Willbanks v. Goodwin

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: LENT
• Citation: Willbanks v. Goodwin, 709 P.2d 213, 300 Or. 181 (Or. 1985)
• Decision Date: 17 December 1985
• Parties: Will Charles WILLBANKS, Respondent on Review, v. James O. GOODWIN, Personal Representative of the Estate of Lillian C. Willbanks, Lavonne Mars, Ember Mars, Amber Mars and Angel Mars, Petitioners on Review. 82-9-385; CA A29651; SC S31266.

Page 213

709 P.2d 213

300 Or. 181

Will Charles WILLBANKS, Respondent on Review, v. James O. GOODWIN, Personal Representative of the Estate of Lillian C. Willbanks, Lavonne Mars, Ember Mars Amber Mars and Angel Mars, Petitioners on Review.

82-9-385; CA A29651; SC S31266.

Supreme Court of Oregon In Banc.

Argued and Submitted April 2, 1985.

Decided Nov. 5, 1985.

Reconsideration Denied Dec. 17, 1985.

Ferris F. Boothe, Portland, argued the cause and filed briefs for petitioners on review.

Stephen F. Crew, Portland, argued the cause for respondent on review. With him on briefs was O'Donnell, Ramis, Elliott & Crew, Portland.

Paul Gerhardt, Portland, filed a brief amicus curiae for Oregon Land Title Assn LENT, Justice.

We allowed review to decide whether an action for specific performance of an alleged contract to make a will and seeking to impose a constructive trust on the assets of a decedent's estate is a "claim," which would be barred by ORS 115.005(3) ¹ if not presented to the personal representative within 12 months after the first publication of notice to interested persons. The trial court and the Court of Appeals held that this statute did not apply to the plaintiff's action. We reverse without reaching that issue because the evidence does not clearly convince us that the contract alleged by the plaintiff ever existed.

I. Scope of Review

In this equity case we do not simply assume the facts as found by the courts below. Because the Court of Appeals tried the cause anew upon the record as required by ORS 19.125(3), ² Willbanks v. Goodwin, 70 Or.App. 425, 427, 689 P.2d 1004 (1984), we "may" limit our review to questions of law. ORS 19.125(4). ³ ORS 19.125(4) gives us an option, when allowing the petition, to limit our review. Genest v. John Glenn Corporation, 298 Or. 723, 725, 696 P.2d 1058 (1985); Louisiana-Pacific v. Lumber and Sawmill Workers, 296 Or. 537, 545, 679 P.2d 289 (1984). We did not exercise that option when we allowed this petition, so we review anew upon the record. Because plaintiff's cause is predicated on the existence of the alleged contract, we first decide whether the alleged contract was made.

II. Undisputed Facts

The parties do not dispute several facts which provide the background of this controversy.

Lillian Willbanks died on May 15, 1981, leaving a will dated July 18, 1978, and admitted to probate on May 22, 1981. This will and its August 26, 1980, codicil left the bulk of Lillian's estate to LaVonne Mars, one of her two grandchildren, and to LaVonne's children as follows:

"THIRD: I give the sum of $10,000.00 to my trustee hereinafter named, in trust for the following purposes:

"(a) Said trustee shall hold said trust, and pay therefrom to my son, Charles Willbanks [Charles, Jr.], no more than $125.00 per month, including both principal and interest. In the event of the death of my son, Charles, the trust shall be paid out by my trustee at the same rate of not more than $125.00 per month to my daughter-in-law, Lorraine Willbanks.

"(b) Said trustee may sell, convey, transfer, invest, or may borrow money, pay debts, compromise, settle, waive or sue on claims, and do everything and anything necessary in the management of said trust as fully as I could do myself.

"FOURTH: I give my home, household goods, farm of 47+ acres and including tools, implements and equipment of every type located at Carus, on Highway 213, Clackamas County, Oregon, to my trustee hereinafter named, in trust for my granddaughter, LaVonne Mars, and her three daughters, Ember, Amber and Angel, a one-quarter share each with the right of representation in each case. The personal property on the farm, and the use and possession of the land and improvements shall be immediately delivered to such beneficiaries in equal shares. My trustee shall simply hold title to the farm, so that there shall be no sale of the farm nor any portion thereof prior to the 25th birthday of LaVonne Mars' youngest daughter.[ ⁴ LaVonne and her daughters may manage and maintain the farm as they see fit until legal title is delivered to them.

"Immediately when LaVonne Mars' youngest daughter attains the age of 25 years, the farm title portion of the trust shall be distributed to LaVonne Mars and her three daughters, Ember, Amber and Angel, a one-quarter share each, with the right of representation as to LaVonne and the three great granddaughters; otherwise equally among the survivors of this class of four.

"FIFTH: I hereby instruct my personal representative to sell all my rental properties, and other assets, to liquidate the same, and all the said residue of my estate, wheresoever situate of which I may die seized or possessed, or to which I may be entitled at the time of my death, I give in equal shares to be divided among my two grandchildren, LaVonne Mars and Will C. Willbanks [plaintiff herein], and my five great grandchildren, Ember, Amber and Angel Mars, and Amy and Sally Willbanks, with the right of representation of any who might predecease me."

The codicil of August 26, 1980, provided:

"Paragraph Third shall read as follows:

"THIRD: I give the sum of $100.00 each to my son, Charles Willbanks, and to his wife, Lorraine Willbanks.

"I make this change in my will for the reason that both my late husband, Charlie, and I have, since his death, made rather constant and substantial outlays of monies and property to my son and wife, or on their behalf." ⁵

This case arose when plaintiff Will Charles Willbanks, Lillian's other grandchild, claimed that Charles, Sr., and Lillian had contracted to make wills providing that plaintiff and LaVonne would eventually share the grandparents' estate equally. On June 2, 1981, defendant Goodwin, personal representative of Lillian's estate, first published a notice to persons interested in that estate. On August 28, 1982, plaintiff presented to the personal representative a "Claim of Will Charles Willbanks against the estate of Lillian C. Willbanks," alleging "the execution of mutual and reciprocal wills by Charles P. Willbanks [Sr.,] and Lillian C. Willbanks on December 8, 1959, and the breach by Lillian * * * of an agreement not to revoke such wills following the death of Charles [Sr.,] * * *." No copy of Lillian's 1959 will was produced, but the parties agree that it mirrored her husband's will, and provided as follows:

"SECOND, I hereby give, devise and bequeath unto my son, Charles Richard Willbanks, the sum of Fifty ($50.00) Dollars.

"THIRD, I hereby give, devise and bequeath all the rest, residue and remainder of my property, both real, personal and mixed unto my husband * * *.

"FOURTH, In the event my said husband * * * predeceases me, then and in that event, I hereby give, devise and bequeath all my property both real, personal and mixed unto my two grandchildren, to-wit: LaVonne May Mars, now residing at Clackamas, Oregon; and Will Charles Willbanks, now residing with his parents at Route 3, Oregon City, Oregon, in equal shares."

Charles, Sr., died on December 21, 1968, and pursuant to his probated 1959 will, Lillian took all his property except the $50 gift to Charles, Jr. ⁶

Defendant disallowed plaintiff's claim on August 31, 1982, and on September 23, 1982, plaintiff filed this action against the personal representative and LaVonne and her children, praying for a judgment "specifically enforcing the agreement * * * to make mutual and reciprocal wills, and not to revoke such wills" and "impressing a constructive trust" upon the assets of Lillian's estate. Defendants moved to dismiss and, later, to strike the complaint as time barred by ORS 115.005(3). The circuit court denied the motions and, after a court trial, found for plaintiff that there was an agreement as alleged and that ORS 115.005(3) was not a bar. The Court of Appeals affirmed.

These facts frame the question whether the 1959 wills were executed pursuant to a contract and, if so, whether the disposition of property for which the wills provided became irrevocable before Lillian changed her will in favor of LaVonne and her children.

III. Standard of Review

The plaintiff's shifting theories in this case complicate our inquiry whether the evidence establishes a contract. At first, he contended that Charles, Sr., and Lillian contracted to make mutual reciprocal wills and to make those wills irrevocable. Part II, supra. On appeal he abandoned the second half of that contention, arguing instead that "there need be no express agreement that the will is irrevocable. * * * It is the rules of equity imposed by well established equitable principles that renders the wills irrevocable." He maintains that it would be inequitable to allow Lillian's disposition of her estate contrary to the terms of her 1959 will after she took Charles, Sr.'s, property under his will. ⁷ At oral argument in this court, plaintiff urged that the agreement of Charles, Sr., and Lillian made the contract, not the will, irrevocable, and that Lillian obtained only a life estate in Charles, Sr.'s, property that passed to her under his will.

Under any of these theories, however, the parties and both courts below agree that the plaintiff had the burden of proving the contract by "clear and convincing evidence." We, too, agree that a plaintiff must meet that standard to prove the existence of any legally binding agreement to dispose of property in accordance with the terms of a testamentary instrument. American Nat'l Red Cross v. Wilson, 274 Or. 237, 240, 545 P.2d 883 (1976); Taylor v. Wait, 140 Or. 680, 684, 14 P.2d 283 (1932); Stevens v. Myers, 91 Or. 114, 168-70, 177 P. 37, 2 ALR 1155 (1919). See also Pantano v. Obbiso, 283 Or. 83, 87, 580 P.2d 1026 (1978) ("Proof of a conduct creating a constructive trust must be by strong, clear, and convincing evidence--evidence that is of 'extraordinary persuasiveness.' "); Johnson v. Wilson, 276 Or. 69, 76, 554 P.2d 157 (1976) ("An oral contract to make a will devising real property must be proved...