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In re Estate of Burleson

District of Columbia Court of Appeals

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determined that there was no genuine issue of material fact in dispute because all prior wills of the decedent had been revoked by a later 1994 will, without any subsequent acts to revive the prior wills, thereby leaving appellant without standing to assert any claims to the decedent's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 Love located a copy of the 1994 will in William Burleson's home, he filed that copy with the Register of Wills on December 19, 1995.

On May 13, 1996, the United States, on behalf of the Smithsonian, filed suit to have the copy of the executed original 1994 will admitted to probate and to have all earlier wills declared revoked. At the close of discovery, the United States moved for summary judgment. The court granted the United States' motion for summary judgment against appellant on the ground that the 1993 will had been revoked by the proper execution of the 1994 will. Appellant filed a motion requesting the court to direct entry of summary judgment as a final judgment under Rule 54 (b), which the trial court denied.

The United States and Bruce Burleson I immediately entered into a settlement agreement, and pursuant to a consent order between the two parties, the court entered a final judgment directing that the copy of the 1994 will be admitted to probate. *fn4 Appellant filed a timely notice of appeal.


Appellant argues inter alia that the trial court erred in granting summary judgment to the United States because there were genuine issues of material fact in dispute. Specifically, appellant asserts that left unresolved by the trial court was whether the 1994 will was revoked by the testator prior to his death. Relying on case law in Maryland and Virginia, appellant contends that if the 1994 will had in fact been destroyed by William Burleson prior to his death, then the 1993 will naming her and her sons sole beneficiaries of Burleson's estate could not have been revoked because the revocation clause in the 1994 will would not have become effective until Burleson's death. In response, the United States suggests that appellant's appeal is moot because the 1994 will has already been admitted to probate and appellant failed to file a timely complaint challenging the validity of the will as required by D.C. Code § 20-305. See D.C. Code § 20-305 (except as otherwise provided, "any person may file a verified complaint to contest the validity of a will within 6 months following notice by publication of the appointment or reappointment of a personal representative"); see also D.C. Code § 20-331 (admission of a will to probate deemed final where no complaint filed within six months after the notice of appointment of the personal representative). *fn5 The United States also argues that, in any event, the trial court acted properly in granting summary judgment in its favor because the express revocation clause in the 1994 will became effective upon the execution of the 1994 will, rather than at the testator's death, and thereby revoked the 1993 will. Therefore, even if the 1994 will had been revoked by the testator, the 1993 will was already void and could not have been revived absent proper re-execution by the testator.

A. Standard of Review.

We review the record de novo in determining whether summary judgment was properly granted by the trial court and will affirm the grant "if there are no genuine issues of material fact in dispute and 'it is clear that the moving party is entitled to judgment as a matter of law.'" Pipher v. Odell, 672 A.2d 1092, 1094 (D.C. 1996) (quoting Townsend v. Waldo, 640 A.2d 185, 187 (D.C. 1994)). Once the moving party has made an initial showing that there are no genuine issues of material fact in dispute, the opposing party has the burden of demonstrating that a genuine issue remains for trial. See Townsend, supra, 640 A.2d at 187. "'The requisite showing of a genuine issue for trial is predicated upon the existence of a legal theory which remains viable under the asserted version of the facts.'" Lee v. Jones, 632 A.2d 113, 115 (D.C. 1993) (quoting Smith v. WMATA, 631 A.2d 387, 390 (D.C. 1993)).

B. Analysis.

1. Standing

At the outset, we reject appellant's contention that the United States lacked standing to challenge the probate of the 1993 will. Appellant argues that the Smithsonian was not an "interested person" as defined in D.C. Code § 20-101 (d)(1), because it does not meet the criteria of any of the categories listed in that section. *fn6 Appellant's reading of the statute ignores the realities of a contested will situation. We hold that a person named as beneficiary in a will is a "legatee in being" until it is finally determined that the will under which the beneficiary would have an interest in the estate will not be admitted to probate. Cf. id. (providing that an heir "ceases to be an interested person once a will has been admitted to probate" but is an "interested person for the purpose of any proceeding to contest the validity of the will and following any determination that the decent died intestate as to some or all of the estate"). The Smithsonian is quite clearly a "legatee in being", and hence an interested party, as it would have lost property which was bequeathed to it under the 1994 will had the 1993 will been admitted to probate and the decedent's estate distributed to appellant and her sons. *fn7

2. Revocation of the 1994 Will.

The record shows that the original 1994 will was never seen again after Linguiti returned it by courier, along with other real estate documents, to Burleson on February 9, 1995. Though there is evidence that appellant was the one who signed for the package, appellant stated in her deposition that she does not remember receiving, or signing for, any packages from the Smithsonian. However, when Burleson called Linguiti over one month later to complain that he had not received all of the real estate documents he had requested from the Smithsonian, Burleson did not indicate that he had not received the will. Noting these facts, appellant relies on the rebuttable presumption in Webb v. Lohnes, 69 App. D.C. 318, 101 F.2d 242 (1938), that if a will, known to be in existence during the testator's lifetime, and in his custody, cannot be found at the testator's death, the testator must have destroyed the will with the intention of revoking it. Id. at 321, 101 F.2d at 245. The presumption is significant, according to appellant, because of the common law principle, set forth in cases from other jurisdictions, that a revocation clause in a subsequent will is effective only at the death of the testator, meaning that a prior will cannot be revoked if during the testator's lifetime, the testator destroys or cancels the subsequent will with the intent to revoke it. See Timberlake v. State-Planters Bank of Commerce and Trusts, 115 S.E. 2d 39, 44 (Va. 1960); cf. Ottaviano v. Lorenzo, 179 A. 530, 535 (Md. 1935) ("A testamentary paper is in nature ambulatory until the death of its maker, and, so, is generally revocable at pleasure, and becomes operative only at its executant's death."). Therefore, appellant concludes, the revocation clause in the 1994 will never became operative and could not have revoked the prior 1993 will because by operation of the Webb presumption, Burleson must have destroyed the subsequent will prior to his death, with the intention of revoking it. *fn8

Appellant's position, however, is not supported by the statutory language of D.C. Code § 18-109 (1997). *fn9 Specifically, to adopt appellant's construction of the law would render § 18-109 (b) meaningless. Section § 18-109 (b) provides that a will may be revived only by its re-execution. Clearly, a testator cannot revive a prior will after he has passed away, which is the inference we would have to draw if we were to accept appellant's interpretation of the law. Thus, we now hold that under D.C. Code § 18-109, a prior will may be revoked upon the execution of a subsequent will, and may not be revived unless the prior will has been re-executed or a codicil executed in accordance with other statutory provisions. See also In re Smith's Estate, 77 F. Supp. 217, 219 (D.D.C. 1948) ("The second will having been duly executed necessarily revokes the earlier will . . . . The revocation of the second will does not reinstate the earlier will."). *fn10

Therefore, even if we were to assume, from the fact that the original 1994 will was not found at the time of his death, that Burleson intended to revoke his 1994 will, an issue which we need not decide, *fn11 this would not change the fact that the 1993 will was rendered void upon execution of the 1994 will containing a revocation clause. Appellant does not contest the trial court's determination that the 1994 will was validly executed. *fn12 Nor was any evidence presented suggesting that the deceased had revived the 1993 will by re-executing the will or executing a codicil. *fn13 Thus, as the undisputed facts establish that the1993 will was void and inadmissible for probate, we concur with the trial court that there were no contested issues of material fact concerning Merritt's standing and that the United States is entitled to judgment as a matter of law against appellant. *fn14


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