In re Estate of Black

• Decision Date: 09 December 2004
• Docket Number: No. 74009-7.,74009-7.
• Court: Washington Supreme Court
• Parties: In the Matter of the ESTATE OF Margaret BLACK, Deceased. Douglas William Carlton, Richard D. Burns, Lorna Bemis, and The First Christian Church of Dayton, Respondents, v. Myrna Black, Petitioner.

102 P.3d 796

153 Wash.2d 152

In the Matter of the ESTATE OF Margaret BLACK, Deceased.

Douglas William Carlton, Richard D. Burns, Lorna Bemis, and The First Christian Church of Dayton, Respondents, v. Myrna Black, Petitioner.

No. 74009-7.

Supreme Court of Washington, En Banc.

Argued March 11, 2004.

Decided December 9, 2004.

Carl Jerome Carlson, Seattle, for Petitioner.

G. Scott Marinella, Dayton, Michael Edward de Grasse, Walla Walla, for Respondent.

OWENS, J.

The Columbia County Superior Court admitted a 1992 will, signed by Margaret Black, to probate shortly after Margaret's death in October 2000. The court subsequently admitted a 1993 lost will, purporting to be Margaret's last will and testament, on summary judgment and awarded attorney fees to Richard Burns, the personal representative under the 1992 will. On appeal, the Court of Appeals reversed the summary judgment and the attorney fee award and remanded the case with instructions that all issues pertaining to the will should be decided in one proceeding. We affirm the Court of Appeals but base our decision on the grounds that there are genuine issues of material fact as to the execution of the lost will that must be decided at a trial. We also clarify the Court of Appeals' statements regarding the standard of proof necessary to admit lost wills and clarify the role of res judicata in probate proceedings.

FACTS

On October 11, 2000, Margaret Black, a resident of Columbia County, Washington, died, leaving property subject to probate. A will executed on December 10, 1992, was admitted to probate on October 12, 2000, and Richard Burns was appointed as the personal representative. The 1992 will requested Burns be appointed as the personal representative and left all of Margaret's farm property to Douglas William (Bill) Carlton. The residuary of the estate was split into thirds among Eugene Ayers or upon his death to his daughter, Bill Carlton, and the First Christian Church of Dayton. The will explicitly excluded Myrna Black, Margaret's daughter. The 1992 will was signed by Margaret, signed by two witnesses, and included an attached affidavit of the subscribing witnesses.

Subsequently, Myrna Black petitioned the court to admit a 1993 lost will to probate. Myrna also contested the 1992 will under RCW 11.24.010 to prevent the four-month statute of limitations from running in case her petition to probate was unsuccessful. The 1993 will appointed Myrna as the personal representative and transferred all of Margaret's property to Myrna, which was in direct contradiction with the 1992 will. An unsigned draft of the will included a place for Margaret to sign, an attestation clause with a place for two witnesses to sign, and a certificate of the subscribing witnesses describing the legal requirements of the will's execution. On August 7, 2001, Myrna filed a motion for summary judgment to admit the 1993 lost will.

Affidavits by Robert Reiter, Janet Taylor, Paul Blauert, and Myrna Black were submitted in support of the lost will.¹ Robert Reiter's affidavit states the following. Reiter, a California attorney and Myrna's friend, accompanied Myrna to visit her mother in August 1993. Myrna and Reiter obtained the unexecuted 1993 will from Paul Blauert in Seattle, Washington, and then continued to Walla Walla, Washington, where Margaret resided. Reiter discussed the 1993 will with Margaret, Margaret read the will, and Reiter verified that the will reflected her wishes. Myrna arranged for a notary public to attend the execution of the will in order to notarize the will and other documents. After reviewing Margaret's notarized power of attorney, allegedly signed on the same day as the will, August 14, 1993, Reiter remembered the notary was Janet Taylor. After Margaret reviewed and discussed the will, she initialed each page and signed the will in the presence of Reiter and Taylor. Reiter and Taylor then signed as witnesses. Attached to his affidavit is a copy of the will Reiter remembers Margaret executing. Reiter also submitted a declaration to the court stating that he personally read the signed will and that this was the will Myrna received in Seattle. Subsequently, Reiter and Myrna returned to Seattle and Myrna gave Blauert the will.

In his affidavit Blauert stated that he prepared the 1993 will at Myrna's request, and the provisions in the will attached to his affidavit are the same as those in the will given to Myrna in August 1993. Myrna returned this same document to Blauert on August 15, 1993. Blauert noticed the will was executed on August 14, 1993, and it was signed by two attesting witnesses. The original will and another document were placed in a file. In October 2000, Myrna contacted Blauert requesting the will. Blauert could not find the file and stated that when he retired in January 1996 he had discarded most of his paper files. A computer disk with a copy of the will and a transmittal letter was found and from this Myrna was sent an unsigned copy of the will. Although Blauert may have sent Myrna the original will, currently the original 1993 will appears to be lost.

Janet Taylor, the notary public and the other witness to the 1993 will as identified by Reiter, does not recall witnessing the 1993, will or any of the people involved. Taylor was a notary public in 1993, and she recognized her signature on Margaret's durable power of attorney, executed August 14, 1993. She believed she personally witnessed Margaret sign this document because she did not notarize documents for people she did not know unless the person was present. However, Taylor has no recollection of witnessing the will, or speaking to Myrna, Margaret, or Reiter.

Despite Burns' and the beneficiaries' objections to summary judgment, Judge William Acey granted Myrna's motion for summary judgment admitting the lost will to probate, awarded attorney fees to Burns, and denied Myrna's attorney fees until after adjudication of any challenges to the lost will. In his oral opinion, Judge Acey noted that the summary judgment was granted based on Reiter and Blauert's affidavits, and he did not make a finding that Taylor had signed the will. Verbatim Report of Proceedings (VRP) (Sept. 26, 2001) at 15, 17. The beneficiaries and Burns appealed the summary judgment order, and Myrna cross-appealed the attorney fee award. The Court of Appeals reversed summary judgment, reversed the attorney fee award to Burns, and remanded the case with instructions to resolve all issues regarding the will in one proceeding. In re Estate of Black, 116 Wash.App. 476, 480, 488, 66 P.3d 670 (2003). Myrna filed a petition for review with this court, and Burns and the beneficiaries filed cross-petitions for review. We granted review of all issues on December 24, 2003.² We affirm the Court of Appeals on different grounds and clarify the court's statements regarding burdens of proof and res judicata in probate proceedings.

ISSUES

1. Whether the Court of Appeals erred regarding the necessary burden of proof required to admit lost wills?

2. Whether summary judgment admitting Margaret's lost will was properly reversed in light of genuine issues of material fact regarding execution of the lost will?

3. Whether the Court of Appeals erred in its analysis of the role res judicata plays in probate proceedings?

4. Whether the Court of Appeals erred in ordering all issues involving Margaret's 1992 and 1993 wills resolved in one proceeding on remand?

5. Whether any party is entitled to attorney fees?

STANDARD OF REVIEW

On summary judgment, we "engage[ ] in the same inquiry as the trial court." Failor's Pharmacy v. Dep't of Soc. & Health Servs., 125 Wash.2d 488, 493, 886 P.2d 147 (1994). We will not resolve factual issues, but rather must determine if a genuine issue as to any material fact exists. Balise v. Underwood, 62 Wash.2d 195, 199, 381 P.2d 966 (1963). "A material fact is one upon which the outcome of the litigation depends." Id. The moving party has the burden of proving there is no genuine issue of material fact and all inferences are construed in the light most favorable to the nonmoving party. Id.; see also Civil Rules (CR) 56(c).³ If the moving party meets its burden, the nonmoving party must then "set forth specific facts showing that there is a genuine issue for trial." LaPlante v. State, 85 Wash.2d 154, 158, 531 P.2d 299 (1975); Snohomish County v. Rugg, 115 Wash.App. 218, 224, 61 P.3d 1184 (2002) (stating that a nonmoving party must set forth evidentiary facts, not suppositions, opinions, or conclusions); see also CR 56(e). Only where there is no genuine issue of material fact and reasonable people could reach "but one conclusion" from all of the evidence is summary judgment appropriate. Barrie v. Hosts of Am., Inc., 94 Wash.2d 640, 642, 618 P.2d 96 (1980); Balise, 62 Wash.2d at 199,381 P.2d 966. Further, it should be noted that proceedings where a will is being challenged are equitable in nature and are reviewed de novo upon the entire record. In re Estate of Ney, 183 Wash. 503, 505, 48 P.2d 924 (1935).

ANALYSIS

A. Standard of Proof for Lost Wills

The Court of Appeals incorrectly stated that a lost will may be admitted to probate only if the will is in existence at the time of the testator's death and the will's contents are proved" `clearly and distinctly' by the testimony of at least two persons." Black, 116 Wash.App. at 484, 66 P.3d 670 (citing In re Estate of Nelson, 85 Wash.2d 602, 605, 537 P.2d 765 (1975)). Nelson interpreted an earlier version of the lost will statute, RCW 11.20.070. Nelson, 85 Wash.2d at 605, 537 P.2d 765. Since Nelson, the legislature has amended the statute and deleted the requirement that the will must be in existence at the time of the testator's death. See Laws of 1994, ch. 221, §§ 20, 75. The current statute also states that the contents "must be proved by clear, cogent, and convincing evidence, consisting at least in part of a witness to either its contents or the...