Estate of Nelson, In re

• Decision Date: 03 July 1975
• Docket Number: No. 43459,43459
• Citation: 85 Wn.2d 602,537 P.2d 765
• Parties: In the Matter of the ESTATE of Patricia Veguilla NELSON, Deceased. James R. NELSON, as Administrator, Appellant, v. Gerald F. COLLIER et al., Respondents.
• Court: Washington Supreme Court

Page 602

85 Wn.2d 602

537 P.2d 765

In the Matter of the ESTATE of Patricia Veguilla NELSON, Deceased.

James R. NELSON, as Administrator, Appellant, v. Gerald F. COLLIER et al., Respondents.

No. 43459.

Supreme Court of Washington, En Banc.

July 3, 1975.

Powell, Livengood, Silvernale, Carter & Tjossem, Gordon A. Livengood, Kirkland, for appellant.

Gerald F. Collier, in pro per, Terry L. Kukuk, Seattle, for respondents.

UTTER, Associate Justice.

James Nelson appeals from a judgment admitting the lost will of his late estranged wife, Patricia Veguilla Nelson, to probate. He challenges the trial court's ruling on a number of issues, including the requirements for admission of a lost will to probate under RCW 11.20, the nature of a 'marriage settlement' which prevents the revocation of an antenuptial will as to the testator's spouse otherwise required by RCW 11.12.050, the validity of an unsigned contract under the Statute of Frauds, and the right to discovery in lost will contest. We hold that the trial court correctly decided all these questions and affirm its judgment admitting the will to probate.

In April 1966, the decedent, Patricia Veguilla Nelson, executed a will. The actual document which she executed was a carbon copy of a 'ribbon' original kept in Washington, D.C. by the attorney who had prepared it for her there. The ribbon copy was never itself executed. The will did not mention appellant, whom decedent had not yet met, but provided that the bulk and residue of decedent's estate was to be held in trust for her minor daughter by a previous marriage.

In May 1970, appellant and decedent were married. In September 1971, they separated and decedent hired an attorney to represent her in dissolution proceedings. The attorney met several times with appellant and talked with him and with decedent regarding a property settlement agreement, which he ultimately prepared for them. The agreement disposed of substantially all the parties' property including their two homes, one of which was to go to decedent, the other to appellant. Appellant signed the agreement and a deed granting decedent the Seattle home, but when the contract was presented to decedent she objected to its contents and refused to sign. The settlement negotiations then broke down, and litigation between the parties was commenced to determine whether the property settlement agreement was binding--appellant contending that it was, decedent that it was not. This litigation was ongoing when decedent was murdered by a burglar who broke into her home. A search after her murder failed to locate the executed copy of her will.

In separate proceedings, appellant and respondent Gerald Collier were appointed to administer Ms. Nelson's estate. When the inconsistency of the two appointments was discovered the matters were consolidated, and motions were filed by each side to dismiss the other from the case. During the pendency of these motions the parties were each enjoined from engaging in discovery until their resolution, which came when decedent's will, naming her mother executrix, was proven and admitted to probate under the 'lost will' statute, RCW 11.20.070. This appeal is from the order admitting the will.

I

The threshold questions raised by appellant concern the trial court's finding that the requirements for admitting a lost will to probate under RCW 11.20.070 were met. That statute provides in pertinent part, that

(w)henever any will is lost or destroyed, the court may take proof of (its) execution and validity

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No will shall be allowed to be (so) proved . . . unless it is proved to have been in existence at the time of the death of the testator . . . nor unless its provisions are clearly and distinctly proved by at least two witnesses . . .

The language of this provision, and our cases interpreting it, establish four prerequisites to the admission of a lost will to probate: the will must have been lost or destroyed, but must have been in existence at the time of the testator's death; it must have been properly executed, and its contents must be proven 'clearly and distinctly' by the testimony of at least two persons. In re Estate of Gardner, 69 Wash.2d 229, 417 P.2d 948 (1966); In re Estate of Peters, 43 Wash.2d 846, 264 P.2d 1109 (1953); In re Estate of Harris, 10 Wash. 555, 39 P. 148 (1895).

The trial court found each of these requirements satisfied. Except for the fact that decedent's will was lost or destroyed, appellant challenges all these findings. Since they were made from the same cold record of affidavits and depositions which has been filed here, and the court below did not have the opportunity to assess the credibility or weight of conflicting evidence by hearing live testimony, we should reassess its factual findings as well as its legal conclusions de novo. See Smith v. Skagit County, 75 Wash.2d 715, 718, 453 P.2d 832 (1969); Carlson v. Bellevue, 73 Wash.2d 41, 48, 435 P.2d 957 (1968).

A.

There is little room for serious doubt that the trial court's decision was correct as to two of the necessary elements: proof of the will's contents and of its proper execution. It is uncontested that the formalities of execution and witnessing of the will were properly observed under Washington law--which is assumed to be identical to the law of the place of execution (apparently Virginia) since no foreign law was pleaded or proven in the court below. Grantie Equip. Leasing Corp. v. Hutton, 84 Wash.2d 320, 324, 525 P.2d 223 (1974). Appellant objects that Ms. Nelson was not shown to have been mentally capable of making a will at the time she signed it; but a will like this one, rational on its face and legal in form, creates a presumption of testamentary capacity which there is nothing in this record to rebut. The required 'clear and distinct' proof of the will's contents came from three persons, two of them witnesses to its execution and the third the attorney who drafted it. They testified that the unexecuted ribbon original of the will, which was admitted into evidence, was identical to the carbon copy that Ms. Nelson signed. We have twice before held virtually identical proof of contents adequate under this statute. In re Estate of Peters, supra; In re Estate of Auritt, 175 Wash. 303, 27 P.2d 713 (1933). We see no reason to depart from these holdings by finding this plainly persuasive proof inadequate here.

B.

The question of the will's existence at the time of Ms. Nelson's death is somewhat closer. The proof that it did still exist, that decedent did not within her lifetime destroy it, was purely circumstantial. Three witnesses--her lawyer, her daughter and a friend--all recounted conversations that they had had with decedent a short time before she was killed which indicated that she would not have destroyed her will without making another. Decedent's actions seem to support this conclusion, as her minor daughter, to whom the will essentially devised all her property, continued to be the object of her affection and concern until her death. Further, the circumstances surrounding decedent's death provide a possible explanation of the whereabouts of her will which is consistent with its having been in existence at that time. The burglar who shot her took from her apartment a lockbox which he left broken open on the lawn outside. This box was apparently used by decedent as a repository for her valued papers, and may well have contained her will.

Although these facts hardly establish beyond doubt that decedent's will existed at the time of her death, they are persuasive enough to cause us to agree with the trial court's finding that it did. Proof on this issue, unlike proof of a lost will's contents, need not be 'clear and distinct' and will often be largely circumstantial. In re Estate of Gardner, supra, 69 Wash.2d at 235, 417 P.2d 948; In re Estate of Peters, supra 43 Wash.2d at 860, 264 P.2d 1109. The statutory requirement of proof of existence simply codifies the common-law presumption that a will that cannot be found was destroyed Animo revocandi, which may be rebutted by 'evidence as to the testator's attitude of mind, as indicated by his declarations made between the time of executing the will and the time of his death . . .' In re Estate of Auritt, 175 Wash. 303, 308, 27 P.2d 713, 715 (1933). Recognizing that the fundamental concern is the fulfillment of the testator's intent, we have in previous cases found evidence showing that a will was in existence at the time of death adequate, although it was far from overwhelming. For example, in In re Estate of Auritt, supra, we affirmed a trial court's finding that a will had been in existence which was based on the decedent's oral reaffirmations of her affection for and desire to devise to her brother, the prime beneficiary named therein, shortly before her death. In In re Estate of Harris, supra, statements by the deceased up to two weeks before his death that he had a valid will similar to the one offered to probate was held adequate to admit it. Here where there is the same kind of evidence as to intent, supplemented by the circumstances which may explain the failure to locate the document itself, we hold that the preponderance of the evidence shows that the will was in existence at the time of Ms. Nelson's death and was not destroyed by her with the intent to revoke it.

II

Appellant's next contention is that, even if the 'lost will' was properly proven, it should not be probated because it was revoked as to him by his marriage to deceased after it was made. This argument centers on RCW 11.12.050, which provides in part:

If, after making any will, the testator shall marry and the spouse shall be living at the time of the death of the testator, such will shall be deemed revoked as to such spouse, unless provisions shall have been made for such survivor by marriage settlement . . .

Clearly, under the plain language of this statute, appellant's position must...