Estate of Heeter, Matter of

• Decision Date: 18 March 1992
• Docket Number: No. 11862,11862
• Citation: 831 P.2d 990,113 N.M. 691,1992 NMCA 32
• Parties: In the Matter of the ESTATE OF Harold D. HEETER, Deceased. David L. HEETER, Petitioner-Appellant, v. Agnes T. HEETER, Respondent-Appellee.
• Court: Court of Appeals of New Mexico

Page 990

831 P.2d 990

113 N.M. 691

In the Matter of the ESTATE OF Harold D. HEETER, Deceased.

David L. HEETER, Petitioner-Appellant, v. Agnes T. HEETER, Respondent-Appellee.

No. 11862.

Court of Appeals of New Mexico.

March 18, 1992.

Certiorari Denied April 22, 1992.

[113 NM 691] Anthony B. Jeffries, Albuquerque, for petitioner-appellant.

Michael Allison, Albuquerque, for respondent-appellee.

OPINION

BLACK, Judge.

Harold and Ruth Heeter were married in 1937 or 1938. In 1977 they executed a joint will (Harold and Ruth Will). Ruth Heeter died in 1982. Harold married Respondent, Agnes Wickel, in 1984. Harold and Agnes executed a joint will in 1985 (Harold and Agnes Will). Harold died in 1987.

We discuss whether (1) the district court erred in declining to admit the Harold and Ruth Will to probate; (2) the court erred in finding that the properties held in the joint accounts belonged to Agnes; and (3) the court erred in failing to determine that the Harold and Agnes Will is an irrevocable contract.

Petitioner, the son of Harold and Ruth Heeter, filed this action to have the joint will of Harold and Ruth admitted to probate and declared an irrevocable contract. He also sought to have certain accounts titled in the names of Harold and Agnes "as joint tenants with right of survivorship" included in Harold's estate. Alternatively, if these joint accounts were not included in Harold's estate, Petitioner sought a declaratory judgment that the joint will of Harold and Agnes is a contractual will, and he sought an injunction to prohibit Agnes from conveying property so as to defeat the Harold and Agnes Will. The district court denied probate of the Harold and Ruth Will, found that the joint accounts were the property of Agnes, and refused to enter the declaratory and injunctive relief. We affirm.

FACTS

At the time he married Agnes, and for some years prior to that, Harold had a bank account at Sunwest Bank. Petitioner was a joint tenant on that account and apparently remained so until Harold died. Upon Agnes's marriage to Harold, Agnes was added to this joint tenancy account. At the time of Harold's death, he and Agnes also held a Sunwest certificate of deposit in joint tenancy with a right of survivorship.

Prior to his marriage to Agnes, Harold also acquired several shares of publicly traded companies. (His primary asset was his local business, American Trailer Leasing, Inc.) Harold's investments were held in an account at E.F. Hutton in his name alone until March 1985. On March 6, 1985, Harold signed the documents necessary to place these stocks in an account naming Agnes as a joint tenant with the right of survivorship. At the time of the creation of the joint account at E.F. Hutton, Harold discussed the effect of joint tenancy with his stockbroker, who told him: " 'Now you know, Harold, when you do this, [if] something happens to either one of you, the survivor gets all the securities.' " Harold's response was quite specific: " 'Yes, I understand that, and I have made provision for all that in my will.' "

The same week he created the joint account at E.F. Hutton, Harold consulted an attorney regarding preparation of a joint will. Harold and Agnes Heeter met with the attorney about a week before signing the will, but Agnes testified she felt Harold had previously discussed the will with the attorney. Agnes testified that she and Harold told the attorney that "what Harold had--his business would go to the children and what I had, together with my jewelry, which was my house, would go to my daughter." Agnes further testified that the joint tenancy accounts were never discussed with the attorney.

THE HAROLD AND RUTH WILL

Petitioner bases his argument that the Harold and Ruth Will was contractual and irrevocable on the following language:

So that there may be no presumption of revocation of this Will by us, and in the event that either copy cannot be found after the death of the last of the surviving Testators, we do hereby declare that we will not revoke this Will except by a later Will, expressly revoking this Will, or by the destruction of both executed copies hereof. The production after the death of the last of the surviving Testators of either copy of this Last Will and Testament will be prima facie evidence that this Last Will and Testament is in full force and effect at the time of the death of the last of the surviving Testators.

A contract to make a will must be clearly proved. McDonald v. Polansky, 48 N.M. 518, 153 P.2d 670 (1944). To establish a contractual will under New Mexico's version of the Uniform Probate Code, Petitioner had the burden of proving compliance with NMSA 1978, Section 45-2-701 (Repl.Pamp.1989). In re Estate of Vincioni, 102 N.M. 576, 698 P.2d 446 (Ct.App.) cert. denied, 102 N.M. 613, 698 P.2d 886 (1985). Section 45-2-701 defines the criteria which must be met in order to uphold a contract to make a will:

A. A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after the effective date of the Probate Code, can be established only by:

(1) provisions of a will stating material provisions of the contract;

(2) an express reference in a will to a contract; or

(3) a writing signed by the decedent evidencing the contract.

B. The execution of a joint will or contemporaneously executed wills does not create a presumption of a contract not to revoke the will or wills, unless otherwise expressed in both the joint will or the contemporaneously executed wills.

The Harold and Ruth Will does not meet these criteria. While there is no question it is a joint and contemporaneously executed will, neither of these facts creates a presumption of a contract not to revoke. Sec. 45-2-701(B); see also In re Estate of Thwaites, 173 Mich.App. 697, 434 N.W.2d 214 (1988).

Nor do we think that the previously quoted provision of the Harold and Ruth Will was intended to create a contract to make non-revocable wills. Indeed, the provision's purpose is stated in the initial clause, "[s]o that there may be no presumption of revocation of this Will by us, and in the event that either copy cannot be found." When duplicate wills are executed, failure to produce both originals normally raises a rebuttable presumption of revocation. Kelly v. Donaldson, 456 So.2d 30 (Ala.1984); In re Estate of Mettee, 237 Kan. 652, 702 P.2d 1381 (1985). We think the intent of the language relied on by Petitioner is to clearly rebut this legal presumption.

Finally, even if the language of the Harold and Ruth Will upon which Petitioner relies complied with the statutory requirements and evidenced a clear intent to create an irrevocable contract, it is not absolute. This clause allows revocation of the Harold and Ruth Will "by a later Will, expressly revoking this Will, or by the destruction of both executed copies hereof." In fact, Harold executed a later will (the Harold and Agnes Will) "expressly revoking this Will." Even if the Harold and Ruth Will could be regarded as contractual, then, the contract did not prevent revocation, but merely limited how it could be effected. See McKinnon v. Baker, 220 Neb. 314, 370 N.W.2d 492, 494 (1985) (language of will contract making wills irrevocable " 'so long as the other shall live' " limited revocability only until death of the first spouse).

The district court ruled it did not have "jurisdiction over the Will of Harold D. Heeter and his first wife Ruth P. Heeter and [it] is not controlling as to the joint tenancy accounts." While it is not entirely clear what the district court meant by "jurisdiction," we do not find the Harold and Ruth Will to be contractual and irrevocable. The trial court will not be reversed on appeal when it has arrived at a correct result for the wrong reason. State ex rel. State Highway Dep't v. Strosnider, 106 N.M. 608, 747 P.2d 254 (Ct.App.1987). We therefore find the Harold and Ruth Will was not contractual, that Harold expressly revoked it by executing the Harold and Agnes Will, and we affirm the district court's refusal to probate the Harold and Ruth Will.

JOINT ACCOUNTS

The district court concluded that Harold Heeter was a successful businessman and that he understood that the property placed in joint tenancy would go to Agnes upon his death. The record contains substantial evidence to support this finding. The trial court's findings will not be reversed if they are supported by substantial evidence. Mitchell v. Mitchell, 104 N.M. 205, 216, 719 P.2d 432, 443 (Ct.App.), cert. denied, 104 N.M. 84, 717 P.2d 60 (1986).

The same week he retained an attorney to prepare the Harold and Agnes Will, Harold Heeter placed all his publicly traded stocks into joint tenancy with Agnes. Agnes testified that prior to creating the accounts, Harold had explained to her the meaning of joint tenancy with right of survivorship. At the time of the transfer, Harold's stockbroker specifically informed him, "when you do this, if something happens to either one of you the survivor gets all the securities." Harold's response indicated a clear understanding of this as well as his intention regarding his new will.

Petitioner argues that the district court "should have considered the evidence of Harold Heeter's intent at the time that the joint accounts were created." However, he offers no citation to anything in the record which would indicate Harold's intent was contrary to the conversation with his stockbroker which was the foundation for the district court finding. This court will not search the record to find evidence to support an appellant's claims. Poorbaugh v. Mullen, 99 N.M. 11, 653 P.2d 511 (Ct.App.), cert. denied, 99 N.M. 47, 653 P.2d 878 (1982).

Moreover, Petitioner concedes that Agnes was reluctant to marry Harold and give up her military benefits until Harold reassured her that he had the means to support her. Agnes also testified at trial that Harold wanted her to have the joint E.F. Hutton account. We find...