Wе 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 llfi.OOSiS) 1 2 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 plaintiffs 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,
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 fоllowing 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 thrеe 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 аnd 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,
Defendant disallowed plaintiffs claim on August 31, 1982, and on September 23, 1982, plaintiff filed this action against the personal rеpresentative 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 plaintiffs shifting thеories 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,
“[The promisee’s or beneficiary’s] testimony stands uncontradicted in most cases because the alleged promisor is usually dead. The contract is often alleged to have been made long prior to the suit to enforce it; thus the promisee and the witnesses * * * usually testify from faded or blurred memory. The opportunityfor fraud is great and even if one does not have an actual intent to defraud, one who feels that a decedent was obligated in some manner may rationalize the decedent’s expressed intent to provide for him by will into a contract to do so.” (Footnote omitted.)
That reasоning especially applies here, where suit was brought, and the witnesses testified, nearly a quarter-century after the contract was allegedly made.
Both courts below held that plaintiff had established the contract by “clear and convincing evidence,” but neither articulated what it understood this standard to require. Although judges and lawyers know that “clear and convincing evidence” is a standard greater than “preponderance of the evidence” and less than “beyond a reasonable doubt,” it is less certain how the intermediate standard is to be determined and applied. While the use of these three phrases assumes that they communicate significantly different standards to triers of fact, some empirical research reveals that they do not necessarily do sо, even to people expected to be more receptive to their nuances. See, e.g., Comment, Evidence: The Validity of Multiple Standards of Proof, 1959 Wis L Rev 525. 8 Commentators have recognized that the confusion stems in part from the “straddling involved in adopting some standards which point toward the jury’s mental state and others which treat probability as an intrinsic quality of the ‘evidence’ and therefore of the ‘facts’ themselves.” Ball, The Moment of Truth: Probability Theory and Standards of Proof, 14 Vand L Rev 807, 809 (1961). See also Birmingham, Remarks on “Probability” in Law: Mostly, a Casenote and a Book Review, 12 Ga L Rev 535 (1978), questioning the validity of the law’s use of the concept of probability.
In
Cook v. Michael,
The unelaborated phrase “highly probable” runs the same risk as does “clear and convincing evidence”; it may serve only to rationalize decisions after the fact rather than provide guidance for how to decide. Nevertheless, we discern some guidance from the commentators who first suggested expressing the standard in terms of probability and degree of belief. Professor Morgan, who believed that “[b]y phrasing the charge in terms of probability, the pertinent distinctions can be made easily understandable,” argued that a proposition should be considered established by clear and convincing evidence if “its truth is much more probable than its falsity.” Morgan, Instructing the Jury Upon Presumptions and Burdens of Proof, 47 Harv L Rev 59, 66-67 (1933). Professor McBaine proposed an instruction for juries that:
“The burden imposed is to convince you that the facts asserted are highly probablytrue, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.”
McBaine, Burden of Proof: Degrees of Belief, 32 Cal L Rev 242, 263 (1944). By phrasing the test in terms of the relative probabilities that the fact asserted existed and that it did not, this approach properly focuses the trier’s attention on those portions of the evidence which support the alternative inferences from the testimony, including undisputed testimony.
We recognized in
Paulson v. Paulson, supra,
that where evidence is “not basically in dispute, it is the inferences to be drawn from this evidence” in support of the plaintiffs position which must be shown to be highly probable.
Plaintiff argues that although we review
“de novo”
using the “clear and convincing evidence” standard, we should give great weight to the trial court’s factual findings. We have given such weight in other cases involving claims for specific performance of oral contracts, including at least one in which the plaintiff alleged a contract to máke a will and in which we examined the evidence against the “highly probable” standard established in
Cook, Paulson v. Paulson,
IV. Evidence Regarding Existence of Contract
The plaintiff does not allege that this case involves either wills which themselves “disclose a contract to make certain disposition of property,” or a contract in which services were “rendered in consideration of a promise to devise or bequeath property”; rather, he contends that while “the wills themselves do not refer to each other or disclose any contract, * * * nevertheless taken into consideration, together with all the facts and circumstances surrounding their execution,” they provide proof of a contract. To prove that contract, he emphasizes the 1959 wills themselves, the history of the family relationships, the circumstances surrounding execution of the wills, and the statements of Charles, Sr., and Lillian.
A. Existence of mutual, reciprocal wills
The parties agree that the 1959 wills of Charles, Sr., and Lillian were executed at the same time and place, prepared by the same attorney, attested by the same witnesses, and identical (except that where Lillian’s will referred to
Charles, Charles’ will referred to Lillian). The mere fact that two persons simultaneously made wills providing for the same ultimate disposition of property does not establish that they acted pursuant to any binding agreement to do so. Similar tastes, or love and affection for each other, can just as well account for such wills.
American National Red Cross v. Wilson, supra,
B. History of family relationships
There is no important disagreement about the relationships between members of the Willbanks family. We agree with the Court of Appeals that:
“The record is replete with evidence of Lillian’s animosity toward her son, Charles, Jr., and her grandson, Will * * * and her favoritism toward her granddaughter LaVonne * * *; the record also establishes that Charles, Sr., did not share those feelings but had good relationships with all.”
“Q. What was he referring to when he said it would make family matters worse?
“A. Well, my mother-in law and he didn’t agree about evidently, what was going on and she did not want Will or Charles to have anything. And he felt that Will and LaVonne should be treated equally.”
Plaintiff related an incident in which his grandfather bought him an accordion worth over $500, which Lillian did not want Charles, Sr., to buy:
“Q. How do you know your grandmother didn’t like that?
“A. It was very obvious. On the way to town she didn’t speak to my grandfather, she didn’t speak to me.”
Plaintiff testified about a conversation with Charles, Sr., in December, 1967:
“One of the things he wanted to say was the reason that my father was only briefly mentioned in the will because it was a trade-off with my grandmother.
<<* * * * *
“Q. Did he indicate why he was cutting your father off?
“A. Yes, he said it was a trade-off with my grandmother because it was the only way that she would agree to split the estate 50-50. * * *
“Q. Did he indicate anything or make any statement to the effect that he was attempting to keep peace with your grandmother?
“A. That — that was the gist of the conversation. That’s the only way that he could have a tolerable relationship with my grandmother.”
Plaintiff testified that Charles also told him in “early summer of ’68” that “the only way he could get my grandmother to agree to that was to * * * take my father out of the will.”
C. Circumstances surrounding execution of the wills
Besides testimony by Lorraine and plaintiff that years later Charles, Sr., told them how he and Lillian had written their wills, the trial court heard testimony by Marie Martin, secretary to the attorney, Biggs, who drafted the wills. We agree with the trial court and Court of Appeals that her testimony established that Charles, Sr., and Lillian initially disagreed about their wills, but thereafter somehow came to an agreement.
We accept Martin’s testimony as establishing the following.
In regular practice, once a client had decided what he or she wanted in a will, Biggs would call Martin in to take his dictation regarding terms of the will. Biggs did this because it enabled clients to hear what was being dictated and to make necessаry corrections and changes then rather than later, and because Biggs himself “wasn’t good at memory work.” On the Willbanks’ first visit to Biggs’ office, Biggs did not call Martin in, but “as they were leaving, they were not too happy apparently from what I gathered and Mr. Biggs said to them, well, you go and talk it over and come back. And if you want to make the will, fine.”
Martin testified to a conversation she had with Biggs after the Willbanks left the office, but did not clarify what Biggs said to them about what kind of wills he was willing to prepare for them. Biggs told Martin that the Willbanks “couldn’t agree as to what they wanted * * *. [T]he problem was, that Mr. Willbanks wanted a will that couldn’t be broken, both of them to make wills that couldn’t be broken. * * * And she didn’t want that kind of will.”
“Q. * * * Then what happened?
“A. Well, he told me that he would not make that kind of a will. He said that if they wanted that kind of will, they would have to go to another attorney,that he would not make that type of will.”
Lаter she testified that “[Biggs] told [Charles, Sr.,] if they wanted that kind of will, they would have to go to someone else.” On cross examination by defendant’s counsel, Martin testified that Biggs had a policy against either a joint will, one document signed by both parties, or a will “where they agree in the will that they cannot break it or change it after the death of the other.”
“Q. * * * Isn’t that the essence it was going to be a joint will or a will which would contain within its four corners some reference to an agreement not to revoke?
“A. Yes, that’s right.”
On redirect, she testified that “If the party died, the other one couldn’t change it, he would not draft that kind of will.” While there is no doubt that Biggs had a policy against preparing either joint or mutual wills that could not be revoked, it is not clear how well he communicated that policy to his clients or what thеy understood it to mean. Martin was not present during Biggs’ conversation with the clients.
Mr. and Mrs. Willbanks later returned to Biggs’ office, and Biggs called Martin in to take dictation of the wills. Again, she had not been present during Biggs’ consultation with them. During dictation, she heard no statements by Lillian and no reference to joint wills or to revocability of the wills.
Martin testified that when Mr. and Mrs. Willbanks returned to sign the wills, Lillian was asked in “that usual format” whether it was her last will and testament. Martin “couldn’t tell you verbatim what was the words,” but Lillian’s answer was to the effect that “Well, it isn’t exactly what I wanted but I will go along with Charles.” She could not remember whether Lillian used the word “compromise,” and recalled no comments by Charles, Sr., at that time.
On cross-examination, she agreed with defendant’s counsel that “these ended up being mutual and reciprocal wills in common which is what a large percentage of husbands and wives make routinely.” She testified further that Biggs never drafted a will that one spouse could not change after the other died; however, had there been any agreement that these wills could not be revoked, she testified, Biggs would have mentioned that to Lillian and would have expressly dictated that agreement as part of the 1959 wills.
On February 20, 1969, two months after Charles, Sr.’s, death, Lillian, accompanied by LaVonne, returned to Biggs’ office to make a new will. Again, Martin took Biggs’ dictation in Lillian’s presence. Lillian stated that she did not feel that plaintiff could take care of money and that she therefore wanted to favor LaVonne. Martin did not remember any statements by anyone at that time about the 1959 will, and she heard Biggs make no objection to Lillian’s preparing a new will.
D. Statements of the testators
While Martin’s testimony about Lillian’s remark that she would go along with Charles was the only evidence of a statement by Lillian about her testamentary intentions, three witnesses testified to statements by Charles, Sr.
One witness, long-time family acquaintance Gene Greenslitt, merely stated that on one occasion Charles, Sr., told him that “his two grandchildren would end up with [the property] * * * they was both going to be equal and I didn’t see any difference.” Greenslitt testified to no statement indicating disagreement or agreement with Lillian.
The second, Lorraine, said that in September, 1964, Charles told her that “I want to divide whatever I have equally between my grandchildren,” as he couldn’t leave much to his son “because it just makes family matters worse” since Lillian “did not want Will or Charles [Jr.] to have anything.” He said he had “fixed” the will so plaintiff and LaVonne “will both share alike.” In 1968, on the family farm, Charles, Sr., told Lorraine and plaintiff
The third witness, plaintiff, testified that in December, 1967, in early summer, 1968, and on the 1968 occasion when Lorraine was also present, Charles, Sr., told him that he would give very little of his estate to Charles, Jr., but that when Charles, Sr., and Lillian were both dead, the estate would be split evenly between plaintiff and LaVonne. During the first of these conversations, Charles made the remarks about “a tradeoff’ to “keep peace” with Lillian and during the second, the comment that this was “the only way he could get [Lillian] to agree,” to which we have already referred, Part IV C, supra.
V. Evaluating the Evidence
In deciding whether these parties made a contract in 1959, we can give little guidаnce to those who will draft contracts to make wills in the future. The legislature sought to provide that guidance in 1973 by enacting ORS 112.270, which now provides:
“(1) A contract to make a will or devise, or not to revoke a will or devise * * * executed after January 1, 1974, shall be established only by:
“(a) Provisions of a will stating mutual provisions of the contract;
“(b) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or
“(c) A writing signed by the decedent evidencing the contract.
“(2) The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.”
We decide here only what must be shown to prove the existence of a contract allegedly made before the effective date of this statute.
Most troubling in this case is the significance to be given to the term “agreement” or its equivalents
(e.g.,
“tradeoff’) when one of the parties has used it to describe his or her testamentary arrangements. The evidence in this case clearly convinces us that Charles, Sr., and Lillian initially disagreed about the disposition of their property, that they agreed in December, 1959, to the extent they executed virtually identical wills, and that on several occasions Charles, Sr., indicated to others that this disposition was the result of an agreement with Lillian. We also find it is much more probable than not that Charles, Sr., and Lillian, who felt quite differently about their son and grandchildren, were acting at least in part from something other than “similar tastes and affections,”
see American Nat’l Red Cross,
“altered by evidence that the parties had ‘agreed’ to the making of such wills. Of course they had so agreed. The mere presence of such wills reveals that the parties must have arrived at an understanding or agreement concerning their testamentary dispositions. Such discussions and understandings between persons of close affinities, especiаlly between husbands and wives, are not unusual and the fact that they have taken place is no indication that there has been any thought of a binding contract.”
Sparks, Contracts to Make Wills 27-28 (1956).
Nevertheless, in several cases, this court has found contracts based on little more than the existence of mutual wills executed at the same time and place, along with extrinsic evidence of the testators’ wishes, if there was the slightest indication of an “agreement.” For instance,
Schramm v. Burkhart,
Were we simply to compare the evidence in those cases with the evidence here, we would be inclined to find that a contrаct was made. However, the findings that other justices have made while sitting as triers of fact on records unique to the cases before them do not establish rules of law to be applied to our determination of facts upon the record now before us.
Bales v. SAIF,
Plaintiff contends, and the Court of Appeals properly held, that if two parties execute wills pursuant to a contract, once the survivor accepts benefits
11
under the other’s will, a court of equity may enforce the contract and prevent a “fraud” by the survivor who might dispose of the property inconsistently with the contract; this rule
But there is no “fraud,” and no reason for a court of equity to prevent the revocation of a will from having its ordinary effect, unless each testator had reason to know that the agreement would bind him or her in this manner. We may specifically enforce only those aspects of an agreement to make wills which both parties much more probably than not understood to be the consequences of that agreement.
Based on the evidence presented, we do not find it so highly probable that Charles, Sr., and Lillian understood that once either of them tоok under the other’s will, the ultimate disposition of the property stated in the 1959 wills could not be changed. From Martin’s testimony, it appears that Charles initially wanted to effect such a result, but Lillian did not. While attorney Biggs’ intentions in preparing the wills are not decisive, his views about irrevocable wills are relevant, to the extent he communicated them to Mr. and Mrs. Willbanks, in determining what they understood themselves to be doing.
See Gill v. Hewitt,
Were the burden of persuasion reversed, we could not say it is much more probable than not that the testators did not understand that each was relinquishing his or her right to change the disposition of property once the benefits of the spouse’s will were received; Martin’s testimony too incompletely reveals what Biggs told them, and cannot inform us whether, when they returned, they executed their wills in acquiescence to his policy against irrevocable testaments, or in spite of it. Considering Martin’s testimony as a whole, it is more likely than not that Biggs told the Willbanks of his policy, but the question is a close one.
We agree with the Court of Appeals that Biggs’ advice against “a will that couldn’t be broken” could support an inference that the parties merely decided to rely on an oral agreement and not put explicit contractual language in the wills themselves.
Because the plaintiff did not establish by clear and convincing evidence the existence of the contract which he sought to enforce specifically, the judgments of the trial court and the Court of Appeals were incorrect, and we need not decide whether the action was barred by the statute of limitations.
Reversed.
Notes
ORS 115.005 provides:
“(1) Claims against the estate of a decеdent, other than claims of the personal representative as a creditor of the decedent, shall be presented to the personal representative.
«* * * * *
“(3) If notice to interested persons is published, claims not presented before the expiration of 12 months after the date of the first publication of notice to interested persons, or before the date the personal representative files his final account, whichever occurs first, are barred from payment.”
ORS 19.125(3) provides:
“Upon an appeal from a decree in a suit in equity, the Court of Appeals shall try the cause anew upon the record.”
ORS 19.125(4) provides:
“When the Court of Appeals has tried a cause anew upon the record, the Supreme Court may limit its review of the decision of the Court of Aрpeals to questions of law.”
No question has been raised in these proceedings concerning the rule against perpetuities.
We assume that this provision does not imply that Charles, Sr., has made any “outlays of monies and property” since his death.
The record does not show what property, if any, of Charles, Sr., passed to Lillian by his will. Any property held under tenancy with right of survivorship, such as real property held as tenants by the entirety, would not pass by the will. If a part of the property of Charles, Sr., and Lillian was actually held with right of survivorship, neither could have defeated the other’s contingent, or inchoate, right to take the whole of the property except by some ante mortem action to destroy the other tenant’s right of survivorship.
See note 6, supra.
In this study, mock juries selected “by expediency and by the desire to use individuals of above average intelligеnce” (mostly college and graduate students) were given typical instructions on these standards and asked to apply them to the same mock testimony and exhibits. The standards used made little difference; about the same percentage of jurors answered “yes” to special verdict questions when each standard was used. 1959 Wis L Rev at 530. The jurors were also asked to rank the standards from most difficult to easiest to satisfy. Only a quarter ranked them correctly. Id. at 534-35.
See also McCauliff, Burdens of Proof: Degrees of Belief, Quanta of Evidence, or Constitutional Guarantees?, 35 Vand L Rev 1293 (1982) (presenting results of surveys in which federal judges were asked to express their understanding of the three standards in percentages of certainty required; average for “clear and convincing evidence” was 75 percent).
Schramm v. Burkhart,
A court should determine whether property actually was taken by the will rather than by operation of law or some other instrument. See note 6, supra.