Banks' Estate, In re
| Decision Date | 28 April 1960 |
| Docket Number | No. 35075,35075 |
| Court | Washington Supreme Court |
| Parties | Matter of the ESTATE of Bessie BANKS, Deceased. S. L. BANKS, Appellant, v. Floyd TATE, Grace Tate Owen, and Pearl Tate Lane, Respondents and Cross-Appellants. |
Del Cary Smith, Del Cary Smith, Jr., Spokane, for appellant.
Claude K. Irwin, Wallis W. Friel, Pullman, Kellogg, Reaugh, Hart & Allison, Dan Reaugh, Seattle, for respondents and cross-appellants.
S. L. Banks and Bessie Banks were married in 1908. During their married life, they engaged in the farming business in Whitman county and accumulated extensive community real and personal property.
October 17, 1949, Bessie Banks executed a will in which she nominated her husband as executor and devised a life estate in all of her property to him, with the remainder to a nephew, Floyd Tate, and two nieces, Grace Tate and Pearl Tate Lane. The Banks had no children.
Bessie Banks died October 18, 1955. About a month after her death, S. L. Banks delivered her will to an attorney for his advice as to its validity. The document had been altered, in the handwriting of Mrs. Banks, in the following respect: The name 'Floyd Tate' had been partially erased, and above it was written the name 'Warren Tate,' the name 'Grace Tate' was partially erased, and above it was written 'Grace Owen,' and the name 'Pearl Tate Lane' was partially erased. The changes were made sometime after the will had been executed, and were not signed or witnessed.
The attorney advised Mr. Banks that the alterations had resulted in a revocation of the will and that Mrs. Banks had died intestate. He advised that the will nevertheless should be presented for probate. Thereafter, S. L. Banks destroyed the will by burning it.
May 10, 1956, S. L. Banks was appointed administrator upon his petition alleging that his wife had died intestate.
June 15, 1956, Floyd Tate, Grace Tate Owen, Pearl Tate Lane, and Warren J. Tate (who subsequently withdrew) commenced proceedings for the probate of the destroyed will of Bessie Banks. The cause was heard July 10, 1957, at which time the court decided that a copy of the destroyed will should be admitted to probate, and that S. L. Banks should be appointed executor. Thereafter, before an order admitting the will to probate was signed, Floyd Tate, Grace Tate Owen, and Pearl Tate Lane filed objections to the appointment of S. L. Banks as executor, and petitioned for the appointment of an administrator de bonis non with the will annexed.
November 5, 1958, an order and judgment was entered which admitted the will to probate, appointed the First National Bank of Pullman, Washington, administrator de bonis non with the will annexed, and revoked the letters of administration formerly granted to S. L. Banks.
S. L. Banks has appealed. Floyd Tate, Grace Tate Owen, and Pearl Tate Lane have cross-appealed.
We shall first consider the appeal of S. L. Banks.
Appellant's first assignments of error are directed to the court's conclusion that the will had not been revoked, and that the doctrine of dependent relative revocation was applicable.
It is obvious that Mrs. Banks intended to change her will, and was motivated by a mental misconception that she could effect a legal change in the manner she employed.
The rationale of the doctrine of dependent relative revocation is that
'* * * To effect the revocation of a will, two elements are essential, an overt act and animus revocandi; and there can be no real intention to revoke when the act of destruction or cancellation is induced and motivated by a mental misconception of the effect of the act on account of ignorance, or mistake, or some other error.' In re Kerckhof's Estate, 1942, 13 Wash.2d 469, 473, 125 P.2d 284, 286.
Appellant contends that the doctrine is not here applicable because the evidence...
To continue reading
Request your trial
- Green Mountain School Dist. No. 103 v. Durkee
-
In re Estate of Bowers
...to die intestate and her intent to revoke the 1991 Will was conditioned on the validity of the 2004 Will. See In re Estate of Banks, 56 Wash.2d 139, 142, 351 P.2d 531 (1960) (holding the trial court properly applied the doctrine of dependent relative revocation after recognizing there was n......
-
O'Brien v. Superior Court In and For Maricopa County
...was a serious question as to the honesty of the claim. The Washington court expressed its views on the subject in In re Banks' Estate, 56 Wash.2d 139, 351 P.2d 531 (1960), where it 'In this regard, the trial court found, upon conflicting evidence, that appellant 'wilfully and intentionally ......
-
Becklund's Estate, In re, 826--I
... ... The doctrine applies when an attempt to change or revoke a will in whole or in part fails. When the attempted new disposition is inoperative, the revocation fails also, and the original remains in force. In re Estate of Banks, 56 ... Wash.2d 139, 351 P.2d 531 (1960); In re Estate of De Lion, 28 Wash.2d 649, 183 P.2d 995 (1947); In re Estate of Appleton, Supra. See also Note, 18 Wash.L.Review 45 (1943); Comment, Partial Revocation of a Will by Excision, Obliteration, Cancellation, or Insertion, 12 Baylor L.Rev. 194 ... ...
-
Table of Cases
...denied, 85 Wn.2d 1011 (1975): 4.2(3), 5.2(8)(c) Bale v. Allison, 173 Wn.App. 435, 294 P.3d 789 (2013): 13.4(7)(b) Banks, In re Estate of, 56 Wn.2d 139, 351 P.2d 531 (1960): 13.6(4)(a) Barclay's Estate, In re, 1 Wn.2d 82, 95 P.2d 393 (1939): 10.2(2)(b) Barnes, In re Estate of (Mueller v. Wel......
-
Table of Cases
...Ball v. Clothier, 34 Wash. 299, 75 P. 1099 (1904): 416 Bank of Cal. v. Ager, 7 Wn.2d 179, 109 P.2d 548 (1941): 280 Banks' Estate, In re, 56 Wn.2d 139, 351 P.2d 531 (1960): 156, 426 Barbee v. Barbee, 134 Wash. 418, 235 P. 945 (1925): 67, 85 Barker's Estate, In re, 5 Wash. 390, 31 P. 976 (189......
-
§13.6 Revocation and Revival of Wills
...revocation is one of presumed intention. Washington law presumes that testators do not desire to die intestate. In re Estate of Banks, 56 Wn.2d 139, 142, 351 P.2d 531 (1960). In Estate of Bowers, the court found clear, cogent, and convincing evidence that decedent did not intend to die inte......
-
Chapter D. Dependent Relative Revocation
...mistake of fact that does allude to the "alternative disposition" theory. 197 See Chapter 2, §A. 198 See§B.2.d. 199 In re Banks' Estate, 56 Wn.2d 139, 351 P.2d 531 (1960); In re Appleton's Estate, 163 Wash. 632, 639-41, 2 P.2d 71 200 Although a mistake that induces execution of a will usual......