Hall v. Jestes

SIMMS, Justice,

dissenting:

¶ 1 I must respectfully dissent. I do not concur with the majority’s view that the facts of this case support the trial court’s decision to apply the doctrine of incorporation by reference and its finding that the attached Exhibit A should be incorporated by reference into Sneed’s will. Further, I am persuaded that contestant has been denied an opportunity to challenge the legitimacy of Exhibit A and present evidence on issues concerning decedent’s competency and proponent’s undue influence over decedent in procuring the document.

¶ 2 As noted by the majority, certain requirements and conditions must be met be*1120fore the doctrine may be invoked and a properly executed will may be held to incorporate into itself by reference a separate paper or document so as to take effect as part of the will whether the paper or document be in the form of a will. Even though the exact wording of the requirements varies from jurisdiction to jurisdiction which recognize the doctrine, all jurisdictions, including OHahoma, require that: (1) the extrinsic document must in fact be in existence at the time of the execution of the will and the will must refer to it as existing; (2) the will must describe or identify with reasonable certainty the paper or document intended to be incorporated in the will; and (3) the testator’s intention to incorporate the paper. for the purpose of carrying out his testamentary desires must clearly appear from the language of the "will. See T. Atkinson, “The Law of Wills,” § 80, (2nd ed.); Miller v. First National Bank & Trust Co., 637 P.2d 75 (Okl.1981); In re Fullerton’s Estate, 375 P.2d 933 (Okl.1962).

¶ 3 The requirements of the doctrine are not met by the facts of this case. The language of this will is not the language of incorporation by reference. In pertinent part, the will merely provides:

“2. All the rest and residue of my property, real and personal, of every kind and character, and wherever situated, whether vested or contingent at the time of my death, I devise and bequeath to my nephew, Michael Jestes, as Trustee, with direction that after payment of all debts, funeral expenses, and costs of administration of my estate, as shown in Exhibit A hereto attached, be distributed upon Final Distribution under the terms and conditions of said Exhibit A hereto attached.”

¶ 4 The will does not describe Exhibit A sufficiently to make it capable of identification and distinguish it from any other paper which might have “Exhibit A” written upon it. It is therefore not possible to identify the document as the document mentioned in the will with reasonable certainty. See Keeler v. Merchants’ Loan and Trust Co., 253 Ill. 528, 97 N.E. 1061 (1912); Wagner v. Clauson, 399 Ill. 403, 78 N.E.2d 203, 3 A.L.R.2d 672; Brooker v. Brooker, 130 Tex. 27, 106 S.W.2d 247 (1937); Taylor v. Republic National Bank, 452 S.W.2d 560 (Tex.Civ.App.1970).

¶ 5 The language of the will does not express an intention to incorporate Exhibit A into the will; it does nothing more than make reference to the trust and the trustee. Simply being “referenced and attached” to the will is not being “incorporated”. In order to incorporate a document by reference the intention of the testator to do so must be clearly expressed in the will. Under similar facts, the use of the word “attached” in a will has been held not to be the equivalent of “incorporated”. In Taylor v. Republic National Bank, supra, the residual provision of the will provided the remainder of the estate was given to an organization specified in a “Detailed Described Document ... attached”. The court noted that the testator did not refer to the attached document in question as “incorporated herein” or “incorporated herein and made a part of’ or any similar wording and determined that no authority existed to support holding that “merely stating that something is attached to a will represents an intention to incorporate by reference the attached document into the will. Mere reference to a document is not enough. In order to incorporate a document by reference, the intention of the testator must be clearly expressed in his will.” At 563. See also Bottrell v. Spengler, 343 Ill. 476, 175 N.E. 781 (1931); Witham v. Wit-ham, 156 Or. 59, 66 P.2d 281 (Or.1937); 156 Or. 59, 66 P.2d 281, 110 ALR 253.

¶ 6 Proponent Jestes had the burden of proving incorporation of Exhibit A into decedent’s will by reference as he was the party claiming it. He has been entirely relieved of carrying this burden of proving compliance with the doctrine’s several requirements, however, by this Court’s decision which allows Exhibit A to be admitted to probate although Jestes has put on no affirmative evidence to show that the language of the will clearly expresses the testator’s intent to incorporate the instrument in her will or sufficient evidence to identify the document or establish that it was in existence when the will, was made.

¶ 7 Proponent Jestes offered the will with Exhibit A stapled to it for admission to pro*1121bate. After a hearing before the Honorable Thornton Wright, proponent, on his own motion and over the objections of contestant Hall, then sought to withdraw Exhibit A from the court’s consideration as a testamentary document and also argued that the trial judge did not have jurisdiction to consider the validity of the Exhibit as an inter vivos instrument. Hall points out that ¡allowing the voluntary dismissal mooted her challenge to the exhibit’s validity and prevented her attempt to show, by sharply disputed facts, that proponent obtained the exhibit by undue influence. Thereafter, Judge Wright entered his Order of July 6, 1 994, granting proponent’s requests in all respects 'and holding against the contestant: proponent was allowed to withdraw Exhibit A from being offered as a testamentary instrument; Exhibit A was ordered severed from the will and the will was admitted to probate without it; the issue of Exhibit A’s validity as an inter vivos trust was ordered bifurcated from the case and that issue was “reserved” and “transferred” to’ the Chief Judge of the District Court for decision. That Order provides these findings of the court:

“1. Notice has been given as required by law.
2. The Court has personal jurisdiction over the parties and subject matter over the issues regarding whether the Will offered by the PetitiQner should be admitted for probate.
3. The decedent, Lorita J. Sneed, passed away or March 21, 1 992, and was a resident of Oklahoma County, State of Oklahoma at the time of her death.
4. The Decedent, executed a Last Will and Testament on August 22, 1990, which Petitioner is offering for probate herein.
5. On August 22, 1990, Lorita J. Sneed possessed sufficient testamentary capacity to execute the Will being offered by the Petitioner.
6. On August 22, 1990, Lorita J. Sneed was not acting under the influence of duress, menace, fraud or undue influence when she executed the Will in question.
7. The Will in question was executed in accordance with the laws of the State of Oklahoma then in force and effect.
8. The Will should be admitted for probate.
9.- The Exhibit A Attached to the decedents Will has been referred to by counsel for the Petitioner as being quote “a living trust” an inter vivos disposition.
10. Exhibit A is not being offered as either a testamentary disposition nor as a residuary disposition under the residuary clause of the Last Will And Testament of Lorita J. Sneed. Exhibit A is not being offered as a Last Will and Testament of Lorita J. Sneed. ■
11. The Court finds, over Contestants objection, that the Petitioner by virtue of statements made in open court and by virtue of pleadings filed in this case has not offered and is not offering Exhibit A attached to the will as a testamentary trust.
12. The Court does not have the jurisdiction or the authority to ascertain the validity of this inter vivos instrument.
13. The question remains whether Exhibit A is a valid inter vivos trust, proper and duly executed, and enforceable.
14. The question of the validity and enforceability of the quote, “inter vivos trust,” Exhibit A, should be transferred to the appropriate division of out District Court which has subject matter jurisdiction to decide the matter.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED BY THE COURT that the Petitioners Motion for Directed Verdict be and is hereby sustained in part and the Last Will and Testament of Lorita J. Sneed is hereby admitted to probate without the attached Exhibit A.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED BY THE COURT that the issues of the validity and enforceability of Exhibit A as an inter vivos trust, and whether the decedent established a living trust, are severed from these proceedings and are hereby transferred to the Chief Judge of the Civil Division of the District Court for reassignment and farther adjudication.”

¶ 8 The resulting decision of the District Judge was that Exhibit A did not create a *1122viable ínter vivos trust. Jestes did not appeal that decision.1 Understandably Jestes rethought his position and he then returned to the probate division and moved the newly appointed successor Judge, Honorable Carol Hubbard, to order Exhibit A incorporated by reference into Sneed’s will as a testamentary document. Over contestant’s objections, Judge Hubbard summarily allowed proponent’s requested incorporation of Exhibit A by reference into the will as a testamentary document.

¶ 9 Under the circumstances of this case it appears that estoppel could have been properly invoked to preclude proponent from asserting these inconsistent positions. See for instance Magnolia Petroleum Co. v. Ouart, 200 Okl. 258, 192 P.2d 698 (1947); Messler v. Simmons Gun Specialties, Inc., 1984 OK 35, 687 P.2d 121 (Okl.1984); Willard v. Ward, 1994 OK CIV APP 85, 875 P.2d 441 (Okl.App.1994); In re Johnson, 518 F.2d 246 (10th Cir.1975) and the authorities cited therein. See also 28 AM.Jur. 2nd Estoppel and Waiver § § 68 et seq.

¶ 10 It is arguable that res judicata does apply here and proponent’s attempt to breathe this new life into his abandoned theory comes too late because the court’s Order of July 6, 1994, admitting the will to probate without Exhibit A attached, was final in that regard and it was not appealed. Claim preclusion should therefore be available under these circumstances to foreclose this effort to again visit this issue. See 58 O.S. 1991, § 721. See Wilson v. Kane, 1993 OK 63, 852 P.2d 717 (Okl.1998); Veiser v. Armstrong, 1984 OK 61, 688 P.2d 796 (Okl.1984).

¶ 11 The majority’s position that the Order intended to “reserve” testamentary consideration of Exhibit A in the event it was found not to create an inter vivos trust and therefore is not foreclosed by res judicata, is not convincing. It is not supported by the Order in issue or the record. The majority attempts to justify this result, which is plainly at odds with the court’s Order, by relying on an excerpt of the transcript of the hearing that is taken out of context. The Order, set forth above, speaks for itself. Taken in context, the excerpted language speaks only to the necessity for the court at that time to await the ruling from the district judge on the issue of the validity of the inter vivos trust so that the court would know what manner of distribution of the estate should be made — pursuant to the will which had been admitted to probate or under the terms of the trust.

¶ 12 Even accepting the majority position on res judicata as correct does not justify its disposition of this cause, however. Proponent has never put on any proof in support of his requests to incorporate Exhibit A. He voluntarily dismissed his first effort and the successor trial court summarily granted his request to reinstitute the claim without a hearing over the objections of contestant which led to this appeal. Now the majority summarily affirms that summary judgment, declaring, although there is absolutely no evidence in support, that the district court’s order allowing the incorporation is sustained because “all of the law’s criteria for incorporation are satisfied.” The majority recognizes that contestant is constitutionally entitled to an opportunity to be heard but then proceeds to deny her that opportunity. At a minimum, the Court should remand this matter to the trial court for a trial of the issues. Like all other litigants, proponent should be expected to carry the burden of proving his case.

¶ 13 The facts of this case, are peculiar indeed and they are therefore unlikely to repeat. I am concerned, however, that the majority does the law no good service by implicitly approving the erroneous and unorthodox procedures and judicial processes which underlie this action.

¶ 14 I would reverse the trial court.

. Because of the finality of the holding that Exhibit A is not a valid inter vivos document, it is unnecessary to discuss the problems which have been held to arise when a testator establishes an inter vivos trust and attempts to "pour over” part of his estate on death into that trust through incorporation by references. See, e.g., T. Atkinson, "The Law of Wills,” supra at 392-393; In re Estate of Meskimen, 39 Ill.2d 415, 235 N.E.2d 619 (1968); Wells Fargo Bank & Union Trust Co. v. Superior Court, 32 Cal.2d 1, 193 P.2d 721 (1948). See also 84 O.S.1991, § 301; Miller v. First Nat. Bank & Trust Co., 637 P.2d 75, 78 (Okl.1981), Hargrave, J., Dissenting.