Melter v. Melter (In re Trust & Estate of Melter), 29192–8–III.

• Decision Date: 20 March 2012
• Docket Number: No. 29192–8–III.,29192–8–III.
• Citation: 273 P.3d 991
• Court: Washington Court of Appeals
• Parties: In re the Matter of the Trust and Estate of Mary Virginia MELTER, Deceased.William R. Melter, Respondent, v. John D. Melter and Sandra L. Melter, husband and wife, Appellants,Jennifer L. Winkler, Defendant.

273 P.3d 991

In re the Matter of the Trust and Estate of Mary Virginia MELTER, Deceased.William R. Melter, Respondent,

v.John D. Melter and Sandra L. Melter, husband and wife, Appellants,Jennifer L. Winkler, Defendant.

No. 29192–8–III.

Court of Appeals of Washington, Division 3.

March 20, 2012.

Francis J. Gebhardt, Robert Franklin Greer II, Feltman Gebhardt Greer & Zeimantz PS, J. Patrick Diener, Attorney at Law, Spokane, WA, for Appellant(s).

Michael M. Parker, Powell Kuznetz & Parker PS, Spokane, WA, for Respondent(s).

SIDDOWAY, J.

¶ 1 A will is presumed valid but may be disregarded when a will contestant presents clear, cogent, and convincing evidence that it was the product of undue influence. John and Sandra Melter appeal the trial court's decision to set aside the fourth and final will of John's mother, Mary Virginia Melter, and corresponding transfers of assets that effectively disinherited his brother, William Melter, and left nearly all of her estate to John.

¶ 2 The evidence supports the court's findings that John failed to account for, or clearly establish his mother's knowing consent to assets he transferred to himself during her lifetime. It supports the court's finding that he shared responsibility with his brother for a contentious relationship between the two in which each withheld information from the other about preferential treatment they were seeking or received under their mother's estate plan. Nonetheless, in light of the sustainable findings of the court and supporting evidence-including the court's findings that Mary Virginia Melter had testamentary capacity at the time she signed her fourth will, had reasons for disinheriting William and favoring John, and explained her reasons and wishes to an attorney whom the court found to be acting in her interest—the court's ultimate conclusion of undue influence was not supported by clear, cogent, and convincing evidence. We reverse and remand for entry of judgment in favor of John and Sandra Melter.

FACTS AND PROCEDURAL BACKGROUND

¶ 3 John and William Melter and their respective wives testified at trial to dramatically different versions of the sons' dealings with Mary Virginia Melter in the last five years of her life; ultimately the trial court found that the credibility of both sons was suspect and that neither came before the court with clean hands. The following history is therefore drawn virtually entirely from the factual findings of the trial court, in order to rely only on the evidence credited by the court. What limited details we have added are undisputed. The majority of the court's findings are unchallenged on appeal.

¶ 4 Mary Virginia Melter, who went by “Virginia,” was born in 1921 and married John R. Melter in 1946. The couple had three children: Mary Jane, John D., and William.¹ John D., whom we refer to as John,² was 8 years older than William, the youngest child. Virginia and her husband executed reciprocal wills in 1995 under which the estate of the first to die would pass to the other, and the survivor's estate would pass in equal shares to their three children, per stirpes.

¶ 5 In May 2002, John R. and Virginia's daughter Mary Jane died of cancer. Virginia's husband became ill shortly thereafter and died in July 2002. The closely-timed deaths of Virginia's only daughter and husband left her in a vulnerable state, physically and emotionally. Virginia was unable to live on her own after her husband died; her original plan was to live with William and his wife in Kent, Washington.

¶ 6 Following John R.'s funeral and interment in a military cemetery in western Washington, William traveled to Florida to stay with his mother and help prepare for her move to the Pacific Northwest. All of her possessions, including her car and furniture, were shipped to William's home in Kent. During the couple of months William spent with Virginia in Florida, he influenced her, in her weakened state, to make significant changes to her estate plan. In a new will—her second, executed in September 2002—Virginia bequeathed her Florida home to William; left only $5,000 to Jennifer Winkler, Mary Jane's only child; and left the balance of the estate in equal shares to John and William. William obtained a power of attorney from his mother and took over management of her financial affairs. He did not tell his brother, John, about the new will. When asked by John for copies of their parents' wills, he failed to provide them.

¶ 7 In early October 2002, William flew with Virginia to Spokane, Washington. He left her to stay temporarily with John and his wife Sandra, who lived in nearby Liberty Lake, while William traveled with his wife to a family wedding in Hawaii. William brought Virginia's legal documents with him from Florida, having promised to deliver them to John, but then failed to do so, telling John he had inadvertently left them on the plane.

¶ 8 William suffered a serious heart attack in Hawaii and his extended recovery delayed Virginia's move to Kent. With the passage of time, she became comfortable living with John and Sandra and decided to make her home with them instead. Among reasons for her change of heart was that she would have been required to live in a retirement home in Kent, since William's was a tri-level home whose stairs she was unable to navigate. She could get around in John's home, in which she had her own bedroom and bathroom. She had not wanted to live in a retirement home, preferring to live with one of her sons.

¶ 9 Virginia was aware that she had executed legal documents during the time William spent in Florida in the fall of 2002. She was either not certain as to their substance or reluctant to acknowledge it, but whatever the case, there is evidence that by late 2002 she wished to change her will. Despite John's repeated requests that William send their mother's legal documents to Virginia, William failed or refused to do so.

¶ 10 In December 2002, John helped arrange for his mother to meet with Spokane attorney Steve Jolley, who drafted a revocable trust and a new will—her third—which she executed in December. The trust and will left Virginia's estate to her two sons, in equal shares, with John being named her successor trustee under the trust and personal representative of her estate. William was named alternate trustee and alternate personal representative. Virginia also executed a durable power of attorney in favor of John. It is undisputed that Virginia had testamentary capacity and was not subject to any undue influence at the time she executed the trust and third will.

¶ 11 John informed William that his mother had executed a new will, that it left her estate to the two sons equally, and that John was named personal representative and had been appointed his mother's attorney in fact.

¶ 12 Virginia and John continued to press William to send Virginia's medical and financial records and other personal property that were in his possession, and in January 2003, Mr. Jolley wrote to William on Virginia's behalf, enclosing her signed confirmation that she was insisting that her records be sent to her. William complied. It was on receiving the records sent by William that John learned for the first time of Virginia's second will executed in Florida, substantially benefitting William.

¶ 13 At this point, John began the course of conduct principally relied upon by the trial court for its later finding that he exerted undue influence leading to Virginia's execution of a fourth will several months later. By late 2002 (if not earlier) John had a confidential relationship with his mother; by then, she relied upon John and his wife almost exclusively for her care. John was angry to learn of the second will that William had facilitated and failed to disclose. He was angry over William's refusal to return Virginia's personal possessions to her. The relationship between the two brothers became increasingly hostile. John drafted a letter to Mr. Jolley, signed by Virginia, requesting that Mr. Jolley prepare a fourth will that would disinherit William. John also hired a psychologist to verify that his mother was competent to execute a new will. Mr. Jolley declined the engagement to prepare the fourth will for reasons discussed hereafter. He referred John to another law firm, Trankenbolz & Rohr.

¶ 14 John arranged for Virginia to meet with attorney Pamela Rohr in May 2003. At the time of the meeting with Ms. Rohr, Virginia was disappointed and upset with William for a number of reasons that she was able to clearly articulate to Ms. Rohr. Virginia had testamentary capacity at the time, was aware of her assets, knew the objects of her bounty and was clear about how she wanted her estate distributed. She clearly articulated her reasons for wanting to disinherit William. Ms. Rohr drafted and Virginia executed Virginia's fourth will, specifically disinheriting William, bequeathing 99 percent of her estate to John, and bequeathing the remaining 1 percent to her granddaughter, Jennifer Winkler. Virginia revoked the trust that had been prepared by Mr. Jolley.

¶ 15 Ms. Rohr testified that at Virginia's request, she sent only the revocation of trust to William; she did not provide him with the new will. John did not inform William that Virginia had disinherited him or executed a new will.

¶ 16 For the remaining 4 1/2 years of her life, Virginia lived with John and Sandra. John spent a great deal of time and energy directing his mother's estate affairs. He transferred substantially all of her assets to himself and his wife before Virginia's death on March 21, 2007. Her estate had amounted to some $617,000 after the sale of her Florida home in April 2005. At the time of her death only $11,000 remained, in a joint tenancy account with John. William did not learn of the existence of the fourth will or become aware of John's transfers of assets until their mother's death.

¶ 17 John and his wife took excellent care of his moth...