153 Wash. 2d 152 | Wash. | 2004
Lead Opinion
¶1 The Columbia County Superior Court admitted a 1992 will, signed by Margaret Black, to probate shortly after Margaret’s death in October 2000. The court subsequently admitted a 1993 lost will, purporting to be
¶2 On October 11, 2000, Margaret Black, a resident of Columbia County, Washington, died, leaving property subject to probate. A will executed on December 10, 1992, was admitted to probate on October 12, 2000, and Richard Burns was appointed as the personal representative. The 1992 will requested Burns be appointed as the personal representative and left all of Margaret’s farm property to Douglas William (Bill) Carlton. The residuary of the estate was split into thirds among Eugene Ayers or upon his death to his daughter, Bill Carlton, and the First Christian Church of Dayton. The will explicitly excluded Myrna Black, Margaret’s daughter. The 1992 will was signed by Margaret, signed by two witnesses, and included an attached affidavit of the subscribing witnesses.
f3 Subsequently, Myrna Black petitioned the court to admit a 1993 lost will to probate. Myrna also contested the 1992 will under RCW 11.24.010 to prevent the four-month statute of limitations from running in case her petition to probate was unsuccessful. The 1993 will appointed Myrna as the personal representative and transferred all of Margaret’s property to Myrna, which was in direct contradiction with the 1992 will. An unsigned draft of the will
¶4 Affidavits by Robert Reiter, Janet Taylor, Paul Blauert, and Myrna Black were submitted in support of the lost will.
f 5 In his affidavit Blauert stated that he prepared the 1993 will at Myrna’s request, and the provisions in the will
¶6 Janet Taylor, the notary public and the other witness to the 1993 will as identified by Reiter, does not recall witnessing the 1993 will or any of the people involved. Taylor was a notary public in 1993, and she recognized her signature on Margaret’s durable power of attorney, executed August 14, 1993. She believed she personally witnessed Margaret sign this document because she did not notarize documents for people she did not know unless the person was present. However, Taylor has no recollection of witnessing the will, or speaking to Myrna, Margaret, or Reiter.
¶7 Despite Burns’ and the beneficiaries’ objections to summary judgment, Judge William Acey granted Myrna’s motion for summary judgment admitting the lost will to probate, awarded attorney fees to Burns, and denied Myrna’s attorney fees until after adjudication of any challenges to the lost will. In his oral opinion, Judge Acey noted that the summary judgment was granted based on Reiter’s and Blauert’s affidavits, and he did not make a finding that Taylor had signed the will. Verbatim Report of Proceedings (VRP) (Sept. 26, 2001) at 15, 17. The beneficiaries and Burns appealed the summary judgment order, and Myrna cross-appealed the attorney fee award. The Court of Appeals reversed summary judgment, reversed the attorney
ISSUES
¶8 1. Whether the Court of Appeals erred regarding the necessary burden of proof required to admit lost wills.
¶9 2. Whether summary judgment admitting Margaret’s lost will was properly reversed in light of genuine issues of material fact regarding execution of the lost will.
¶10 3. Whether the Court of Appeals erred in its analysis of the role res judicata plays in probate proceedings.
¶11 4. Whether the Court of Appeals erred in ordering all issues involving Margaret’s 1992 and 1993 wills resolved in one proceeding on remand.
¶12 5. Whether any party is entitled to attorney fees.
STANDARD OF REVIEW
¶13 On summary judgment, we “engage [ ] in the same inquiry as the trial court.” Failor’s Pharmacy v. Dep’t of Soc. & Health Servs., 125 Wn.2d 488, 493, 886 P.2d 147 (1994). We will not resolve factual issues, but rather must determine if a genuine issue as to any material fact exists. Balise v. Underwood, 62 Wn.2d 195, 199, 381 P.2d 966 (1963). “A material fact is one upon which the outcome of the litigation depends.” Id. The moving party has the burden of proving there is no genuine issue of material fact
ANALYSIS
A. Standard of Proof for Lost Wills
¶14 The Court of Appeals incorrectly stated that a lost will may be admitted to probate only if the will is in existence at the time of the testator’s death and the will’s contents are proved “ ‘clearly and distinctly by the testimony of at least two persons.” Black, 116 Wn. App. at 484 (quoting In re Estate of Nelson, 85 Wn.2d 602, 605, 537 P.2d 765 (1975)). Nelson interpreted an earlier version of the lost will statute, RCW 11.20.070. Nelson, 85 Wn.2d at 605. Since Nelson, the legislature has amended the statute and deleted the requirement that the will must be in existence at the time of the testator’s death. See Laws of 1994, ch. 221, §§ 20, 75. The current statute also states that the contents “must be proved by clear, cogent, and convincing evidence, consisting at least in part of a witness to either its contents
¶15 Further, the Court of Appeals erred in stating that “[pjroof of the execution of a lost will is by a preponderance of the evidence.” Black, 116 Wn. App. at 483 (citing Nelson, 85 Wn.2d at 607-08; In re Estate of Peters, 43 Wn.2d 846, 860, 264 P.2d 1109 (1953)). The Court of Appeals cites Nelson and Peters for this proposition, but neither case supports this burden of proof. In Nelson, the formalities of execution of the will were not contested, and the court used the clear preponderance of the evidence standard to determine if the will was in existence at the time of the testator’s death, a requirement no longer applicable under the current statute. 85 Wn.2d at 606-08. Peters, interpreting a former version of RCW 11.20.070, states that the clear and distinct burden of proof relates only to the contents of the will, and proof as to the execution of the will is found in the first paragraph of the statute. 43 Wn.2d at 860. However, the execution of the will was not contested in Peters, paragraph one of the statute does not provide a standard for the appropriate burden of proof, and the court provides no standard for proving the execution of a will. Id. Although the court later mentions the preponderance of the evidence standard, this is in regard to whether the testator lacked capacity and does not strongly support the proposition that that standard should apply to the execution of a will generally. Id. at 861; see also In re Estate of Gardner, 69 Wn.2d 229, 235-36, 417 P.2d 948 (1966) (quoting Peters, 43 Wn.2d at 860, for the proposition that the “ ‘clear and distinct’ ” burden of proof refers only to proving the contents of the will, but not stating the applicable burden of proof to be applied to the execution of a will); In re Estate of Neubert, 59 Wn.2d 678, 685, 369 P.2d 838 (1962) (same).
B. Admission of the 1993 Lost Will
¶17 The Court of Appeals applied RCW 11.20.070 to determine if the 1993 will should be admitted to probate and found that Myrna had met the technical requirements of the statute. Black, 116 Wn. App. at 484. However, the court concluded that summary judgment was not appropriate because, based on the doctrine of res judicata, summary judgment would not allow disputed issues to be argued in a later will contest, which would “inadvertently short circuit[ ] the statutory probate scheme.” Id. at 484-86. The Court of Appeals correctly applied RCW 11.20.070 but incorrectly held that Myrna had met the technical requirements of the statute. The court also erred in its application of res judicata, and that issue will be discussed below. See infra section C.
¶18 At the outset, we must determine which statutes apply to this case. We decide issues of statutory construction de novo. In re Estate of Baird, 131 Wn.2d 514, 518, 933 P.2d 1031 (1997). Statutes relating to the same subject are construed together and, in “ ‘ascertaining legislative purpose . . . are to be read together as constituting a unified whole, to the end that a harmonious, total statutory scheme evolves.’ ” Hallauer v. Spectrum Props., Inc., 143 Wn.2d 126, 146, 18 P.3d 540 (2001) (quoting State v. Wright, 84 Wn.2d 645, 650, 529 P.2d 453 (1974)). When more than one statute applies, the specific statute will supersede the general statute. See Hallauer, 143 Wn.2d at 146 (stating that when statutes conflict, the specific statute supersedes the general statute); Waste Mgmt. of Seattle, Inc. v. Utils. & Transp. Comm’n, 123 Wn.2d 621, 630, 869 P.2d 1034 (1994).
¶19 Here, we need consider only two statutes, RCW 11.20.070 and RCW 11.12.020. Although RCW 11-.20.020 explains how a party may petition a court to admit a will to probate in an ex parte proceeding, here the 1993 will is a lost will; therefore, the specific lost will statute, RCW 11.20.070, and not the general statute applies.
2. Technical Requirements: Execution of the Lost Will
¶20 RCW 11.12.020(1) requires all wills to be in writing, “signed by the testator or by some other person under the testator’s direction in the testator’s presence,” and attested to by two witnesses in the presence of the testator and at the testator’s request. The witnesses may attest to the will by subscribing their names to the will or by signing an affidavit in compliance with RCW 11.20.020(2). Citing In re Estate of Campbell, 47 Wn.2d 610, 615-16, 288 P.2d 852 (1955), the Court of Appeals stated that “[a]n attestation clause is prima facie evidence that the [will] was signed by the witnesses in the presence of the testatrix and at her direction.” Black, 116 Wn. App. at 484. However, in Campbell, it appears that the will presented to the court included the testator’s signature and a signed attestation clause.
¶21 Absent a signed attestation clause, execution may also be proved if witnesses testify they signed the document in the presence of the testator and testify to facts showing attestation as a matter of law. In re Estate of Chambers, 187 Wash. 417, 427-28, 60 P.2d 41 (1936); In re Estate of Lindsay, 91 Wn. App. 944, 949, 957 P.2d 818 (1998). The definition of witness as used in RCW 11.12.020 is “one who has personal knowledge of the fact that the will was signed by the testator.” In re Estate of Price, 73 Wn. App. 745, 751, 871 P.2d 1079 (1994). Here, Reiter submitted an affidavit stating that Margaret signed the will in his presence and he signed the will as a witness. This satisfies the RCW 11.12.020 requirement as to one witness. However, Myrna must prove two attesting witnesses signed the document. Therefore, we must determine whether Taylor signed the document and, if so, if she did so as an attesting witness.
f 22 A witness may testify only to events within his or her personal knowledge, and affidavits submitted during summary judgment proceedings must be based on the affiant’s personal knowledge. Rules of Evidence (ER) 602; CR 56(e); Visser v. Packer Eng’g Assocs., 924 F.2d 655, 659 (7th Cir. 1991) (interpreting Federal Rule of Evidence 602, which is the same as ER 602, and stating that testimony outside an affiant’s personal knowledge is not admissible in an affidavit submitted during summary judgment proceed
¶23 Here, Reiter stated that Margaret signed the will in Taylor’s presence and he observed Taylor signing the document as a witness. However, his recall of Taylor as the notary who was present was based on a review of the notarized power of attorney containing Taylor’s signature. Further, in Reiter’s declaration, submitted to the court to oppose summary judgment, he states that Margaret signed the will in the presence of witnesses and a notary, implying that Taylor was not a witness. Clerk’s Papers (CP) at 112; see also CP at 1 (petition to probate the lost will stating the will was executed in the presence of two witnesses and a notary public); but see CP at 2, 31 (noting that Taylor was a witness). Moreover, from Taylor’s affidavits, it appears she was present for the notarization of Margaret’s power of attorney, but it is not clear that she had personal knowledge that Margaret signed the will, as she does not recall any of the events associated with the execution of the will. Although Blauert stated he noticed the will was signed by two attesting witnesses, he did not state the names of the witnesses. Therefore, it is unclear if Taylor’s signature is the other witness signature on the will.
¶24 Additionally, even if Taylor signed the document, it is unclear if she signed it as a notary or as an attesting witness.
¶25 On summary judgment, inferences are construed in the light most favorable to the nonmoving party. Balise, 62 Wn.2d at 199. Here, there is evidence which creates a genuine issue of material fact as to the proper execution of
C. Res Judicata
¶26 Although we have held that summary judgment is not appropriate in light of genuine issues of material fact regarding the execution of the will, we address the Court of Appeals’ opinion discussing res judicata to clarify how this doctrine works in regard to probate proceedings. The Court of Appeals stated that summary judgment admitting the 1993 lost will was not appropriate because it would preclude challenges to the will’s validity. Black, 116 Wn. App. at 485-86. We grant Myrna’s motion for leave to supplement the record and admit the trial court order limiting the issues at summary judgment to admission of the 1993 will (see Trial Court Order) in order to explain why the Court of Appeals is mistaken in this case. See Rules of Appellate Procedure 9.10 (allowing the court to supplement the record in order to decide the merits of an issue on review).
¶28 Normally, the offer to probate a will is a non-adversary proceeding, and a hostile party waits until the will is admitted to probate to contest the will under RCW 11.24.010. Campbell, 47 Wn.2d at 612-13. However, a will contest is not the exclusive way to contest a will, and “[u]nder certain circumstances, a hearing upon a petition to probate a will may properly become an adversary proceeding.” Gordon v. Seattle-First Nat’l Bank, 49 Wn.2d 728, 736, 306 P.2d 739 (1957). Where a party raises issues regarding the jurisdiction of the court or other issues that could or should be determined at the hearing upon a petition to probate, the proceeding may be adversarial. Id. However, if a party contests the admission of the will to probate, generally that same party may not file a later will contest. The party’s only remedy is to appeal the order admitting the will. In re Estate of Hall, 34 Wn.2d 830, 833, 210 P.2d
¶29 However, it must be remembered that res judicata bars only claims actually adjudicated which were or should have been raised in the proceeding. Here, the trial court specifically stated it would not address claims regarding competency or undue influence and limited the summary judgment trial to whether the lost will should be admitted to probate, which included whether the will was executed at all. See Trial Ct. Order; see also Judge’s Oral Op. (Sept. 6, 2001) at 4, 10 (stating that although the court has suspicions about undue influence, the issue will be addressed at the will contest trial). Because the trial court order limited the issues, the grant of summary judgment admitting the 1993 will would not bar claims regarding competency or undue influence because these claims were not addressed, nor could they be addressed, in the summary judgment trial. Therefore, the Court of Appeals was incorrect in basing its denial of summary judgment on res judicata grounds, since unadjudicated issues regarding the will’s validity precluded by the trial court order could be raised by the beneficiaries in a later will contest.
D. One Proceeding
¶30 Although we base our reversal of summary judgment on different grounds, we affirm the Court of Appeals’ reversal of summary judgment. We also affirm the decision to remand the case with instructions to decide all issues pertaining to the 1992 and 1993 wills in one proceeding. Black, 116 Wn. App. at 488.
¶31 If a party challenges a will at probate, instead of waiting to file a will contest, and the challenge is not jurisdictional, it is within the court’s discretion to
¶32 Where the trial court has abused its discretion and should have heard all issues presented at probate, the court may remand the case with instructions to decide all issues regarding the will. Gordon, 49 Wn.2d at 736. Trying all claims in one proceeding furthers the purpose of the probate statutes “to avoid the trial of separate and distinct contests.” In re Estate of Larson, 187 Wash. 183, 188, 60 P.2d 19 (1936) (stating that a normal (e.g., not lost) will should be admitted in an ex parte proceeding and hostile parties should wait to contest the will until after admission).
¶33 Here, the trial court recognized problems regarding the competency of Margaret, the authenticity of the lost will, and the possibility of undue influence. See Trial Court Order; Verbatim Report of Proceedings (Sept. 26, 2001) at 15-16. However, the court chose to reserve these issues for the will contest because the court found the issues went to the weight of the lost will and not to its admissibility. Id. We find that it was an abuse of the trial court’s discretion not to hear all issues regarding the validity of the will at the probate proceeding. See Gordon, 49 Wn.2d at 736-37 (finding the trial court abused its discretion by not hearing all objections in the probate proceeding because the court’s action could cause a delay to a hearing on the contest and to an appeal). We find that on
E. Attorney Fees
¶34 The Court of Appeals reversed the trial court’s order awarding attorney fees to Burns and stated that the court should award fees to both parties or to neither. Black, 116 Wn. App. at 491. We affirm the Court of Appeals and remand the attorney fee issue to the trial court.
¶35 The controlling statute in this case is RCW 11.96A.150. This statute leaves the award of attorney fees to the discretion of the court, and we will not interfere with a trial court’s fee determination unless “there are facts and circumstances clearly showing an abuse of the trial court’s discretion.” In re Estate of Larson, 103 Wn.2d 517, 521, 694 P.2d 1051 (1985); RCW 11.96A.150; see also RCW 11.24.050 (attorney fee statute under the will contest chapter stating that where a will is revoked, assessment of costs shall be in the court’s discretion). Based on the holdings in In re Estate of Jolly, 3 Wn.2d 615, 101 P.2d 995 (1940), and In re Estate of Watlack, 88 Wn. App. 603, 945 P.2d 1154 (1997), we find that the court abused its discretion by awarding attorney fees to Burns only.
¶36 In Watlack, the court ordered the estate to pay the attorney fees of all parties to the will dispute because the litigation involved all beneficiaries and affected the rights of all the beneficiaries. 88 Wn. App. at 612-13 (distinguishing In re Estate of Niehenke, 117 Wn.2d 631, 818 P.2d 1324 (1991), a case where the dispute did not
¶37 Here, like Watlack, the will dispute involves all the beneficiaries, affects the rights of all beneficiaries, and an award against the estate would not harm any uninvolved beneficiaries. The litigation benefits the estate by establishing the final wishes of Margaret and establishing which alleged beneficiaries have a right to Margaret’s estate. See Niehenke, 117 Wn.2d at 647-48 (stating there are situations where attorney fees are properly assessed against the estate, but noting that generally the estate must be benefited if attorney fees are assessed against it). Further, although one party will be unsuccessful in the will dispute, if it is shown that the party had a duty to oppose the will and acted in good faith, under Jolly the party may still be entitled to attorney fees. 3 Wn.2d at 626-27. Therefore, we affirm the Court of Appeals and remand this issue to the trial court.
CONCLUSION
¶38 We clarify that the statutory requirements as currently written in RCW 11.20.070 must be followed and that the execution and content of a will must be proved by “clear, cogent, and convincing evidence.” We affirm the Court of Appeals’ reversal of summary judgment on the grounds that there are genuine issues of material fact regarding the execution of the 1993 lost will. While res judicata may apply to summary judgment proceedings regarding probate, here the Court of Appeals improperly applied the doctrine in light of the trial court’s order limiting the issues in the
Alexander, C.J., and Johnson, Madsen, Ireland, Bridge, and Fairhurst, JJ., concur.
Although Myrna Black’s affidavit is part of the record, the lower courts did not consider the affidavit in order to avoid potential problems with the deadman’s statute, RCW 5.60.030. Clerk’s Papers (CP) at 18-27; see generally In re Estate of Shaughnessy, 97 Wn.2d 652, 648 P.2d 427 (1982) (explaining and applying the deadman’s statute), aff’d 104 Wn.2d 89, 702 P.2d 132 (1985). Whether Myma’s affidavit should be considered was not properly raised in the petition for review or cross-petitions to this court. Therefore, we will not consider Myma’s affidavit.
The petition and cross-petition for review were mistakenly denied on December 2, 2003. Our December 24, 2003, order amended the previous order and granted review.
It should be noted that the trial court erroneously and specifically stated that inferring language in the light most favorable to the nonmoving party did not technically apply to this case. VRP (Sept. 26, 2001) at 32.
See also R.D. Hursh, Annotation, Proof of Due Execution of Lost Will, 41 A.L.R.2d 393 § 4 (1955) (noting that “[t]he judicial consensus as to the quantum of proof which a proponent of a lost will must bring forth to prove that an alleged lost will was duly executed would appear to be that evidence of due execution must be clear and satisfactory”).
Although RCW 11.20.020, the statute used to admit new wills, is inapplicable here, we note that the Court of Appeals incorrectly stated that “the petition to probate the new will should not be granted ‘ “except upon the clearest evidence.” ’ ” Black, 116 Wn. App. at 484 (quoting In re Estate of Elliott, 22 Wn.2d 334, 352, 156 P.2d 427 (1945) (quoting Waters v. Stickney, 94 Mass. (12 Allen) 1,15 (1866))). The Court of Appeals failed to note that only Waters, a Massachusetts case quoted in Elliott, and not Elliott, held that the “clearest evidence” standard should be used. Elliott, 22 Wn.2d at 352. Further, the language of RCW 11.20.020 does not require petitioners to meet a “clearest evidence” standard. Therefore, the Court of Appeals’ “clearest evidence” standard is not supported by the cited authority.
RCW 11.12.020 incorporates RCW 11.20.020(2)’s affidavit requirements as a way a party may attest to the will. Therefore, RCW 11.20.020(2) applies for this purpose only. If a witness is unable or incompetent to testify, or is absent from the state, RCW 11.20.040 may apply. However, here no witnesses are absent, incompetent, or unable to testify. Finally, once the will is admitted to probate, any interested person may contest the will within four months of admission under RCW 11.24.010. However, technically this proceeding is not a will contest, since the parties are challenging the admission of the 1993 will during the offer to probate the will (e.g., it has not been decided whether the 1993 will is admitted yet). Therefore, RCW 11.24.010 does not apply.
The testimonial clause and attestation clause had dates written in them. Campbell, 47 Wn.2d at 614-15. Although it appears the dates had been altered or written in a different ink than the body of the will, it may be inferred that the clauses were signed, since no date at all would appear -unless the clauses had been signed (i.e., the date is filled in at the same time the clause is signed). See id.
The dissent argues there is enough evidence that the attestation clause was signed to prove execution. Dissent at 181. However, whether or not the will and clause were signed by two attesting witnesses is the very issue in dispute. Since we conclude that there are genuine issues of material fact as to whether the clause and/or will were signed, it is inappropriate to rely on the attestation clause as proof of execution.
Although the dissent believes assuming three people were present during execution of the will is ludicrous, at least three people visited Margaret on August 14, 1993: Reiter, Taylor, and Myrna. CP at 30-31, 119, 124; Dissent at 183-84. Therefore, it is probable that at least three people were present during execution of the will and if Taylor was present, she served as a notary and not as a witness. Further, the dissent assumes that Myrna may be the other witness. Dissent at 184
However, a notary’s signature can serve only one function, so if a notarial certificate is necessary on the document, the signature cannot also serve as a witness signature. Price, 73 Wn. App. at 753 n.4. Here it is unclear if a notary’s signature would be necessary since the document contains a certificate of subscribing witnesses that seems to conform to RCW 9A.72.085. However, even if a notary’s signature was unnecessary, Taylor’s signature may not be that of a witness if she lacked personal knowledge regarding Margaret’s signature. See id. at 751.
Myrna and the dissent reference several lost will cases, specifically Harris, Gardner, and Neubert, in support of admission of the 1993 lost will. Br. of Resp’t and Cross-Appellant Myrna Black at 21-27; Dissent at 182-83. These cases are distinguishable. In Harris, one witness testified, and the other witness was dead; therefore, the court applied a former version of RCW 11.20.040 and found the will admissible. Harris, 10 Wash, at 558-59. Here, neither witness is dead, so RCW 11.20.040 is inapplicable. The Gardner court found appropriate execution of a destroyed will where the two attesting witnesses testified as to the execution of the will, albeit differing as to the time the will was executed. 69 Wn.2d at 235-36. Here, only one attesting witness, Reiter, testified. Although Taylor and Blauert also submitted affidavits, it is arguable whether or not Taylor was an attesting witness and Blauert was not an attesting witness. Finally, in Neubert, the court found the testimony of the only live attesting witness, a purported conformed copy of the will, and testimony regarding how conformed copies are made to be sufficient evidence to prove execution of the will. 59 Wn.2d at 681-84, 686. Here, the court has an unsigned computer copy, and only one definite attesting witness who was present, Reiter, testified. Therefore, Harris, Gardner, and Neubert do not support admission of the 1993 lost will.
Because we have determined that there is a genuine issue of material fact regarding execution of the 1993 will, barring summary judgment, we decline to address the second requirement necessary under RCW 11.20.070(2) regarding whether the contents of the will were proved by “clear, cogent, and convincing evidence.” On the same basis, we also find it unnecessary to address other grounds the Court of Appeals relied on to support the reversal of summary judgment. See Black, 116 Wn. App. at 486-87.
Although Jolly is treated like a will contest, the facts are very similar to our case. In Jolly a will was admitted to probate, a party petitioned to admit a new will, and the executor unsuccessfully defended the prior will. 3 Wn.2d at 616-20.
Dissenting Opinion
¶39 (dissenting) — I dissent. I would reinstate the trial court’s summary judgment order admitting the 1993 will to probate. This would permit litigation of the real contentious issues, namely whether execution of the 1993 lost will was procured through undue influence and whether Margaret Black had sufficient testamentary capacity. But to refuse to admit this will to probate conflicts with prior cases which have admitted lost wills under more tenuous circumstances.
Proving Execution of Lost Will
¶40 Before turning to the ultimate issue of whether to admit the 1993 will to probate, I note my disagreement with the majority’s assertion that the “clear, cogent, and convincing” standard
¶42 The lost wills statute currently provides:
(1) If a will has been lost or destroyed under circumstances such that the loss or destruction does not have the effect of revoking the will, the court may take proof of the execution and validity of the will and establish it, notice to all persons interested having been first given. The proof must be reduced to writing and signed by any witnesses who have testified as to the execution and validity, and must be filed with the clerk of the court.
(2) The provisions of a lost or destroyed will must be proved by clear, cogent, and convincing evidence, consisting at least in part of a witness to either its contents or the authenticity of a copy of the will.
(3) When a lost or destroyed will is established under subsections (1) and (2) of this section, its provisions must be distinctly stated in the judgment establishing it, and the judgment must be recorded as wills are required to be recorded. A personal representative may be appointed by the court in the same manner as is herein provided with reference to original wills presented to the court for probate.
RCW 11.20.070. Notably, subsection (2) of the act requires only “[t]he provisions of a lost or destroyed will [to] be proved by clear, cogent, and convincing evidence.” RCW 11.20.070(2) (emphasis added). Nowhere in that subsection is any reference to proof of the lost will’s execution. Rather it is subsection (1) of RCW 11.20.070 which addresses proof
¶43 However the majority blends subsections (1) and (2) together under the erroneous belief it is reading RCW 11.20.070 as a whole and giving effect to all language used. Majority at 163. It is firmly established though that courts “must not add words where the legislature has chosen not to include them.” Rest. Dev., Inc. v. Cananwill, Inc., 150 Wn.2d 674, 682, 80 P.3d 598 (2003). Yet this is precisely what the majority does by interjecting “execution” into RCW 11.20.070(2)—the only subsection in chapter 11.20 RCW (the applicable chapter for proving wills for probate) to even reference the “clear, cogent, and convincing” standard.
¶44 Even assuming the statute is ambiguous yields the same result, as our cases construing prior versions of the statute recognized a distinction between proving a will’s execution and its contents. If a statute is ambiguous, meaning it is susceptible to two or more reasonable interpretations, then the court may look beyond the plain language to other aids, such as legislative history. State ex rel. Citizens Against Tolls v. Murphy, 151 Wn.2d 226, 242-43, 88 P.3d 375 (2004). Prior to 1995 the lost wills
Whenever any will is lost or destroyed, the court may take proof of the execution and validity of such will and establish it, notice to all persons interested having been first given. Such proof shall be reduced to writing and signed by the witnesses and filed with the clerk of the court.
No will shall be allowed to be proved as a lost or destroyed will unless it is proved to have been in existence at the time of the death of the testator, or is shown to have been destroyed, canceled or mutilated in whole or in part as a result of actual or constructive fraud or in the course of an attempt to change the will in whole or in part, which attempt has failed, or as the result of a mistake of fact, nor unless its provisions are clearly and distinctly proved by at least two witnesses, and when any such will is so established, the provisions thereof shall be distinctly stated in the judgment establishing it, and such judgment shall be recorded as wills are required to be recorded... .
Former RCW 11.20.070 (Laws of 1965, ch. 145, § 11.20.070) (emphasis added). This court recognized “the clear and distinct proof referred to in the lost wills statute, RCW 11.20.070, relates only to the provisions of the instrument, and not to its execution. Proof as to the execution of the instrument is dealt with in the first paragraph of that statute and in other statutes.” In re Estate of Peters, 43 Wn.2d 846, 860, 264 P.2d 1109 (1953) (emphasis added) (citing RCW 11.20.020, .040); see also In re Estate of Gardner, 69 Wn.2d 229, 235-36, 417 P.2d 948 (1966). The “other statutes” referenced in Estate of Peters describe the standard procedure for admitting any existing will to probate and how such proof may be obtained if one or more of the subscribing witnesses is deceased or unavailable. See RCW 11.20.020, .040. Thus, proof of a lost will’s execution under former RCW 11.20.070 was no different than proving any other will’s execution.
¶46 In re Last Will & Testament of Borrow, 123 Wash. 128, 212 R 149 (1923) is not to the contrary. Language in that opinion expressed “the least that can be required [when a lost will is offered for probate] is that the evidence to establish its execution and contents must be clear and convincing.” Id. at 130 (emphasis added). Yet that court rejected probate of the lost will because the “appellant failed to establish that any will had ever, at any time, been
¶47 Since the presumptive burden of proof for civil cases is by a preponderance of the evidence, Reese v. Stroh, 128 Wn.2d 300, 312, 907 P.2d 282 (1995), and proving execution of a lost will for probate is the same as proving execution of any other will, it follows that standard of proof applies when a lost will is offered for probate until the legislature mandates otherwise. Whereas the will’s contents must be proved by “clear, cogent, and convincing evidence,” RCW 11.20.070(2), execution is proved by a preponderance of the evidence. It may or may not be better policy to require the heightened standard to prove a lost will’s execution; that debate, however, belongs in the legislature—not this court. State ex rel. Johnson v. Lally, 59 Wn.2d 849, 855, 370 P.2d 971 (1962).
Admitting Lost Will to Probate and Summary Judgment
¶48 Even though the preponderance of the evidence standard applies to proving the lost will’s execution, it is not per se determinative of the ultimate issue, namely whether to admit the 1993 lost will. However when this record is viewed as a whole, reasonable minds could reach but one conclusion: Margaret Black signed this written will on August 14, 1993, and Robert Reiter and Janet Taylor signed their names as witnesses. My reasons follow.
¶49 The statutory requisites to formally execute a will are minimal. Estate of Gardner, 69 Wn.2d at 236; In re Estate of Chambers, 187 Wash. 417, 425, 60 P.2d 41 (1936). A will is validly executed if it is (1) in writing, (2) signed by the testator, and (3) “attested by two or more competent
¶50 This case ultimately turns on whether the affidavits of Seattle attorney Paul Blauert, California attorney Robert Reiter, and notary Janet Taylor sufficiently remove any genuine issue of material fact as to whether two persons witnessed Margaret execute this will and subscribed their names to the will attesting to this fact.
f 51 A signed attestation clause is prima facie proof that the will was signed by two witnesses in the testatrix’s presence and at her request or direction. In re Estate of Campbell, 47 Wn.2d 610, 615-16, 288 P.2d 852 (1955). While the majority correctly notes the proffered copy of the lost will is unsigned, uncontradicted testimony from Blauert and Reiter demonstrate that two persons signed that clause: Reiter and Taylor.
¶52 A copy of the lost will was provided as an attachment to both Blauert’s and Reiter’s affidavits respectively. Blauert affirmed that the copy attached to his affidavit is
¶53 Reiter also testified by declaration that he “asked Mrs. Black a number of questions [about the will] in Ms. Taylor’s presence.” Clerk’s Papers (CP) at 31. Margaret told Reiter that she understood she was signing a will and that the will “left her entire estate to Myrna.” CP at 31. He further testified that in Margaret’s presence he “and Ms. Taylor signed [their] names as witnesses thereto.” CP at 31 (emphasis added). Finally Reiter affirmed he and Myrna gave that signed document to Blauert at Seattle-Tacoma International Airport the following day. CP at 32.
¶ 54 Blauert testified that he drafted the will and that it was the same document Myrna returned to him when she returned to Seattle from Walla Walla. CP at 43-44. This corroborates Reiter’s testimony. Blauert further testified that the will “had been executed on August 14, 1993, and that it had been attested to and signed by two witnesses.” CP at 44.
¶55 The majority is correct Blauert’s testimony alone insufficiently demonstrates Taylor and Reiter signed as witnesses, as Blauert was not present when the will was signed. Majority at 167. But when viewed in conjunction with Reiter’s testimony and the identity between the copies of the will attached to Blauert’s and Reiter’s affidavits, the only reasonable conclusion to draw is that Reiter and Taylor signed the attestation clause of the will.
¶56 The majority emphasizes, however, that Taylor cannot independently recall Margaret Black executed the will. Majority at 167-68. Such is not dispositive. See In re Estate of Neubert, 59 Wn.2d 678, 369 P.2d 838 (1962). In Estate of Neubert the only living attesting witness, an attorney in the law firm which possessed a conformed copy of the lost will, “had no independent memory of Mrs. Neubert [the testatrix] or the execution of the [lost] will in his and [the
¶57 Thus we have not once, but twice held execution of a lost will was sufficiently proved by fewer than two witnesses affirmatively testifying to the execution of the will. Yet the majority discounts these authorities claiming “only one attesting witness testified.” Majority at 169 n.ll. This simply is not true. To the contrary there are affidavits filed under oath by not only Reiter but also Taylor and Blauert. Merely because Taylor lacks independent recollection of this will’s execution does not render her testimony useless and irrelevant. Rather, Taylor affirms she met Margaret Black in 1993. In her second declaration Taylor acknowledges she “believe [s] that [she] did personally observe Margaret Black sign the Durable Power of Attorney on August 14, 1993, because [she] did not notarize documents for individuals [she] did not know, without them being in [her] presence at the time of signing.” CP at 119-20. Moreover the majority’s attempted distinction based on “one” witness’s testimony is tenuous given Estate of Neubert held execution was proved despite no affirmative testimony to the execution of the will.
¶59 Reiter’s initial declaration asserts he “and Ms. Taylor signed [their] names as witnesses thereto.” CP at 31 (emphasis added). Furthermore, the second page of the petition to admit the will, which the majority fails to mention, alleges “Mr. Reiter has executed an Affidavit filed herein testifying as to the provisions and execution of the Will by the decedent and decedent’s testamentary capacity and to the witnessing of the Will by both himself and the other witness, Janet Taylor, who also notarized the executed Will.” CP at 2 (emphasis added). Thus, when viewing the petition as a whole, Myrna alleged that Taylor was both a
¶60 All three affidavits when viewed in conjunction with one another establish Myrna met her prima facie summary judgment burden. Given that the beneficiaries of the 1992 will failed to produce any evidence outside their pleadings that demonstrated a genuine issue of fact remains,
CONCLUSION
¶61 Genuine issues of fact may remain as to whether Margaret Black executed the 1993 lost will under undue influence or without sufficient testamentary capacity. Yet
Chambers, J., concurs with Sanders, J.
This court has previously interpreted that standard to mean “evidence [which] shows the ultimate fact at issue to be highly probable.” In re Dependency of K.S.C., 137 Wn.2d 918, 925, 976 P.2d 113 (1999).
The “clear, cogent, and convincing” standard does appear in other provisions of Title 11 RCW. See RCW 11.40.040(2) (standard of proof to overturn presumption that personal representative exercised reasonable diligence to determine identity of decedent’s creditors); RCW 11.42.040(2) (same for notice agent handling creditors against nonprobate assets); RCW 11.54.040(1) (standard of proof to obtain increased award from estate for basic maintenance and support needs); RCW 11.88.045(3) (standard of proof in guardianship proceedings to establish alleged incapacitation). The clear, cogent, and convincing standard also applies in will contest proceedings under chapter 11.24 RCW, where the party seeking to overcome the presumption of validity if the will is admitted to probate (or presumption of invalidity if the will is rejected from probate) by the aforementioned standard. See In re Estate of Jolly, 197 Wash. 349, 354, 85 P.2d 267 (1938). At issue here is whether Myrna Black sufficiently proved the 1993 lost will for probate, thus rendering the above referenced statutes irrelevant to the case at hand.
The relevant section of Substitute House Bill 2270 took effect on January 1, 1995. Laws of 1994, ch. 221, § 75(1).
One legislative change in that section is worth some mention. Whereas former RCW 11.20.070 required the proof to be in writing and “signed by the witnesses,” (emphasis added), the revised version required the proof to be in writing and “signed by any witnesses who have testified as to the execution and validity,” RCW 11.20.070(1) (emphasis added). Courts presume a change in legislative intent whenever it materially alters a statute and that the legislature intended to exclude the term so omitted. Rhoad v. McLean Trucking Co., 102 Wn.2d 422, 426-27, 686 P.2d 483 (1984). The amendment of “the witnesses” to “any witnesses” suggests the legislature sought to clarify the requirement in lost wills cases that every witness must provide signed proof of a lost will’s execution. Accord Webster’s Third New International Dictionary 97 (1981) (defining “any” as “used as a function word to indicate the maximum or whole of a number or quantity,” such as “give me [any] letters you can find”). Regardless, it cannot be reasonably argued that the “clear, cogent, and convincing” standard leaped from one subsection to the next merely by modifying “the” to “any.”
This is properly so since the lost will was in writing and signed by Margaret as evidenced by both Paul Blauert’s and Robert Reiter’s unchallenged affidavits, which together demonstrate Blauert drafted a written will which Margaret signed. Moreover the contents of the will unquestionably leave Margaret’s entire estate to Myrna. While one need only prove the substance of the lost will’s provisions and not the exact language to satisfy RCW 11.20.070(2), Estate of Gardner, 69 Wn.2d at 236, the affidavits of Blauert and Reiter demonstrate the copy of the lost will Blauert drafted and the copy Reiter witnessed are identical. This more than adequately satisfies the requisite proof of the will’s provisions.
Estate of Neubert denied probate of the lost will, however, because the proponents there failed to meet the then existing statutory requirement of proving the lost will was in existence at the time of the testator’s death. Estate of Neubert, 59 Wn.2d at 687. That requirement was removed in 1995. Laws op 1994, ch. 221, § 20 (codified at ROW 11.20.070(2)).
The majority offers the possibility Myrna was the third individual in the room, and as such Taylor still could have been merely a notary and nothing more. See majority at 167. Even assuming this to be true, the 1993 will must be admitted to probate. Execution of a will is still valid even if one of the attesting witnesses is interested (i.e., a beneficiary under the will). RCW 11.12.160(2); Estate of Chambers, 187 Wash. at 420 (holding beneficiaries under a will are qualified to testify to execution). Rather the interested witness would lose his or her gift under the will (absent proof overcoming a presumption of undue influence) and that property would pass intestate. RCW 11.12.160(3). Granted, such a situation would have the same net effect here with Myrna being the only beneficiary under the 1993 will and sole intestate heir to Margaret’s estate. Yet that does not invalidate execution of the 1993 will, which would, as a matter of law, revoke the 1992 will. In re Estate of Campbell, 46 Wn.2d 292, 296, 280 P.2d 686 (1955). Nonetheless, those beneficiaries would still be afforded the opportunity to revive the 1992 will through the doctrine of dependent relative revocation. See generally In re Kerckhof’s Estate, 13 Wn.2d 469, 472-73,125 P.2d 284 (1942). Thus, even ¿/Myrna was the other witness, execution of the will was sufficiently proved. But that possibility should not be considered in any event, as to conclude as much necessitates a finding that Reiter is not credible, which is wholly unacceptable in summary judgment proceedings absent evidence rebutting his assertions. See Howell v. Spokane & Inland Empire Blood Bank, 117 Wn.2d 619, 626, 818 P.2d 1056 (1991).
The only evidence proffered by the beneficiaries of the 1992 will was a declaration filed by Reiter in previous guardianship proceedings instituted in 1993, in which Reiter makes no mention of Margaret’s executing the 1993 lost will. CP at 82-85. However the declaration corroborates Myma’s and Reiter’s trip to visit Margaret in every other respect, and the beneficiaries do not describe what relevance testimony regarding execution of the will would have had to those guardianship proceedings, nor why such testimony would be included in those proceedings in the first place.
