In re Estate of Bowers

Decision Date03 April 2006
Docket NumberNo. 56108-1-I.,56108-1-I.
Citation131 P.3d 916,132 Wn. App. 334
CourtWashington Court of Appeals
PartiesIn re the ESTATE OF Alice M. BOWERS, Deceased, Alison Berghmans, Appellant, v. Museum of Flight, Respondent.

D. Douglas Titus, Attorney at Law, Seattle, WA, for Appellant.

Robert Stanley Mucklestone, Perkins Coie LLP, Erin Childress Thakkar, Attorney at Law, Seattle, WA, for Respondent.

James Schermer, Attorney at Law, Seattle, WA, for Other Parties.

SCHINDLER, J.

¶ 1 Alice Bowers in her 1991 Will (1991 Will) left a valuable airplane and airplane memorabilia collection to the Museum of Flight and left the remainder of her estate in trust for her daughter, Alison Berghmans. In April 2004, Alice retained a lawyer to revoke the power of attorney she had given her daughter and recover the items her daughter had taken from her safety deposit box including the original 1991 Will. In August 2004, Alice asked her attorney to draft a new will (2004 Will). Alice reiterated her intent to leave the airplane collection to the Museum of Flight, but wanted to eliminate the trust to her daughter and instead leave the remainder of her estate to her cousins with a $500 gift to her daughter. At Alice's request, the lawyer mailed the 2004 Will to her in September 2004 so Alice could execute it at home. When Alice died three months later, the lawyer found the 2004 Will, but it was not executed. The lawyer could not locate the original 1991 Will.

¶ 2 Alison challenges the superior court decision to admit the 1991 Will to probate under RCW 11.20.070 and the sufficiency of the Museum of Flight's Petition to admit the 1991 Will. We conclude the Museum met its burden of proving that the 1991 Will was "lost or destroyed under circumstances such that the loss or destruction does not have the effect of revoking the will" under RCW 11.20.070(1). Because clear, cogent, and convincing evidence establishes Alice did not intend to die intestate and did not intend to leave the airplane collection to her daughter, the doctrine of dependant relative revocation rebuts the presumption that the lost or destroyed 1991 Will was revoked. In addition, the Petition provided adequate notice to the parties that the Museum of Flight was seeking to admit the 1991 Will to probate under the lost or destroyed will and probate statutes. We affirm.

FACTS

¶ 3 Alice Bowers was married to Peter Bowers. They each had one child from a previous marriage. Alice had a daughter, Alison Berghmans, and Peter had a son, David Bowers.

¶ 4 Peter had a lifetime commitment to aviation and was a longtime board member and trustee of the Museum of Flight. He owned an extensive and valuable airplane and airplane memorabilia collection. In 1991, Peter and Alice executed reciprocal wills leaving the airplane collection to the Museum of Flight.

¶ 5 Peter died before Alice. Alice's 1991 Will provides that if Peter died first, the airplane collection would be left to the Museum: "I give and bequeath all of my antique airplanes, airplane memorabilia, airplane photographs and negatives, and my airplane library unto the MUSEUM OF FLIGHT in King County, WA." Under Alice's 1991 Will, the remainder of her estate was left in trust for the benefit of her daughter Alison. Because of Alison's problems with alcohol, the Will provided explicit instructions for the trust. According to the 1991 Will, "ALISON BERGHMANS has struggled with alcohol problems for many years, and it is not my desire to have the Trust disbanded until she has demonstrated long-term sobriety; however, I entrust any ultimate decision to the Trustee appointed pursuant to the terms of this Will." The "express purpose" of the trust was to "provide funds which will make her life as comfortable, as enjoyable and as productive as possible" and allowed the trustee to make distributions to provide for Alison's "support, maintenance, social services, advocacy services, medical services, rehabilitation services, legal services, educational services, developmental services, and recreational services." The trust was to terminate at Alison's death unless the trustee determined Alison was "fully capable of managing her entire inheritance."

¶ 6 In April 2004, Alice retained an attorney, Beth McDaniel, to revoke the general power of attorney she had given her daughter Alison. At Alice's direction, McDaniel also obtained an order on August 4, 2004, directing Alison to return various items she had taken from Alice's safety deposit box. In compliance with the order, Alison returned the items to McDaniel, including a cardboard file box containing Alice's original 1991 Will. McDaniel delivered the returned items to Alice in August.

¶ 7 In August, Alice also asked McDaniel to prepare a new will for her. Alice did not want to change the gift to the Museum but wanted to eliminate the trust for Alison and leave the remainder of her estate to her cousins with only a $500 gift to Alison. McDaniel testified that in at least two conversations with Alice regarding the 2004 Will, Alice "specifically stated whom she wanted as the beneficiaries of her estate" and "was adamant" that the Museum receive the airplane memorabilia and the airplane collection. In the 2004 Will, Alice left "[a]ll airplane memorabilia, airplane photographs, negatives, and airplane library compiled by my late husband, Peter M. Bowers, to the Museum of Flight," and left the remainder of her estate to her cousins. At Alice's request McDaniel mailed the 2004 Will to Alice to execute. According to McDaniel, Alice wanted to execute the 2004 Will at home in the presence of friends to avoid the burden of traveling to McDaniel's office and incurring additional attorney fees.

¶ 8 Alice died on December 13, 2004. Shortly after Alice's death, McDaniel searched Alice's home to locate her will. McDaniel found the 2004 Will, but it was not signed. McDaniel could not find the original 1991 Will. The value of the airplane and airplane memorabilia collection is between $400,000 and $1.5 million. The remainder of Alice's estate exceeds $250,000 in value.

¶ 9 On December 21, 2004, Alison filed a petition requesting the court appoint a personal representative and attached a copy of the 1991 Will. In the petition Alison stated that her mother had "executed a will on October 21, [1991]," but that the original 1991 Will could not be found. Alison also stated that "[n]o will belonging to the Decedent has been found, although Co-Petitioners know that Decedent executed a valid last will."1 The court granted Alison's request and appointed James Schermer as the personal representative of Alice's estate.

¶ 10 On February 18, 2005, the Museum of Flight (Museum) filed a "Petition for Order Admitting Lost Will to Probate RCW 11.20.020,.20.070, .28.185." The Museum asked the court to admit a copy of the 1991 Will to probate as provided in the probate statute and under the lost or destroyed will statute, RCW 11.20.070. As part of the Petition, the Museum filed a copy of the 1991 Will, an Affidavit of Attesting Witnesses in Proof of Will, a Certificate of Witness Debra Fraser, a Certificate of Notary, two declarations from Beth McDaniel, and a copy of the 2004 Will. The court found there was no evidence that Alice intended to revoke the 1991 Will, no known statements concerning her intent to revoke the 1991 Will and no evidence that she intended to die intestate. The superior court decided the 1991 Will was a "lost or destroyed Will and was lost or destroyed under circumstances not amounting to a revocation" and granted the Museum's petition to admit a copy of the 1991 Will to probate. Alison appeals the order admitting the 1991 Will to probate.

ANALYSIS
Standard of Review

¶ 11 The parties disagree about the appropriate standard of review. The court's decision to admit the 1991 Will to probate under RCW 11.20.070 was based exclusively on the written record. Decisions based on declarations, affidavits and written documents are reviewed de novo. In re Estate of Nelson, 85 Wash.2d 602, 605-06, 537 P.2d 765 (1975) (where the trial court did not have an "opportunity to assess the credibility or weight of conflicting evidence by hearing live testimony," appellate review of factual findings and legal conclusions is de novo).2 Courts have also recognized that probate proceedings are equitable in nature and reviewed de novo on the entire record. Carlton v. Black (In re Estate of Black), 153 Wash.2d 152, 161, 102 P.3d 796 (2004); In re Ney's Estate, 183 Wash. 503, 505, 48 P.2d 924 (1935); In re Estate of Black, 116 Wash.App. 476, 483, 66 P.3d 670 (2003).3

Admission of Will Under RCW 11.20.070

¶ 12 Alison challenges the superior court decision to admit the lost or destroyed 1991 Will to probate under RCW 11.20.070.

¶ 13 RCW 11.20.070 provides:

(1) If a will has been lost or destroyed under circumstances such that the loss or destruction does not have the effect of revoking the will, the court may take proof of the execution and validity of the will and establish it, notice to all persons interested having been first given. The proof must be reduced to writing and signed by any witnesses who have testified as to the execution and validity, and must be filed with the clerk of the court.

(2) The provisions of a lost or destroyed will must be proved by clear, cogent, and convincing evidence, consisting at least in part of a witness to either its contents or the authenticity of a copy of the will.

(3) When a lost or destroyed will is established under subsections (1) and (2) of this section, its provisions must be distinctly stated in the judgment establishing it, and the judgment must be recorded as wills are required to be recorded. A personal representative may be appointed by the court in the same manner as is herein provided with reference to original wills presented to the court for probate.4

¶ 14 To admit a lost will under RCW 11.20.070, the proponent must comply with the statutory...

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