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The probate court in Tulsa County ruled that a child was disinherited by a pour over will and a trust.  In September 1997, Ralph and Nancy Murano created the “Murano Revocable Trust” (Trust). The Trust made Ralph and Nancy Murano trustees, and dedicated the benefits of the Trust to themselves during their lifetimes. It appointed new trustees upon the deaths of Ralph and Nancy, and provided for shares to nine beneficiaries, including plaintiff Jeromy Murano (Murano). At the same time, Nancy Murano made a will (Will) bequeathing all residue of her estate to the Trust.

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In January 2013, after Ralph Murano’s death, Nancy Murano made amendments to the Trust, deleting the existing paragraph on beneficiaries, and adding a new paragraph listing only four beneficiaries. Jeromy Murano was not among these amended beneficiaries. Nancy Murano was ill with multiple sclerosis at the time of the amendment, and having considerable difficulty writing. She signed the amendment with a ‘X’ and her initials, although she did later manage to sign a notarized document requesting her attorney to implement the Trust amendment.
After Nancy Murano’s death, Jeromy Murano challenged this Trust amendment, claiming her mark and initials were legally insufficient to amend the Trust. He later added theories that Nancy Murano was not competent at the time of the amendment, and that he was an “omitted child” or pretermitted heir in the Will, and entitled to a share of the Trust property pursuant to 84 O.S. § 132, and In re Estate of Richardson, 2002 OK CIV APP 69, 50 P.3d 584. In November 2014, the probate court issued a declaratory judgment finding that: 1) Murano was not a pretermitted heir, and 2) Nancy Murano’s amendments to the Trust were legally effective to remove Murano as a beneficiary.

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The Court of Appeals held in this published opinion as follows:

This appeal presents two questions of law. The first is whether the holding of In re Estate of Richardson, 2002 OK CIV APP 69,50 P.3d 584, requires property to be distributed to Murano as an “omitted child’ despite the Trust amendments.

Title 84 O.S.2011 § 132 provides:
When any testator omits to provide in his will for any of his children, or for the issue of any deceased child unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator, as if he had died intestate, and succeeds thereto as provided in the preceding section.
In Richardson, the plaintiff sought an omitted child’s share from the estate of his deceased father. The executor moved for summary judgment on the basis that decedent intentionally omitted plaintiff in an amendment to a pour-over trust executed after decedent’s Will. Id., ¶ 1. The trial court granted summary judgment, but Division I of this court reversed, holding that. . . the provisions of a pour-over trust, which have been amended after a will is executed, are not incorporated by reference in the will so that the amended provisions of the trust constitute competent evidence of the testator’s intent to omit an heir as required by Oklahoma’s pretermitted heir statute.
Richardson thus held that an amendment to a trust mentioned in a will is not effective if it removes a child as a beneficiary of the trust unless the will is similarly amended to show a clear intent to omit the child from any distribution.
Richardson appears, however, to be in opposition to Welch v. Crow, 2009 OK 20, ¶ 5, 206 P.3d 599. In that case, an inter vivostrust conveyed property to two children, Jean Ann Morgan and Mary K. Crow. The associated will recognized that decedent hadfour children: Jean Ann Morgan, Mary K. Crow, Jerry Welch, and Martin Welch. Martin Welch was deceased at the time of the will’s execution. There was no language expressly omitting Martin Welch or his children from the will. Martin Welch’s children therefore sued to obtain a share of the trust property as pretermitted heirs.
The Supreme Court reiterated that:
Our recent opinion in In re Estate of Jackson, 2008 OK 83, 194 P.3d 1269, is dispositive of the question. There, we held that § 132 “unambiguously pertains only to wills. It does not encompass a situation where a child is omitted from a trust, and we decline to extend its reach to revocable inter vivos trusts.” In the instant cause, the grandchildren are not entitled to a statutory share in the Trust.
The Supreme Court concluded that only the named beneficiaries of the trust should receive a distribution.
We find no authority indicating that the Supreme Court explicitly disavowed the rule of Richardson in these later cases. The question, therefore, is whether this case falls under the rule of Richardson (child omitted from will) or Welch (child omitted from trust). We find a crucial difference between this case and Richardson. In Richardson, the will did not refer to the son by name or by class. In this case, the will did refer to Murano as a child, and stated that the residue of the estate was to be distributed pursuant to the Trust agreement. The facts in this case are very close to those in Welch, and we find the result ofWelch applicable in this case. We also find this result logical based on broader principles.
A will that bequeaths the contents of a revocable trust in which the settlor is both trustee and beneficiary bequeaths nothing until the settlor’s death. Hence, the intent of the testator is determined by the contents and provisions of the trust at the time it becomes irrevocable. Nancy Murano’s intent shown in the Will was clearly and unambiguously to bequest to her heirs only what she gave them in the Trust instrument, which was subject to change at any time before her death. Murano was not omitted from the Will, but was bequeathed whatever the Trust provided for him. In this case it provided nothing. We find no principle that a worthless bequest renders the recipient an “omitted child.” Rather, we find it logical that making a knowingly worthless bequest shows a clear intent to disinherit.
The second question of law is whether the amendment to the Trust was valid, because it was signed with an ‘X’ and the settlor’s initials. Murano argues that the Trust was a document involving or affecting the transfer of real property subject to 16 O.S. 2011 § 34, which provides that: When real estate is conveyed or encumbered by an instrument in writing by a person who cannot write his or her name, the person shall execute the same by a mark, and the person’s name shall be written near the mark by one of two persons who saw the mark made, who shall write their names on the instrument as witnesses. In case the instrument is acknowledged, then the officer taking the acknowledgment shall, in addition to the other necessary recitals in the acknowledgment, state that the grantor executed the instrument, by inserting in the form of acknowledgment provided in Section 33 of this title by individuals after the words “foregoing instrument” the words “by the person’s mark, in my presence and in the presence of __________ and __________ as witnesses”.
The Trust amendments in this case, signed with a ‘X’ and initials, were witnessed by others, but not attested to in the form required by 12 O.S. § 34. The threshold question, therefore, is whether § 34 applies in this case, i.e., was real estate “conveyed or encumbered” by the Trust amendments? Analyzing reported cases pursuant to § 34, we find no case applying this statute to a trust amendment.1 We must therefore turn to first principles. The Trust at issue was revocable during the life of the settlor and created no immediate or vested future right in the beneficiaries. Inherently, the amendment “conveyed” no property from Nancy Murano to the beneficiaries under those conditions. Nor did the amendments create any encumbrance upon the real estate that did not previously exist.2 We find that the Trust amendment in this case was not a “conveyance or encumbrance” of real property, and was not subject to § 34.

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CONCLUSION: This case is teaching that you need an experienced attorney helping you with your estate planning.

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An experienced attorney, such as Brent D. Coldiron, would have made it clear that there was an intent to disinherit in both the will and the trust.  Why depend on a court to end up with the right decision.  Let your attorney make sure it happens.  Brent D. Coldiron knows the law.  He knows what to do.  You can reach Brent D. Coldiron at (405) 478-5655 or 737-2244.  His offices are at 1800 East Memorial Road, Suite 106, Oklahoma City and 2801 Parklawn Drive, Suite 503, Midwest City.

Oklahoma probate law defines undue influence as that which compels the testator to do that which is against his will, from fear, the desire of peace, or some feeling which he is unable to resist. The influence must be undue, in order to vitiate the will, because influences of one kind or another surround every rational being, and operate necessarily in determining one’s course of conduct under every relation of life. Within due and reasonable limits such influence affords no ground of legal objection.

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Undue influence necessary to set aside a will must be a present restraint, fraud or undue influence, operating upon the testator’s mind in the very act of making the will, and affecting its execution or the disposition it makes, as the undue influence must dominate testator at the time of making the will and contemporaneous threats have this effect.

Influence based on affection for members of a family is not undue influence, as such influence is natural and proper and in a different class from that which a stranger may obtain.

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Undue influence, such as will invalidate a will, must be something which destroys the free agency of the testator at the time when the instrument is made, and which, in effect, substitutes the will of another for that of the testator. It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them and in confidential relations with them at the time of its execution. Mere general influence, not brought to bear on the testamentary act, is not undue influence; but in order to constitute undue influence, it must be used directly to procure the will, and must amount to coercion destroying the free agency of the testator. Mere suspicion that undue influence was brought to bear is not sufficient to justify the setting aside of the will.

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Based on the above summary of how an Oklahoma probate court will consider evidence of undue influence, it requires good proof.  I once had a case where we were able to prove undue influence.  An attorney-in-fact sequestered the will maker in her home.  Then locked the relatives out.  And had the will signed under those circumstances.  The court set the will aside for undue influence.

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Brent Coldiron is a practicing attorney will offices in Edmond/Oklahoma City and Midwest City.  Give him a call if you have questions.  His number is (405) 478-5655 or 737-2244.

Any person who makes a will in Oklahoma is legally presumed to have been legally competent to make the will.

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The will stated as follows:

“Know All Men by These Presents: That I, Emanuel J. Kerchner of Kiowa, in the county of Barber, in the state of Kansas, being in good health (or ill health) and of sound and disposing mind and memory, do make and publish this, my last will and testament, hereby revoking all former wills by me made; and as to my worldly estate and all the property, real, personal or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof in the manner following, to wit:

“First: That all my funeral expenses, and any expense occurring from sickness, be paid in full out of the proceeds of my estate.

“Second: To my grandson, Harry Burns, I bequeath the school land, being the northeast quarter of section thirty-six (36), township twenty-nine (29), range thirteen (13) in the county of Woods, Oklahoma; Provided that he assume and pay all assessments due the government as it becomes due.

“Third: To my son, Nick K. Kerchner, I bequeath one promissory note, the amount being $ 1,470.50, dated April 10, 1917; also one promissory note, being in amount $ 500, dated May 25th, 1918; also any bills I may have paid out for improvement on his school land in Harper county, Okla.

“Fourth: To my daughter, Ninnie Burns, I bequeath the sum of ten dollars ($ 10.00).

“Fifth: To my grandson, Harry Burns, I bequeath the southeast quarter of twenty-five (25), township twenty-nine (29), range thirteen (13) in the county of Woods, Okla., provided, that he pays Nick K. Kerchner the sum of eleven hundred and seventy-three dollars and 50-100 (1,173.50), the same to be paid in two equal payments of five hundred eighty-six and 75-100 dollars ($ 586.75) the first payment one year after my decease, and the second one year thereafter.

“Sixth: All moneys or bonds that I may have are to be equally divided with my son Nick K. Kerchner and my grandson, Harry Burns.

“And lastly, I do nominate and appoint L. E. McClure to be the executor of this, my last will and testament.

“In Witness Whereof. I, the said Emanuel J. Kerchner, have to this, my last will and testament, subscribed my name, this 17th day of April, A. D. 1920.

“Emanuel J. Kerchner, Testator.

“Signed. Published and Declared, by the said Emanuel J. Kerchner as his last will and testament, in the presence of us, who, at his request, and in his presence, and in the presence of each other, have subscribed our names as witnesses thereto; and at the time we know the said Emanuel J. Kerchner to be of sound and disposing mind and memory.

“Witness Our Hands, the day and date above given.

“Z. H. Tibbetts,

“W. H. Harris,

“Witnesses.”

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The question before the probate court was the maker of the will at the time he executed his last will and testament competent to make the will?

The probate court considered the habit and capacity of the will maker to actively transact his ordinary business and make his own contracts.  The appellant court determined that the actual time and place to be when the will was signed was the point in time in which a will maker must be competent.

The opinion of the will maker’s doctor as to his mental condition would be considered by the court.

The probate court said that legal competency to make a will consisted of the following:

“The testator must have sufficient memory to comprehend the conditions of his property and his relations to the objects of his bounty, but the fact that the memory of an old person has failed somewhat does not of itself invalidate his will, as occasional lapse of memory, mere decay or feebleness of memory, or absent-mindedness, ought not to invalidate a will, unless amounting, under our general rule, to a mental incapacity to collect the particulars essential to a just testamentary disposition.  It is a general rule that testamentary capacity consists in the ability to understand the nature of his property, the natural objects of his bounty, and the nature of the testamentary act, and it is sometimes said that it is sufficient if he knows of what his estate consists and the persons to whom he desires to give it.  This rule does not mean that all these things must be known by the testator minutely, but if he knows them in a general way, this is enough. ”

 

The probate court is not to hold being old against anyone who makes a will.  The mere fact that a person is aged person in no way operates against the validity of the will.

A will going to probate carries this strong presumption.  There is a presumption of sanity that the person who made the will was legally competent.  It is for everyone who makes a will.  The burden of proving unsoundness of mind in a will contest rests on the contestant.

 

The court held: An examination of all the testimony convinces us beyond serious doubt that at the time he made this will, Emanuel Kerchner was competent and in possession of his mental faculties to such an extent that he knew well the property which he possessed, the indebtedness due him, his relation to his kindred, his duty toward such kindred. That he knew the diposition which he desired to make of his property and that the will which he executed expressed his intentions.

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Brent Coldiron practices law at 1800 East Memorial Road, Suite 106 in Edmond/Oklahoma City and 2801 Parklawn Drive, Suite 503 in Midwest City.  Brent can be reached at (405) 478-5655 or 737-2244.

The following probate case illustrates how an adopted child was not entitled to inherit an Osage Indian Headright.   This is the dispositive wording in the will: “I hereby give, devise and bequeath the income from the Osage headrights or shares in the mineral interests of the Osage Tribe of Indians owned by me at the time of my death to my two grandchildren, Thos. Rogers and Nancy Rogers Big Elk, during their lives; provided that each of said grandchildren shall receive one half of said income at the time the distribution of said income is payable: and provided further that if either of said grandchildren shall die leaving no surviving child or children then said entire income shall be paid to the surviving grandchild during the life of the said survivor: and provided further that if said grandchildren or either of them should die leaving a child or children surviving them said mineral interests or headrights from which said deceased grandchild or either of them was receiving the income shall immediately vest in said child or children, share and share alike, and in the child or children of any deceased child of my said grandchildren by right of representation: and provided further that if both of said grandchildren shall die without children then said headright shall vest in the heirs of my body, or, in case of the death of any of the heirs of my body, then to the living issue of such deceased heirs by right of representation.”  The adopted child was adopted by a deceased grandchild of the deceased.  The adopted child wanted to step into the grandchild’s shoes and inherit from the grandmother.  The “heirs of my body” language indicated that there was not an intent to include the adopted child.

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To avoid problems like this good attorneys usually include a definition of children which will include adopted children.  Sometimes definitions are limited to children adopted before the age of 21, or earlier.

Good probate, will and trust attorneys may also include in the definition of children whether the child is born inside or outside of wedlock. Sometimes wording is used which intentionally omits any child or person who claims to be a pretermitted (forgotten or unknown) child or descendant of a child who may make a claim to the estate.

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Ware’s estate is an interesting case.

 

IN RE WARE’S ESTATE
1958 OK 263
348 P.2d 176
Case Number: 37784
Decided: 11/05/1958
Supreme Court of Oklahoma

Cite as: 1958 OK 263, 348 P.2d 176
IN THE MATTER OF THE ESTATE OF NANCY WARE, DECEASED. BILLIE JOE YOUNG FLETCHER ROGERS, PLAINTIFF IN ERROR,
v.
NANCY ROGERS RECTOR, INDIVIDUALLY, AND AS ADMINISTRATRIX OF THE ESTATE OF NANCY WARE, DECEASED, DEFENDANTS IN ERROR.

Syllabus by the Court.

¶0 Where a member of the Osage Tribe of Indians willed the income from the Osage Indian headrights she owned, to her two grandchildren, with the provision in paragraph ‘III’ of her will that upon the death of either ‘* * * leaving a child or children surviving * * *’, his or her share ‘* * * shall immediately vest in said child or children, share and share alike, and in the child or children of any deceased child of any said grandchildren by right of representation * * *’, in view of said paragraph, the character of the property involved, and the circumstances in evidence, the judgment of the trial court holding that a certain adopted child of the testatrix’ deceased grandchild was not a beneficiary under said provision, was neither contrary to law nor to the evidence.

Appeal from the District Court of Osage County; Jesse J. Worten, Judge.

In proceedings by the administratrix with the will annexed of the estate of Nancy Ware, deceased Osage Indian allottee, in connection with disposition of said estate, the county court determined that Billie Joe Young Fletcher Rogers, an adopted child of the testatrix’ deceased grandchild, was not entitled to any interest in the headrights left by testatrix. After Rogers had appealed to the district court, which court’s judgment was also against him, he appealed to this court. Affirmed.

Shoemake & Briggs, Pawhuska, Gordon L. Patten, Tulsa, for plaintiff in error.

F.W. Files, Pawhuska, for defendants in error.

BLACKBIRD, Justice.

¶1 This appeal involves a determination of the proper devolution of one-half of the 1 2/3 Osage Indian headrights owned, at the time of her death, by one Nancy Ware, who was enrolled opposite Roll No. 1808, and received an allotment, as a member of the Osage Tribe of Indians. Said allottee died in January, 1933, while a resident of Osage County, and leaving a will executed during the same month of the previous year, but not approved in the Office of the Secretary of the Interior until June 27, 1933.

¶2 Under the terms of said will, and the decree of the county court entered June 11, 1934, in the proceedings to admit same to probate, the testatrix’ grandchildren, Nancy Rogers Big Elk and Thomas Rogers, were paid the income from said Osage headrights in proportions of one-half to each, until the death of the latter in December, 1953, which necessitated a determination as to what disposition was to be made, in accordance with testatrix’ will, of that portion of the headrights from which he had been receiving income. The matter was rendered controversial by the fact that, in 1942, the said Thomas Rogers had adopted, as his son, Billie Joe Young Fletcher Rogers, the son (by a former marriage) of his wife, Grace, whom he married in 1937, more than four years after the testatrix’ death.

¶3 The portion of the testatrix’ will governing the devolution of the headrights involved herein is paragraph “III”, which reads as follows:

“I hereby give, devise and bequeath the income from the Osage headrights or shares in the mineral interests of the Osage Tribe of Indians owned by me at the time of my death to my two grandchildren, Thos. Rogers and Nancy Rogers Big Elk, during their lives; provided that each of said grandchildren shall receive one half of said income at the time the distribution of said income is payable: and provided further that if either of said grandchildren shall die leaving no surviving child or children then said entire income shall be paid to the surviving grandchild during the life of the said survivor: and provided further that if said grandchildren or either of them should die leaving a child or children surviving them said mineral interests or headrights from which said deceased grandchild or either of them was receiving the income shall immediately vest in said child or children, share and share alike, and in the child or children of any deceased child of my said grandchildren by right of representation: and provided further that if both of said grandchildren shall die without children then said headright shall vest in the heirs of my body, or, in case of the death of any of the heirs of my body, then to the living issue of such deceased heirs by right of representation.”

¶4 After her appointment, in 1956, as administratrix with the will annexed of the estate of the testatrix, her deceased grandmother, Nancy Rogers, now Rector, who is one and the same as “Nancy Rogers Big Elk” and is the “surviving grandchild” within the nomenclature of the above quoted will, filed in the probate proceedings pertaining to said estate, a pleading entitled: “Final Account, Petition To Construe Will of Deceased and Judicially Determine the Death of Thos. Rogers, also known as `Thomas L. Rogers, Jr.,’ and For a Decree of Distribution.”

¶5 At the hearing held on said pleading in the county court, the pivotal question was: Whether Billie Joe Young Fletcher Rogers, being an adopted, rather than a natural, child of the testatrix’ deceased grandchild, Thomas Rogers, was a “child” of a grandchild of the testatrix within the meaning of that term, and equivalent expressions, if any, used in the above quoted third paragraph of her will.

¶6 The county court determined the question against the adopted boy, Billie Rogers, and decreed that the income from the headright interest (including that which had accrued since the death of Thomas Rogers) “be paid to Nancy Rogers Rector during her lifetime.” Upon appeal to, and trial de novo by, the district court, herein referred to as the trial court, said court entered a judgment, in accordance with findings of fact and conclusions of law, which, in every material respect, concurred with the county court’s decree. Thereafter, Billie Rogers, hereinafter referred to as appellant, perfected the present appeal to this court. Nancy Rogers Rector appearing here in her capacity as an individual, as well as administratrix, will be hereinafter referred to as appellee.

¶7 In his argument for reversal, the appellant attacks both the trial court’s findings of fact and conclusions of law, but treats particularly of said court’s first three conclusions of law, which were in words and figures as follows:

“1. That the adoption of a child under the Oklahoma law only fixes the status of such adopted child insofar as his adoptive parent is concerned and confers upon such adopted child only the legal consequence of the adopted child for the purpose of inheritance or other rights of such child from his adoptive parent.

“2. That under the law of Oklahoma the right of an adopted child to succeed to property of kindred of the adoptive parent, the claimant, under Title 10 O.S.A. [§§] 51 and 52 , is expressly excluded from taking property limited to the body, or bodies, of the parent by adoption and from lineal or collateral kindred of such adoptive parent by right of representation.

“3. That title 25 O.S.A., Section 7 , has been construed by the Supreme Court of the State of Oklahoma in the case of In re Captain’s Estate, in which the Court said:

“`Since this section refers to the adopted person as a “child” and Section 27, O.S. 1931, 25 Okl.St.Ann. Sec. 7 , states that, “the term children includes children by birth and by adoption”, it is apparent that said section was intended to negative the possible right of the child to inherit from the kindred of the adoptive parents “by right of representation”.'”

¶8 Appellant attributes the claimed errors in the trial court’s judgment to his failure to recognize that the case of In re Captain’s Estate, 191 Okl. 463, 130 P.2d 1002, (which so obviously influenced said judgment) dealt with an intestacy situation where statutes are usually the final arbiter of the descent and distribution, rather than a testacy situation like the present one, where the intention of the testator governs. Pursuing this premise, appellant attempts (without evidence of the testatrix’ intention, other than the words of the will itself) to show that by omitting to preface the terms “child” and “children” with the word “natural” in her will, the testatrix understood said terms as including adopted children (by statute) in Oklahoma, and that her use of other terms such as “living issue” and “heirs of my body” (which appellant concedes do not include adopted children) shows that she recognized the distinction between such terms.

¶9 Generally speaking, of course, statutes do not govern, or even influence, the matter of who may be beneficiaries of estates under wills, as they do the matter of who shall be beneficiaries of estates in intestate succession. Accordingly, a testator or testatrix may, by will, include among the beneficiaries of his or her estate, persons who have neither a natural nor legal claim thereon; and, when such intention is clear, it matters not that such persons would have no claim to any part of the estate under the laws of succession or descent and distribution. It is only where the words of the will leave the testator’s intention in doubt, that such statutes, or those that restrict the devolution of such estates, or those bearing upon the relationship of persons such as the testatrix and the claimant, may be entitled to consideration. But, said statutes are considered – not because they control the devolution of the estate directly – but because they may furnish a clue to arriving at the testator’s intention, in view of the presumption, usually indulged, that he was cognizant of their existence and efficacy, when the will was drafted and executed. Thus, it is only to the extent that such statutes, federal and state, are applicable to appellant’s relationship to the testatrix, or to the devolution of her estate, that they may constitute any foundation, in reason or logic, for his contention that the word “child”, as used in the testatrix’ will, includes him. And, in determining such statutes’ applicability, we may look to cases involving intestate estates, as well as those involving testate estates, where the statutory construction there announced is a general one and does not hinge upon testacy or intestacy. Clearly, In re Captain’s Estate, supra, is such a case. In our opinion in that case we said (at page 1005 of 130 P.2d) that Tit. 10, O.S. 1951, sec. 51 (O.S. 1931, sec. 1711) “relates itself only to the general relationship * * * between parent and child (and) other than the right of inheritance.” Following this statement in that opinion, we demonstrated why decisions from other jurisdictions upholding an adopted child’s right to inherit from kindred of his adoptive parents, are neither controlling nor persuasive. We there noted in sec. 52, (O.S. 1931, sec. 1712) of the same Title, reference to the word “child”, which, under Tit. 25, O.S. 1951, sec. 7 , may mean an adopted child, as well as a natural child, but concluded that “said section (52) was intended to negative the possible right of the child to inherit from the kindred of the adoptive parents `by right of representation’.” In reaching this conclusion we there said (at page 1006 of 130 P.2d):

“The position taken by the appellant that the provision in Section 1712 denying the adopted child the right to inherit from the lineal or collateral kindred of the adoptive parents by right of representation constitutes implied legislative authority for such child to inherit directly in his own right as a natural child from such lineal or collateral kindred, is untenable. This section deals exclusively with the personal rights and duties existing between the adopted child and the adoptive parents. It grants full inheritance rights to the child so far as the property of the parents is concerned, but denies the child the right to take property limited to their bodies and the right to participate as the parents’ representative in any of the estates of their kindred by blood, thus evincing a legislative intent and purpose to keep the property of the family, other than that of the adoptive parents, in the family, and away from the adopted child. Nowhere is there an express provision that the child shall inherit from any one other than the adoptive parents.” (Emphasis ours).

¶10 Here, if there were any doubt from the provisions of paragraph III of the will as a whole, including those containing the terms “heirs of my body” and “right of representation”, that it was the intention of the testatrix to keep the devolution of her headrights in her own blood line, we think it is readily dispelled upon consideration of the inheritance restrictions placed by Congress upon such interests in Osage tribal property. In this connection, see the Act of Congress of June 28, 1906 (34 Stat. 539), as amended by the Act of Congress of March 3, 1921 (41 Stat. 1249-1251), the Act of Congress of April 18, 1912 (37 Stat. 86-88) cited in the Secretary of the Interior’s endorsed approval on the will in question, as authority therefor; and, more particularly Section 7 of the Act of Congress of February 27, 1925 (43 Stat. 1008-11), as amended by the Act of Congress of September 1, 1950 (64 Stat. 572) dealt with in Ware v. Beach, Okl., 322 P.2d 635. The ultimate purpose of the last two Congressional Acts was to prevent heirs, except those of Indian blood, from inheriting from persons having one-half or more Indian blood of the Osage Tribe of Indians “any right, title, or interest to any restricted lands, moneys, or mineral interests of the Osage Tribe; * * *”. Upon inquiry by this court, counsel say that there is no question of federal inheritance restrictions in this case. Assuming, without deciding, that Billie Rogers meets the qualifications imposed by Congress on the inheritance of Osage Indian headrights, the question then arises: How could those who drafted and executed the will in question be certain that any child the testatrix’ grandchild might adopt would meet such qualifications? Therefore, is it not reasonable to assume that in making testamentary disposition of such restricted Indian property it would be done in such manner as to leave no question as to its efficacy? And, would not keeping headrights in the testatrix’ blood line be the best way of being certain that said property would be inherited by heirs who could establish Indian blood (under the Federal Acts, supra) by their enrollment record or by the enrollment record of a lineal Indian ancestor? We think all of these questions must be answered in the affirmative, and, in view of the presumption that the testatrix knew of the inheritance restrictions on such property, such answers furnish substantial insight as to what she intended in her will’s reference to a child or children of a grandchild or grandchildren. Upon consideration of the foregoing, and, in the absence of any evidence to the contrary, it can only be concluded that such references were intended to exclude adopted children. It therefore follows, that the judgment of the trial court must be, and is hereby affirmed.

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The following will was filed for probate. The trial court found that the testator was incompetent. The Supreme Court reversed the trial court and found that the testator was competent.

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Here is an excerpt from the opinion of the court: “An examination of all this testimony convinces us beyond serious doubt that at the time he made this will, Emanuel Kerchner was competent and in possession of his mental faculties to such an extent that he knew well the property which he possessed, the indebtedness due him, his relation to his kindred, his duty toward such kindred. That he knew the diposition which he desired to make of his property and that the will which he executed expressed his intentions. We are particularly impressed with that testimony of George L. Cook, who drew the will; of Dr. W. H. Harris, one of the attesting witnesses, and of L. E. McClure, the executor. It appears that upon the recommendation of a friend, who was in no wise interested, the deceased went to Cook and stated to him that he desired to have his will drawn. Cook had known Emanuel Kerchner for a number of years, but had not been connected with him in any way, and as far as the testimony goes had not attended to any business for him. Emanuel Kerchner came into Cook’s office on the 17th day of April, 1920, by himself. It does not appear that any person came to town with him. He stated plainly and with clearness to Mr. Cook the property which he had and the disposition which he desired to make of it by will. He acted and talked normally, talked with Cook about his relations. Cook took down with pencil the instructions given him as to the provisions of the will, read them over to Kerchner and asked him if they met his approval. He said they were exactly what he wanted; stated that he held a note against Nick Kerchner and desired to give him that note; that Harry Burns had treated him more kindly than his own son. Cook then drew the will on the typewriter, read it over to Kerchner. It was satisfactory. Dr. W. H. Harris, the physician who knew Kerchner well, and had treated him for many years, was called as one witness to the will, and Dr. Tibbets as another witness. Both of those men had offices in the same building where the will was drawn. They were requested by Kerchner to witness the will when he had stated to them that it was his last will and testament. They did so, and Kerchner then took the will and went away.

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¶17 Dr. W. H. Harris, one of the attesting witnesses, had been acquainted with Kerchner for 25 years. Had seen his frequently during that time and had acted as his physician. He testified that his mental condition did not change from the time he first became acquainted with him up to the time he saw him a short time before his death, and Dr. Harris attended him in his last illness. L. E. McClure, the executor and a banker, had known Kerchner since 1912. Kerchner had kept his papers in that bank. Kerchner brought his will to McClure in the bank on the date it was executed, told him that it was his will and he wanted it put away for safekeeping. McClure put the will in Kerchner’s safety box with the rest of his papers and after Kerchner’s death broke the seal on the envelope, brought the will to Alva and turned it over to the county judge. McClure was acquainted with Kerchner in a business way. Deceased Kerchner had kept an account at McClure’s bank for years and always transacted his own business without the assistance of any one. When he brought the will to McClure there was no one with him, He transacted business with the bank just the same afterwards as before the will was deposited there. McClure says that the deceased was entirely capable of carrying on his business, understood the nature of all business transactions, and the value and extent of his property, and that he noticed no difference in the deceased from the time he first became acquainted with him until the last time he saw him, shortly before his death.

¶18 The substance of this testimony as to the normal condition of the mind of Emanuel Kerchner is sustained by the testimony of many witnesses, all of whom had thorough opportunity to judge of his condition during many years and up to the time of the making of his will and up to the time of his death. All this testimony has convinced us that the testator, Kerchner, was at the time of making this will of sound mind, and the testimony introduced by the protestant does not, in our judgment, when considered in its most favorable aspects, reach the point where it raises in our mind any serious doubt as to the competency of the testator. We therefore find that the judgment of the trial court upon this branch of the case was not sustained by sufficient evidence and was against the great weight of the evidence.”

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The will in question is as follows:

“Know All Men by These Presents: That I, Emanuel J. Kerchner of Kiowa, in the county of Barber, in the state of Kansas, being in good health (or ill health) and of sound and disposing mind and memory, do make and publish this, my last will and testament, hereby revoking all former wills by me made; and as to my worldly estate and all the property, real, personal or mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof in the manner following, to wit:

“First: That all my funeral expenses, and any expense occurring from sickness, be paid in full out of the proceeds of my estate.

“Second: To my grandson, Harry Burns, I bequeath the school land, being the northeast quarter of section thirty-six (36), township twenty-nine (29), range thirteen (13) in the county of Woods, Oklahoma; Provided that he assume and pay all assessments due the government as it becomes due.

“Third: To my son, Nick K. Kerchner, I bequeath one promissory note, the amount being
$1,470.50, dated April 10, 1917; also one promissory note, being in amount $ 500, dated May 25th, 1918; also any bills I may have paid out for improvement on his school land in Harper county, Okla.

“Fourth: To my daughter, Ninnie Burns, I bequeath the sum of ten dollars ($ 10.00).

“Fifth: To my grandson, Harry Burns, I bequeath the southeast quarter of twenty-five (25), township twenty-nine (29), range thirteen (13) in the county of Woods, Okla., provided, that he pays Nick K. Kerchner the sum of eleven hundred and seventy-three dollars and 50-100 (1,173.50), the same to be paid in two equal payments of five hundred eighty-six and 75-100 dollars ($ 586.75) the first payment one year after my decease, and the second one year thereafter.

“Sixth: All moneys or bonds that I may have are to be equally divided with my son Nick K. Kerchner and my grandson, Harry Burns.

“And lastly, I do nominate and appoint L. E. McClure to be the executor of this, my last will and testament.

“In Witness Whereof. I, the said Emanuel J. Kerchner, have to this, my last will and testament, subscribed my name…”

The Supreme Court reversed the trial court and found that the testator was competent. It is important that the appellant court noted the important badges of competency of an individual to make a will. These are: (1) he knew well the property which he possessed; (2) the indebtedness due him; (3) his relation to his kindred; (4) his duty toward such kindred; (5) he knew the diposition which he desired to make of his property; (6) the will which he executed expressed his intentions.

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The Supreme Court affirmed the following legal principles in reaching its decision:

A testator has a sound mind for testamentary purposes when he can understand and carry in mind, in a general way, the nature and situation of his property and his relations to those who naturally have some claim to his remembrance and to those in whom and the things in which he has been chiefly interested.

The testator must have sufficient memory to comprehend the conditions of his property and his relations to the objects of his bounty, but the fact that the memory of an old person has failed somewhat does not of itself invalidate his will, as occasional lapses of memory, mere decay or feebleness of memory or absent mindedness, ought not to invalidate a will unless amounting under our general rule to a mental incapacity to collect the particulars essential to a just testamentary disposition.

A presumption of sanity goes with everyone, and the burden of proving unsoundness of mind in a will contest rests on the contestant.

From this case certain “Badges of Competency” are evident. First, there is an overall presumption that a will properly executed (you need an attorney to make sure this is done correctly) was competently executed. There is a presumption of sanity, or competency. The burden to prove that someone was not competent is on the objector to the will.

Second, no one has to be perfect mentally to make a valid will. A good enough memory is OK. It does not have to perfect. Forgetfulness is allowed. Did the will maker understand what he or she owned. Who his or her relatives were and who would be his or her natural objects of his love and affection.

It is good enough to know in a general way what is owned, and the relationship with the natural objects of bounty or close family and friends. The Supreme Court stated these five “Badges of Competency” as follows: (1) To know in a general way the property owned; (2) To know in a general way his or her own business affairs; (3) To remember his or her relationship with close family and friends; (4) To understand that he or she has a duty toward close family; (5) To know and understand what he or she wanted to happen with the estate after death.

Brent has been helping his clients since 1976.  He knows his way around the courtroom, but also how to keep his clients out of court.  He is an expert with wills, trusts, probate, living wills, advance directives, guardianships, powers of attorney and solving many problems that affect us all.  Brent is an expert with nursing home Medicaid qualification.  He has saved thousands of dollars for his clients who need to qualify for Medicaid.  He knows how to legally protect resources and qualify for Medicaid.  He is experienced in dealing with the Department of Human Resources.  Cal Brent’s office at (405) 478-5655 or 737-2244.  Brent has two offices: 1800 East Memorial Road, Suite 106, Oklahoma City and 2801 Parklawn Drive, Suite 503, Midwest City.

 

I really must brag some.  I handled a contested probate before Judge Welch in the Oklahoma County District Court.  My opposing attorneys were with one of the largest and most prestigious laws firms in the state.  The decedent died with a will executed simultaneously with two transfer-on-death deeds given to my clients.  Transfer-on-death deeds are not part of the probate estate.  The ownership of the real estate passes outside of probate by the filing of a grantee acceptance affidavit with a death certificate with the county clerk.

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The decedent’s attorney testified that his client’s intent was to pay off the mortgage debt on the transfer-on-death deed properties before she died.  Her cancer took her before she could.  I filed claims with the personal representative for the mortgage debt, asking the estate to pay it off.  The personal representative denied the claims.  I filed a lawsuit on the merit of the claims.  The case was decided by Judge Welch in my client’s favor.  The personal representative appealed.  The Oklahoma Supreme Court accepted the case for decision and affirmed Judge Welch, ruling that the estate owed the mortgage debt.

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The lesson this case teaches is that the intent of the decedent is paramount.  The Supreme Court looked at the will and saw that it referenced paying off all mortgage debt of the decedent. The transfer-on-death deed statute does not provide for what happens to mortgage debt remaining on real estate, except that the land remains subject to the mortgage debt.  Since it is a lien already, that is just a statement of existing law, that the lien follows the land regardless of who owns it.  The question of who pays for the mortgage debt against transfer-on-death land was not answered.  In my case the Supreme Court said that the language in the will controls.

Last Will and Testament

BRENT IS EXPERIENCED IN PROBATES, WILLS AND TRUSTS

This is an important case.  It establishes for the first time that a will controls payment of debt upon property passing outside of the probate estate.

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Careful estate planning is required for an estate.  Having an experienced attorney handle your estate plan is best.  I have over 40 years experience.  As this most recent opinion shows, I know something about the law too!   An experienced living trust attorney like Brent D. Coldiron, knows what to do in these situations. His fees are reasonable. The best money ever spent is to get good legal advice before signing your name to something. Contact Brent at (405) 478-5655 or 737-2244. His website is http://coldironlaw.com.  Here is my case:

IN THE MATTER OF THE ESTATE OF CARLSON
IN THE MATTER OF THE ESTATE OF CARLSON
2016 OK 6
Case Number: 110720
Decided: 01/20/2016
THE SUPREME COURT OF THE STATE OF OKLAHOMA

Cite as: 2016 OK 6, __ P.3d __
IN THE MATTER OF THE ESTATE OF: CAROL JEAN CARLSON

DEBRA GLOVER, PERSONAL REPRESENTATIVE OF THE ESTATE OF CAROL JEAN CARSON, Appellant,
v.
CLIFFORD CORNISH, FARM CREDIT SERVICES and ELDIN LEWIS, Appellees.

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV

¶0 A grantor executed transfer-on-death deeds for two properties. Both properties were subject to mortgages, securing promissory notes executed by the grantor. Shortly after executing the transfer-on-death deeds, the grantor died. The grantees and one of the lenders filed creditors’ claims against the decedent grantor’s estate asserting the debt secured by the mortgages on the two properties was a liability of the estate. The personal representative denied the claims. The grantees and lender filed ancillary petitions on claims. In an order determining the extent of the estate’s liability, the trial court determined that the claims were liabilities of the estate to be paid by the personal representative in the due course of administration. The personal representative appealed and the Court of Civil Appeals reversed. This Court granted certiorari.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF
CIVIL APPEALS VACATED; ORDER OF THE TRIAL COURT
AFFIRMED

Randall Allen Gill and Jeff K. Rhodes, Tulsa, OK, for Appellant Debra Glover.
Brent D. Coldiron, Oklahoma City, OK, for Appellees Clifford Cornish and Eldin Lewis.
Victor Eric Morgan, Tulsa, OK, for Appellee Farm Credit Services.

COMBS, V.C.J.:

¶1 At issue in this cause is whether the estate of a deceased grantor of mortgaged properties conveyed by transfer-on-death deed is liable for the underlying debt, when the grantor’s will contained express instructions for the payment of all debts secured by mortgages. We determine that it is.

I.
FACTS AND PROCEDURAL HISTORY

¶2 Carol Jean Carlson (Decedent) learned she was terminally ill in 2011, and retained an attorney to assist her in planning the disposition of her estate (Estate). On August 24, 2011, Decedent executed three transfer-on-death deeds (TODDs) pursuant to the Nontestamentary Transfer of Property Act (NTPA), 58 O.S. 2011 §§ 1251-1258 for real property she owned, as well as a Last Will and Testament. One of the pieces of real property transferred via TODD went to Debra Glover– who was later appointed Personal Representative of the Estate–and is not at issue in this appeal. The first of the other two TODDs named Appellee Clifford Cornish (Cornish) as grantee and the second named Eldin Lewis (Lewis). For purposes of this opinion, Appellees Cornish and Lewis will be collectively referred to as Grantees. Decedent died on August 29, 2011, five days after executing the TODDs and her Last Will and Testament.

¶3 The TODD to Lewis concerns the following parcel:

[a] tract of land being a part of the South Half (S/2) of the Northeast Quarter (NE/4) of Section Five (5), Township Twelve (12) North, Range One (1) West of the Indian Meridian, Oklahoma County, Oklahoma . .

TODD to Eldin B. Lewis, R. 285.

Prior to Decedent’s estate planning and the execution of the TODD, Decedent executed a promissory note in the amount of $140,224.35 on December 19, 2006, in favor of The Margee and Robert W. Minter Living Trust (Trust). R. 241. This note was secured by a mortgage, filed December 21, 2006, which encumbered the property conveyed to Lewis via the TODD. Mortgage of Real Estate, R. 242. Lewis timely accepted the TODD. On December 7, 2011, Lewis filed a proof of claim with the Personal Representative for the remaining debt in the amount of $123,530.09. The Personal Representative rejected Lewis’ claim on December 16, 2011. Notice of Rejection of Creditor’s Claim, R. 74

¶4 The TODD to Cornish concerns a 31-acre parcel of real property in Oklahoma County described as:

[a]ll that part of the West Half (W/2) of Section Thirty-Three (33), Township Fourteen (14) North, Range One (1) East of the Indian Meridian, Oklahoma County, Oklahoma, that lies West of the S.L. & S.F. Railroad right-of-way and South of Hogback road (sometimes referred to as Jones Spencer road).

Transfer on Death Deed to Clifford Earl Cornish, R. 59.

Previously, on May 27, 2007, Decedent executed a note and security agreement in favor of Appellee Farm Credit Services (FCS) in the amount of $96,000.00. The note is secured by a mortgage in favor of FCS executed on the same day and filed on May 29, 2007. A second note and security agreement, amending the first, were executed on September 16, 2010, for the amount of $83,778.60.

¶5 The record contains a letter from the Personal Representative’s attorney dated November 2, 2011, advising Cornish that the property he was to receive through the TODD was subject to a mortgage. The letter noted the language of 58 O.S. 2011 § 1255(B), stated that the mortgage remained attached to the land, that the owner of the land remains responsible for paying it, and provided an enclosed disclaimer for Cornish to sign if he desired not to accept ownership of the property. Letter to Clifford Earl Cornish, R. 72-73.

¶6 Cornish instead decided to accept ownership of the parcel conveyed by the TODD, and signed an affidavit to that effect on December 4, 2011. During probate of the Estate, Cornish filed a creditor’s claim against the Estate arguing that the note, security agreement, and mortgage were all executed by Decedent and the debt is the Estate’s alone, citing a pay all debts provision in Decedent’s Last Will and Testament. Claim of Clifford Earl Cornish, R. 79. The Personal Representative rejected Cornish’s claim on December 16, 2011. FCS also filed a creditor’s claim with the Personal Representative, for the amount of the note secured by the mortgage on the property granted to Cornish. FCS asserted that the full amount was due and payable under the terms of the note. The Personal Representative rejected this claim on December 22, 2011. The record indicates FCS has begun foreclosure proceedings on the property securing the note, taken by Cornish pursuant to the TODD.

¶7 FCS filed its Ancillary Petition on Claim on January 9, 2012. Grantee Cornish filed his Ancillary Petition on Claim on January 10, 2012. On January 10, 2012, the Personal Representative filed an Application for Order Determining the Extent of the Estate’s Liability concerning the claims of Grantee Cornish and FCS. On January 27, 2012, Grantee Lewis filed his own Ancillary Petition on Claim. The Personal Representative filed a second Application for Order Determining Extent of Estate’s Liability on February 3, 2012, concerning Grantee Lewis’ claim.

¶8 On April 6, 2012, the trial court entered an order granting the Appellees’ petitions, approving the ancillary claims, and finding the mortgages and notes to be liabilities of the Estate. The Personal Representative filed a Petition in Error on May 25, 2012. On appeal, Personal Representative contends the trial court erred as a matter of law by allowing the creditors’ claims of Grantees and FCS because : 1) allowing the claims was contrary to the express language of 58 O.S. 2011 § 1255(A) and the purpose of the NTPA; 2) the trial court lacked jurisdiction because TODDs are nontestamentary instruments that may not be revoked by will; and 3) the intent/language of Decedent’s Last Will and Testament was insufficient to override the provisions of the NTPA without express, specific language requiring payment.

¶9 The Court of Civil Appeals, in an opinion filed on June 11, 2015, reversed the decision of the trial court and remanded for further proceedings. The Court of Civil Appeals determined that Grantees did not have standing to pursue creditors’ claims against the Estate to satisfy the notes and mortgages on their respective properties. Further, the Court of Civil Appeals determined that while FCS possessed standing as the holder of a note and mortgage, the trial court prematurely granted FCS’ claim because FCS was required to foreclose on the property, obtain a deficiency judgment, and only then present a claim to the Estate for payment.

¶10 Grantees filed their Petition for Certiorari on June 24, 2015, asserting the Court of Civil Appeals decided a question of substance not heretofore determined by this Court. We granted certiorari on October 26, 2015, and the cause was assigned to this office on October 27, 2015.

III.
STANDARD OF REVIEW

¶11 Probate proceedings are of equitable cognizance. In re Estate of Holcomb, 2002 OK 90, ¶8, 63 P.3d 9; In re Estate of Sneed, 1998 OK 8, ¶8, 953 P.2d 1111. Although this Court will examine and weigh the evidence, there is a presumption that the trial court’s decision is legally correct and cannot be disturbed unless found to be clearly contrary to the weight of the evidence or to some governing principle of law. In re Estate of Speers, 2008 OK 16, ¶8, 179 P.3d 1265; In re Estate of Holcomb, 2002 OK 90, ¶8. If legally correct, the trial court’s ruling will not be reversed because of faulty reasoning, an erroneous finding of fact, or consideration of an immaterial issue. In re Estate of Speers, 2008 OK 16, ¶8; In re Estate of Holcomb, 2002 OK 90, ¶8; In re Estate of Maheras, 1995 OK 40, ¶7, 897 P.2d 268.

IV.
ANALYSIS

A. The Trial Court Correctly Determined Appellees’ Claims Are Liabilities of the Estate

¶12 The first question we must answer is whether the trial court erred when it determined the notes, secured by mortgages on the land transferred to Grantees, are liabilities of the Decedent’s estate. We hold that it did not.

1. Decedent’s intent, as expressed by her Last Will and Testament and the TODDs, was for her estate to pay all of her debts, including those secured by mortgages on the properties transferred to Grantees via TODD.

¶13 Of paramount importance in a probate proceeding is discerning and implementing a decedent’s intent. Title 84 O.S. 2011 § 151 provides: “[a] will is to be construed according to the intention of the testator. Where his intention cannot have effect to its full extent, it must have effect as far as possible.” Amongst other provisions, Decedent’s Last Will and Testament contains the following directive concerning her debts:

2. PAYMENT OF DEBTS: I hereby direct that all my debts, including the expenses of my last illness and burial and the expenses of administration of my estate, be paid by my executor except that the payment of any debts secured by mortgage or pledge of real or personal property may be postponed until payable by its terms.

Last Will and Testament of Carol Jean Carlson, R. 1.

It is undisputed in this cause that the TODDs and Decedent’s Last Will and Testament were executed on the same day and conceived as a single estate plan. Pursuant to 84 O.S. 2011 § 154, “[s]everal testamentary instruments, executed by the same testator, are to be taken and construed together as one instrument.”

¶14 The TODDs at issue in this cause are nontestamentary instruments, authorized by the Nontestamentary Transfer of Property Act (NTPA), 58 O.S. §§ 1251-1258. Specifically, 58 O.S. 2011 § 1258 provides: “[a] deed in transfer-on-death form, executed in conformity with the Nontestamentary Transfer of Property Act, shall not be considered a testamentary disposition and shall not be invalidated due to nonconformity with other provisions in Title 58 or Title 84 of the Oklahoma Statutes.” Even so, though the TODDs are nontestamentary in that they need not comply with other provisions of Title 58 or Title 84, nothing in the NTPA prevents the TODDs from being examined with Decedent’s simultaneously executed testamentary instruments to determine Decedent’s intent in this instance. Because all of the instruments in question were executed on the same day and as part of a comprehensive plan, this Court will interpret them together in order to discern Decedent’s intent.1 Discerning Decedent’s intent is the emphasis of the entire probate process. In re Estate of Sneed, 1998 OK 8, ¶8, 953 P.2d 1111; In re Estate of Holcomb, 2002 OK 90, ¶8, 63 P.3d 9; Miller v. First National Bank & Trust Co., 1981 OK 133, ¶8, 637 P.2d 75.

¶15 The unambiguous debt-payment provision of Decedent’s Last Will and Testament, along with the TODDs, indicate Decedent’s intent was that the notes secured by the mortgages on the properties conveyed to Grantees by TODD be paid by Decedent’s estate. This determination is further supported by the affidavit of Jeff A. Eulberg, Decedent’s friend and the attorney who assisted Decedent with the planning of her estate, including the preparation of her Last Will and Testament and the TODDs. Attorney Eulberg’s affidavit provides in pertinent part:

3. She contacted me to help her with distributing her property at her death through her will and using transfer-on-death-deeds. She told me that she wanted to give her friends some property. She told me that she intended to sell her mobile home park and use that money to pay off what she owed on her other property. Unfortunately her cancer progressed too rapidly. She died before she could sell the mobile home park.

4. By August 24, 2011 she believed that she didn’t have much time left. On August 24th, 2011 I prepared her will and some remaining transfer-on-death deeds. Her will and transfer-on-death deeds were read to her. I also explained the will and transfer-on-death deeds to her. The documents were then executed, witnessed and notarized as required by law. The will which I prepared and she signed is the same will admitted into probate in this case. .

5. At no time did she tell me that she did not want all of her debts paid. The will I prepared, which she signed, complied with her wishes.

Affidavit of Jeff A. Eulberg, R. 295.

¶16 Decedent’s Last Will and Testament contains an explicit provision for payment of debts, including those secured by mortgages on real property, which she intended cover the notes secured by the properties transferred to Grantees. Title 58 O.S. 2011 § 461 concerns will provisions for payment of debts, and states:

[i]f the testator makes provisions by his will or designates the estate to be appropriated for the payment of his debts, the expenses of administration, or family expenses, they must be paid according to such provisions or designation, out of the estate thus appropriated, so far as the same is sufficient.

Normally, when a decedent’s real property secured by mortgage passes to successors, 58 O.S. 2011 § 461 operates in concert with another statutory provision, 46 O.S. 2011 § 5, which provides:

[w]hen real property, subject to a mortgage, passes by succession or will, the successor or devisee must satisfy the mortgage out of his own property, without resorting to the executor or administrator of the mortgagor, unless there is an express direction in the will of the mortgagor that the mortgage shall be otherwise paid.

When real property subject to a mortgage passes by succession or will, so does responsibility for satisfying the mortgage–pursuant to 46 O.S. 2011 § 5– unless, in accordance with 58 O.S. 2011 § 461, the testator made specific provisions in the will for payment to be made some other way.

¶17 However, 46 O.S. 2011 § 5 is not applicable in this cause, as the properties conveyed to Grantees by the TODDs did not pass by succession or will. Instead, at issue is the interaction of 58 O.S. 2011 § 461 and the payment-of-debts clause in Decedent’s will, with a specific section of the NTPA, 58 O.S. 2011 § 1255(A), which provides:

[g]rantee beneficiaries of a transfer-on-death deed take the interest of the record owner in the real estate at the death of the grantor owner, free and clear of any claims or interest under Section 44 of Title 84 of the Oklahoma Statutes as to a person who became the spouse of the grantor subsequent to the execution of the transfer-on-death deed, subject to all recorded conveyances, assignments, contracts, mortgages, liens and security pledges made by the record owner or to which the record owner was subject during the lifetime of the record owner including, but not limited to, any recorded executory contract of sale, option to purchase, lease, license, easement, mortgage, deed of trust or lien, and to any interest conveyed by the record owner that is less than all of the record owner’s interest in the property, provided however, a non-consensual lien against the grantee beneficiary shall not attach to the property until the recording of the affidavit described in Section 1252 of this title.

Appellant asserts 58 O.S. 2011 § 1255(A) conflicts with 58 O.S. 2011 § 461 and the intent of Decedent expressed in her Last Will and Testament.

2. The NTPA does not conflict with or defeat Decedent’s intent that the debts represented by Appellees’ claims be paid by the Estate.

¶18 Pursuant to 58 O.S. 2011 § 1255(A), Grantees took the interest of Decedent in the respective properties at the time of Decedent’s death. They took this interest “subject to all recorded conveyances, assignments, contracts, mortgages, liens and security pledges made by the record owner.” Title 58 O.S. 2011 § 1255(A). By the plain terms of the statute, Grantees each took the properties subject to the mortgages attached to them. Those mortgages serve as security for the notes originally executed between Decedent and her lenders, Farm Credit Services and The Margee and Robert W. Minter Living Trust. Title 58 O.S. 2011 § 1255(A) does not, by its own terms, provide that Grantees assumed liability for any of Decedent’s underlying debt. Rather, Grantees took the property subject to the security for that debt: the mortgages.

¶19 In Oklahoma, a mortgage does not operate as a conveyance vesting in the mortgagee any estate in realty. First Mustang State Bank v. Garland Bloodworth, Inc., 1991 OK 65, ¶33, 825 P.2d 254; Coursey v. Fairchild, 1967 OK 252, ¶7, 436 P.2d 35. Rather, it creates a lien against the realty in order to secure the payment of a debt. First Mustang State Bank, 1991 OK 65, ¶33; Coursey, 1967 OK 252, ¶7. Generally, no personal obligation rests on a purchaser of mortgaged land to pay mortgage debt. Parlette v. Equitable Farm Mortgage Co., 1933 OK 478, ¶7, 25 P.2d 300; Bailey v. State, 1919 OK 49, ¶4, 179 P. 615.2

¶20 Where a mortgagor conveys mortgaged land to a grantee who assumes and agrees to pay the mortgage debt, the grantee becomes the principal obligor of the mortgage debt and mortgagor his surety. Stalcup v. Easterly, 1960 OK 39, ¶9, 351 P.2d 735. However, nothing in the record in this cause indicates Grantees assumed or agreed to pay the notes secured by the mortgages, even though they were aware of the notes. Pursuant to 58 O.S. 2011 § 1255(A), therefore, Grantees took title to the properties in question subject to the mortgages encumbering the properties, but assumed no liability for the debt. This result is consistent with 58 O.S. 2011 § 461, and the expressed intent of Decedent’s Last Will and Testament.

¶21 The NTPA is a comparatively new piece of legislation, and there is therefore little precedent concerning TODDs. However, conveyance of property by TODD shares important similarities with property held in joint tenancy. As this Court previously noted:

[i]t is well-settled law that a joint tenancy, in either real or personal property, “creates a present estate which, absent severance during the life of the joint tenants, assures the surviving tenant absolute ownership of the whole subject matter of the joint tenancy.” Toma, 2007 OK 52, ¶ 11, 163 P.3d at 544. Upon a joint tenant’s death, the decedent’s interest terminates and the surviving tenant’s interest simply continues. Clovis v. Clovis, 1969 OK 170, ¶ 16, 460 P.2d 878, 881. By operation of law, the surviving tenant becomes immediately vested with the property as a whole, and the joint tenancy property is excluded from the decedent’s estate. Toma, 2007 OK 52, ¶ 11, 163 P.3d at 544. Therefore, there is no property interest remaining that a decedent’s beneficiary may inherit. See Draughon, 1948 OK 81, ¶ 9, 200 Okla. 198, 191 P.2d at 923.

In re Estate of Metz, 2011 OK 26, ¶8, 256 P.3d 45. Though there are obvious differences, the similarities were set out succinctly by the Court of Appeals of Kansas in In re Estate of Roloff, 143 P.3d 406 (Kan. Ct. App. 2006). The court noted:

[a] TOD deed has many of the same survivorship characteristics as a joint tenancy deed. These characteristics are as follows: (a) that the record owner’s interest automatically transfers to the grantee beneficiary upon the death of the record owner, K.S.A. 59-3501(a) and K.S.A. 59-3504(a); (b) that no other action or procedure is required to transfer full title to the grantee beneficiary, K.S.A. 59-3501(a) and K.S.A. 59-3504; (c) that any attempt by the record owner to revoke or convey the record owner’s interest in real estate subject to a TOD deed by the record owner’s will is invalid, K.S.A. 59-3503(c); (d) that because title in the real estate vests immediately in the grantee beneficiary upon the death of the record owner under K.S.A. 59-3501(a) and K.S.A. 59-3504(a), the real estate is not included in the record owner’s probate estate; and (e) that the transfer of the real estate by a TOD deed is not testamentary in nature under K.S.A. 59-3507, and is not subject to the provisions of the probate code.

In re Estate of Roloff , 143 P.3d at 413.

¶22 Given the similarities, cases from other jurisdictions with similar facts are illustrative. In In re Estate of Charles A. Zahn, 305 N.J. Super. 260, 270-71, 702 A.2d 482 (1997), the decedent died testate with instructions in his will that the executor “pay all of [his] just debts and funeral expenses as soon as practicable after [his] death.” Prior to his death, the decedent had executed a joint tenancy deed for his residence, which was encumbered by a mortgage. The survivor of the joint tenancy paid the debt secured by the mortgage on the residence to prevent foreclosure and sought exoneration from the estate. The New Jersey Supreme Court found that the “just debts” language was not sufficiently specific to indicate that the decedent intended the estate be liable for the mortgage. The Court noted that if the testator wanted the estate to pay the mortgage, he or she could have accomplished this by including specific language such as “free and clear.” The Court cited A Treatise on Equity Jurisprudence, which states that “[w]here a mortgagor conveys by deed [and is] absolutely silent with respect to an outstanding mortgage, the grantee, of course, takes the land encumbered by the mortgage.” In re Estate of Charles A. Zahn, 305 N.J. Super. at 271 (quoting 4 John Norton Pomeroy, A Treatise on Equity Jurisprudence, § 1205, at 613 (5th ed.1941)).

¶23 Similarly, the California Court of Appeals found that, where the deceased held a property in joint tenancy with another, his direction in his will to pay his “just debts” was not sufficient to indicate the intention that the mortgage be a liability of the estate. In re Estate of Roy P. Dolley, 265 Cal.App.2d 63 (1968). The court noted that “[f]oreign authority exists to the effect that a surviving joint tenant does not qualify for exoneration of a mortgage on joint tenancy property unless there is language in the decedent’s will clearly expressing an intention that the mortgage debt be paid.” In re Estate of Roy P. Dolley, 265 Cal.App.2d at 72.

¶24 These cases indicate that where a will clearly and unambiguously provides for the payment of a debt secured by mortgage, such direction should be followed, despite the transfer of property ownership occurring outside of probate. Personal Representative points to the above cases as support for the contention that the debt is not a liability of the estate, arguing that Decedent’s will “did not contain express language to require the payment of the mortgages transferred under the Non-Testamentary Transfer on Death Deed statutes.” However, this case is distinguishable factually from the cases discussed above, as Decedent’s will did not merely refer to “just debts” and, in fact, did specify the payment of debts secured by mortgages: “I hereby direct that all my debts . . . be paid by my executor, except that the payment of any debt secured by mortgage or pledge or real or personal property may be postponed until payable by its terms.” This language specifically addresses debts secured by mortgages and provides unambiguous direction for payment. Thus, these directions should be followed, even if the underlying property subject to the mortgages as security for the debt was transferred outside of probate by TODD.3

B. Appellees Possess Standing to Assert Their Claims

¶25 Having determined that the trial court correctly ruled the debts set out in Appellees’ creditors’ claims are liabilities of the Estate, this Court must now consider whether Appellees possessed standing to assert those claims.4 The Court of Civil Appeals determined Grantees did not have standing, holding:

[w]e interpret the will’s language to mean that satisfaction of “any debts secured by mortgage or pledge of real or personal property” need not be immediate. Rather, satisfication “may be postponed until payable by its terms.” This means a secured debt may be collected by a creditor or mortgage holder entitled to collect that debt from the Estate using any remedies available to that creditor by law or under the terms of that secured debt. However, those remedies are not available to Grantees because they are neither parties to the debt, creditors of the Estate, nor proper parties to enforce payment of the debt secured by their real property which had been formerly owned by Estate. Grantees may not use the terms of Decedent’s will to compel Estate to act to satisfy the debt on their properties. That right belongs to the actual owners of those secured debts, who alone have standing to present a creditor’s claim.

Opinion of the Court of Civil Appeals, ¶29.

The Court of Civil appeals further concluded that even the actual creditors of the estate, such as FCS, must obtain a deficiency judgment post-foreclosure first, and only then submit a claim to the estate for payment. Opinion of the Court of Civil Appeals, ¶30. We disagree.

1. FCS was not required to foreclose and only afterwards file a creditor’s claim limited to the amount of any deficiency judgment

¶26 Concerning the timeliness and nature of FCS’ claim, 58 O.S. 2011 § 461 requires that debt-related provisions in wills be followed, and that payment be made according to the specifications of those provisions. Decedent’s will provides that “payment of any debts secured by real or personal property may be postponed until payable by its terms.” This language should not be construed to require the creditor to first foreclose, apply the proceeds of the sale to the debt, and then obtain a deficiency judgment to present to the estate. The will calls for payment of the debt on its terms, not for reimbursement post-default. As the dissent in the Court of Civil Appeals Opinion correctly notes, it is clear from this language that Decedent not only intended the estate to pay the debts represented by the notes to FCS and the Trust, but also intended to give the estate some flexibility in doing so, either in continued installments or as one lump sum. Forcing foreclosure followed by a deficiency judgment would frustrate the entire purpose of Decedent’s combined use of the TODDs along with the debt payment provision of her will: for the Grantees to take the property with the debt paid by the Estate.

¶27 Further, nothing in the relevant statutes or this Court’s prior jurisprudence requires the holder of a note secured by mortgage on real property to initiate foreclosure proceedings prior to filing a claim against the estate for underlying debt. Title 58 O.S. 2011 § 333 (emphasis added) provides:

[a]ll claims arising upon contracts entered into prior to the decedent’s death, whether the same be due, not due or contingent, must be presented on or before the presentment date as provided in the notice, and any claim not so presented is barred forever; provided, however, that when it is made to appear by the affidavit of the claimant, to the satisfaction of the personal representative and the judge of the district court, as duly noted on the claim, that the claimant had no notice by reason of being out of the state and that a copy of the notice to creditors was not mailed to said claimant, the claim may be presented at any time before a final decree of distribution is entered; provided, further, that nothing in this section, nor in this chapter contained, shall be construed to prohibit the right or limit the time of foreclosure of mortgages upon real property of decedents, but every such mortgage may be foreclosed within the time and in the mode prescribed in civil procedure, except that no balance of the debt secured by such mortgage remaining unpaid after foreclosure shall be a claim against the estate, unless such debt was presented as required by this code.

The emphasized portion of 58 O.S. 2011 § 333 unambiguously creates a simple rule: filing a creditor’s claim against the estate is not a condition precedent in order for a creditor secured by a mortgage on real property to foreclose. However, 58 O.S. 2011 § 333 does not allow a creditor to pursue a deficiency judgment after foreclosure, unless a claim was presented to the estate pursuant to the probate code.

¶28 This Court explained the relevant portion of 58 O.S. 2011 § 333 in Cahill v. Kilgore, 1960 OK 88, ¶10, 350 P.2d 928:

[u]nder the above quoted exception, plaintiff clearly had the right to foreclose the mortgage in controversy without first presenting to defendant in her representative capacity a claim based upon the note securing the mortgage or the mortgage. In her brief plaintiff makes this statement and concession: ‘There is no question here about a deficiency judgment in this case. It could only arise if presented to the County Court after the foreclosure. Under the above proviso we had the right to proceed by foreclosure without presenting claim to administrator. We waived that right and chose to rely on our mortgage.’ In view of the fact that an action to foreclose a mortgage may be maintained without seeking a personal judgment (Irwin v. Sands, Okl., 265 P.2d 1097) and in view of the further fact that plaintiff is not here asserting the right to recover a deficiency from Dick Cahill’s estate, we are of the opinion that defendant’s first contention is not well taken.5

While FCS was certainly permitted by 58 O.S. 2011 § 333 to initiate foreclosure proceedings without presenting a claim based upon its note to Decedent’s estate, it was not required to do so. Instead, FCS chose to seek payment of the due note6 pursuant to its terms by filing a creditor’s claim against Decedent’s estate. The right of FCS to present a creditor’s claim prior to foreclosing is therefore established. The only question remaining is that of Grantees’ standing.

2. Grantees possessed standing to assert their claims before the trial court

¶29 Standing refers to a person’s legal right to seek relief in a judicial forum. Fent v. Contingency Review Bd., 2007 OK 27, ¶7, 163 P.3d 512; Hendrick v. Walters, 1993 OK 162, ¶4, 865 P.2d 1232. The three threshold criteria of standing are (1) a legally protected interest which must have been injured in fact–i.e., suffered an injury which is actual, concrete and not conjectural in nature, (2) a causal nexus between the injury and the complained-of conduct, and (3) a likelihood, as opposed to mere speculation, that the injury is capable of being redressed by a favorable court decision. J.P. Morgan Chase Bank Nat. Ass’n v. Eldridge, 2012 OK 24, ¶7, 273 P.3d 62; Fent, 2007 OK 27, ¶7. The Standing doctrine should never be applied mechanistically to bar from the courthouse those who are truly aggrieved. Application of Southwestern Bell Telephone, L.P., 2007 OK 55, ¶5, 164 P.3d 150.

¶30 Grantees both possess interests in real property encumbered by mortgages. Those mortgages secure debt that is a liability of Decedent’s Estate. Failure of the Estate to pay that debt will subject Grantees to foreclosure of their respective properties, an action for which has already been filed concerning Grantee Cornish’s property. The injury to Grantees if the Estate’s liability for the debt is not recognized is concrete, not conjectural. Grantees’ injury is a direct result of the Personal Representative’s denial of their claims, and is capable of being redressed by the court’s decision that the debts secured by their properties must be paid by Decedent’s estate. This Court has also stated that a litigant must have a personal stake in the outcome. Hendrick v. Walters, 1993 OK 162, ¶5, 865 P.2d 1232; Indep. School Dist. No. 9 of Tulsa County v. Glass, 1982 OK 2, ¶8, 639 P.2d 1233. Grantees possess such a personal stake: if the debt is not recognized as that of the Estate, they must pay it themselves or lose their property.

¶31 The claim of Grantee Cornish specifically states it was filed to protect his right to be equitably subrogated and potentially recover against the estate because of the threat of foreclosure on his property arising directly from the Estate’s prior refusal to recognize its obligation to pay the note. Claim of Clifford Earl Cornish, R. 79. Likewise, the claim of Grantee Lewis was made to protect his ownership of his property by obtaining confirmation from the court of the estate’s obligation to pay the note secured by mortgage on his property. Proof of Claim, R. 76.

¶32 The doctrine of equitable subrogation is a creature of equity intended to achieve the natural justice of placing the burden where it ought to rest. In re Estate of MacFarline, 2000 OK 87, ¶31, 14 P.3d 551; Republic Underwriters Ins. Co. v. Fire Ins. Exchange, 1982 OK 67, ¶6, 655 P.2d 544, 547. It is unlike a fixed rule of law; instead, equitable subrogation is pliable and capable of being molded to attain justice to compel the ultimate discharge of a debt or obligation by the party who in good conscience ought to pay it. In re Estate of MacFarline, 2000 OK 87, ¶31; Republic Underwriters Ins. Co., 1982 OK 67, ¶6. Grantees sought legal recognition during the probate process of the Estate’s liability for notes secured by mortgages on their real property, in accordance with Decedent’s intent. Given the circumstances of this case, it is the opinion of this Court that they had standing to do so.

CONCLUSION

¶33 The emphasis of the entire probate process is to discern and effectuate a decedent’s dispositive intentions. Matter of Estate of Sneed, 1998 OK 8, ¶8, 953 P.2d 1111; Miller v. First Nat. Bank & Trust Co., 1981 OK 133, ¶8, 637 P.2d 75. It was Decedent’s intent that her debts secured by mortgage or pledge of real or personal property be paid, including the debts secured by the properties transferred to Grantees via TODDs. The trial court properly determined that Decedent’s estate is liable for the debts secured by the mortgages on Grantees’ real property. The trial court’s decision was within its probate jurisdiction and did not conflict with the provisions of the Nontestamentary Transfer of Property Act (NTPA), 58 O.S. 2011 §§ 1251-1258. Appellees possessed standing to assert their claims and FCS’ claim was not premature.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF
CIVIL APPEALS VACATED; ORDER OF THE TRIAL COURT
AFFIRMED

REIF, C.J., COMBS, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, COLBERT, and GURICH, JJ., concur.

TAYLOR, J., concurs in result.

FOOTNOTES

COMBS, V.C.J.:

1 See Title 15 O.S. 2011 § 158 (“Several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together.”).

This Court’s interpretation of 15 O.S. 2011 § 158 also allows for situations in which the contracts were not executed at substantially the same time and/or do not reference each other. In Pauly v. Pauly, this Court construed together a deed to real estate and an agreement regarding the reservation of oil and gas rights, stating:

Where several instruments are made a part of one transaction, they will be read together, and each will be construed with reference to the other. This is true, although the instruments do not in terms refer to each other. So if two or more agreements are executed at different times as parts of the same transaction they will be taken and construed together.

1946 OK 336, ¶16, 176 P.2d 491 (quoting 17 C.J.S., Contracts, § 298) (emphasis added).

2 This cause concerns liability for notes secured by mortgaged real property after the real property has been transferred, and is therefore distinct from situations where the note itself has changed hands. Assignment of the note itself necessarily carries with it assignment of the mortgage, and assignment of the mortgage without the note is a nullity. CPT Asset Backed Certificates, Series 2004-EC1 v. Cin Kham, 2012 OK 22, ¶¶7-8, 278 P.3d 586; BAC Home Loans Servicing, L.P. v. White, 2011 OK CIV APP 35, ¶10, 256 P.3d 1014.

3 With regard to Appellant’s point of error concerning jurisdiction: the trial court was within its probate jurisdiction to consider Appellees’ claims, regardless of the nontestamentary status of TODDs. Appellees’ claims concern Decedent’s Last Will and Testament and whether it requires Decedent’s Estate to pay certain of Decedent’s debts. Such claims are squarely within the probate jurisdiction of the trial court. 58 O.S. 2011 § 1.

4 Standing, very much like jurisdiction, must be inquired into sua sponte. Fent v. Contingency Review Bd., 2007 OK 27, ¶7, 163 P.3d 512. The Court of Civil Appeals found the issue of Appellees’ standing to be dispositive. An analysis of Appellees’ standing by this Court is warranted.

5 The Court in Cahill examined 58 O.S. 1951 § 333, a prior incarnation of the statute. The operative language, however, remains fundamentally unchanged.

6 A contingent claim and subsequent suit based upon a note not yet due is also permitted. In Anderson v. Merriott, 1976 OK 74, ¶8, 550 P.2d 1320, this Court explained:

[58 O.S. § 339] recognizes an unmatured debt is entitled to the same protection and remedies as one which is due before the death of the debtor. A claim against the estate of a deceased person for an unmatured debt is sufficient if it fully advises the administrator the nature and amount of the demand and sets forth the particulars of such claim. If the claim is properly presented and is rejected, the holder thereof may bring suit thereon in the proper court. Commercial Inv. Trust v. Harsha, 116 Okl. 140, 243 P. 955 (1926). Also see In re Travis’ Estate, 186 Okl. 223, 97 P.2d 50 (1939).

 

In the case of WELCH v. CROW, 2009 OK 20, 206 P.3d 599 Decided: 03/31/2009 THE SUPREME COURT OF THE STATE OF OKLAHOMADYLAN WELCH and HILLARY found that on April 12, 1995, a mother created her revocable trust and executed a pour-over will. Pour over wills are never intended to be probated, since all of the property is supposed to be owned in the revocable trust.

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The only problem is that the mother had a deceased son who left issue that she didn’t leave anything to in her trust or in her will. Neither the will nor the Trust made any provision for her deceased son’s issue. The grandchildren fought the will and trust. They claimed they were entitled to a share of the Trust as pretermitted heirs or that the Trust was illusory.

The Supreme Court held that: 1) Oklahoma’s pretermitted heirs statute, 84 O.S. 2001 §132, is not applicable to revocable inter vivos trusts; and 2) because the Trust provided for contingent beneficiaries, it was not illusory simply because Neighbors was the sole trustee and the only vested present beneficiary.
The mother her revocable trust and she was the sole trustee and only vested beneficiary during her life. Upon its creation, some of her property was conveyed into the Trust. The terms of the Trust provided that at the time of her death, the successor trustees were to be her daughters, and her son-in-law, collectively, the trustees. After the Trust paid the expenses of the estate, the remaining principal and income were to be distributed to the daughters in equal shares.

The will recognized that the mother had four children, including the one deceased. The son deceased was deceased at the time of the will’s execution. The grandchildren were not referred to in the will. The will provided that at the time of her death, the entirety of her estate was to be distributed to the Trust. This is what a pour-over will usually does, it pours-over into the trust. If the Trust were not in existence at the time of her death, the will provided that her daughters take the entirety of her estate in equal shares. And the will also stated that she was omitting anything for her other living son.

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The trial court found that the omitted issue of her deceased son were her heirs and were pretermitted heirs as defined by 84 O.S. 2001 §132.7.

The grandchildren won with the will, so they then filed a suit contesting the trust. Asking the court to determine that either they had a statutory share in the Trust and were entitled to an accounting by the trustees or, in the alternative, that the Trust was illusory. The trial court ruled against the omitted grandchildren.

The first impression question before the Supreme Court was whether naming a contingent beneficiary satisfies the requirement that a trust may not have the same person as sole trustee and sole beneficiary.
Title 84 O.S. 2001 §132 Does Not Apply To Revocable Inter Vivos Trusts.

The grandchildren argued that as pretermitted heirs, they were entitled to a statutory share in the Trust under 84 O.S. 2001 §132.14 The trust responded that §132 applies only to wills, and not to trusts. The Supreme Court noted that the opinion of In re Estate of Jackson, 2008 OK 83, 194 P.3d 1269, held that §132 “unambiguously pertains only to wills. It does not encompass a situation where a child is omitted from a trust, and we decline to extend its reach to revocable inter vivos trusts, and that the grandchildren are not entitled to a statutory share in the Trust.

The other first impression question was whether naming a contingent beneficiary satisfies the requirement that a trust may not have the same person as sole trustee and sole beneficiary. In other words, can you make a self-settled trust when you are the sole beneficiary. The Supreme Court held that the right to dispose of property is an inalienable natural right that persists throughout a person’s lifetime, and the right to control disposition of property after death is subject to statutory limitations. And, that Oklahoma law permits an individual to dispose of property at death by trust.

When it is applied to the law of trusts, the so-called “merger doctrine” is the equitable concept that a valid trust must have a separation of the legal estate from the beneficial enjoyment, and that no trust can exist where the same person possesses both.18 Title 60 O.S. 2001 §175.6, without using the term “merger doctrine,” codifies the principle that if a trustor is a beneficiary and the sole trustee, a valid trust also requires a beneficiary other than the trustor.19 Title 60 O.S. 2001 §175.3(K) defines a trust beneficiary as “any person entitled to receive from a trust any benefit of whatsoever kind or character.”

The majority rule is that a trust is not illusory or invalid simply because the interests of its beneficiaries, other than the trustor, are contingent. The Restatement (Third) of Trusts §25, Comment b provides in pertinent part:

(The) validity (of) an inter vivos trust is not affected by the fact that the interests of all beneficiaries other than the settlor do not take effect in possession or enjoyment before the settlor’s death, or that they are contingent or subject to conditions subsequent, including the exercise of a power of revocation, withdrawal, amendment, or appointment reserved to the settlor, whether exercisable during life or by will.

The reporter’s note to Restatement (Third) of Trusts §25, Comment b provides in pertinent part:

(C)ourts regularly and properly find valid trusts where settlors have retained complete control, and where other beneficiaries usually, if drafting is competent, have only future interests that are not only defeasible (by revocation or amendment) but also “contingent” upon surviving the settlor and maybe other events as well. . . .

Seven states have enacted statutes which explicitly provide that a trust which has the same person as sole trustee and sole present beneficiary is not invalid if it provides for a contingent or successor beneficiary. Nineteen states and the District of Columbia have adopted a version of the Uniform Trust Code, which provides at §402(b) that a beneficiary is definite if the beneficiary can be ascertained at the time of the creation of the trust or at some time in the future, subject to the rule against perpetuities. The Uniform Comment to §402(a)(5) provides that the merger doctrine is not applicable to a trust with the same person as sole trustee and sole life interest beneficiary if another person is designated the remainder beneficiary. Two other states, which do not have a statute directly addressing the issue, have adopted the Restatement view in appellate court opinions. While there are a few state court decisions which take a view contrary to the Restatement, each of these decisions has been subsequently overruled by statute. A few other decisions appear to require a present, vested beneficiary other than the sole trustee, but, by using terms like “vested interest subject to divestment” to rename contingent interests, embrace the Restatement view for all practical purposes. Our research has not disclosed a viable case or statute contrary to the Restatement view on this issue.

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The Supreme Court stated that in Thomas v. Bank of Okla., N.A., 1984 OK 41, ¶21, 684 P.2d 553, this Court determined that a revocable inter vivos trust may not be employed to defeat a surviving spouse’s forced share of an estate as provided by 84 O.S. 2001 §44. The Court held that such a trust was illusory as to the surviving spouse and set forth the method of determining the validity of a trust:

(T)he test of the validity of a trust is whether the transfer is real or illusory; that the test is whether the settlor in good faith divested himself of the property ownership or simply made an illusory transfer as a mask for the effective retention of the property.

Here, it is clear that the Trust was not an artifice for the effective retention of Neighbors’ property. Instead, Neighbors employed the common estate-planning device of creating a revocable inter vivos trust and simultaneously executing a pour-over will to provide for her heirs at the time of her death. The Restatement view is persuasive and consistent with the definition of a trust beneficiary found at 60 O.S. 2001 §175.3(K). A trust is not illusory simply because it has the same person as the sole trustee and only vested present beneficiary if it provides for at least a contingent beneficiary.

The Supreme Court held that the Trust was not illusory simply because the mother was the sole trustee and she was the only vested present beneficiary during her life. Because the Trust provided for her daughters as contingent beneficiaries, it was a valid trust.

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An experienced probate and living trust attorney like Brent D. Coldiron, knows what to do in these situations. His fees are reasonable. The best money ever spent is to get good legal advice before signing your name to something. Contact Brent at (405) 478-5655 or 737-2244. His website is http://coldironlaw.com.

IN THE MATTER OF THE ESTATE OF ADAMS, 2004 OK CIV APP 91, 101 P.3d 344
APPEAL FROM THE DISTRICT COURT OF McCLAIN COUNTY, OKLAHOMA
The decision of the HONORABLE NOAH EWING, JR., TRIAL JUDGE, was AFFIRMED.

United States Supreme Court

United States Supreme Court

Wanda Belle Adams, the decedent executed a will on July 1, 1996. She was then in declining health but lived until February 8, 2003, at which time she was seventy three. During her later years she needed increasing assistance with her normal life activities. She had never married and had no children. As the result of illness at the age of twelve or thirteen, she found it necessary to use a wheelchair for all her adult life, but was able to work as a public accountant. She was survived by four sisters and three brothers. Another brother predeceased her.

A brother filed his Petition for Letters of Administration and Determination of Heirs on March 12, 2003. He alleged his sister had died intestate. A sister objected alleging that her sister had died with a valid will made on July 1, 1996. It was produced for probate. The will left the Decedent’s home and adjoining land to the sister’s son and daughter-in-law, and the remainder of the estate was to go to the sister. Nothing like getting left out of a will is better to kindle a family fight!

At the hearing the brother argued that his deceased sister “was not competent to execute a will on July 1, 1996.” The two witnesses to the decedent’s will testified at the hearing in support of its validity, as did the beneficiaries of the will. One of the witnesses to the will was the attorney who drafted it, and the other was another attorney.

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The trial court found the will was valid and admitted it to probate. The court concluded the case centered around the issue of testamentary capacity and that the “most complicating factor” was the court’s granting of guardianship over Decedent at approximately the same time as Decedent executed her will. The trial court found the guardianship did not, as a matter of law, preclude Decedent from executing a valid will, and that the testimony of the lawyer who drafted the will was “most convincing” because he had been involved with both execution of the will and application for Decedent’s guardianship.

In probate cases, being of equitable cognizance, the appellant court will examine and weigh the evidence, but we must abide by the presumption that the trial court’s determination is correct unless it is found to be clearly contrary to the weight of the evidence or to some governing principle of law. In re Estate of Holcomb, 2002 OK 90, 63 P.3d 9. The trial court enjoys deference when it comes to the resolution of conflicting evidence because it had the opportunity to observe the demeanor and conduct of the witnesses. And, the burden of persuasion on the issue of testamentary capacity lies with the party contesting the validity of the will. In re Estate of Maheras, 1995 OK 40, 897 P.2d 268.

In Estate of Holcomb, at, 13, the Supreme Court defined testamentary capacity as follows:

Testamentary capacity exists when a person possesses, in a general way, the ability to appreciate the character and extent of the devised property, understands the nature of the relationship between himself and the natural objects of his bounty, and apprehends the nature and effect of the testamentary act. … In adjudging a decedent’s testamentary capacity, it is appropriate for the trial tribunal to consider evidence of the testator’s mental capacity, appearance, conduct, habits and conversation both before and after the will’s execution to the extent these factors are relevant to the maker’s mental condition at the time the will was executed.

¶8 Appellant concedes the contested will was executed with the requisite formalities dictated by 84 O.S. 1991 § 55, but in his Brief in Chief contends the will is invalid because of noncompliance with 84 O.S. Supp. 1992 § 41. This latter section provides that one subject to guardianship or conservatorship may lawfully dispose of his or her estate by will, but requires the will to be subscribed and acknowledged in the presence of a judge of the district court. This contention fails because Appellant did not raise it before the trial court and is barred from raising it for the first time on appeal. Marlin Oil Corporation v. Barby Energy Corporation, 2002 OK CIV APP 92, 55 P.3d 446.1

A long standing rule of law in Oklahoma is that a presumption of want of testamentary capacity does not arise from the fact that the maker of a will may have been under guardianship at the time of the making of the will. In re Nitey’s Estate, 1935 OK 1218, 175 Okla. 389, 53 P.2d 215. Thus, incompetency or impairment which may support guardianship does not, as a matter of law, mean that the subject of the guardianship is unable to still make a will. The guardianship is some evidence for consideration of the court in determining the condition of Decedent’s mind at the time the will was signed.

The court also stated that being unable to manage one’s own estate was not inconsistent with testamentary capacity. That testamentary capacity is not identical to business capacity and a person subject to a guardianship is not necessarily a person of unsound mind. Tthat a person may not then have sufficient mind and vigor of intellect to transact business generally and make contracts, yet be competent to make a will. The presumption is that every person is sane.

The Order Appointing Guardians over the deceased sister stated, that she was “impaired by reason of mental confusion and physical limitations, resulting in an inability to receive and evaluate information effectively, meet the essential requirements for her physical health and safety, and manage her financial resources.” The appellant court stated that there was nothing in the finding, which was entered a month after the Decedent executed her will, which would necessarily preclude a determination of testamentary capacity.

The court also commented on the fact that the will left everything to one sister and her child and spouse. That the Decedent’s will was “an unnatural will in its disposition of her property.” Because she left the bulk of her estate to one sister only and wholly omitted her remaining six brothers and sisters and the children of her deceased brother. An unnatural disposition of property may be considered in determining his testamentary capacity. But the appellant court stated that leaving everything to one sibling is not an unnatural will.

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OLD FAITHFUL GEYSER, YELLOWSTONE, 2015. LIKE OLD FAITHFUL SOMEDAY YOUR WILL IS GOING TO BE READ. MAKE SURE IT IS DOES WHAT YOU WANT IT TO WHEN YOU DIE.

The court went on to observe that no presumption of testamentary incapacity arises because a will gives property to persons other than those “who are natural objects of the testator’s bounty”, and if a testator is possessed of testamentary capacity, he may “give his property entirely to strangers.” In re Newkirk’s Estate, 1969 OK 93, 456 P.2d 104. The Oklahoma Supreme Court has held “[i]t is natural for a person to make provisions in his will for those who were particularly close and helpful to him during his lifetime, and more especially, to those within his own family.” In re Lacy’s Estate, 1967 OK 123, 431 P.2d 366.

The sister proponent of the will testified she had a long and close relationship with Decedent and that she was the “primary person who took her deceased sister to where she needed to go” until her child and spouse moved next door to Decedent. At Decedent’s request they moved a house trailer onto her property in 1985. The Decedent helped pay off the trailer and they remained there for twelve years.

The court went on to discuss the testimony of the other witnesses, and concluded saying that there is no dispute that Decedent did not enjoy good health at the time she executed her will. However, advanced age or physical infirmity alone do not render one incapacitated to make a will. Rose v. Foster, 1955 OK 242, 288 P.2d 745. The extent of Decedent’s mental impairment is contested, but the trial court’s finding that she possessed testamentary capacity at the time she executed her will is not clearly against the weight of the evidence. The trial court’s order admitting Decedent’s will to probate is accordingly AFFIRMED.

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Brent D. Coldiron is an experienced will, probate, guardianship, and living trust attorney. He understands the rules for capacity to make a will. He knows what to do. He has over 39 years experience. Call Brent at (405) 478-5655.

A Probate, Will and the Cy Pres Doctrine

Oklahoma is a common law state that has adopted the cy pres doctrine. Cy pres is defined as a “doctrine that equity will, when a charity is originally or later becomes impossible, inexpedient, or impracticable of fulfillment, substitute another charitable … Continue reading →