Estate of Bartell, Matter of, 20795
| Decision Date | 28 March 1989 |
| Docket Number | No. 20795,20795 |
| Citation | 776 P.2d 885 |
| Parties | In the Matter of the ESTATE of Ernest Albin BARTELL, aka Ernest A. Bartell, aka Earnest A. Bartell, Deceased. Appeal of Lola BARTELL. |
| Court | Utah Supreme Court |
Ernest Bartell died testate, but his will, executed before his marriage to Lola Bartell, did not mention her. Lola Bartell sought a declaration from the district court probating her husband's estate that she is an "omitted spouse" within the meaning of section 2-301(1) of the Utah Uniform Probate Code and is therefore entitled to an intestate share of her husband's estate. Utah Code Ann. § 75-2-301 (1978); see Utah Code Ann. § 75-2-102(1)(a) (1978). After a bench trial, the court found that Ernest intended to provide for Lola by transfers outside his will. The court therefore concluded that she was not entitled to be treated as an omitted spouse. Lola appeals, contending that the evidence was insufficient to support the trial court's determination.
Section 75-2-301 provides:
If a testator fails to provide by will for his [or her] surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he [or she] would have received if the decedent left no will unless it appears from the will that the omission was intentional or the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator or from the amount of the transfer or other evidence.
Utah Code Ann. § 75-2-301 (1978) (emphasis added).
Under this Code section, the question for the trial court was whether Ernest had provided for Lola outside the will and had intended that this provision be in lieu of her taking under the will. In making this determination, the court could consider the statements of Ernest, the amount transferred, or other evidence of intent.
The trial court found Ernest's statements to be inconclusive as to his intent. However, it did find that Ernest had transferred some $230,000 to Lola in the years immediately preceding his death. The court found that the amount transferred, when considered in light of the fact that only about $100,000 remained in Ernest's estate, was enough to indicate an intent to provide for Lola after his death and was in lieu of a testamentary provision. As for "other evidence," the trial judge found that Ernest had built a home in Ogden with the help of some close family members and that if Ernest had wanted the home to go to Lola rather than to the close family members who took it under the will, he was sufficiently astute in business matters to have changed his will or transferred the Ogden home into joint ownership with Lola, as he had done with other property. Based on these findings, the trial court determined that Lola was not an omitted spouse under section 2-301(1) and was not entitled to an intestate share.
Lola attacks the trial court's findings but, in so doing, fails to acknowledge our standard of review. When an appellant claims that the evidence is insufficient to support the...
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