Kirkeby v. Covenant House
157 Or. App. 309, 970 P.2d 241, 1998 Ore. App. LEXIS 2121 (1998)
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Rule of Law:
For a testator's acknowledgment of a signature on a will to be valid under the statutory "in the presence" requirement, the will must be physically present and perceivable by the witness at the time of the acknowledgment. A surviving spouse's statutory right to elect against a decedent's will is a personal right that expires upon the spouse's death and cannot be exercised posthumously by their estate.
Facts:
- In May 1989, Margaret Kirkeby executed a will placing her assets in a trust.
- In July 1992, Margaret decided to create a new will and had her neighbor, Gayle Lyman, type it for her.
- On July 15, 1992, Margaret signed the new will.
- Later that day, Margaret telephoned Patricia Horton, a notary, stated she had signed a document, and arranged for Lyman to bring it to Horton for notarization.
- Lyman brought only the second page of the document to Horton, who notarized Margaret's signature without knowing the document was a will.
- Ten days later, Margaret telephoned another neighbor, Hazel Ortega, told her she had signed her will, and asked her to be a witness.
- After the phone call, Lyman took the second page of the will to Ortega's house, where Ortega signed as a witness.
- Another neighbor, James Pullen, also signed as a witness but had not spoken to Margaret about the will.
Procedural Posture:
- Margaret Kirkeby died on September 2, 1992.
- In October 1992, Glenn Kirkeby filed a petition in probate court (the court of first instance) alleging the 1992 will was invalid.
- Beneficiaries under the 1992 will, Covenant House, Lyman, and Curtis, filed objections to the petition.
- In June 1993, the probate court determined the 1992 will was invalidly executed but applied the doctrine of dependent relative revocation to find the 1989 will valid and admitted it to probate.
- Margaret's surviving husband, Orrin, signed an election to take against the will on June 29, 1993, but died on July 13, 1993, before it was filed.
- Orrin's representative filed the election on August 30, 1993.
- In December 1997, the probate court entered a final decree, holding the spousal election ineffective because it was filed after Orrin's death.
- The beneficiaries of the 1992 will appealed to the Court of Appeals of Oregon, challenging the invalidation of that will.
- Glenn Kirkeby, as personal representative for Orrin's estate, filed a cross-appeal challenging the ruling that the spousal election was ineffective.
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Issue:
Does a testator's telephonic acknowledgment of her signature on a will, made at a time when the witnesses do not have the will document before them, satisfy the statutory requirement that the acknowledgment be made 'in the presence' of the witnesses?
Opinions:
Majority - Haselton, J.
No, a testator's telephonic acknowledgment of her signature does not satisfy the statutory 'in the presence' requirement when the witnesses cannot perceive the will document at the time of the acknowledgment. The court held that the 'in the presence' requirement of ORS 112.235 implicitly requires the presence of the will itself. Drawing on the 'conscious presence' test established in In re Demaris' Estate, the court reasoned that a witness must be able to use their senses to know what is happening. An acknowledgment made to a witness who cannot perceive what is being acknowledged is meaningless, as it fails to safeguard against fraud, such as the substitution of pages. For the acknowledgment to be valid, there must be a concurrence of the testator's acknowledgment, the witness's perception, and the physical presence of the will.
Analysis:
This decision clarifies the 'in the presence' requirement for will execution in Oregon, establishing that mere auditory presence via telephone is insufficient without the simultaneous physical presence of the will document. It solidifies the principle that strict compliance with will formalities is necessary to prevent fraud, even if it may sometimes frustrate a testator's clear intent. The ruling sets a clear precedent that remote acknowledgments require, at a minimum, that the witness be able to perceive the specific instrument being acknowledged. This reinforces the importance of traditional, formal will execution ceremonies over more convenient but legally perilous modern methods.
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