In re Estate of Kazmark
| Decision Date | 06 September 2012 |
| Docket Number | No. 29827-2-III,29827-2-III |
| Court | Washington Court of Appeals |
| Parties | In re the Estate of: EARLE T. KAZMARK, Deceased. |
In re the Estate of: EARLE T. KAZMARK, Deceased.
No. 29827-2-III
COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
Date: September 6, 2012
Siddoway, A.C.J. — In the weeks before his death in 2009, Earle Kazmark revoked a reciprocal will that mirrored the terms of his late wife Barbara's will; the wills had been executed simultaneously by the two in 2005. Under the 2005 will he, like his wife, had provided for three of their children from prior marriages. The new will executed by Earle shortly before his death substantially favored his son, Earle Jr.
Following a bench trial, the superior court found that the wills executed by Earle and Barbara Kazmark in 2005 were made to effectuate an agreement to make mutual wills—reciprocal wills made pursuant to an agreement between two individuals as to how their property will be distributed after both die—for which there was consideration and which was fully performed by Barbara Kazmark. Based on its finding of a binding agreement, the court substituted Earle's 2005 will for probate. Earle Jr. and the personal
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representatives under the 2009 will appeal. We affirm.
Earle Kazmark and Barbara Kazmark married in 1985. Both had children from prior marriages and they had no children together. Earle1 had five children; by the time of the wills at issue, he was estranged from all but his sons Earle Jr. and Jason Kazmark. Barbara had three sons, one of whom died before she met Earle; she was estranged from another. She was close to her third son, Clinton Shane Krag (Shane), and his wife and daughter.
Earle and Barbara were married for 20 years before they consulted an attorney about preparing wills. They had over $2,000,000 in assets by that time, most of which were Barbara's. She had come into the marriage with significant assets, while Earle brought comparatively little separate property to the marriage. The separate character of Barbara's assets had largely been preserved. According to close friends who testified in the trial below, by the time they prepared wills, Earle and Barbara had agreed on a disposition that both were comfortable with: each would leave his or her assets to the other, and on the death of the second to die, approximately half would pass to Shane or his wife or children (Shane would receive the home in which his mother and stepfather
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were allowing him to live and 50 percent of the residual estate) and the other half would be shared by Earle's sons, Earle Jr. and Jason (Earle Jr. would receive the home in which his father and stepmother were allowing him to live, and Earle Jr. and Jason would each receive 25 percent of the residual estate). Although some of Barbara's friends commented that she was being very generous to Earle's children, she responded, "'Well, we've talked about it and we think this is fair.'" Report of Proceedings (RP) (Feb. 15, 2010) at 280.
Earle and Barbara contacted attorney John Montgomery about preparing the wills in October 2005, shortly before leaving for Arizona for the winter. They were in a hurry to leave and originally asked if they could not just give Mr. Montgomery the information for their wills over the phone, but he insisted that they come into his office. Upon meeting with them, however, he largely deferred to their instructions, which were based on decisions they had already made.
Although the wills provided for the same ultimate distribution of the couples' assets following the death of the second to die, the Kazmarks never used the term "mutual wills" in explaining their wishes to Mr. Montgomery and he never asked if they intended their identical disposition of assets on the second death to be binding. He never explained to them what mutual wills were, or how they differed from wills that were merely reciprocal.
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In counseling the Kazmarks, Mr. Montgomery brought up the option of a community property agreement (CPA), which was his standard practice when there is "a marriage that's of long duration." RP (Feb. 14, 2010) at 168. The Kazmarks liked the idea that a CPA would eliminate the need for a probate of the estate of the first to die, and the resulting privacy.
Mr. Montgomery drafted the wills and a CPA, which the Kazmarks signed in late October 2005. The wills provided that upon the death of either spouse, the surviving spouse would take the entire estate provided he or she survived the other by 30 days. Otherwise, Earle's will contained the following specific and residual bequests at its sections IV and V, which were mirrored in Barbara's will:
IV. Specific Bequest of Personal Property In the event that my wife, BARBARA L. KAZMARK, does not survive me by thirty (30) days, I give, devise and bequeath all interest that I may have in certain real property, subject to any obligation owed thereon or against, as follows:A. Unto my son, EARLE V. KAZMARK, prov[id]ed that he survives me, all interest in real property located at 5114 East Handy Road, Colbert, Washington.
B. Unto my wife's son, CLINTON SHANE KRAG, or his wife, MARY C. KRAG, provided he does not survive me, all interest in real property and manufactured home located thereon, on Sherman Road, near Deer Park, Washington.
V. Residual Bequest In the event that my wife, BARBARA L. KAZMARK, does not survive me by thirty (30) days, I give, devise and bequeath all the rest, residue and remainder of my estate of every kind, character and description,
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and wheresoever situate or found as follows:
. . . .(1) One-half (½) of my remaining estate equally unto my sons, EARLE V. KAZMARK and JASON S. KAZMARK, or to the survivor thereof.
(2) One-half (½) of my remaining estate unto my wife's son, CLINTON SHANE KRAG, or to his issue per stirpes.
Clerk's Papers (CP) at 244. Earle specifically disinherited his three other children in his will, while Barbara specifically disinherited her estranged son in hers.
The CPA executed by the Kazmarks converted all of their current and subsequently-acquired property to community property. It also provided, as did their wills, that "upon the death of either of the parties hereto, title to all community property . . . shall vest in fee simple in the survivor of them," provided he or she survives for 30 days. CP at 234.
Barbara died in February 2009. Earle did not commence probate proceedings, relying on the CPA to pass title to her property. Then, in mid-July 2009, Earle engaged Mr. Montgomery to draft a new will for him. This 2009 will contained the same bequests to Shane and Earle Jr. of the homes in which they were living as had been included in Earle's and Barbara's 2005 wills, but it left the entire remainder of his estate to Earle Jr. alone. Earle died on July 23, 2009, nine days after executing the new will.
Mr. Montgomery commenced a probate of Earle's 2009 will on behalf of its
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personal representatives. Shortly thereafter Shane and Jason filed a petition contesting the will's validity. They initially alleged that Earle had lacked testamentary capacity and that the will was the result of undue influence. Ultimately, however, they challenged the distribution under the 2009 will solely on the basis that Earle and Barbara agreed to make mutual wills in 2005, that they executed their 2005 wills to effectuate their agreement, and that sections IV and V of Earle's 2005 will—reflecting the agreement they had reached as to the ultimate distribution of their combined estates—were therefore binding.
Following a bench trial, the trial court ruled that the evidence clearly established an oral agreement to execute mutual wills, that Earle's 2005 will should be admitted to probate, and that his 2009 will should be vacated.2 The court's written findings later characterized the evidence supporting the agreement to make mutual wills as not merely clear and convincing, but "overwhelming." CP at 264. The court concluded that the Kazmarks' agreement to make mutual wills was supported by consideration not only
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through their execution of the wills but also by Barbara's contemporaneous execution of the CPA, whereby Earle immediately acquired a community property interest in her extensive separate property. The court concluded that although the agreement was subject to the statute of frauds in light of the real property covered by the agreement, the part performance exception applied where Barbara not only executed the CPA but also died without having revoked her will.
Earle Jr. and the personal representatives under the 2009 will (hereafter collectively referred to as "Earle Jr.") timely appealed.
Reciprocal wills are wills having provisions that mirror each other, but whose parallelism has no legal significance. A testator may change a will that is merely reciprocal at any time. Mutual wills, on the other hand, not only contain mirror provisions but their identical dispositions on the second death reflect an agreement by the testators as to how their estates are to be distributed after both have died, and are executed in order to put that agreement into effect. See Newell v. Ayers, 23 Wn. App. 767, 769-70, 598 P.2d 3 (1979); see also In re Estate of Richardson, 11 Wn. App. 758, 760, 525 P.2d 816 (1974) (mutual wills exist "[w]hen two parties make an agreement as to the manner of the disposition of...
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