Estate of Bowechop, Matter of
| Decision Date | 29 November 1988 |
| Docket Number | No. 10927-1-II,10927-1-II |
| Citation | 764 P.2d 657,52 Wn.App. 775 |
| Parties | In the Matter OF the ESTATE of Harry BOWECHOP, Deceased. Leonard BOWECHOP, Executor of the Estate of Harry Bowechop, Appellant, v. Sidney BOWECHOP and Charles Bowechop, Respondents. |
| Court | Washington Court of Appeals |
Marc D. Slonim, Ziontz, Chestnut, Varnell, Berrley & Slonim, Seattle, for appellant.
Susan J. Owens, Forks, for Sidney Bowechop.
Dirk J. Gleysteen, Armstrong & Gleysteen, Bremerton, for Charles bowechop.
Leonard Bowechop, Harry Bowechop's son and executor of his estate, appeals a decree admitting a hand-written document to probate as a will, supplanting a previously admitted will. All parties to the litigation had assumed that the document was a codicil. We reverse.
In 1977, Harry Bowechop executed a formal, detailed will prepared by his lawyer. He died in 1985 at age 92. Less than a month before his death, Mr. Bowechop, while hospitalized for a heart condition, dictated the document in question to his daughter-in-law, then signed it in the presence of two nurses who signed as witnesses. The document purported to alter the distribution of Mr. Bowechop's unrestricted assets. 1 If effective, it would give a larger share of these assets to Charles and Sidney Bowechop, Harry's other sons, and diminish Leonard's share. 2
Leonard's petition for the probate of the 1977 will mentioned the document, referring to it as a codicil, but did not offer it for probate. Sidney Bowechop later filed a petition for probate of the document; his petition referred to it as a codicil.
Leonard's first line of attack in the adversary proceedings that ensued was to challenge the validity of the "codicil." The court agreed with Leonard's argument, holding the document invalid as a codicil for failure to satisfy the statutory requirement of internal reference to an earlier will. RCW 11.02.005(9). The court then, sua sponte, entertained proceedings leading to admission of the document as Mr. Bowechop's last will. Nothing in the record suggests that the court concerned itself with whether Mr. Bowechop thought he was signing a will or a codicil.
The real issue in this case has been obscured by several satellite questions (e.g., the circumstances of the preparation and signing of the document, Mr. Bowechop's testamentary capacity at the time, and whether undue influence was involved). Nevertheless, Leonard has maintained throughout that if an instrument regarded as a codicil cannot be admitted as such, it should not then be admitted as a will unless the testator intended it to be. We agree.
The litigation that developed here had all of the attributes of a will contest, with the proponents of the 1985 document essentially attacking the 1977 will by attempting to supplant it. See In re Estate of Campbell, 47 Wash.2d 610, 613, 288 P.2d 852, 288 P.2d 852 (1955). This being so, the 1977 will was prima facie valid, and proponents of the 1985 document had the burden of proving otherwise. RCW 11.24.030. Cf. In re Estate of Ganjian, 55 Wash.2d 360, 347 P.2d 891 (1959); In re Estate of Jolly, 3 Wash.2d 615, 622, 101 P.2d 995 (1940).
Under the facts of this case, the main question before the court was whether the decedent intended the instrument to be a codicil or a will. In re Estate of Whittier, 26 Wash.2d 833, 847, 176 P.2d 281 (1947). A necessary, but subordinate, question was whether the instrument met the formalities of a will, because all codicils must comply with the formalities of a will. RCW 11.02.005(9); In re Estate of Whittier, 26 Wash.2d at 847, 176 P.2d 281. The trial court found only that "[t]he document meets all the requirements for a Will and should be considered as such." This finding did not answer the critical question.
Along with the customary burden of proving that the 1985 document met formal requirements, the proponents of the 1985 document also had the burden of proving that Mr. Bowechop intended it to be his last will. They failed to carry that burden.
Absence of a finding on an issue amounts to a finding against the party with...
To continue reading
Request your trial
-
State v. Souza
... ... After her arrest Angela gave 3 different statements to police concerning this matter. She testified the third statement was true. Her trial testimony differed in some respects from ... Smith v. King, 106 Wash.2d 443, 451, 722 P.2d 796 (1986); In re Estate of Bowechop, 52 Wash.App. 775, 778, 764 P.2d 657 (1988); Crites v. Koch, supra; Omni Group, Inc ... ...
-
In re Estate of Black
... ... The court merely determines whether any disputed material fact exists and whether the moving party is entitled to judgment as a matter of law. Hudesman v. Foley, 73 Wash.2d 880, 886-87, 441 P.2d 532 (1968) ... Here, the record strongly suggests that the court ... In re Estate of Bowechop, 52 Wash.App. 775, 777, 764 P.2d 657 (1988) (citing In re Estate of Campbell, 47 Wash.2d 610, 613, 288 P.2d 852 (1955) ). The executor of an ... ...
-
Marriage of Rufener, In re
... ... to contract with reference to existing statutes, and a statute which affects the subject matter of a contract is incorporated into and becomes part of that contract. Here, if the parties had ... ...
-
Chapter a. testamentary capacity
...Estate, 41 Wn.2d at 345; In re Baldwin's Estate, 13 Wash. 666, 43 P. 934 (1896). 98 RCW 11.24.030; see In re Estate ofBoweckop, 52 Wn.App. 775, 764 P.2d 657 (1988). The statute also provides the converse, that once a will has been denied probate, the burden of proof is on the party who seek......
-
Chapter a. formalities
...the will, the court found that it could be probated only as a codicil (as which it failed) and not as a will. In re Estate of Boweckop, 52 Wn.App. 775, 764 P.2d 657 102 Thus, for example, if a purported deed was executed with the intention that it be revocable and take effect only at the gr......
-
Chapter 26
...Estate, In re, 14 Wn.2d 676, 129 P.2d 518 (1942): 2.4(2)(a), 3.3(5)(c), 13.3(2)(b), 13.3(2)(d), 13.3(3)(b) Bowechop, In re Estate of, 52 Wn.App. 775, 764 P.2d 657 (1988): 13.6(1)(b) Bowers, In re Estate of, 132 Wn.App. 334, 131 P.3d 916 (2006): 13.4(2), 13.6(1), 13.6(4), 13.6(4)(a), 13.6(4)......
-
Chapter 27
...320, review denied, 102 Wn.2d 1010 (1984): 1.5(1) Botton v. State, 69 Wn.2d 751, 420 P.2d 352 (1966): 4.24 Bowechop, In re Estate of, 52 Wn. App. 775 (1988): 5.14 Bowers v. Transam. Title Ins. Co., 100 Wn.2d 581, 675 P.2d 193 (1983): 17.2(2)(b),18.4(9), 19.3(2), 19.3(7), 19.3(8), 19.3(10)(c......