Estate of Eubank, Matter of

• Decision Date: 08 January 1988
• Docket Number: No. 18522-5-I,18522-5-I
• Parties: In the Matter of the ESTATE OF Ernest J. EUBANK, Deceased. In the Matter of the GUARDIANSHIP OF Elva M. EUBANK, Incompetent. Kermit S. LIGHTER, Roberta A. Bush, Charles E. Lighter, Lois Shrader and Willard C. Lighter, Appellants, v. Katharin Reese MARVIN, Joseph Marvin, Jr., Katharine Marvin Miller, John R. Marvin, Michael S. Marvin, Daniel T. Marvin and Patricia E. Marvin, and Henry T. Newton, Special Administrator, Respondents.
• Court: Washington Court of Appeals

Page 611

50 Wn.App. 611

749 P.2d 691

In the Matter of the ESTATE OF Ernest J. EUBANK, Deceased.

In the Matter of the GUARDIANSHIP OF Elva M. EUBANK, Incompetent.

Kermit S. LIGHTER, Roberta A. Bush, Charles E. Lighter, Lois

Shrader and Willard C. Lighter, Appellants, v. Katharin Reese MARVIN, Joseph Marvin, Jr., Katharine Marvin

Miller, John R. Marvin, Michael S. Marvin, Daniel

T. Marvin and Patricia E. Marvin, and

Henry T. Newton, Special

Administrator, Respondents.

No. 18522-5-I.

Court of Appeals of Washington,

Division 1.

Jan. 8, 1988.

Publication Ordered Feb. 16, 1988.

Janet A. Irons, Diamond & Sylvester, Seattle, for appellants

H. Scott Holte, Jeffrey H. Capeloto, Anderson, Hunter, Dewell, Baker & Collins, P.S., Henry T. Newton, Newton, Newton, Kight, Hammer & Adams, Everett, for respondents.

GEORGE H. REVELLE, Judge Pro Tem. ^*

Kermit Lighter, Roberta A. Bush, Charles E. Lighter, Lois Shrader and Willard C. Lighter appeal the trial court's invalidation of the 1984 wills of Ernest and Elva Eubank and its award of attorney's fees to respondents. Appellants and respondents both seek attorney's fees on appeal. We affirm, but remand to the trial court for an evidentiary hearing on attorney's fees on appeal.

Ernest Eubank died on October 1, 1984, while he and his wife were residents of Madeleine Villa Convalescent Center. Olympic Bank, which had been managing the majority of the Eubanks' assets pursuant to a living trust executed in 1970, sought on October 31, 1984 to be appointed as special administrator of Ernest's will and requested that the court determine which of two sets of wills (1977 and 1984) executed by Ernest and Elva were valid, so that Ernest's will could be admitted to probate. An order so appointing Olympic Bank was entered on November 15, 1984.

On April 9, 1985, a petition was filed for probate of the later (September 8, 1984) will, supported by affidavits of The issue before the court was the testamentary capacity of Ernest and Elva at the time of execution of the 1984 will and the possibility of undue influence exerted by Kermit Lighter, Elva's brother. Both Ernest's and Elva's wills were at issue because Elva had been adjudged incompetent and a guardian for her estate had been appointed. The Eubanks' estate consisted of residential real estate in Snohomish County and the living trust managed by Olympic Bank, estimated to be worth approximately $800,000.

the attesting witnesses, a third witness, and the notary present at the execution of the 1984 will.

The 1977 reciprocal wills of Ernest and Elva left two charitable bequests, $20,000 each to Roberta Bush (Elva's sister) and Kermit Lighter, $5,000 to Sarah Olson Katzmarck, and $5,000 to Lynnette Olson. The residuary estate was bequeathed one-half to Dr. J.E. Marvin (Ernest's first cousin) and the remaining one-half to Marvin's six children. Ernest and Elva had no children of their own. Shortly after the execution of the 1977 wills, Dr. Marvin died, and Ernest executed a codicil substituting Dr. Marvin's wife, Katharin Reese Marvin, as one-half residuary legatee. The record does not indicate whether Elva executed a codicil or not.

The 1984 reciprocal wills significantly changed the structure of the distribution. They gave an additional charitable bequest, and gave a china cabinet to a former neighbor. Further, the wills removed Katharin Marvin and her children as residuary legatees and substituted Kermit Lighter as 50 percent residuary legatee, Roberta Bush as 20 percent residuary legatee, and Elva's other two brothers and sister as residuary legatees at 10 percent each. The bequests to Lighter and Bush were removed, as were the bequests to Sarah Katzmarck and Lynnette Olson. Katharin Marvin was given a bequest of $40,000, and each of her children was given $10,000.

At trial, Katharin Marvin and her family were the petitioners to invalidate the 1984 will, and Kermit Lighter and his siblings were the respondents. The testimony presented In June 1984, Ernest (then 86 years old) fell and broke his hip. He was hospitalized for this condition and received a hip prosthesis. On July 10, 1984, he was moved to a nursing home, Madeleine Villa, where he was a resident until his death. At the suggestion of the Eubanks' physician, Dr. Ebert, who had treated them both since approximately 1955, Elva was admitted to the nursing home as well.

by Marvin concerned the drafting and execution of the 1984 wills.

Dr. Ebert testified that he had diagnosed Elva as early as 1981 as suffering from senile dementia, or Alzheimer's-like syndrome. Dr. Ebert testified that by June 1984, he felt that Elva was unable to care for herself and was not oriented as to time, place, and self. Dr. Ebert had prescribed Haldol and Mellaril, both tranquilizers, for Elva.

Dr. Ebert further testified that as of September 8, 1984, in his opinion, Elva was not competent to understand a legal document, or to engage in its execution, that she was not competent to comprehend the nature and extent of her holdings, and that he was not confident that Elva could know the "objects of her bounty".

Dr. Ebert testified that following surgery, Ernest, who also suffered from diabetes, became confused, disoriented and agitated, for which Dr. Ebert prescribed Haldol. Dr. Ebert further testified that as of September 11, 1984, a date on which he examined Ernest and 3 days after the execution of the 1984 wills, Ernest was not competent, could not understand or execute a legal document, and could not comprehend the nature and extent of his holdings, nor the "objects of his bounty". Dr. Ebert's testimony with respect to Ernest was corroborated by that of Dr. Thomas Murphy, a neurologist, who was called in at the time to consult with Dr. Ebert.

After Ernest's fall in June of 1984, Kermit traveled to Washington from his home in Oregon to be with his sister. He stayed until September 9, 1984. Kermit obtained a general power of attorney from the Eubanks on July 12, 1984. Kermit testified that he had no knowledge of the contents James Simonton, then the Eubanks' trust officer at Olympic Bank, was contacted by Kermit sometime in August or early September 1984. Kermit told Simonton the Eubanks wanted to change their wills, so he needed the name of the attorney who had drafted the earlier wills. Simonton referred Kermit to William Ingram, who, after checking with Simonton, proceeded to make the changes requested by Kermit on September 4, 1984.

of the 1977 wills, nor the extent of the Eubanks' holdings, until after he obtained the power of attorney and reviewed the Eubanks' records.

Ingram testified that it was his understanding that the documents drawn up were merely drafts (although not so stamped), to be reviewed by Simonton and the Eubanks, before his office would supervise their execution. However, Kermit picked up the documents on Friday, September 7, 1984, and personally arranged for two witnesses and a notary to be at the nursing home on Saturday, September 8, 1984, at which time Ernest and Elva signed the wills. Kermit acknowledged at trial that, prior to signing the new wills, neither Ernest nor Elva read them, nor were the wills read to the couple.

Prior to leaving for Oregon, Kermit presented Simonton with the newly executed wills on September 10, 1984, and asked Simonton to give him the 1977 wills, which Simonton declined to do. Simonton then contacted Dr. Ebert on September 11, 1984, and they made arrangements to visit the Eubanks together. Although Simonton had seen the Eubanks once every 2 months prior to the accident, neither Ernest nor Elva recognized Simonton, nor did they recognize Dr. Ebert. Simonton, who is a lawyer, testified that, in his professional opinion, neither of the Eubanks had sufficient mind or memory to understand a complicated legal document, or to know the extent of their property, or to know the "objects of their bounty".

Simonton also contacted Ingram, and together they visited the Eubanks on September 26, 1984. Ingram attempted to engage the Eubanks in conversation regarding Theresa Scofield, former Director of Nursing Services at Madeleine Villa, testified via deposition that both Eubanks suffered from "alteration in thought processes" upon admission, a condition which deteriorated during their stay. Scofield testified that, in her professional opinion, neither was competent to execute a will because they could not understand a legal document, could not comprehend the nature and extent of their holdings, nor could they recognize the "objects of their bounty".

                their testamentary intentions, but was unable to do so.   Ingram testified that he was unable to say for certain whether or not Elva had sufficient mind or memory to understand a legal document.   However, Ingram testified that in his opinion, Ernest [749 P.2d 694] did not have the capacity to understand a will
                

In response, the Lighter family presented the testimony of the two attesting witnesses, and a neighbor, who all testified positively as to abilities of Ernest and Elva to talk about everyday matters and gardening. On cross examination, over the Lighters' counsel's objection, one of the witnesses was asked whether awareness that neither of the Eubanks had read the wills would have affected his willingness to sign as an attesting witness. The witness testified he would not have acted as an attesting witness if he had known that neither had seen the wills they signed. Lighter also presented the testimony of a physician who had reviewed Ernest's medical records, who testified that Ernest's confusion following his operation should have been merely transient, not permanent.

The trial court found that the petitioners (Marvins) established by clear, cogent and convincing evidence that Ernest did not possess testamentary capacity on September 8, 1984, based primarily on the testimony of Dr. Ebert, Nurse Scofield, Simonton, and Ernest's medical records. However, the court found that the...