Burkland's Estate, In re

• Decision Date: 29 December 1972
• Docket Number: No. 709--II,709--II
• Citation: 504 P.2d 1143,8 Wn.App. 153
• Court: Washington Court of Appeals
• Parties: In the Matter of the ESTATE of Lawrence Einar BURKLAND, Deceased. Bert N. BURKLAND, Respondent, v. Margaret L. HILL, Appellant.

Page 153

8 Wn.App. 153

504 P.2d 1143

In the Matter of the ESTATE of Lawrence Einar BURKLAND, Deceased.

Bert N. BURKLAND, Respondent, v. Margaret L. HILL, Appellant.

No. 709--II.

Court of Appeals of Washington, Division 2.

Dec. 29, 1972.

Petition for Review Filed Feb. 16, 1973.

Petition for Review Denied Feb. 20, 1973.

Harry R. Calbom, Jr., of Calbom, Walker, Cox & Andrews, and Jerome Walstead and Barry J. Dahl, of Walstead, Mertsching, Husemoen & Donaldson, Longview, for appellant.

Wayne D. Purcell and Vernon J. Guinn, of Studley, Purcell & Spencer, Longview, for respondent.

PETRIE, Chief Judge.

Lawrence Einar Burkland died in Cowlitz County, Washington on September 17, 1970. The next day Margaret L. Hill petitioned the Cowlitz County Superior Court to admit to probate a document entitled Last Will and Testament of Lawrence Einar Burkland dated July 31, 1970, by the terms of which Mrs. Hill was appointed personal representative and was designated sole beneficiary. The will was admitted to probate as the last will of the decedent and Margaret L. Hill was confirmed as the personal representative. She executed her oath and letters testamentary were issued to her.

On November 20, 1970, the decedent's brother, Bert N. Burkland, filed a petition asking that the will be annulled and that letters testamentary theretofore issued to Mrs. Hill on September 18, 1970 be canceled. The petition sought to void the will on three theories: (1) that it had been improperly executed; (2) that the testator lacked testamentary capacity; and (3) that the testator was acting under the undue influence of another when the will was executed.

The matter was heard before the court assisted by an advisory jury. The trial court determined that the will was properly executed but submitted the questions of testamentary capacity and undue influence to the jury for its advisory opinion. The jury answered special interrogatories expressing its opinion that the testator lacked testamentary capacity and was unduly influenced by Margaret L. Hill. The trial court rejected entirely the jury's advisory opinion that the testator lacked testamentary capacity and, independently of the jury's advise, arrived at the same conclusion as did the jury on the question of undue influence. Findings of fact were entered and on November 12, 1971, the court declared null and void the will executed on July 31, 1970 and revoked letters testamentary theretofore issued to Mrs. Hill. She has appealed to this court.

The unchallenged findings of fact, which we are obliged to accept as verities, present the following picture: At the time of his death, Lawrence Einar Burkland was 71 years of age, a widower without children. He left surviving a younger brother (contestant Bert N. Burkland) and two older sisters, both widows. The appraised value of his estate was in excess of $280,000.

For many years prior to 1956, the decedent had been engaged in business in the city of Longview as owner and operator of a Packard automobile agency in which he was assisted by his wife, Lenore, who acted as his bookkeeper. In 1956, decedent sold his automobile business and retired. For many years Mr. and Mrs. Burkland had lived in an apartment house consisting of seven apartments in Longview. After Mr. Burkland's retirement, they continued to reside in the same apartment home. In 1963 or 1964 they commenced construction of a house on the shore of Silver Lake, Washington. Thereafter, during the life of Lenore Burkland, they resided both in the apartment house and at the lake house at Silver Lake. Early in 1969, Lenore Burkland, a diabetic, fell, fractured her hip, was hospitalized, spent several months in a rest home, and ultimately died on August 8, 1969.

Within two months after his wife's death, Mr. Burkland renewed an acquaintanceship with Margaret L. Hill. The relationship between Mr. Burkland and Mrs. Hill developed shortly thereafter to the extent that on a number of occasions she stayed overnight for a matter of two or three days at a time at the lake house. She also occupied the same bedroom with him at night at his apartment as frequently as two or three nights a week. He spent a great part of the balance of his time at her home in Kelso, Washington where he also remained overnight on a number of occasions. A confidential relationship existed between Margaret Hill and decedent at and prior to the execution of his will on July 31, 1970, as they were constantly together. She had access to his safety deposit box. In their joint names, they owned a time certificate of deposit in the amount of $15,000 at a savings and loan association in Longview. She was present in the office of the attorney at the time decedent signed the will dated July 31, 1970.

From the period commencing with his relationship with Mrs. Hill in October, 1969, through the following spring and summer of 1970, decedent's relationship with his friends, neighbors and family underwent a marked change. Whereas he previously enjoyed a close relationship with his neighbors, manifested by his urging them to use his facilities at the lake house, including his shop, tools and equipment, he suddenly adopted an attitude of indifference and disinterest toward his close friends and neighbors .

In addition, the decedent avoided members of his family with whom he had previously enjoyed a warm relationship. Decedent's brother, Bert, worked as a plumber and mechanic all of his adult life. He is now retired and his income is $221.50 per month. A close relationship existed between the two brothers until approximately May, 1970. At that time a disruption of the close family relationship occurred as a direct result of the interference of Margaret L. Hill, who made false and untrue statements to dececent to the effect that Florence Burkland, Bert's wife, had made derogatory remarks about decedent. Decedent's sister, Beda Boyle, resides in very modest circumstances in Great Falls, Montana. Her right leg has been amputated at or above the knee, but she is unable to wear an artificial limb and consequently walks on crutches. Her income consists of a railroad pension of approximately $150 per month plus rental of a small portion of her home. During the 16 months preceding his death, the decedent had provided Mrs. Boyle with the sum of $2,652.88. The relationship of decedent to Beda Boyle was that of a brother concerned about his sister's welfare. Decedent's other sister, Hilda Becklin, has an income from social security benefits and a company pension totaling $184 per month. For many years the relationship between decedent, his brother and sisters was one of mutual concern for their mother and each other.

In 1938 decedent and his wife both executed wills. Under the terms of that will (in the event decedent's wife did not survive him), decedent bequeathed one-half of his estate to his brother, Bert, and the other one-half equally to his wife's half-brothers, George and Robert Anderson. That will continued in effect until he executed another will on October 3, 1969 (after his wife's death). The 1969 will provided for specific bequests of $5,000 each to his sister, Beda Boyle and his brother-in-law, Robert Anderson, and a specific bequest of $1,000 to Robert Jessen. The residue of his estate was bequeathed in equal portions to his brother, Bert, his brother-in-law, George Anderson, and another brother-in-law, Rolland Hoffman.

On July 31, 1970 decedent executed the will, which has been attacked herein, in which he left all of his estate to Margaret Hill, and in the event she did not...