St. Jude Children's Research Hosp. v. Scheide (In re Scheide)
| Citation | 478 P.3d 851 |
| Decision Date | 31 December 2020 |
| Docket Number | No. 76924,76924 |
| Parties | In the MATTER OF the ESTATE OF Theodore Ernest SCHEIDE, Jr. St. Jude Children's Research Hospital, Appellant, v. Theodore E. Scheide, III, Respondent. |
| Court | Supreme Court of Nevada |
Hutchison & Steffen, PLLC, and Michael K. Wall and Russel J. Geist, Las Vegas, for Appellant.
Cary Colt Payne, Chtd., and Cary Colt Payne, Las Vegas, for Respondent.
BEFORE THE COURT EN BANC.
Theodore Scheide, Jr.’s (Theodore) will disinherited his biological son, respondent Theodore Scheide, III (Chip), and left his estate to appellant St. Jude Children's Research Hospital. After Theodore's death, the original will could not be found, and St. Jude petitioned to probate the lost will. NRS 136.240(3) allows the probate of a lost will if it was in existence at the testator's death and at least two credible witnesses prove the will's provisions. A copy of Theodore's executed will existed, and St. Jude provided affidavits of proof of lost will from the attorney who drafted the will and the attorney's assistant. Both witnessed the will's execution, but only the attorney could testify to the will's provisions—the assistant did not read the will when it was drafted. St. Jude also provided evidence to the district court that prior to his death, Theodore repeatedly affirmed he wanted his estate to pass to St. Jude. Chip did not contest the copy's accuracy, instead arguing Theodore revoked the will by destruction and that St. Jude's witnesses did not satisfy NRS 136.240(3). Agreeing with Chip, the district court denied St. Jude's petition, leaving Chip free to inherit the estate, valued at approximately $2.6 million, through intestate succession.
In this opinion, we address whether St. Jude met its burden to show the will was in legal existence and satisfied NRS 136.240(3) ’s requirement that two witnesses prove the will's provisions. As to the former, evidence of the testator's unchanged testamentary intent showed the will was in legal existence at the testator's death. As to the latter, an accurate copy of the will existed, the drafting attorney testified to its contents, and the second witness testified to witnessing the will's execution and to her signature on the copy, thereby proving the will's provisions for purposes of the statute. We therefore conclude that under these facts, St. Jude satisfied the requirements of NRS 136.240(3) and the district court erred by denying St. Jude's petition to probate the will.
In June 2012, Theodore executed a will leaving his estate to his life partner, Velma Shay, or to St. Jude in Tennessee if Velma predeceased him (the June will). St. Jude is a research hospital and nonprofit organization that studies childhood illnesses and provides free medical care to sick children. While alive, Theodore donated substantial sums to St. Jude, and both he and Velma held the hospital in high esteem.
Chip was Theodore's only biological child. The two had been estranged for more than 20 years, and Theodore expressly disinherited Chip and Chip's descendants in the June will. The drafting attorney, Kristen Tyler, and her assistant, notary Diane DeWalt, witnessed the June will's execution and signed as declarants. Theodore requested that Tyler retain the original June will. Four months later, in October 2012, Theodore executed a second will solely to replace the executor (the October will). Tyler and DeWalt again witnessed the will's execution and signed as declarants. Theodore took the executed October will with him.
Velma died in early 2013. Theodore spoke with Tyler several times during 2013 and 2014 and did not mention wishing to reconcile with Chip or revoke his will. To the contrary, Theodore stated he did not want Tyler to locate Chip, reiterating that he wished his estate to pass to St. Jude now that Velma had died.
Kathy Longo, Theodore's stepdaughter from a prior marriage, began assisting Theodore following Velma's death. Longo recalled seeing the will or a copy on a shelf in Theodore's study. Longo did not know Chip and Theodore did not mention Chip to her, although she recalled Theodore mentioning in December 2013 that he was leaving his estate to St. Jude. Theodore began to behave strangely in late 2013 and increasingly struggled to care for himself, even with Longo's help. Theodore's residential lease expired at the end of November, and Theodore moved into a group home, at which time the majority of his belongings were sold. In December, Longo informed Tyler that she could no longer help care for Theodore and he needed a guardian.
In January 2014, Tyler visited Theodore at the group home and Theodore told Tyler he kept his will with him in a bag or box with other important papers. Susan Hoy from Nevada Guardian Services (NGS) became Theodore's guardian in February 2014 after a physician deemed Theodore unable to care for himself. Thereafter, Hoy moved Theodore into a nursing home and moved his belongings, including his documents, into storage. During that move, Hoy saw a copy of the October will, on which Theodore had written, in blue ink, "OCTOBER 2, 2012" and "UP-DATED" and noted that he was an organ donor. Theodore had also signed the top of that document in blue ink. Hoy later returned the documents to Theodore.
Theodore became increasingly unstable and expressed anger towards everyone involved in his care. He died in August 2014, leaving a multi-million dollar estate. Theodore's facility boxed up the belongings Theodore had kept with him, and Hoy's office retrieved them. Hoy was unable to find Theodore's original October will, although she did find the written-upon copy, which she delivered to the estate's attorney.
The district court appointed Hoy the special administrator of the estate. Hoy opened Theodore's safe deposit box but still did not find the original October will. Hoy speculated to the court that Theodore had destroyed the original will and recommended the estate pass to Chip. Tyler learned of Hoy's recommendation and contacted the estate's attorney and St. Jude. Tyler also filed the original June will that she retained with the court, noting it was substantively identical to the October copy of the will. Hoy petitioned the court to approve distribution to St. Jude but, after Chip contested Hoy's recommendation, Hoy withdrew it. St. Jude petitioned to probate the lost will.
Both Tyler and DeWalt filed affidavits of proof of lost will, stating that they witnessed Theodore sign the October will and that, to their knowledge, Theodore had not intentionally destroyed or revoked it. Tyler additionally provided that Theodore did not change the beneficiary designations in the October will. Chip, however, submitted a declaration claiming Theodore attempted to reconcile with him before his death.
The court held an evidentiary hearing, at which Tyler, DeWalt, Longo, and Hoy all testified. Tyler testified to the execution of the June and October wills, the accuracy of the copy of the October will, and Theodore's unchanged wish to leave his estate to St. Jude. Tyler also testified that, in early 2014, Theodore affirmatively advised her against contacting Chip. DeWalt, a notary, likewise testified to witnessing the will's execution and, while she could not recall the date of execution, she verified her signature as declarant on the copy of the October will. Longo testified to seeing either the original will or a copy in Theodore's study before he moved into the group home, and testified Theodore told her in December 2013 that he wanted St. Jude to inherit his estate. She also testified Theodore made an annual contribution to St. Jude. Hoy testified she was not aware of Theodore ever discussing his estate planning with anyone at NGS or indicating to them that he wanted to change his will. Hoy maintained she believed Theodore had destroyed his will, although she admitted this was her own speculation.1
The district court denied the petition to admit the lost will. Relevant here, it found the evidence supported that Theodore had lost the will, but also noted Theodore's erratic behavior before he moved into an assisted living facility and found Theodore may have destroyed the will. The district court further found that only Tyler's testimony satisfied NRS 136.240(3) ’s two-witness requirement because DeWalt could not recall the will's provisions. And because the district court concluded that two witnesses had not proved the lost will's provisions, it determined St. Jude failed to meet its burden of proof to show Theodore had not revoked the will. The district court therefore denied St. Jude's petition to probate the lost will.
St. Jude appealed and the court of appeals affirmed the petition's denial. See In re Estate of Scheide , Docket. No. 76924-COA, 2020 WL 1531767 (Order of Affirmance, Mar. 26, 2020). St. Jude filed a petition for review, which we granted and limited to the issues addressed in this opinion.2 See NRAP 40B(g) (providing this court "may limit the question(s) on review").
This case centers on the interpretation of NRS 136.240(3) (2009),3 which reads as follows:
[N]o will may be proved as a lost or destroyed will unless it is proved to have been in existence at the death of the person whose will it is claimed to be, or is shown to have been fraudulently destroyed in the lifetime of that person, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses.
Restated more plainly, this statute prevents probate of a lost will unless (1) the lost will either (a) existed at the time of the testator's death or (b) was fraudulently destroyed, and (2) two credible witnesses clearly and distinctly prove its provisions. In this case, the two issues are whether the will was "in existence at" Theodore's death4 and whether two witnesses "clearly and distinctly proved" the will's "provisions."5 Id.
Standard of review
A court's "primary aim in construing the terms of a testamentary document must be...
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