Atkinson v. Estate of Hook (In re Estate of Hook)

• Decision Date: 09 May 2016
• Docket Number: No. 73102–5–I.,73102–5–I.
• Citation: 193 Wash.App. 862,374 P.3d 215
• Parties: In the Matter of the Estate of Bert W. Hook, Deceased. James ATKINSON, Appellant, v. ESTATE OF Bert W. HOOK, Jerry Hook, Personal Representative, Respondent.
• Court: Washington Court of Appeals

193 Wash.App. 862

374 P.3d 215

In the Matter of the Estate of Bert W. Hook, Deceased.James ATKINSON, Appellant

v.ESTATE OF Bert W. HOOK, Jerry Hook, Personal Representative, Respondent.

No. 73102–5–I.

Court of Appeals of Washington, Division 1.

May 9, 2016.

David P. Boswell, Boswell Law Firm PS, Spokane, WA, for Appellant.

Douglas Frank Strandberg, Law Office of Douglas Strandberg PS, Rock C. Sorensen, The Law Office of Rock C. Sorensen, P.S., Friday Harbor, WA, Catherine Wright Smith, Valerie A. Villacin, Ian Christopher Cairns, Smith Goodfriend PS, Seattle, WA, for Respondent.

BECKER, J.

¶ 1 A will is not “executed” under RCW 11.12.020 until the occurrence of the last formal act necessary to make the will valid. Here, although the testator and one witness signed a will in Arizona, the second witness signed it in Washington. Therefore, the will was executed in Washington, not in Arizona. The will is not valid in Washington because the second witness did not sign in the testator's presence.

¶ 2 At issue is an order granting summary judgment. To review an order granting summary judgment, we engage in the same inquiry as the trial court. We will not resolve factual issues but rather must determine if a genuine issue exists as to any material fact. All inferences are construed in the light most favorable to the nonmoving party. In re Estate of Black, 153 Wash.2d 152, 160–61, 102 P.3d 796 (2004).

¶ 3 The will in question was signed in Arizona by Bert Hook shortly before his death. Bert Hook was an unmarried man with no children. He maintained a residence in eastern Washington. He usually spent winters in a small town in Arizona. In 1988, Bert executed a valid Washington will, and in 1999, he added a valid codicil. These documents, which we will refer to as “the 1988 will,” devised all of Bert's estate to Jerry Hook, his older brother and only sibling. Jerry was designated as personal representative.

¶ 4 In September 2011, at the age of 77, Bert underwent heart surgery in Spokane, Washington. After three weeks in an inpatient rehabilitation center, Bert was discharged to stay with Jerry in western Washington. Within a few days, Bert wanted to leave. Bert asked James Atkinson, a longtime friend who was then in Arizona, to come and get him. Atkinson drove up from Arizona with another friend, Anna Levitte. They took Bert to eastern Washington to help him close up his residence. The three then departed for Arizona, where Bert had his own residence in a rural airpark.

¶ 5 In January 2012, Bert prepared a new written will, which we will refer to as “the Atkinson will.” The Atkinson will revokes the 1988 will and names Atkinson as the personal representative. The beneficiaries include Atkinson, Levitte, Jerry Hook, and several other individuals.

On February 13, 2012, Bert went with Levitte to the office of Linda Darland, a notary public. Levitte and Darland watched Bert sign the Atkinson will. Darland then signed the will and applied her notary seal.

¶ 7 On February 18, 2012, Bert Hook committed suicide in Arizona. Atkinson notified Jerry Hook and informed him that Bert had made a new will.

¶ 8 Atkinson contacted David Boswell, Bert's attorney in Spokane, about probating the Atkinson will. Atkinson and Levitte drove to Spokane on February 27, left the Atkinson will with Boswell for his review, and returned to Arizona.

¶ 9 On March 9, 2012, Jerry Hook petitioned the San Juan County Superior Court for an order admitting the 1988 will to probate. The petition was granted, and the court issued letters testamentary to Jerry Hook on March 12.

¶ 10 Meanwhile, Boswell discovered that under Arizona law, a will signed by a testator is valid if it is also signed by two witnesses within a reasonable time. On March 29, 2012, Levitte traveled to Spokane and signed the Atkinson will.

¶ 11 On April 4, 2012, Atkinson filed a petition in the superior court of San Juan County contesting the 1988 will on the basis that the Atkinson will expressly revoked the 1988 will. Atkinson moved for withdrawal of the letters testamentary that had been issued to Jerry Hook. The trial court denied this motion.

¶ 12 On April 17, 2012, Atkinson filed an action in Arizona to probate the Atkinson will.

¶ 13 On July 6, 2012, the San Juan County court entered an order accepting the parties' stipulation that the “facial validity” of the Atkinson will would be determined under Arizona law.

¶ 14 On April 26, 2013, after an evidentiary hearing, the San Juan County court entered an order determining that Washington was Bert Hook's domicile at the time of his death. As a result of this determination, which is unchallenged on appeal, the Arizona court stayed the probate action commenced by Atkinson and eventually dismissed it. See Ariz. Rev. Stat. § 14–3202.

¶ 15 On May 24, 2013, Jerry Hook moved for partial summary judgment, arguing that the Atkinson will was invalid under Arizona law because Darland signed the will as a notary, not as a witness, and Levitte did not sign it within a reasonable time of witnessing Bert Hook's signature. On July 26, 2013, the trial court denied this motion, finding there were factual issues with respect to whether the Atkinson will was validly executed under Arizona law.

¶ 16 On February 12, 2014, Jerry Hook filed a second motion for partial summary judgment. This time he argued that the will was invalid under Washington law. He asked the court to vacate the stipulation to Arizona law. The court denied the motion. Jerry Hook moved for reconsideration. On July 11, 2014, the court granted reconsideration and ruled that the Atkinson will was executed in Washington, not Arizona, and its admission to probate was dependent upon compliance with the formalities of Washington law, not Arizona law. Because the Atkinson will is plainly invalid under Washington law, the court dismissed Atkinson's will contest with prejudice. As a result, the letters testamentary issued to Jerry Hook remain in effect and Bert Hook's estate will be probated under the 1988 will. Atkinson appeals.

MEANING OF “EXECUTED”

¶ 17 Atkinson contends that the Atkinson will was executed in Arizona, is valid under Arizona law, and must be given effect in Washington as the last expression of Bert Hook's wishes.

¶ 18 The starting point is Washington's Statute of Wills, RCW 11.12.020. This statute “describes the proper execution of all wills.” Estate of Black, 153 Wash.2d at 164, 102 P.3d 796.

Requisites of wills—foreign wills. (1) Every will shall be in writing signed by the testator or by some other person under the testator's direction in the testator's presence, and shall be attested by two or more competent witnesses, by subscribing their names to the will, or by signing an affidavit that complies with RCW 11.20.020(2), while in the presence of the testator and at the testator's direction or request: PROVIDED, That a last will and testament, executed in the mode prescribed by the law of the place where executed or of the testator's domicile, either at the time of the will's execution or at the time of the testator's death, shall be deemed to be legally executed, and shall be of the same force and effect as if executed in the mode prescribed by the laws of this state.

(2) This section shall be applied to all wills, whenever executed, including those subject to pending probate proceedings.

RCW 11.12.020.

¶ 19 The Atkinson will was not attested to by Levitte, the second witness, in the presence of Bert Hook.¹ For this reason, the Atkinson will does not satisfy the formalities required of Washington wills by the first part of RCW 11.12.020(1). Unless the proviso for foreign wills applies, the Atkinson will cannot be given effect.

¶ 20 Under the proviso, a will “executed in the mode prescribed by the law of the place where executed” will be given effect in Washington. For example, a holographic will is effective in Washington if it is valid in the state of the testator's domicile. In re Wegley's Estate, 65 Wash.2d 689, 690, 399 P.2d 326 (1965).

¶ 21 Atkinson contends the will is legally enforceable in Washington because it is valid in Arizona. The Arizona statute requires two witnesses for execution, but it does not require that the witnesses sign in the presence of the testator. Witnesses need only sign “within a reasonable time” after witnessing the testator's signature or acknowledgement.

Execution; witnessed wills; holographic willsA. Except as provided in §§ 14–2503, 14–2506 and 14–2513, a will shall be:

1. In writing.

2. Signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction.

3. Signed by at least two people, each of whom signed within a reasonable time after that person witnessed either the signing of the will as described in paragraph 2 or the testator's acknowledgment of that signature or acknowledgment of the will.

B. Intent that the document constitute the testator's will can be established by extrinsic evidence, including, for holographic wills under § 14–2503, portions of the document that are not in the testator's handwriting.

Ariz. Rev. Stat. Ann. § 14–2502. As construed by an Arizona appellate court, the Arizona statute “does not preclude a witness from signing a testamentary document after the testator has died.” In re Estate of Jung, 210 Ariz. 202, 203, 109 P.3d 97 (Ariz.Ct.App.2005). It requires “only that the signature be affixed within a reasonable time of witnessing the testator's signature or acknowledgment.” Estate of Jung, 210 Ariz. at 207, 109 P.3d 97.

¶ 22 If the validity of the Atkinson will is assessed under the Arizona statute quoted above, as Atkinson contends it should be, summary judgment was improperly granted. Levitte signed the will 45 days after she witnessed the signing of the will by Bert Hook. Conceivably, further proceedings would determine that 45 days is “within a reasonable time” and that the signatures of Levitte and Darland satisfy the Arizona statute.

¶ 23 But the proviso...