicate that an action may or shall be brought within a specified time period, but that the probate code’s timing statute used prohibitory language, stating that a probate or testacy proceeding may not be commenced more than three years after a decedent’s death. Thus, its language conflicted with the savings statute, which indicated that a plaintiff may commence a new action within one year after a failure in the action not based on the merits. The timing statute did not limit the time to commence a proceeding but affirmatively prohibited the commencement of an action after three years.
Further, the timing statute stated that the presumption of intestacy is final if the decedent’s will is not probated within the three-year period. The savings statute, if applied, would allow a petition seeking the resolution of an issue that had been deemed to be finally resolved by the statute and the passage of time. Therefore, the court declined to apply the general savings statute to the more specific situation in the probate code’s timing statute.
The court noted that its determination that the savings statute did not apply was supported by the rules of construction applicable to the probate code, i.e., that it must be liberally construed and applied to promote its stated purposes. The timing statute was designed to achieve a balance between two goals: discovering and effectuating a decedent’s intent and promoting efficient estate administration. Applying the savings statute to extend the three-year time limit in the timing statute would disrupt that balance. The court reversed the district court’s order denying the other grandchildren’s motion for partial summary judgment and remanded for further proceedings.
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