Estate of Pfleghar ( 1983 )

Green, J.

Edna Charlotte Pfleghar appeals a judgment invalidating a will naming her executrix and principal beneficiary, based on the finding she exerted undue influence over the decedent. Vera Teter, the will contestant, cross-appeals challenging the trial court's award of executrix and attorney's fees to Charlotte Pfleghar.

The issues presented are whether: (1) There was clear, cogent and convincing evidence Charlotte Pfleghar unduly influenced the decedent; and (2) whether one who is named executrix and sole beneficiary in a will which is set aside for undue influence exercised by that person on the testator should recover costs and attorney's fees from the estate.

The record and the findings¹ show that: In late 1977 Charlotte Pfleghar, then 56 years old, moved to Spokane and placed an advertisement in the newspaper seeking domestic or companion work. Frank Pfleghar (the decedent) responded to the advertisement and hired Charlotte Pfleghar. They were engaged within a week or so and married in February 1978, 4 to 6 weeks after their first meeting. At the time of their marriage, Mr. Pfleghar was 83 years old and had a multitude of physical ailments, including diabetes, hypertension, poor eyesight, impaired hearing, prostate problems and arteriosclerosis. The couple separated 9 months later and divorced after only a year of marriage.

Charlotte had a strong, forceful personality, while Mr. Pfleghar, due to age and health problems, was very dependent on those around him. During the marriage, Mr. Pfleghar told friends he was afraid of Charlotte, and on one occasion locked himself in his bedroom for protection from her. It was necessary for the police to kick the door in to get to him.

After the Pfleghars divorced, Mr. Pfleghar became good friends with Mrs. Teter, and in late September 1980 he proposed to her. In October of 1980, he executed a will leaving his estate to Mrs. Teter.

On December 5, 1980, Charlotte moved back into Mr. Pfleghar's home. A few days later, Mr. Pfleghar contacted his attorney and requested him to draft a will leaving his entire estate to Charlotte. This will was executed December 9. The next day Charlotte moved out and Mr. Pfleghar called the attorney and directed him to destroy the will. Charlotte returned 2 days later and Mr. Pfleghar again called his attorney and told him to draft another will leaving his estate to Charlotte.

On December 16, 1980, Mr. Pfleghar was admitted to the hospital for prostate surgery. On December 18, while he was still heavily medicated with narcotic-type drugs following surgery, Charlotte called Mr. Pfleghar's attorney and asked him to bring the new will to the hospital. The attorney complied. Charlotte read the will naming her as executrix and sole beneficiary to Mr. Pfleghar. He then signed it.

On December 24 Charlotte obtained a marriage license which named herself and Mr. Pfleghar as prospective husband and wife. On December 30 Charlotte obtained his signature on a general power of attorney form she had obtained at a store. On January 7, 1981, Mr. Pfleghar died. Charlotte then petitioned the court for an order admitting the December 18 will to probate. Mrs. Teter petitioned to set aside the probate of that will asserting Charlotte had exercised undue influence. The court concluded Charlotte had unduly influenced the decedent and held the will invalid. Nevertheless, the court awarded Charlotte executrix and attorney's fees to be paid by the estate.

On appeal Charlotte contends the record does not contain clear, cogent and convincing evidence she exercised undue influence over the decedent. We disagree.

To sustain an order premised upon clear, cogent and convincing evidence, the ultimate fact in issue must be shown by evidence to be "highly probable". In re Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973); In re Estate of Reilly, 78 Wn.2d 623, 479 P.2d 1 (1970). The factors to be considered in determining whether undue influence was exerted were set forth in Dean v. Jordan, 194 Wash. 661, 672, 79 P.2d 331 (1938):

The most important of such facts are (1) that the beneficiary occupied a fiduciary or confidential relation to the testator; (2) that the beneficiary actively participated in the preparation or procurement of the will; and (3) that the beneficiary received an unusually or unnaturally large part of the estate. Added to these may be other considerations, such as the age or condition of health and mental vigor of the testator, the nature or degree of relationship between the testator and the beneficiary, the opportunity for exerting an undue influence, and the naturalness or unnaturalness of the will.

See also In re Estate of Burkland, 8 Wn. App. 153, 158-59, 504 P.2d 1143 (1972).

Having reviewed the record in light of these factors, we hold there was clear, cogent and convincing evidence to support the findings, and the findings in turn support the conclusions of law that Charlotte unduly influenced the decedent.

In her cross appeal, Mrs. Teter contends the trial court erred in awarding Charlotte executrix and attorney's fees. We agree.

The sole test in determining whether an executor is entitled to recover his costs out of the estate is: "Did the deposed executor act in good faith?" In re Estate of Kleinlein, 59 Wn.2d 111, 115, 366 P.2d 186 (1961). The court in making its determination as to good faith looks to its findings and conclusions in the will contest. See In re Estate of Kleinlein, supra, where the court found the executor knew the deceased was mentally incompetent and lacked testamentary capacity and, therefore, the executor did not defend the will in good faith. The court in In re Estate of Kleinlein, supra at 116, quotes with approval from In re Estate of Jones, 166 Cal. 147, 150, 135 P. 293 (1913):

"... The test of the executor's right to have the costs of his unsuccessful attempt to prevent revocation of probate paid out of the estate is whether he has acted in good faith. (See Estate of Berthol, 163 Cal. 343 [125 P. 750 (1912)].) It cannot be said that one exercises good faith in seeking to establish a will which he himself has, by fraud or undue influence, caused to be executed.

(Italics ours.) Therefore, a conclusion of undue influence perpetrated by an executor and sole beneficiary in a will contest imports a finding of bad faith. In re Estate of Kleinlein, supra, is consistent with In re Estate of Jennings, 6 Wn. App. 537, 538-39, 494 P.2d 227 (1972), which holds that costs and attorney's fees may not be awarded to an unsuccessful proponent of a will where probate is denied because of undue influence or fraud personally perpetrated by the proponent.

Courts in other jurisdictions faced with this issue take the same position. See In re Estate of Graham, 156 Fla. 421, 23 So. 2d 485 (1945); In re Estate of Randall, 64 Idaho 629, 132 P.2d 763, 135 P.2d 299 (1943); In re Estate of Jenkins, 245 Iowa 939, 65 N.W.2d 92, 93 (1954); In re Estate of Limberg, 60 N.Y.S.2d 669, 671 (1945); In re Will of Reeves, 266 A.D. 968, 44 N.Y.S.2d 290 (1943); In re Will of Marshall, 189 A.D. 477, 178 N.Y.S. 711 (1919); Powell v. Barnard, 20 Tenn. App. 31, 95 S.W.2d 57 (1936). We agree with the statement made by the court in In re Estate of Limberg, supra at 671:

Where the rejection of the will ... is based upon the finding . . . that the paper was procured by undue influence, . . . and the proponent is a participant in the attempt to consummate the fraudulent purpose, an allowance to him for his expenditures in connection with the probate proceeding will be denied. ... In such circumstances one named as executor should not be permitted to benefit by his own wrongful act."

(Citations omitted.)

The trial court is affirmed on the finding of undue influence but reversed on the award of costs and attorney's fees to Charlotte Pfleghar.

Munson, C.J., concurs.

1 Charlotte's counsel assigns error to several findings of fact but fails to set them out verbatim in his brief as required, RAP 10.4(c); Thomas v. French, 99 Wn.2d 95, 99-101, 659 P.2d 1097 (1983). Therefore, they are verities on appeal. Moreover, our review of the record discloses ample evidence to support the court's findings.