In re Estate of Alsup

• Decision Date: 19 June 2014
• Docket Number: No. 30995–9–III.,30995–9–III.
• Citation: 181 Wash.App. 856,327 P.3d 1266
• Court: Washington Court of Appeals
• Parties: In re ESTATE OF Theodore Roosevelt ALSUP, Deceased.

181 Wash.App. 856

327 P.3d 1266

In re ESTATE OF Theodore Roosevelt ALSUP, Deceased.

No. 30995–9–III.

Court of Appeals of Washington, Division 3.

June 19, 2014.

Patrick Robert Acres, Attorney at Law, Moses Lake, WA, Christopher Martin Constantine, Tacoma, WA, for Appellant.

Michael J. Bresson, Bresson Law Offices, Steven Lawrence Jones, Eymann Allison Hunter Jones PS, Spokane, WA, Benjamin Peter Compton, Vreeland Law, Bellevue, WA, for Respondent.

SIDDOWAY, C.J.

¶ 1 Theodore Roosevelt Alsup was subject to a guardianship during the last 14 years of his life, during which he executed a will and later married. After he died, the validity of the will and the marriage were contested by the personal representative on the basis of his incapacity, resulting in disputes between a possibly pretermitted wife, beneficiaries named in a possibly invalid will, and persons who would be heirs if Mr. Alsup had died intestate. The trial court concluded that both the will and the marriage were void. Nicola Warren, who married Mr. Alsup in 2002, appeals.

¶ 2 The trial court erred. Findings of incapacity supporting appointment of a guardian do not compel a conclusion that an individual lacks testamentary capacity. And the challenge to Mr. Alsup's marriage after his death came too late where the fact of his marriage was well known and no one chose to challenge its validity during his lifetime.

¶ 3 We reverse the trial court's orders holding the will and marriage invalid and direct the trial court to enter judgment that Ms. Warren has the rights of a surviving spouse. We remand the issue of the validity of the will to the trial court to determine, as a matter of fact, whether Mr. Alsup had testamentary capacity at the time he executed the 2001 will.

FACTS AND PROCEDURAL BACKGROUND

¶ 4 According to Nicola Warren, she and Theodore Roosevelt Alsup met in January 1980, when they were ages 32 and 33, respectively. They began dating shortly thereafter. Mr. Alsup lived with Ms. Warren at her home in Moses Lake for approximately 1 year in the early 1980s. He moved from Ms. Warren's residence after he gained custody of his son but Ms. Warren maintains that their dating relationship continued for the next 16 years.

¶ 5 During most of the years they were dating Mr. Alsup was teaching math and social studies at the Columbia Basin Job Corp, according to Ms. Warren. He taught there until he was deemed disabled in 1995, reportedly suffering from posttraumatic stress disorder and exposure to Agent Orange traceable to his military service. Ms. Warren reports that he remained independent until 1996 and 1997, when he suffered a series of illnesses including a stroke, diabetes, and hypertension.

¶ 6 In July 1997, Gerald Alsup, Mr. Alsup's brother, and Jessie Shannon, whose relationship to Mr. Alsup is not clear, petitioned the Grant County Superior Court for appointment as guardians for Mr. Alsup. The court appointed them as full coguardians of Mr. Alsup's person and estate. The order characterized the “capacities, conditions and needs” of Mr. Alsup as “requir[ing] 24–hour a day care [sic] nursing care in a nursing facility and ... a guardian to supervise his nursing care, to give consents to medical providers; ... and to handle his financial affairs.” Clerk's Papers (CP) at 39.

¶ 7 The court assigned the guardians authority “for investment and expenditure of the ward's estate,” as follows:

1. To manage in all respects the property and income of the incompetent;

2. To pay on incompetent's behalf, from incompetent's assets and income, any legitimate obligations incurred by or on behalf of the ward;

3. To receive on the ward's behalf any and all sums whether from Veterans' disability, Social Security, Medicare, Medicaid, or other sources, and to pay any such sums received on ward's behalf for ward's nursing, medical, health and welfare needs.

4. To reimburse co-guardians from the Ward's funds any legitimate expenses incurred by them in fulfilling their duties as guardians.

CP at 39–40. Elsewhere, the order provided:

ORDERED that the co-guardians are authorized to perform such acts and actions on behalf of said ward as they deem necessary, reasonable, prudent and in accordance with the powers awarded to them herein except as provided to the contrary in RCW 11.92.040.

CP at 40. The order did not mention any restraint on Mr. Alsup's right to marry or execute a will.

¶ 8 Several changes were made in the guardianship between 1997 and February 2001: the initial coguardians withdrew; Jerry Thompson was appointed as a successor guardian; Mr. Thompson then applied for an order allowing him to withdraw; and Mr. Alsup appeared in the guardianship proceeding through his lawyer, Harry Ries, asking that he be allowed to participate in the decision appointing a successor guardian and that the form of his guardianship be modified. The court appointed Bruce Pinkerton as guardian ad litem to investigate Mr. Alsup's needs and report and make recommendations to the court.

¶ 9 On January 2, 2001, while the issue of a successor guardian and modification were being raised but while Mr. Alsup was still subject to the full guardianship, he executed a will. The will appears to have been prepared by Mr. Ries. It was self-proved by the affidavit of the two witnesses, Carol J. Ries and Laura R. Larson, as permitted by RCW 11.20.020(2). The affidavit appended to the will stated, among other matters, that “at the time of the signing of the Will, said Testator appeared to be of sound mind and understood the nature of the acts being performed.” CP at 27. The will named Catherine McKinzy—whom Mr. Pinkerton either had already recommended or soon would recommend be appointed as successor guardian—as personal representative. It named both her and Dorsey Gene McKinzy, Mr. Alsup's nephew and his former caregiver, as substantial beneficiaries of his estate. Other assets and shares of the estate were left to Mr. Alsup's brother, Tim Alsup; to Dennis Value, who was identified in submissions to the court as a friend of Mr. Alsup's; and to Vick Burnet, whose relationship to Mr. Alsup is not identified in the record.

¶ 10 In February 2001, the trial court entered an order appointing Ms. McKinzy as successor guardian of Mr. Alsup's person and estate and at the same time modified the guardianship, giving Ms. McKinzy the authority of only a limited guardian. The court assigned nine categories of authority to the limited guardian and separately identified only three limitations placed on Mr. Alsup, those being:

a. the Ward shall not have the authority to enter into any contract, make any gift having a total value in excess of $100.00 or sell any real or personal property.

b. the Ward shall not have the authority to remove funds from any existing banking institution account or brokerage account without the written consent of the Limited Guardian, provided, however, that upon request of the Ward, the Ward shall be allowed to examine any and all records of any such account.

c. the Ward shall have the authority to maintain a checking account and savings account, provided, however, the Ward shall not have the authority to have on deposit in any savings account an amount in excess of $500.00 at any given time.

CP at 170.

¶ 11 A year and a half later, in September 2002, Mr. Alsup married Ms. Warren. They had by then known each other for 22 years. Following the marriage, Mr. Alsup continued to live at a care facility and Ms. Warren continued to live in her home.

¶ 12 In October 2002, Ms. McKinzy withdrew as Mr. Alsup's guardian. Another petition was thereupon filed with the Grant County Superior Court to appoint a replacement guardian and Mr. Pinkerton was again appointed as the guardian ad litem.

¶ 13 Mr. Pinkerton filed a report with the court in December. His report addressed the fact that three nonprofessional guardians had asked to be relieved of their duties, with one of the contributing factors being that “although Theodore Alsup may be able to cognitively process and analyze issues, information, and decision-making issues, he is clearly unable to handle his own affairs due to his inability to communicate and his physical health.” CP at 204. He reported that “[t]here continues to be a lack of acceptance by Theodore Alsup that he needs a Guardianship and therefore, he continually is disgruntled that someone is handling his money and his property when he feels that he can be doing it.” CP at 204–05. Mr. Pinkerton felt strongly that the need for the guardianship continued but that “Theodore's continual denial of his need for a Guardianship will be a contributing factor in the degree of difficulty the Guardian will face in this case.” CP at 205. For this and other reasons, Mr. Pinkerton reported that he had come to a “very strong conclusion that a non-professional Guardian is not an appropriate Guardian for Theodore Alsup.” Id.

¶ 14 Mr. Pinkerton was aware of the marriage of Mr. Alsup and Ms. Warren that had taken place several months earlier; the order appointing him as guardian ad litem had requested that he consider Ms. Warren as a potential guardian. He expressed reservations about Ms. Warren's service as guardian and questions about her relationship with Mr. Alsup and her motives.

¶ 15 Mr. Pinkerton reported that when he initially asked Mr. Alsup about his relationship with Ms. Warren, Mr. Alsup answered that it was “ ‘very, very good,’ ” and stated that he wanted Ms. Warren to be his guardian. CP at 207. Mr. Alsup's caregiver later called Mr. Pinkerton with Mr. Alsup on the line, however, and explained that Mr. Alsup was upset that Ms. Warren had not been to see him for 1 1/2 to 2 weeks and asked the caregiver to call and let Mr. Pinkerton know that he was upset and wanted an “ ‘annulment’ ” from Ms. Warren, CP at 211.

¶ 16 Mr. Pinkerton had several concerns about Ms. Warren being given responsibility for Mr. Alsup's finances. He interviewed her and learned that she was working more...