Oliver v. Hays

• Decision Date: 01 September 1997
• Docket Number: No. 1392,1392
• Citation: 121 Md.App. 292,708 A.2d 1140
• Parties: Debra OLIVER et al. v. William D. HAYS, Personal Representative of the Estate of Doris Elizabeth Showe. ,
• Court: Court of Special Appeals of Maryland

Page 292

121 Md.App. 292

708 A.2d 1140

Debra OLIVER et al. v. William D. HAYS, Personal Representative of the Estate of Doris Elizabeth Showe.

No. 1392, Sept. Term, 1997.

Court of Special Appeals of Maryland.

May 4, 1998.

William McC. Schildt (Strite and Schildt, P.A., on the brief), Hagerstown, for appellants.

Thomas A. Wade, Hagerstown, for appellee.

Before MOYLAN, HOLLANDER and EYLER, JJ.

HOLLANDER, Judge.

In this case, we must determine whether Doris Elizabeth Showe died intestate as a result of a valid revocation of her Last Will and Testament. ¹ Although Ms. Showe's will provided for the distribution of the remainder of her estate to her two stepdaughters and her son, the decedent's son will inherit her entire estate if the revocation was valid. Consequently, the controversy before us pits the decedent's son, who contends that his mother effectively revoked her will, against the decedent's stepdaughters, who urge us to conclude that the revocation was invalid.

On May 10, 1996, William D. Hays, appellee, filed a petition in the Orphans' Court for Washington County, requesting administrative probate and his appointment as personal representative of the estate of his mother, Doris Showe, who died on May 6, 1996, allegedly without a will. Shortly thereafter, Showe's stepdaughters, Denise Curtis and Debra Oliver, appellants, filed a petition for judicial probate of a lost or concealed will. Following a hearing on November 1, 1996, the orphans' court found that, at the time of her death, Showe had revoked all prior wills.

Appellants timely noted an appeal to the Circuit Court for Washington County and, after a trial de novo on July 1, 1997, the court found that Showe died intestate, having lawfully revoked all previous wills. Appellants timely noted this appeal, and present the following questions for our review:

I. Did the trial court err in concluding that revocation of Doris Showe's will by destruction could be proved solely by the testimony of a person benefitting from the revocation?

II. Did the trial court err in concluding that the proponents of Doris Showe's will had the burden of proving her lack of capacity to revoke the will?

III. If the proponents of Doris Showe's will did have the burden of proving her lack of capacity to revoke the will, did the trial court err in finding that Doris Showe did not lack capacity?

IV. Did the trial court err in admitting in evidence the written statement of Doris Showe purporting to invalidate her will?

For the reasons that follow, we shall affirm.

Factual Background

Doris Showe married Max Showe in 1978. It was the second marriage for both, and each had offspring from their prior marriages. Doris Showe's only child, William, is the appellee herein. Max's two daughters, Denise Curtis and Debra Oliver, are the appellants. ²

On February 7, 1992, Doris and Max executed "mirror wills," in which each left his or her entire residuary estate to the surviving spouse. Each will also included several specific bequests, but these were to take effect only in the event that the spouse predeceased the testator or testatrix, or they died together, or they died within 60 days of each other. Of particular significance here, each will also provided that if the spouse did not survive the testator or testatrix, the remainder of the estate, after distribution of the specific bequests, would pass as follows: one-half to appellants and one-half to appellee.

In July 1994, while Max was still alive, Doris suffered a debilitating stroke that left her paralyzed on the right side of her body. As a result, she was unable to care for herself and could not perform many routine functions. The stroke also affected Doris's speech, so that she was only able to utter a few words. In addition, it appeared that Doris was unable to recognize at least some people with whom she had been familiar for many years. The extent to which her cognitive abilities were affected, however, is a matter of dispute.

Max died on June 21, 1995, leaving his estate to Doris. ³ Thereafter, appellee located Max's will in a bank safe deposit box. Max named appellee as a personal representative of Max's estate in the event that Doris predeceased Max or was otherwise unable to serve. During his search for Max's will, appellee located his mother's will, dated February 7, 1992. According to appellee, he removed his mother's will from the safe deposit box and took it to his residence in Pennsylvania.

Appellee explained at trial that he subsequently reviewed Doris's will with her, reading it to her aloud, and she "indicated that that was not what she wanted." Appellee also claimed that he discussed with his mother whether she was aware that by destroying the will "everything would come to me." According to appellee, he then consulted a lawyer in Pennsylvania about having the will declared void. Appellee recounted that the lawyer told him "to draw a piece of paper up saying that [his mother] no longer wished to have this will and have it witnessed by two other people and she would sign that ... and the will would be destroyed if she directed me to."

On September 10, 1995, appellee followed the lawyer's instructions. He drafted a document that read:

I, DORIS SHOWE, AS OF 10 SEPT 1995 DECLARE THIS WILL DATED 7 FEB 1992 AND ALL PRECEDING WILLS TO BE INVALID.

The document is typewritten except for the dates, which are hand printed. Below the text, the name "DORIS E. SHOWE" is typed next to a signature line. A handwritten mark that resembles the letter "X" or the letter "T," tilted at a 60 degree angle to the left, appears on the signature line. Below the signature line there are two witness signatures: Sandy Tressler and Juanita V. Smith, both of whom were daycare providers for Doris. Tressler cared for Doris between June 1995 and February 1996, working approximately 12 hours per day, three days per week. She testified at trial, but Smith did not.

At trial, appellee related the following as to the events of September 10, 1995:

[APPELLEE]: I arrived at the house that morning and my mother was there and my wife and daughter was with me and one of the caretakers was there. I asked the caretaker if she would remain. They were getting ready to change shifts. Another was coming in to take her place. I asked ...

[APPELLEE'S COUNSEL]: What was that person's name?

A: Uh, Sandy Tressler and the other lady was named Juanita Smith.

Q: Okay. They were present. What happened?

A: I took the will to my mother and reviewed it with her and asked her if this was the will she wanted and the way it was written is what she wanted. She indicated, no. She said, "No." I said, "Okay. Do you want me to destroy this will?" She nodded yes. I said, "I have a piece of paper drawn up here that you will initial and the two ladies will witness it and when that is done, I will destroy the will. Is that what you want?" She said ...

Q: What did you see your mother do?

A: She made her mark on the piece of paper. The two ladies signed as witnesses and the will was destroyed.

Q: How was the will destroyed?

A: The will was torn.

Q: Who tore it?

A: I did.

Q: Who told you to tear it?

[APPELLANTS' COUNSEL]: Objection, leading.

THE COURT: Overruled.

A: My mother told me to destroyed [sic] the will. She didn't tell me to tear it, she told me to destroy it. So I destroyed it by tearing it.

Q: Was that done in her presence?

A: Yes sir.

On cross-examination, appellants' counsel attempted to determine whether anyone witnessed appellee destroying the will:

[APPELLANTS' COUNSEL]: And you did not tear it up in [the caretakers'] presence, did you?

[APPELLEE]: They were in the process of signing their names to this piece of paper.

Q: Well wait a minute, as they were signing their names, you tore up the will?

A: Yes.

Q: That's your testimony?

A: Yes.

Q: So they ... You are now saying they were physically present when you tore it up?

A: They were in the room, sir. They did not sign this piece of paper right in front of me. The one signed it. I think Sandy was sitting over at the bar. The piece of paper was then taken over to her for her to sign and while that was transpiring, I tore the will up.

Q: But neither of them saw you do it, is that right?

A: Not to my knowledge.

Q: But yet you're now saying they were physically in the room?

A: I said that before sir.

Q: Well, alright, I understood you to say, they were ... you didn't know. But it's your testimony now that they were physically in the room when you tore up the will?

A: Yes.

Q: When you read the will to your mother, did you ask her any questions to determine that she understood what you were reading?

A: I asked her if she knew this was her will? She nodded yes.

Q: Well did you ask her anything about what you had read to her to determine that she knew what you were reading?

A: I asked her if I[sic] knew this was her will.

Q: I understand. I take it from that, you did not ask any questions to determine whether she understood the meaning of the words in the will?

A: No sir.

Appellants' counsel then objected to the admissibility of the document on the ground that it constituted hearsay evidence. The court overruled the objection and admitted the document.

In her testimony, Tressler asserted that, despite being paralyzed on the right side, Doris was able to use her left hand to put puzzles together and to hold utensils to feed herself. In addition, Tressler stated that Doris was able to utilize her left hand to go through pages of the newspaper; she would then point to food items that she wanted for dinner. Although Doris's vocabulary was primarily limited to the words "yes" and "no," Tressler testified: "Doris comprehended fairly well. She could not communicate verbally due to the fact of her stroke, but she had other ways of communicating." Tressler also said:

The people that were close to [Doris] she knew. She could say their names. She recognized them. She was...