Taylor v. Estate of Taylor, No. 880136-CA

CourtUtah Court of Appeals
Writing for the CourtORME; In order to affirm a summary judgment, we must find that the material facts are undisputed and that the moving party was entitled to judgment as a matter of law. See, e.g.
Citation770 P.2d 163
PartiesWendell E. TAYLOR, Plaintiff and Appellant, v. The ESTATE OF Grant TAYLOR, deceased, Esther Taylor, Darren G. Taylor, and John Does 1 through 5, Defendants and Respondents.
Docket NumberNo. 880136-CA
Decision Date15 February 1989

Page 163

770 P.2d 163
Wendell E. TAYLOR, Plaintiff and Appellant,
v.
The ESTATE OF Grant TAYLOR, deceased, Esther Taylor, Darren
G. Taylor, and John Does 1 through 5, Defendants
and Respondents.
No. 880136-CA.
Court of Appeals of Utah.
Feb. 15, 1989.

Page 164

A. Howard Lundgren (argued), Salt Lake City, for plaintiff and appellant.

L.S. McCullough, P. Bryan Fishburn (argued), Callister, Duncan & Nebeker, Salt Lake City, for defendants and respondents.

Before BILLINGS, JACKSON and ORME, JJ.

OPINION

ORME, Judge:

Wendell Taylor appeals the trial court's entry of summary judgment against him. Wendell argues that 1) summary judgment was inappropriate due to unresolved issues of material fact regarding the validity of his deceased brother's alleged will; 2) a document favorable to him should be given effect as his brother's will, even though it does not strictly comply with the Utah Probate Code; and 3) the trial court erred in ordering Wendell to pay a portion of defendants' attorney fees. We affirm in large part, but remand for reassessment of one aspect of the court's judgment.

FACTS

In January 1984, Grant Taylor loaned a sum of money to his brother, plaintiff Wendell Taylor. At the time of the loan, Grant had been divorced for about one month from his wife of more than forty years, defendant Esther Taylor. On June 30, 1984, Grant dictated a document to a second brother, Noel Taylor, providing that the loan to Wendell be forgiven upon Grant's death. Noel typed this document and Grant signed it in the presence of Noel and Noel's wife, Geraldine. Noel then signed the document as a witness and filed it away. Geraldine did not sign the document at that time.

Shortly after executing the June 30 document, Grant, who had been ill with cancer, worsened considerably. On August 30, 1984, he executed a document entitled "Last Will and Testament." In this document, Grant made no provision for his former wife, Esther, nor did he mention the debt owed by Wendell or the June 30 document forgiving the debt. The will recited

Page 165

that the bulk of Grant's estate go to a trust, created the same date, in favor of his children.

Grant and Esther remarried on September 21, 1984, approximately ten months after their divorce. The trust Grant established on August 30 was immediately amended to include Esther as a beneficiary. At the time of the remarriage, Grant's cancer had rendered him unable to walk or speak audibly and he died five days later. Shortly thereafter, his estate was informally probated pursuant to the August 30 will.

Following Grant's death, efforts were made to obtain repayment from Wendell of the money Grant had loaned him. Unaware of the June 30 document forgiving the debt, Wendell complained of these efforts to Noel, at which time Noel informed Wendell of that document. However, the document was not located and delivered to Wendell until early 1985. In October of that year, Wendell filed this action to invalidate the previously probated August 30 document and give testamentary effect to the terms of the original June 30 document forgiving repayment of the loan made by Grant.

Wendell claimed that the June 30 document was actually Grant's last valid will, the August 30 document being a product of duress or undue influence. Wendell attached to his complaint a copy of the June 30 document bearing only the signatures of Grant and Noel. Based on the fact that the purported will bore the signature of only one witness, defendants' counsel filed a motion to dismiss Wendell's complaint. Two days before defendants' motion to dismiss was to be argued, Wendell filed an affidavit in which he claimed that the document attached to his complaint was not an accurate copy of the June 30 document. Attached to his affidavit was another copy of the document bearing the additional witness signature of Geraldine Taylor. Accordingly, defendants' motion to dismiss was continued as it only addressed the validity of a document bearing one witness signature.

Defendants' counsel promptly deposed Noel and Geraldine Taylor. Geraldine testified that she saw Grant sign the June 30 document, but did not sign it herself until approximately eight months after Grant's death. Based on this testimony, defendants filed a motion for summary judgment seeking dismissal of Wendell's complaint and an award of attorney fees. Wendell filed an opposing memorandum addressing only the merits of his complaint. On February 20, 1986, the trial court heard oral argument on defendants' motion and granted summary judgment in their favor, but held the fee request in abeyance pending an affidavit substantiating the amount of fees reasonably incurred.

Defendants' counsel filed an affidavit with the court detailing the attorney fees incurred by defendants and seeking an award of $10,037.25. Wendell objected to the award of any fees, but filed no opposing affidavit. The trial court awarded defendants attorney fees in the amount of $5,000. The court's order did not specify the legal basis for the award nor how the court arrived at that precise amount.

On appeal, Wendell raises, through newly retained counsel, three challenges to the trial court's actions. First, Wendell claims the court erred in ruling that the June 30 document forgiving the debt owed to Grant is invalid under Utah Code Ann. § 75-2-502 (1978), which requires that a legally enforceable will be signed by two witnesses "in the testator's presence." Wendell urges us to adopt a standard of "substantial compliance" and hold the document to be valid. Secondly, Wendell argues that disputed issues of material fact surround the validity of the purported will executed by Grant on August 30, 1984, pursuant to which Grant's estate was informally probated and has now been distributed. Wendell argues that summary disposition of this aspect of his complaint was error due to these factual disputes. Lastly, Wendell claims there is no legal basis for awarding defendants even a portion of their attorney fees and, alternatively, that the award must be reversed due to the trial court's failure to enter appropriate findings to support the award.

Page 166

SECTION 75-2-502

AND SUBSTANTIAL COMPLIANCE

Section 75-2-502 of the Utah Probate Code provides that a valid will "shall be signed by at least two persons ... in the testator's presence and in the presence of each other." 1 Wendell concedes that the June 30 document does not strictly comply with this section since only Noel signed the document, as a witness, in Grant's presence. However, Wendell argues that the document substantially complies with § 75-2-502 and is therefore valid because Geraldine saw Grant sign the document and thereafter signed it herself, albeit after Grant's death.

In urging us to adopt a standard of substantial compliance, Wendell makes two points. First, he cites cases from other jurisdictions applying such a standard in construing similar probate code provisions. See, e.g., In re Estate of Perkins, 210 Kan. 619, 504 P.2d 564, 568 (1972); In re Estate of Rudd, 140 Mont. 170, 369 P.2d 526, 530 (1962). Second, he relies on Utah Code Ann. § 75-1-102 (1978), which provides that the probate code shall be "liberally construed." Wendell's reliance on these authorities is unhelpful to his case. Even if we were to adopt a standard of substantial compliance with probate code provisions, 2 the circumstances surrounding the execution of the June 30 document would nonetheless require a ruling adverse to Wendell.

A standard of substantial compliance would forgive no more than "[s]light or trifling departures from technical requirements...." Perkins, 504 P.2d at 568. The requirement that two witnesses to a will sign it in the presence of the testator is not a mere technicality serving no purpose beyond frustrating legitimate testamentary intent. Such a provision is designed

to prevent the substitution of a surreptitious will. The testator must be able to see the witnesses attest the will; or, to speak with more precision, their relative position to him at the time they are subscribing their names as witnesses must be such that he may see them, if he thinks it proper to do so, and satisfy himself by actual view that they are witnessing the very paper he signed to be his last will.

In re Estate of Weber, 192 Kan. 258, 387 P.2d 165, 170 (1963).

Wendell can hardly claim the execution of the June 30 document departs only slightly from the requirements of § 75-2-502. It is undisputed that only one witness, Noel, signed the document in Grant's presence. Geraldine, the second witness, signed it more than eight months after Grant's death. This amounts to an absolute failure to comply--strictly or substantially--with even the most liberal construction of § 75-2-502. Very simply, the document was not signed by two witnesses in the testator's presence, but only one. Thus, it is not a valid will.

Cases from other jurisdictions, applying statutes similar to § 75-2-502, support our conclusion. For example, the Kansas Supreme Court, purportedly applying a standard of substantial compliance, rejected its application to facts which, in our minds, call for it far more than the present facts. See In re Estate of Weber, 387 P.2d at 167-68. The testator in Weber was ill and on his way to the hospital when he stopped at his bank and asked its president to come out to his car to help execute a will. The president instructed three employees to go to a bank window near the testator's car so they could witness the signing of the will, which the testator did after waving to the

Page 167

employees. The president then took the signed will into the bank and the employees signed it as witnesses. Through the bank window, the testator could have observed the witnesses signing something, but he would not have been able to see the document being signed. Id. at 167-68.

The will was held to be invalid. In response to the argument that the signing constituted substantial...

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31 practice notes
  • Staker v. Ainsworth, No. 870166
    • United States
    • Supreme Court of Utah
    • January 8, 1990
    ...1258, 1261 (Utah 1984). 32 Weber ex rel. Weber v. Springville City, 725 P.2d 1360, 1363 (Utah 1986), cited in Taylor v. Estate of Taylor, 770 P.2d 163, 168 (Utah 33 See Masters v. Worsley, 777 P.2d 499, 501 (Utah Ct.App.1989) (importance of written statement in context of motion based on mu......
  • State v. Vincent, No. 910619-CA
    • United States
    • Utah Court of Appeals
    • December 18, 1992
    ...lack of any findings, where facts on that issue were not disputed and showed clear violation of statute); Taylor v. Estate of Taylor, 770 P.2d 163, 168 (Utah App.1989) ("Where the parties have stipulated to the facts or the evidence in the record is otherwise undisputed, the parties have es......
  • Redevelopment Agency of Salt Lake City v. Daskalas, Nos. 880302-C
    • United States
    • Utah Court of Appeals
    • October 11, 1989
    ...with summary judgment decisions, a summary judgment is improper when material facts are disputed. See Taylor v. Estate of Taylor, 770 P.2d 163, 168 (Utah Ct.App.1989). "[W]here attorney fees are awarded to a prevailing party on summary judgment, the undisputed, material facts must establish......
  • Valcarce v. Fitzgerald, Nos. 960144
    • United States
    • Supreme Court of Utah
    • June 26, 1998
    ...question of law and fact that turns on a Page 316 factual determination of a party's subjective intent. See Taylor v. Estate of Taylor, 770 P.2d 163, 171 (Utah Ct.App.1989). The wide variety of circumstances that might support a finding of such intent requires that we give a trial court rel......
  • Request a trial to view additional results
31 cases
  • Staker v. Ainsworth, No. 870166
    • United States
    • Supreme Court of Utah
    • January 8, 1990
    ...1258, 1261 (Utah 1984). 32 Weber ex rel. Weber v. Springville City, 725 P.2d 1360, 1363 (Utah 1986), cited in Taylor v. Estate of Taylor, 770 P.2d 163, 168 (Utah 33 See Masters v. Worsley, 777 P.2d 499, 501 (Utah Ct.App.1989) (importance of written statement in context of motion based on mu......
  • State v. Vincent, No. 910619-CA
    • United States
    • Utah Court of Appeals
    • December 18, 1992
    ...lack of any findings, where facts on that issue were not disputed and showed clear violation of statute); Taylor v. Estate of Taylor, 770 P.2d 163, 168 (Utah App.1989) ("Where the parties have stipulated to the facts or the evidence in the record is otherwise undisputed, the parties have es......
  • Redevelopment Agency of Salt Lake City v. Daskalas, Nos. 880302-C
    • United States
    • Utah Court of Appeals
    • October 11, 1989
    ...with summary judgment decisions, a summary judgment is improper when material facts are disputed. See Taylor v. Estate of Taylor, 770 P.2d 163, 168 (Utah Ct.App.1989). "[W]here attorney fees are awarded to a prevailing party on summary judgment, the undisputed, material facts must establish......
  • Valcarce v. Fitzgerald, Nos. 960144
    • United States
    • Supreme Court of Utah
    • June 26, 1998
    ...question of law and fact that turns on a Page 316 factual determination of a party's subjective intent. See Taylor v. Estate of Taylor, 770 P.2d 163, 171 (Utah Ct.App.1989). The wide variety of circumstances that might support a finding of such intent requires that we give a trial court rel......
  • Request a trial to view additional results

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