Garrett v. Read

102 P.3d 436 (2004)

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Nature of the Case

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Facts

Fielder prepared nearly identical wills for Sarah and John. The remaining estate was bequeathed to the surviving spouse 'absolutely.' If one spouse predeceased the other, or if the spouses died at the same time, each will provided that the rest of the estate was to be divided into sevenths. One-seventh would be distributed to each of the six surviving children of the two spouses. The remaining one-seventh would be split evenly among Gary's children. John died in October 1984, and his entire estate passed to Sarah. Fielder prepared nearly identical wills for Sarah and John. The remaining estate was bequeathed to the surviving spouse 'absolutely.' If one spouse predeceased the other, or if the spouses died at the same time, each will provided that the rest of the estate was to be divided into sevenths. One-seventh would be distributed to each of the six surviving children of the two spouses. The remaining one-seventh would be split evenly among Gary's children. John died in October 1984, and his entire estate passed to Sarah. Sarah died in October 2001. Ps filed this lawsuit, seeking a constructive trust on four-sevenths of the estate property. They alleged the 1993 will was invalid because the 1984 wills had been contractual. Gary's children intervened as third-party plaintiffs, also arguing that the 1984 wills were contractual and that Sarah could not violate her agreement with John by denying them their one-seventh share. Fielder testified to the nature of the joint wills between Sarah and John. Fielder also testified that, before Sarah executed her 1993 will, he informed her of the joint wills, but she told him she had taken care of John's children outside of the will by means of joint property and investments. Fielder prepared the 1993 will in reliance on this statement. Ds contend that Fielder's testimony should be barred as parol evidence contradicting the wills. Ps argued Fielder's testimony was admissible only to prove the agreement to leave the estate to the children and grandchildren in sevenths. All of Fielder's testimony was admitted into evidence. Ps got the summary judgment, and Ds appealed.