In re Estate of Johnson
| Decision Date | 26 February 2013 |
| Docket Number | 42402-9-II |
| Parties | In the Matter of the Estate of: BRYAN W. JOHNSON, |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Douglas Johnson appeals the trial court's dismissal of his petition to invalidate his brother's will. The trial court concluded that Bryan's[1] will, which left his entire estate to his sister, Christine Spirz, was not the product of undue influence. Douglas argues that the trial court erred when it (1) admitted Christine's testimony about conversations and transactions she had with Bryan, contrary to RCW 5.60.030 (the Dead Man's Statute) and (2) concluded that Douglas failed to raise the presumption of undue influence. We hold: (1) Douglas failed to preserve his objections to Christine's testimony; and (2) the trial court did not err when it concluded that Douglas failed to raise a presumption of undue influence because the trial court's supported and uncontested findings show that Christine did not participate in procuring the will, the distribution of Bryan's entire estate to Christine was not unnatural, and Bryan was of sound mind when he executed the will. Therefore, we affirm the trial court's dismissal.
FACTS[2]
Bryan and Christine had a close relationship. In 2002, Christine had moved from San Diego to live with Bryan in Sequim for seven months while they constructed homes, on neighboring properties. They each titled their property in joint tenancy with right of survivorship to the other, and also held a bank account as joint tenants.
In January 2006, Bryan was hospitalized in Seattle after he suffered a heart attack. His condition required an angioplasty, and x-rays revealed that he also had lung cancer. Bryan was unmarried and had no children; Christine traveled from Sequim to stay with him in the hospital, as did Bryan's brother, Ivan Johnson, who traveled from Australia. Mark Johnson, Christine's son and Bryan's nephew, also stayed at the hospital for Bryan's surgery. Bryan's two other siblings, Douglas, who lives in New Mexico; and Shirley Tehan, who lives in San Diego; did not join their siblings or Bryan at the hospital. Before Bryan's surgery, either Bryan or Ivan prepared a handwritten will that left Bryan's estate in equal shares to his four siblings and named Christine as his personal representative.[3] Two people witnessed Bryan signing the hospital will. After Bryan's surgery, Ivan mistakenly took the''hospital will” with him back to Australia and, because he believed that will was not effective following Bryan's discharge from the hospital he destroyed it.
On January 21, Bryan returned to his home in Sequim. Christine lived next door, and she provided care after he returned from the hospital and when his condition deteriorated following his January hospitalization. Christine also took him to doctor's appointments, but when Bryan's needs increased, Mark moved in to care for him full time.[4] In addition to Christine's and Mark's assistance, hospice workers periodically visited Bryan's home to provide additional care.
On March 16, Bryan told Christine that he had written a will and then asked her to drive him to Olympic Peninsula Title Company to have his signature witnessed.[5] Christine drove him to the title company, where two people witnessed Bryan's signature on the will. Bryan also transferred the title of his home to Christine by a quit claim deed. Multiple witnesses testified that Bryan was alert when he signed the will and that he did not appear mentally impaired in any way.
After Bryan's death on April 14, 2006, the March 16 will was admitted to probate and Christine was appointed personal representative. She received Bryan's entire estate under the will.[6]
Douglas contested the will, alleging that (1) Bryan was not competent when he signed it, (2) Christine assisted Bryan in preparing the will, and (3) Christine exerted undue influence over Bryan.[7] Before trial, Douglas filed a motion to exclude Christine's testimony regarding any conversations or transactions with Bryan relating to either will (the "hospital will" and the March 16 will) based on the Dead Man's Statute, RCW 5.60.030. The trial court denied the motion to exclude all of the testimony, reserving its ruling until it could determine during trial whether Douglas waived any objections and whether Christine was competent to testify regarding particular matters. At trial, Douglas made only one objection based on the Dead Man's Statute.
The trial court concluded that Bryan had testamentary capacity when he signed the March 16 will. It also concluded that Christine had not exerted undue influence persuading Bryan to draft or execute the March 16 will because, "[a]lthough Chris[tine] occupied a relationship of trust and confidence with Bryan that was not shared with the other siblings, she did not act as an 'advisor' to Bryan, did not receive an unnatural portion of Bryan's estate, and. did not participate in the preparation or procurement of the [w]ill." Clerk's Papers (CP) at 129. Thus, the trial court upheld the March 16 will, denied Douglas's claims and dismissed his suit.
Douglas appeals.
Douglas argues that the trial court improperly admitted statements Christine made regarding conversations and transactions with Bryan, contrary to RCW 5.60.030. He also argues that he adequately raised the presumption of undue influence by Christine and that Christine failed to rebut that presumption. We disagree.
We review a trial court's factual findings to determine whether substantial evidence supports them. City of Tacoma v. State, 117 Wn.2d 348, 361, 816 P.2d 7 (1991). Substantial evidence is evidence sufficient to persuade a fair-minded person of the truth of the finding. Fred Hutchinson Cancer Research Ctr. v. Holman, 107 Wn.2d 693, 712, 732 P.2d 974 (1987). "[W]here there is conflicting evidence, the court needs only to determine whether the evidence viewed most favorable to respondent supports the challenged finding." In re Estate of Lint, 135 Wn.2d 518, 532, 957 P.2d 755 (1998). "If the standard is satisfied, we will not substitute our judgment for that of the trial court." In re Estate of Bussler, 160 Wn.App. 449, 460, 247 P.3d 821(2011).
Unchallenged findings of fact are verities on appeal. Lint, 135 Wn.2d at 533. And "we do not weigh evidence or render judgments regarding witness credibility; that is the exclusive province of the trier of fact." Ives v. Ramsden, 142 Wn.App. 369, 382, 174 P.3d 1231 (2008). We review conclusions of law de novo. Robel v. Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002).
We review a trial court's evidentiary rulings for abuse of discretion. State v. Lormor, 172 Wn.2d 85, 94, 257 P.3d 624 (2011). Thus, we reverse only if the trial court's exercise of discretion is manifestly unreasonable or based on untenable grounds or reasons. Lormor, 172 Wn.2d at 94. It is the party challenging the admission of evidence who must make timely and specific objections to its admission. ER 103; State v. Avendano-Lopez, 79 Wn.App. 706, 710, 904 P.2d 324 (1995). "Generally, after a trial court has made a tentative ruling on a matter or has refused to rule entirely, the party requesting the ruling is obligated to raise the motion again to ensure that there is an adequate record on appeal." In re Marriage of Monaghan, 78 Wn. App, 918, 929, 899 P.2d 841 (1995) (citing State v. Noltie, 116 Wn.2d 831, 844, 809 P.2d 190(1991)).
Douglas argues that the trial court should not have admitted portions of Christine's testimony because that testimony was barred by RCW 5.60.030. He appears to assign error[8] to the trial court's reserved ruling on his motion in limine about whether Christine's testimony regarding particular transactions and conversations with Bryan was admissible.
"The purpose of the statute is to 'prevent interested parties from giving self-serving testimony about conversations or transactions with the decedent.'" Erickson v. Robert F. Kerr, M.D., P.S., 125 Wn.2d 183, 187, 883 P.2d 313 (1994) (quoting Wildman v. Taylor, 46 Wn.App. 546, 549, 731 P.2d 541 (1987)). The statute's protections may be waived if the party seeking to exclude the testimony introduces evidence regarding transactions with the decedent. Erickson, 125 Wn.2d at 187-88.
Here, before trial, Douglas moved to exclude all of Christine's testimony relating to conversations or transactions with Bryan regarding either the "hospital will" or the March 16 will. The trial court denied that motion and, instead, reserved ruling on whether particular testimony would be excluded because the trial court had concerns about Christine's competency to testify about the events that took place in Bryan's home on March 16 when the contested will was drafted. Thus, it ruled, "There may be some issue there with regard to whether that's a transaction that involves [Christine] that she can testify about so I trunk when we get there you just make your arguments at that time." Report of Proceedings (RP) (Feb. 28, 2011) at 15.
The trial court also reserved ruling because it anticipated the issue of waiver arising at trial if Douglas were to introduce evidence about Bryan's transactions with Christine. The trial court r...
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