Esala's Estate, Matter of

• Decision Date: 20 January 1977
• Docket Number: No. 2108--II,2108--II
• Citation: 16 Wn.App. 764,559 P.2d 592
• Court: Washington Court of Appeals
• Parties: In the Matter of the ESTATE of Fidel H. ESALA, Deceased. Mary Frances ZUMWALT, Respondent, v. Ruth N. MORGAN and Florence E. Dean, Executrices, Appellants.

Page 764

16 Wn.App. 764

559 P.2d 592

In the Matter of the ESTATE of Fidel H. ESALA, Deceased.

Mary Frances ZUMWALT, Respondent, v. Ruth N. MORGAN and Florence E. Dean, Executrices, Appellants.

No. 2108--II.

Court of Appeals of Washington, Division 2.

Jan. 20, 1977.

Bernard J. Heavey, Jr., Stevenson, for appellant.

Hugh A. Knapp, Knapp, O'Dell & Pinkerton, Camas, for respondent.

PETRIE, Chief Judge.

Fidel H. ('Bill') Esala executed two wills during the last 18 months of his life. The first, signed on March 27, 1973, named Mary Frances Zumwalt of Kansas City, Missouri as his sole beneficiary and executrix; the second, signed in the hospital on September 21, 1974, omitted mention of Mary Zumwalt and named Ruth N. Morgan and Florence E. Dean as sole joint beneficiaries and joint executrices of the estate. Ruth Morgan and Florence Dean appeal from an order revoking the probate of the second will and admitting the prior will to probate. The trial court determined that the second will was invalid due to the undue influence of Morgan and Dean upon the testator. A secondary issue, raised by Zumwalt, is whether the superior court properly awarded attorney's fees and costs to Morgan and Dean despite the fact they had not posted a bond as co-executrices. We affirm both orders.

Resolution of this appeal essentially requires a determination of whether the evidence supports a finding of undue influence. We note that a contestant has the burden of proving the illegality of a will admitted to probate. RCW 11.24.030.

The elements of undue influence have been skillfully defined by the late Chief Justice Steinert in Dean v. Jordan, 194 Wash. 661, 671, 79 P.2d 331, 335 (1938) as follows:

To vitiate a will there must be something more than mere influence. There must have been an undue influence at the time of the testamentary act, which interfered with the free will of the testator and prevented the exercise of judgment and choice. . . .

The evidence to establish fraud or undue influence must be clear, cogent, and convincing. . . .

Nevertheless certain facts and circumstances bearing upon the execution of a will may be of such nature and force as to raise a suspicion, varying in its strength, against the validity of the testamentary instrument. The most important of such facts are (1) that the beneficiary occupied a fiduciary or confidential relation to the testator; (2) that the beneficiary actively participated in the preparation or procurement of the will; and (3) that the beneficiary received an unusually or unnaturally large part of the estate. Added to these may be other considerations, such as (4) the age or condition of health and mental vigor of the testator, (5) the nature or degree of relationship between the testator and the beneficiary, (6) the opportunity for exerting an undue influence, and (7) the naturalness or unnaturalness of the will. The weight of any of such facts will, or course, vary according to the circumstances of the particular case. Any one of them may, and variously should, appeal to the vigilance of the court and cause it to proceed with caution and carefully to scrutinize the evidence offered to establish the will.

The combination of facts shown by the evidence in a particular case may be of such suspicious nature as to raise a presumption of fraud or undue influence and, in the absence of rebuttal evidence, may even be sufficient to overthrow the will.

(Citations omitted.) See also In re Estate of Burkland, 8 Wash.App. 153, 504 P.2d 1143 (1972).

We turn, then, to examine the evidence in view of the factors set forth in Dean and applied by this court in Burkland. See also In re Estate of Smith, 68 Wash.2d 145, 411 P.2d 879, 19 A.L.R.2d 559 (1966). The trial judge, who had the opportunity to evaluate the credibility of the witnesses, expressly found the existence of all 7 considerations stated by Chief Justice Steinert; not all of the factors are necessary to raise a presumption of undue influence.

(1) The express finding is that Ruth Morgan occupied a fiduciary relationship with the decedent 'during at least the last six months' of his life. The parties have suggested the definition of a fiduciary relationship contained in Black's Law Dictionary 753 (Rev. 4th ed. 1968):

An expression including both technical fiduciary relations and those informal relations which exist whenever one man trusts and relies upon another. . . . It exists where there is special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to interests of one reposing the confidence.

(Citations omitted.) Under this broad definition, substantial evidence supports the finding. The testator lived in an apartment building which Mrs. Morgan and her husband owned and also occupied. She helped Mr. Esala with his business affairs by mailing insurance premium checks for him and sometimes prepared checks to creditors for his signature. She arranged the transfer of funds from one of Esala's savings accounts to another. She knew the location of his will and other valuable papers and his cash. She testified that Esala put a good deal of trust in her during the last several months of his life.

(2) There is strong evidence of both Mrs. Morgan's and Mrs. Dean's active participation in the preparation, procurement, and execution of the contested will. During his terminal illness the testator was admitted to Skyline Hospital in White Salmon, Washington, on September 18, 1974. On September 20, Mrs. Morgan entered Esala's apartment and removed his 1973 will to her own apartment, where she read it. She then tore up this will. (After vigorous questioning, she recanted prior testimony that she had not torn it, and admitted tearing it into two pieces.) Early the next morning, a Saturday, she called the home of Robert Salvesen, an attorney, and obtained an immediate appointment with him to prepare a new will for Esala. Mr. Salvesen also drew the 1973 will. He testified that Mrs. Morgan brought him the 1973 will torn into numerous pieces 'so small that one had to do a jigsaw puzzle on it before one could read it.' She instructed Mr. Salvesen to name her and Mrs. Dean the executrices and sole beneficiaries of the new will. He called Mrs. Dean to get her correct middle initial and delivered the will to Mrs. Morgan that morning. She and Mrs. Dean took the will to the hospital that afternoon, where Mrs. Dean summoned two nurses to Esala's room to witness his signature. He did not read the will in the nurses' presence. Either Mrs. Morgan or Mrs. Dean pointed out to the testator where to sign the will.

(3) The challenged beneficiaries received all of the estate, which would not necessarily be unusual or unnatural of itself inasmuch as they cared for him and socialized closely with him during his last years, and he had no wife or blood relatives as natural objects of his bounty. However, for years Mary Zumwalt had been a natural object of his bounty. She was Esala's brother's stepdaughter, and he often referred to her as his 'niece.' She had known him for many years since her Missouri childhood. They had exchanged letters, telephone calls, and gifts regularly over the years, and he had stayed with her on visits to Kansas City--as many as seven during the previous 10 years. She was the sole heir under his first will. A good friend of the decedent testified that Esala told him repeatedly, including one occasion only a month prior to his death, that his 'niece,' Mary, would get all his property. In these circumstances, the court could properly have found that the second will bequeathed an unusually and unnaturally large portion of the estate to Mrs. Morgan and Mrs. Dean.

(4) The testatmentary capacity per se of the testator is not challenged. Although he was 75 years old, was terminally ill with cancer for which he had been previously hospitalized in August 1974, had a serious heart condition, and was under medication in the hospital, he was reported to have been alert and rational at the time he signed the contested will. The medications could have caused him a loss of memory and power to reason but, according to his physician, did not appear to have done so. Nevertheless, the hospital records show that during the days and hours prior to execution of the will, Bill Esala was in considerable pain,...