Estate of Moore, Matter of

• Decision Date: 03 May 1983
• Docket Number: No. 1,CA-CIV,1
• Citation: 669 P.2d 609,137 Ariz. 176
• Parties: In the Matter of the ESTATE OF William C. MOORE, deceased; Robert D. MOORE, Personal Representative-Appellant, v. Audrey SCHWARTZ and Stanley Bental, Claimants-Appellees. 6108.
• Court: Arizona Court of Appeals

Page 609

669 P.2d 609

137 Ariz. 176

In the Matter of the ESTATE OF William C. MOORE, deceased;

Robert D. MOORE, Personal Representative-Appellant, v. Audrey SCHWARTZ and Stanley Bental, Claimants-Appellees.

No. 1 CA-CIV 6108.

Court of Appeals of Arizona,

Division 1, Department A.

May 3, 1983.

Rehearing Denied June 17, 1983.

Review Denied Sept. 15, 1983.

Shultz, Worischeck & Shapiro, P.A. by Joseph H. Worischeck, Phoenix, for personal representative-appellant.

Joe S. Reynolds, P.C. by Joe S. Reynolds, Mesa, for claimants-appellees.

OPINION

CONTRERAS, Judge.

The issue presented in this appeal from an order granting a claim against an estate in probate is whether the trial court erred by finding that the testator and testatrix had agreed that their mutual and reciprocal wills were irrevocable. We conclude that the trial court did err and therefore reverse.

Before setting forth the facts, we note that our review of the evidence begins and ends with the inquiry as to whether the court had before it evidence, viewed in a light most favorable to supporting the findings, which reasonably sustains the findings. K & K Mfg., Inc. v. Union Bank, 129 Ariz. 7, 628 P.2d 44 (Ct.App.1981). However, an appellate court has the power to set aside findings of fact which are clearly erroneous. City of Tucson v. Morgan, 13 Ariz.App. 193, 475 P.2d 285 (1970). Further, where the issue is one of interpretation of a writing, the appellate court is not bound by the trial court's findings, but may draw its own legal conclusions. E.g., Daily Mines Co. v. Control Mines, Inc., 59 Ariz. 138, 124 P.2d 324 (1942).

The key facts are as follows. William C. Moore (husband) and Irma L. Moore (wife) were married on April 29, 1972. At that time, each had children by a prior marriage. During the marriage, one of the husband's sons, Robert D. Moore (son), encouraged them to have a lawyer draft their wills. However, they insisted that the son draft the wills and mailed letters to him indicating their desired testamentary plan. Only one of these letters, dated April 26, 1975, is in the record. The son used his and his wife's wills, which had been prepared by an attorney, as models and sent the first wills to the couple in 1975. However, these wills were not executed. The son continued to encourage the couple to execute wills. Again in 1979 he sent proposed wills to the couple. These wills, separate but identical, except for reciprocal terms, were executed on February 22, 1979. Each will was individually and separately executed and does not refer to the other will. The key provision of those wills for our purposes is paragraph four which provides:

FOURTH: In the event that my wife, IRMA L. MOORE [husband, William C. Moore], shall predecease me or die within sixty days after my death, or upon my own death if I shall survive her, or should we die at the same time or as a result of the same accident or disaster or during a joint last illness or under circumstances that are such that the order of our deaths cannot be ascertained with reasonable certainty then, in any of such events, I give, devise and bequeath all the rest, residue and remainder of my estate, whether real, personal, or mixed, wheresoever situate and of whatsoever the same may consist, whereof I may die seized or possessed, unless otherwise provided by me in writing, to my son, [stepson] ROBERT D. MOORE, residing at 604 Claymont Estates Drive, Ballwin, Missouri to be divided one-half the total value equally between my surviving children and one-half the total value equally between the surviving children of my wife, IRMA L. MOORE. [husband, WILLIAM C. MOORE]

(emphasis supplied).

The wife died on June 3, 1980. The husband then executed a will on June 11, 1980, which revoked all prior wills and left all his property to his children by his first marriage. The husband died on June 27, 1980.

The husband's will was offered for informal probate on July 3, 1980. The son who had drafted the will was appointed as personal representative of his estate. Appellees (the two surviving children of the deceased wife's first marriage) filed a claim against the estate. The personal representative disallowed the claim and appellees, pursuant to A.R.S. § 14-3806, filed a petition for allowance of claim.

The court issued the following findings of fact and conclusions of law relevant to the issue on appeal:

That the letter dated April 28 [sic], 1975 and signed by both parties indicated their agreement as to their testamentary scheme;

That the letter and memorandum of agreement and the reciprocal and mutual Wills, when construed together, constitute a binding contract on both parties;

That by the agreement and Wills, both parties in effect gave up their right to make new Wills;

That Irma L. Moore, in accordance with the intent of their agreement, did not change her Will prior to her death....

....

That while the Wills standing alone do not say they are irrevocable, they were made pursuant to the agreement letter and thus irrevocable;

That the scrivener of the reciprocal and mutual Wills was not a lawyer and did not clearly include the elements of the agreement set forth in the agreement letter;

That the totality of the surrounding circumstances of the April 26, 1975 letter and the reciprocal terms of the Will and the intent expressed therein amounted to a clear and binding testamentary scheme and agreement between the parties;

That in effect the Wills and the letter both serve to substantiate an agreement between Irma and William;

....

NOW, THEREFORE, IT IS ORDERED allowing the claim against the estate made by Audrey Schwartz and Stanley Bentall;

FURTHER ORDERED that while the June 11, 1981 [sic] Will was the deceased's last Will, distribution under it is to be in accordance with the prior agreement made April 26, 1975 and the Wills executed February 22, 1979 in accordance with the agreement;

FURTHER ORDERED that one-half of the entire estate is to be distributed to the children of Irma and one-half of the estate to the children of William in accordance with Paragraph 4 of the mutual and reciprocal Wills.

(emphasis supplied). Appellant timely appealed from the order.

It is clear that the 1980 will was effective to revoke the 1979 will of the deceased husband. A.R.S. § 14-2507. As stated in 1 Page, Wills § 11.9, at 567 (1967):

Revocability, as has already been said, is an essential element of a will. An instrument which cannot be revoked is not a will, whatever else it may be. Accordingly, a joint, mutual or reciprocal will may be revoked as any other will may be.

See generally 97 C.J.S. Wills § 1366 (1957); 79 Am.Jur.2d Wills § 803 (1975); Annot., 17 A.L.R.4th 167 (1982). Therefore, the trial court's finding that the 1980 will was the last will and testament of the deceased husband is correct.

The difficult issue is whether the trial court erred in finding an enforceable agreement not to revoke the 1979 wills. The general rule is that where the joint or mutual will(s) contains or is accompanied by an enforceable contractual obligation, equity will not allow one of the contracting parties to avoid his obligation, but will impose a constructive trust upon his property in favor of the beneficiaries who would have received property from the joint or mutual will. E.g., Estate of Maloney v. Carsten, 178 Ind.App. 191, 381 N.E.2d 1263 (1978); Cook v. Walsh, 39 Or.App. 357, 591 P.2d 1201 (1979); Dahlgren v. Blomeen, 49 Wash.2d 47, 298 P.2d 479 (Wash.1956). Under Arizona law, a contract to devise property may be enforceable. A.R.S. § 14-2701; Estate of Beauchamp, 115 Ariz. 219, 564 P.2d 908 (Ct.App.1977). Under the common-law rule, an agreement not to revoke a will had to be proved by clear and convincing evidence. E.g., Estate of Somogyi v. Marosites, 389 So.2d 244 (Fla.App.1980); Moore v. Harvey, 406 N.E.2d 354 (Ind.App.1980); Neff v. Poboisk, 281 Minn. 475, 161 N.W.2d 823 (1968). By statute, Arizona has adopted a provision which further limits the proof of an agreement not to revoke.

A.R.S. § 14-2701. Contracts concerning succession

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 this title, can be established only by one or more of the following:

1. Provisions of a will stating material provisions of the contract.

2. An express reference in a will to a contract and extrinsic evidence proving the terms of the contract.

3. A writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

(emphasis supplied).

In the case at bar, because it is clear that the mutual wills neither state material provisions of the contract, nor do they contain an express reference to a contract not to revoke, the only issue is whether there was "a writing signed by the decedent evidencing the contract." Arizona courts have not analyzed this provision of the statute and our research discloses no opinion on the provision by any jurisdiction which has adopted the Uniform Probate Code. Our decision, therefore, must be based on our interpretation of the statute aided by prior common law as to what evidence is sufficient to constitute a contract not to revoke.

A.R.S. § 14-2701 appears to create a "mini-statute of frauds." This supplements the common-law rule that a contract to make a will must be clearly proved and certain and unambiguous in all of its terms. See generally 1 Page, Wills § 10.5 (1967). Further, the wording of A.R.S. § 14-2701 is similar to Arizona's general contract statute of frauds, A.R.S. § 44-101. A memorandum, in order to satisfy A.R.S. § 44-101, must state the terms and conditions of all the promises constituting the contract and any deficiency in this regard cannot be supplied by parol evidence. Gray v. Kohlhase, 18 Ariz.App. 368, 502 P.2d 169 (1972). Lastly, the comment to Uniform...