In re Estate of Read

Finding fundamental error, the majority reverses the probate court because it failed to detect and enforce an unpled affirmative defense. I cannot agree that the law imposes this duty on the probate court and, therefore, I dissent.

The facts are simple. The appellant personal representative was properly notified but elected not to file an objection to the appellee bank’s untimely claim. Moreover, the personal representative failed to file a timely motion for rehearing after the probate court ordered payment of the claim. In short, the personal representative did nothing to protect the estate.…