Opinion
Nos. 59638-1-I; 60731-6-I.
February 11, 2008.
Appeals from a judgment of the Superior Court for King County, No. 07-4-00151-1, Carlos Velategui, J. Pro Tem., entered February 2, 2007.
Affirmed by unpublished per curiam opinion.
The legislature has provided an alternative way to prove a will where one or more of the witnesses are unavailable to testify. Here, an affidavit identifying the signature of one deceased witness and averring that the second witness's signature and address information is the same as on other wills drafted by the same attorney is sufficient to admit the will to probate. The trial court is affirmed.
FACTS
Audrey Gardner married Roy Gardner in 1958. Both parties had children from previous marriages. In 1960, Audrey executed a will bequeathing all of her property to Roy. Audrey filed for legal separation in 1978 and a decree of legal separation was entered on July 8, 1979. The decree divided the parties' property, but did not revoke Audrey's will. After a short separation, Audrey and Roy continued to live together as husband and wife. In 2006, Audrey suffered a stroke. While still competent, Audrey executed a power of attorney designating Roy as her attorney in fact. Roy continued to act on Audrey's behalf until Audrey died in December 2006. Those actions included the sale of property and the consolidation of money into different bank accounts in order to pay for Audrey's care and upon the suggestion of Audrey and Roy's financial advisor.
On January 5, 2007, Theodore Clark, Audrey's sole surviving son, filed a petition for adjudication of intestacy, requesting his appointment as administrator. Approximately three weeks later, on January 24, 2007, Audrey's will was filed. When presented with the will, Clark, through his attorney, agreed to the admission of the 1960 will to probate. On February 2, 2007, an agreed order admitting the will to probate was entered. Clark's attorney at the time signed the order and waived notice of appearance. Clark consulted a different attorney and now appeals from entry of that agreed order.
Additionally, Clark filed a petition to revoke the probate of the will on the grounds that the will failed to include a self-proving affidavit or testimony of the witnesses to the will. Audrey's will was signed by Louise Farrington and George Gruger, the attorney who drew up the will. Gruger died in 1969 and his estate planning files were taken over by attorney J. Hartley Newsum. Roy submitted an affidavit from Newsom in which the attorney averred that he was familiar with Gruger's signature and that he had also discovered a copy of a duplicate original of Audrey's will which was identical to the one already submitted for probate.
Newsum further attested that he reviewed other original wills in his possession and noted that Louise Farrington was a witness whose signature also appeared on many of those wills. The address listed was the same as that in Audrey's will, but Newsum declared that he had no idea as to her current whereabouts or whether or not Farrington was even alive.
Clark appeals both from the agreed order entering the will to probate and the order denying his petition to revoke probate of the will. This court consolidated both appeals in the interests of judicial economy.
ANALYSIS
Clark contends that the court is precluded from admitting the will to probate because the will does not meet the minimum requirements for admission to probate as required by RCW 11.20.020(2). However, the legislature recognized that there might be circumstances where witnesses were not available to testify and enacted RCW 11.20.040, providing:
RCW 11.20.020(2) provides:
In addition to the foregoing procedure for the proof of wills, any or all of the attesting witnesses to a will may, at the request of the testator or, after his decease, at the request of the executor or any person interested under it, make an affidavit before any person authorized to administer oaths, stating such facts as they would be required to testify to in court to prove such will, which affidavit may be written on the will or may be attached to the will or to a photographic copy of the will. The sworn statement of any witness so taken shall be accepted by the court as if it had been taken before the court.
Proof where one or more witnesses are unable or incompetent to testify, or absent from state
The subsequent incompetency from whatever cause of one or more of the subscribing witnesses, or their inability to testify in open court or pursuant to commission, or their absence from the state, shall not prevent the probate of the will. In such cases the court shall admit the will to probate upon satisfactory testimony that the handwriting of the testator and of an incompetent or absent subscribing witness is genuine or the court may consider such other facts and circumstances, if any, as would tend to prove such will.
RCW 11.20.040 (emphasis added).
Clark argues that Newsum's affidavit, while sufficient regarding the signature of attorney Gruger, is not sufficient as to Farrington's signature because the affidavit did not set forth any action taken to locate her. We disagree. The facts here are sufficient to prove both of the signatures attesting to the will. Moreover, RCW 11.20.040 is clear in its grant of discretion to the court to consider "such other facts and circumstances" to prove the will. Newsum's affidavit indicated that he had recovered the duplicate original 1960 will attested to by both witnesses, but that he had reviewed other wills left in his possession executed by the same attorney that were not only witnessed by that attorney but by Farrington as well. Further, Newsum stated that Farrington listed an address in Seattle in those wills, but that he had no idea as to her current whereabouts or whether or not she was even alive. This testimony by the affiant is sufficient for the court to find the unavailable subscribing witness's signature valid proving the will to be properly admitted to probate.
Because of our holding in this case, we do not reach the question of whether Clark was estopped from bringing the action because of his acquiescence in admitting the will to probate under the agreed order. We note, however, the trial court did not err in relying upon the agreement of the parties when it admitted the will to probate.
Finally, both parties request attorney fees under RCW 11.96A.150 and RAP 18.1. Here, the controlling statute, RCW 11.96A.150, leaves the award of attorney fees to the discretion of the court both at trial and on appeal. We conclude, in the exercise of our discretion, that an award of fees against Clark to the estate under RCW 11.96A.150 is warranted. The estate has benefited by defending on appeal the trial court's decision. There is no truly persuasive issue raised on appeal, and the estate should not be further depleted by the expense of attorney fees on appeal.
In re Estate of Kerr, 134 Wn.2d 328, 949 P.2d 810 (1998) (court may award fees and costs pursuant to the general probate statute as justice may require).
We affirm the orders that are before us on appeal.