Appeal from Superior Court of Whatcom County. Docket No: 94-2-00822-2. Date filed: 03/10/95. Judge signing: Hon. Michael F. Moynihan.
Authored by Mary K. Becker. Concurring: William W. Baker, Ann L. Ellington.
The opinion of the court was delivered by: Becker
BECKER, J. -- Daniel Danielson obtained a jury verdict against the Estate of Edna Olin for breach of Olin's agreement to devise to him a life estate in her lakefront home. The trial court found the jury's award of $22,500 was too low, and ordered a new trial on damages. The estate appeals. Because we find substantial evidence to support the jury's verdict, we reverse the order for new trial and remand for entry of judgment on the verdict.
Danielson resided with Edna Olin during her declining years. He moved into her home in 1990 and helped her with daily living. In 1992 attorney Ernest Bentley prepared for each of them a will, and they formally executed these wills. Each bequeathed to the other a life estate in residential property. Danielson's will left his State Street condominium to his sisters in trust for Olin for so long as she should survive him. Olin's will similarly left to Danielson a life estate in her Dellesta Drive home and its furniture.
In 1993, without Danielson's knowledge, Olin revoked her earlier will and executed a new will leaving everything to her sisters and nothing to Danielson. Olin died later that year. Olin's personal representative, administering the estate under the new will, evicted Danielson from Olin's waterfront home and sold it for approximately $450,000. Danielson sued the estate, alleging that the new will violated Olin's oral agreement to devise him a life estate in her home.
Bentley testified at trial that he had prepared the 1992 wills in accordance with an agreement that Olin and Danielson had made before they came to see him. An accountant testified that the value to Danielson of a life estate in Olin's property was $153,679. The estate called no witnesses. The jury brought in a verdict for Danielson but awarded damages of only $22,500. The trial court granted Danielson's motion for a new trial on damages. The Estate asks us to reverse and dismiss the case for insufficiency of the evidence, and in the alternative seeks to reinstate the jury's verdict as to damages.
INSUFFICIENCY OF EVIDENCE
The estate assigns error to the trial court's denial of its motions to dismiss for insufficiency of the evidence made during and at the close of Danielson's case.
The standard of proof of an oral agreement to devise is one of "high probability". Cook v. Cook, 80 Wash. 2d 642, 647, 497 P.2d 584 (1972). To say that the ultimate fact in issue must be shown by evidence to be "highly probable" is the equivalent of the "clear, cogent and convincing evidence" standard. In re Sego, 82 Wash. 2d 736, 739, 513 P.2d 831 (1973). The trial court instructed the jury that "To prove the existence of a contract to make a will, the plaintiff must prove each element by clear, cogent, and convincing evidence." Instruction 6. The jury, by its verdict, necessarily found the existence of a contract to devise.
On review, the question is whether there is substantial evidence from which a rational jury could find the existence of such a contract to be highly probable. Cf. Sego, 82 Wash. 2d at 739. But see Bland v. Mentor, 63 Wash. 2d 150, 154, 385 P.2d 727 (1963) (where burden of persuasion required clear, cogent, and convincing evidence, appellate function "should, and does, begin and end with ascertaining whether or not there is substantial evidence supporting the facts as found"); Colonial Imports v. Carlton Northwest, Inc., 83 Wash. App. 229, 238-39, 921 P.2d 575 (1996) (same).
To establish an enforceable contract to devise, the record must contain substantial evidence showing that: (1) Olin agreed to leave certain property to Danielson; (2) Danielson actually performed any services or other acts that the parties contemplated as consideration for the agreement; and (3) he performed these services or acts in reliance upon the contract. Cook v. Cook, 80 Wash. 2d 642, 644-45, 497 P.2d 584 (1972) (citing Jennings v. D'Hooghe, 25 Wash. 2d 702, 172 P.2d 189 (1946)). The evidence of the first element--Olin's agreement to leave certain property to Danielson--must include specific evidence objectively manifesting Olin's recognition of the existing agreement during her lifetime. Cook, 80 Wash. 2d at 646.
There is no written evidence of a contract to devise. Danielson does not contend that the symmetrical provisions for life estates in the 1992 wills are in themselves sufficient to prove the existence of a contract to devise. Olin's 1992 will, and her execution of a later will that revoked the 1992 will without informing Danielson, are "just as readily explained as an expression of [her] then intentions, rather than as a recognition of an existing agreement." Cook, 80 Wash. 2d at 648.
But as the Supreme Court acknowledged in Cook, "equity will recognize oral agreements to devise." Cook, 80 Wash. 2d at 644. To prove the existence of an oral agreement, Danielson relied on the testimony of Bentley, the attorney who prepared the mutual wills. Bentley testified that he drafted the wills in accordance with an existing agreement between Olin and Danielson:
These are two people that, as I've indicated, were always together.
They sort of made their final plans and their final agreement as to what they were going to do with their property to the extent that each got to use the other's residence.
Certainly with hindsight it would have been good for me to say to each of these two, "Here, I've got Dan providing for Edna; I've got Edna providing for Dan." But I didn't use the words. Those parties agreed that each gets to use the other's home. All I did was go ...