Estate of Brooks, Matter of

• Decision Date: 26 November 1996
• Docket Number: No. 96-112,96-112
• Citation: 927 P.2d 1024,279 Mont. 516
• Parties: In the Matter of the ESTATE OF Katheryn May BROOKS, Deceased.
• Court: Montana Supreme Court

Page 1024

927 P.2d 1024

279 Mont. 516

In the Matter of the ESTATE OF Katheryn May BROOKS, Deceased.

No. 96-112.

Supreme Court of Montana.

Submitted on Briefs Aug. 22, 1996.

Decided Nov. 26, 1996.

[279 Mont. 517] Howard C. Greenwood, Attorney at Law, Hamilton, for Appellant.

Richard A. Weber, Jr.; Koch, Johnson, Weber & Goheen, Hamilton, for Respondent.

GRAY, Justice.

Bruce C. Brooks appeals from the Findings of Fact, Conclusions of Law and Order of the Twenty-First Judicial District Court, Ravalli County, denying admission of a document dated March 21, 1995, to probate, declaring that Katheryn May Brooks died intestate, and ordering that her estate be distributed accordingly. We affirm.

The restated dispositive issue on appeal is whether the District Court erred in denying admission of the March 21, 1995, document to probate.

Katheryn May Brooks (Kay) died on March 24, 1995, in Ravalli County, Montana, at the age of seventy-nine. She was survived by two children, Bruce C. Brooks (Bruce) and Jean K. Mercer (Jean). At the time of Kay's death, Bruce resided in the family home in Hamilton, Montana. Jean lived in Spokane, Washington.

The relevant circumstances surrounding Kay's final years are generally undisputed. Prior to the death of his father, Virgil Brooks (Virgil), in 1992, Bruce lived in a small house behind the family home owned by Kay and Virgil. Thereafter he moved into the family home.

Kay lived with Jean in Spokane from the time of Virgil's death in the spring of 1992 until late in December of 1993, when she returned to the family home in Hamilton. Bruce cared for her there until he was called away on business in early June of 1994. At that time, Kay returned to Jean's care in Spokane.

The following month, Kay moved to the Discovery Care Center (Discovery), a nursing home in Hamilton, as a result of deteriorating health. Jean drove over from Spokane to visit Kay at Discovery approximately monthly thereafter. Bruce visited daily when he was not away on business. Kay, Bruce and Jean began to discuss the disposition of the family home, resulting in ill feelings between Bruce and Jean which upset Kay.

Kay had executed a "home-drawn" will prior to Virgil's death. On or about March 10, 1995, Bruce assisted Kay in updating that will. He brought it to Discovery and, according to his testimony, reviewed each provision with Kay, making changes as she directed. Bruce tape-recorded a conversation between himself and Kay during which they discussed the revisions to Kay's will. On March 21, 1995, Bruce typed up the new document. Kay signed the document that same day, in the presence of Bruce and his long-time friend Carolynne Merrell (Merrell). Merrell signed the document as a witness. The document listed specific bequests to Bruce, Jean and their children, and left the family home and the remainder of the furnishings and contents--Kay's most substantial asset--to Bruce.

Bruce and Merrell then took the document to Leroy White (White), a notary public and Brooks family friend. White had known Kay for more than fifty years and recognized her signature. At Bruce's request, White signed the document as the second witness and affixed his notarial seal. Kay died three days later.

On May 5, 1995, Bruce filed a petition for formal probate of the March 21, 1995, document as Kay's last will and testament, determination of testacy and heirs, and appointment as personal representative. In response, Jean requested that the document be denied admission to probate, that Kay's estate be distributed via intestate succession, and that she be appointed co-personal representative with Bruce.

The District Court held a hearing on Bruce's petition and, thereafter, entered its findings of fact, conclusions of law and order. Briefly stated, the court denied admission to probate of the March 21, 1995, document and declared that Kay died intestate. Bruce appeals.

Additional facts are provided below as necessary to our resolution of the issue before us.

STANDARDS OF REVIEW

We will not disturb a district court's findings of fact unless they are clearly erroneous. Rule 52(a), M.R.Civ.P.; Flikkema v. Kimm (1992), 255 Mont. 34, 37, 839 P.2d 1293, 1295. A court's findings are clearly erroneous if they are not supported by substantial credible evidence, the court has misapprehended the effect of the evidence, or our review of the record convinces us that a mistake has been committed. Daines v. Knight (1995), 269 Mont. 320, 325, 888 P.2d 904, 906 (citation omitted). We review a district court's conclusions of law to determine whether the interpretation of the law is correct. Flikkema, 839 P.2d at 1295 (citation omitted).

DISCUSSION

Did the District Court err in denying admission of the March 21, 1995, document to probate?

A. Section 72-2-522, MCA

In contested cases, the proponent of a will must establish that it has been duly executed. Section 72-3-310, MCA. Section 72-2-522(1), MCA, contains the requirements for a duly executed will:

Except as provided in 72-2-523 ... a will must be:

(a) in writing;

(b) signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and

(c) signed by at least two individuals, each of whom signed within a reasonable time after having witnessed either the signing of the will as described in subsection (1)(b) or the testator's acknowledgement of that signature or acknowledgement of the will.

(Emphasis added.) Bruce argued that the March 21, 1995, document had been duly executed under § 72-2-522(1), MCA, and that it should be admitted to probate as Kay's will. The District Court concluded that the document had been signed by only one person who met the criteria set forth in § 72-2-522(1)(c), MCA, and, therefore, that the document was not duly executed.

The March 21, 1995, document is in writing and signed by Kay. Thus, the § 72-2-522(1)(a) and (b), MCA, criteria are met.

The document also contains two signatures on signature lines labeled "witness." The first signature is Merrell's. She signed the document as a witness in Kay's presence immediately after observing Kay sign the document and acknowledge that it was a will. The other "witness" signature is White's. However, White was not present when Kay signed the document. Nor did Kay acknowledge to White either her signature or that the document was her will. Therefore, White's signature is not the signature of a second witness, as required by § 72-2-522(1)(c), MCA, and Bruce did not meet his burden under § 72-3-310, MCA, of establishing that the document had been duly executed.

Bruce cites to Matter of Estate of Weidner (1981), 192 Mont. 421, 628 P.2d 285, as authority for admitting the document to probate as Kay's will "on the testimony of one witness." He does not present any analysis or application of that case to the circumstances presently before us.

Estate of Weidner involved two wills. One was a joint will executed by Leona and E.J. Weidner in 1954, which left all of their property--except for five dollars--to their daughter, Lorraine Brown. The other was an unexecuted copy of a will purportedly executed by Leona in 1965, after E.J.'s death, which "contain[ed] a standard revocation clause." Estate of Weidner, 628 P.2d at 286. Upon Leona's death, Lorraine sought to probate the 1954 will. Gale Weidner, E.J. and Leona's son, petitioned for a formal determination of intestacy and offered an unexecuted copy of the 1965 will. The 1965 will apparently revoked the 1954 will but did not dispose of Leona's property. Estate of Weidner, 628 P.2d at 286.

The dispositive issue on appeal was whether the 1965 will was duly executed. See Estate of Weidner, 628 P.2d at 286-87. We noted that the proponent of a will bears the burden of proving due execution. Estate of Weidner, 628 P.2d at 287 (citing § 72-3-310, MCA). We also noted that, in a contested case, at least one of the attesting witnesses generally must testify. Estate of Weidner, 628 P.2d at 287 (citing § 72-3-309, MCA). In Estate of Weidner, the attorney who drafted the 1965 will testified that he witnessed Leona's signing of the will and was "quite certain" that he was an attesting witness. He further testified that, while he was not certain who the other witness was, he believed it was his secretary. The secretary did not testify at trial, but the attorney stated that she did not recall signing the will. On the record before us, we concluded that there was insufficient evidence to support a determination that the 1965 will was duly executed. Estate of Weidner, 628 P.2d at 287.

Estate of Weidner does not support Bruce's position here that the March 21, 1995, document can be admitted to probate where it indisputably was not duly executed as required by § 72-2-522, MCA. The number of attesting witnesses who must testify in a contested will proceeding pursuant to § 72-3-309, MCA, is an entirely different question from whether the purported will met the requirements for a duly executed will under § 72-2-522, MCA. Neither § 72-3-309, MCA, nor Estate of Weidner varies, or could vary, the separate and distinct statutory requirements for a duly executed will which must be established by the proponent of the will.

The record before us in this case demonstrates that the March 21, 1995, document was signed by only one person who witnessed Kay signing the will or acknowledging either her signature or the will. We hold, therefore, that the District Court correctly concluded that the March 21, 1995, document was not duly executed under § 72-2-522, MCA.

B. Section 72-2-523, MCA

As discussed above, the proponent of a will has the burden of establishing due execution. See § 72-3-310, MCA. Where a duly executed will is admitted to probate, a presumption exists that the testator was competent and of sound mind. See In re Bodin's Estate (1965), 144 Mont. 555, 559, 398 P.2d 616, 618-19 (citations omitted). Accordingly,s...