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In re Estate of Burleson

September 09, 1999


Before Terry and Ruiz, Associate Judges, and Mack, Senior Judge.

The opinion of the court was delivered by: Ruiz, Associate Judge

Appeal from the Superior Court of the District of Columbia (Hon. Kaye K. Christian, Trial Judge)

Argued November 10, 199

This appeal arises from the Superior Court's grant of summary judgment for the appellee, the United States, on behalf of its trust instrumentality, the Smithsonian Institution, denying the petition to admit a 1993 will to probate filed by the appellant, Pamela Marie Stansel Merritt. The Superior Court determined that there was no genuine issue of material fact in dispute because all prior wills of the decedent had been revoked by a later 1994 will, without any subsequent acts to revive the prior wills, thereby leaving appellant without standing to assert any claims to the decedent's estate under the earlier will. Appellant's main contention on appeal is that the 1994 will never became effective, and consequently could not have revoked the 1993 will, because the later will was destroyed by the testator prior to his death with the intention of revoking it. We disagree because, even assuming revocation of the 1994 will, its execution sufficed to revoke the 1993 will, which was not subsequently revived as required by law.


William A. Burleson died in a car accident on November 19, 1995, leaving an estate valued at over $2 million, including various real estate properties. Over the course of his life, Burleson executed four different wills; however, the wills that form the basis of this appeal are the latter two, one executed in 1993, naming appellant and her sons as sole beneficiaries in equal shares, and a subsequent 1994 will in which Burleson revoked all prior wills and left his entire estate to the Smithsonian. *fn1

Burleson first contacted Peter Powers, then general counsel for the Smithsonian, sometime in the first half of 1994 and told him that he was interested in leaving a bequest to the Smithsonian. Powers put Burleson in touch with Daniel Linguiti, Director for Planned Giving at the Smithsonian. Burleson and Linguiti spoke directly only once in June 1994 about Burleson's general intention to leave a bequest to the Smithsonian, and they left the details for the implementation of the bequest for a later date.

On June 30, 1994, Natalie Boehm, an employee of William Burleson, called Linguiti from Burleson's home in Deale, Maryland, and told Linguiti that Burleson was about to go into the hospital for surgery and that Burleson wished to draft a will leaving his property to the Smithsonian. Boehm relayed Burleson's request to Linguiti asking him to draft some language that could be used in the will for the bequest. However, before Linguiti could send his drafted language to Burleson, he received a fax from Boehm containing the 1994 will.

Boehm stated in her deposition that she prepared the will according to Burleson's directions on July 1, 1994. On that same day Burleson declared the will to be his and signed it in the presence of Boehm and Idabel Wills. Just above his signature, Burleson added in his handwriting, "All prior wills are revoked." Boehm and Wills signed as witnesses to Burleson's execution of the will. Boehm then faxed the will to Linguiti in accordance with Burleson's wishes. According to Boehm, Burleson kept the original 1994 will at his home in a file that he kept by his chair, and told her that he would mail the original to the Smithsonian later. Appellant was not told about the existence of the 1994 will.

Linguiti testified that he visited Burleson at his home in August 1994 to further discuss his estate plans. As a result of that meeting, Linguiti arranged for some curators from the Smithsonian to go to Burleson's office in Washington, D.C., in August and September 1994 to look over some items in which the Smithsonian might be particularly interested. Linguiti and Burleson continued to communicate about Burleson's estate plans, *fn2 meeting again at Burleson's home on November 4, 1994. At this meeting, Burleson gave Linguiti the original 1994 will and the originals of various documents related to his real estate properties for Linguiti to copy before returning them to Burleson.

Linguiti copied and kept both the 1994 will and the real estate documents at his office until Burleson asked for their return in early February 1995. Linguiti sent the will and some of the real estate documents back to Burleson's office by courier on February 9, 1995. However, because Burleson was not at the office, the courier called the Smithsonian to ask if someone else in the office could sign for it. Linguiti later called Burleson's office to confirm that the package had been delivered and was told that "Pam" had signed for it. Appellant, who was Burleson's office manager at the time, does not remember receiving, or signing for, a package from the Smithsonian. The original 1994 will has not been seen since Linguiti sent it to Burleson by courier.

Over one month later, Burleson called Linguiti to complain that he had not received all of the real estate documents which he had given to Linguiti. However, Burleson made no mention about the receipt, or lack thereof, of the 1994 will. Linguiti located the documents which Burleson had requested and sent them to Burleson's home in mid-March 1995. Linguiti was in sporadic contact with Burleson after March 1995, but the will was never discussed again.

From July 1, 1994, when the will was signed, until the day of his accidental death on November 19, 1995, Burleson continued to tell others, though not appellant, that he was planning to leave at least part of his estate to the Smithsonian. Burleson also told his brother, Bruce Burleson I, that "he had things he wanted to go to the Smithsonian." On the day of his death, Burleson told his nephew, Bruce Burleson II, "that he was going to leave the Smithsonian something."

The day after Burleson's death, appellant went to Burleson's office and took home various documents and files, including a file containing originals of the 1992 and 1993 wills. On November 30, 1995, appellant filed a petition in Superior Court to probate the 1993 will. Bruce Burleson I, through his son, Bruce Burleson II, filed a complaint to contest the validity of the 1993 will on December 4, 1995. *fn3 The probate court appointed Edward T. Love to serve as Special Administrator on December 11, 1995. After ...

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