IN RE ESTATE OF GOODALL, 26616-4-II (Wash.App. 11-16-2001)

No. 26616-4-II.The Court of Appeals of Washington, Division Two.
Filed: November 16, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Kitsap County, No. 004000820, Hon. Karen B. Conoley, October 20, 2000, Judgment or order under review.

Counsel for Appellant(s), Dennis W. Morgan, Attorney At Law, 120 W Main Ave, Ritzville, WA 99169-1408.

Counsel for Respondent(s), Thornton P. Percival, Attorney At Law, 18478 Angeline Ave NE, Suquamish, WA 98392.

J. ROBIN HUNT, J.

Glen and Glenda Stockwell appeal the trial court’s invalidation of her brother’s will because it lacked two witnesses. Holding that the notary’s signature did not transform her into a witness to the will, we affirm.

FACTS I. Personal Representative of Estate — No Will
Tommy Joe Goodall Sr., a resident of Kitsap County, died on January 19, 2000, in Yakima. He was survived by his daughter, Lena Goodall, three sons, and several siblings, including a sister, Glenda Stockwell, and her husband Glen Stockwell. Lena Goodall applied for appointment as personal representative of her father’s estate, noting that he had died without a will and that the estimated gross value of his estate was approximately $91,000. On January 28, 2000, the superior court appointed Lena Goodall personal representative of the estate and granted her letters of administration and non-intervention powers.

II. Purported will
About four months later, a Texas attorney sent an eight-page document entitled `Last Will and Testament of Tommy J. Goodall Sr.’ to Glen and Glenda Stockwell’s Kitsap County attorney. On May 25, 2000, this document was filed in Kitsap County Superior Court. Goodall’s brother-in-law, Glen Stockwell, had prepared this purported will using a kit ordered off the internet. The will appoints Glenda L. Stockwell as primary personal representative of the will, with Glen R. Stockwell to be appointed if she cannot serve. Page two of the will leaves the entire estate to a Nevada corporation identified as `G.R. Stockwell Associates, Inc,’ with Glen R. and Glenda L. Stockwell listed as directors. Page six of the will, entitled `Original Memorandum,’ states:

I, Tommy J. Goodall Sr., upon my death have direct my Personal Representative to insure that my sisters Debbie K. Flint, Glenda L. Stockwell, my brother James M. Goodall to have the benefit of a roof over their heads during the duration of their lives and upon their deaths equal disbursement of my assets will be allocated to their wills. . . .

Clerk’s Papers (CP) at 15. All eight pages contain the decedent’s initials, `TG,’ and Glen R. Stockwell’s initials, `GRS.’ No other initials appear on any of the pages.

On page seven of the will, there are three signature lines: one for the testator and two for `personal representative[s].’ The testator’s line bears the signature `Tommy Goodall’ above the words `Tommy J. Goodall Sr.’ On the signature line for the primary personal representative, there is a handwritten `x’ next to a notation `no I.D.’ The signature `Glen R. Stockwell’ is on the line for the secondary personal representative. The lines for the dates are blank.

Below the Glen Stockwell signature, at the bottom of page seven, is a paragraph that reads:

I, Tommy J. Goodall Sr., the Testator and the witnesses, respectively, whose names are signed to the foregoing instrument, being first duly sworn, do declare to the undersigned officer that the Testator signed this instrument voluntarily as his Last Will and Testament and that each of the witnesses in the presence of the Testator, at her request, and in the presence of each other, signed this Last Will and Testament as a witness and that to the best of the knowledge of each witness, the Testator was at that time eighteen (18) or more years of age, of sound mind and under no constraint or undue influence.

CP at 78. This paragraph is followed by additional signature lines for the testator and two witnesses on page eight, followed by an attestation paragraph for a notary. The testator and witness signature lines are blank. The notary attestation is signed by Cherlyn J. Haley, Notary Public, and dated May 20, 1999. She has also noted that the persons were not known to her but rather produced identification.

III. Invalid Will
On July 3, 2000, Lena Goodall filed a Petition for Order Denying Validity of Will, accompanied by notary Cherlyn J. Haley’s affidavit. In her affidavit, Haley declares that she is a Notary Public working for the City of Poulsbo Engineering Department, which charges a fee for notary signatures requested by members of the public. Haley is frequently asked to provide this service. To receive her paid notary services, people whom Haley does not know must provide identification. Haley did not know the three people who approached her for notary services in connection with Goodall’s will. Tommy Goodall provided her with a Washington I.D. card, and Glen R. Stockwell produced a driver’s license. She would neither acknowledge nor subscribe Glenda L. Stockwell’s proposed signature `because this person lacked any identification.’ Instead, Haley wrote the `x’ with the notation `no I.D.’ in the line intended for Glenda Stockwell’s signature on page seven of the purported will. She then proceeded to notarize the signatures of Goodall and Glen R. Stockwell. Haley further stated that no person asked her to be a witness to a will, nor did Goodall tell her that she was notarizing his will. She was only asked `to perform notarial functions in regard to three proposed signatures on page 7.’ She had no opinion or knowledge regarding Goodall’s state of mind, mental capacity, or whether he was free of duress or undue influence when he affixed his signature. Moreover, she said, `I have absolutely no recollection as to what person asked me to notarize [the document].’

Glen R. and Glenda L. Stockwell contested Lena Goodall’s petition.

The trial court ruled the purported will invalid and entered findings of fact and conclusions of law. The Stockwells contest the following on appeal:

I. FINDINGS OF FACT

1.6 An affidavit of Cherlyn Haley, a notary to the purported will, indicates she had no knowledge of Tommy Joe Goodall’s state of mind, mental capacity or whether he was free of undue influence or duress at the time the will was signed. Said observations are normally those of a witness as opposed to a notary.
1.7 There are a number of defects in the will. The paragraph on the bottom of page 7 of the will is for witnesses to attest to the competency of the testator and the required signatures for this paragraph and those of the testator, as well, are missing on page 8. The only signature found on page 8 is that of the notary. Any witness signatures are undated and on page 7 there is only an undated signature of a personal representative but not that of a witness.

CP at 94.

II. CONCLUSIONS OF LAW

2.5 The purported will is not signed by two witnesses as required by RCW 11.12.020 and contains such defects that it does not meet the minimum nor strict standards for execution of a valid will.
2.6 The facts of this matter are factually distinguishable from those cases where a notary signature may be an acceptable signature of a witness including In re Estate of Price, 73 Wn. App. 745 [ 871 P.2d 1079] (1994).
Therefore, the notary signature in this matter shall not be treated as that of a witness.

CP at 95.

ANALYSIS
We confront the following issues in this appeal:

1. Can a person who witnessed a will being signed, but failed to subscribe it, be an attesting and subscribing witness under RCW 11.12.020(1)?
2. Does a notary public become an attesting and subscribing witness under RCW 11.12.020(1) when the notary fulfills statutory duties in acknowledging the signature of others? Our answer to both questions is no.

I. Challenge to Findings of Fact 1.6 and 1.7
Where substantial evidence in the record supports challenged findings of facts, those facts are binding on appeal. See, Waremart, Inc. v. Progressive Campaigns, Inc., 139 Wn.2d 623, 633, 989 P.2d 524 (1999). Here, the uncontroverted affidavit of Cherlyn Haley and the will itself support challenged Findings of Fact 1.6 and 1.7. There was no dispute about the location of various signatures on the purported will. Accordingly, the trial court did not err in reciting undisputed facts clearly presented in the record, and the Stockwells’ challenge to these findings of fact fails.

II. RCW 11.12.020(1) — Requirements for a Valid Will
The requirements for executing a will in the State of Washington are minimal. In Re Estate of Price, 73 Wn. App. 745, 751, 871 P.2d 1079
(1994) (citing In re Estate of Chambers, 187 Wn. 417, 425, 60 P.2d 41
(1936)).

They are set forth in RCW 11.12.020(1), which provides in part:

Every will shall be in writing signed by the testator . . . and shall be attested by two or more competent witnesses, by subscribing their names to the will, or by signing an affidavit that complies with RCW 11.20.020(2), while in the presence of the testator and at the testator’s direction or request. . . .

(Emphasis added.) These statutory requirements exist to ensure that the testator has a definite and complete intention to dispose of his or her property and to prevent fraud, perjury, mistake and the chance of one instrument being substituted for another. In re Estate of Malloy, 134 Wn.2d 316, 323, 949 P.2d 804 (1998).

A. Signatures of Testator and Two Witnesses
Goodall’s purported will does not meet the statutory requirements of RCW 11.12.020(1) because it was signed only by the testator and one personal representative, Glen R. Stockwell. There was no second witness signature. The only other signature on the will was that of the notary public, acting in her official capacity to attest to the identities of Goodall and Glen Stockwell. Therefore, the will fails because it lacks two statutorily-required witness signatures.

B. Attestation Without Subscription
The Stockwells allege that the notary prevented Glenda Stockwell from signing the will. They therefore urge us to consider Glenda Stockwell an attesting witness because she was present and can attest Goodall’s having signed his name in her presence and in the presence of Cherlyn Haley. Brief of Appellant at 17. But such proposition falls short of the statutory requirements.

The language of the statute is clear: A witness must `attest by subscribing.’[1] Moreover, the courts have already determined that the statute’s meaning is unambiguous.

The distinction between RCW 11.12.020 and RCW 11.20.020(2) is clear:

the former explains how to validly execute a will, and the latter explains how to prove it for probate. As In re Estate of Chambers, 187 Wn. 417, 425, 60 P.2d 41
(1936) states: Our statute governing the execution of wills has reduced the formalities . . . to a minimum. . . . It does, however, require that the witnesses subscribe their names in the presence of the testator and at his direction or request.

Ricketts v. Erickson, 54 Wn. App. 221, 224-25, 773 P.2d 93 (1989).[2]

The Stockwells assert that `attestation is mental and subscription is mechanical.’ Brief of Appellant at 17. But it is clear that the statute requires both. Although Glenda Stockwell saw Goodall sign the purported will, she did not subscribe her name in his presence. Therefore, she does not meet the requirements for a witness under RCW 11.12.020(1).[3] Again, the trial court did not err in concluding that the document was not a validly executed will because it lacked two subscribing witnesses’ signatures.

III. Notary’s Signature Does not Make her a Witness
The Stockwells argue that when the notary acknowledged the signatures of Goodall and Glen Stockwell, the notary’s signature became an attesting signature from a second subscribing witness. The law does not support this argument.

In Price, 73 Wn. App at 751, Division One addressed a factually different but comparable issue of whether a notary can be an attesting witness to a will. Price involved a will allegedly witnessed by three people. The first two witnesses signed the last page entitled, `Attesting Clause and Affidavit of Sworn Witness.’ One of these two witnesses affixed her notary seal. After it was notarized, the decedent had the will signed by a third person. Price, 73 Wn. App. at 749. Division One concluded that the notary could be an attesting witness because she complied with the legal requirements to be an attesting witness: (1) She had typed the will from the decedent’s notes; (2) she had ample opportunity to interact with the decedent and, thus, inferentially, to assess his soundness of mind; (3) the decedent requested that she sign the will, and (4) she was of sound mind and qualified at law to be a witness. The court then held that the will had been validly executed before two witnesses.[4] Price, 73 Wn. App. at 753. Following the holding in Price, the Supreme Court of Nevada agreed:

The question to be determined is whether the notary was attesting merely to the genuineness of a signature or signatures and was therefore acting only in the capacity of a notary or whether the notary was attesting to all of the acts required by the statute that comprise the proper execution of the will and [s]he was therefore acting as an attesting witness.

In re Estate of Friedman, 6 P.3d 473, 475 (Nev. 2000). But such is not the case here.

Here, it is uncontroverted that the notary was attesting merely to the genuineness of Goodall’s and Glen Stockwell’s signatures. Unlike the facts in Price, notary Haley did not know any of the people who sought her notary services, she did not remember who asked her to notarize the signatures, and she was neither asked to witness a will nor even told that the document was a will. Further, she had no opinion or knowledge regarding testator Goodall’s state of mind or mental capacity, or whether he was free of duress or influence when he signed. [I]f the officer who appended his signature to a certificate of acknowledgment of the testator’s signature was not requested to attest the instrument and had no intent to act as a subscribing witness, he cannot be regarded as such. 79 Am. Jur. 2d Wills § 268 (1975) (citing Hull v. Hull, 89 N.W. 979
(Iowa 1902)). Haley does not meet the Price criteria for an `attesting witness.’ Thus, the trial court properly distinguished the facts of this case from Price and its progeny and correctly ruled that notary Haley’s signature did not convert her into a witness to the will.

Affirmed.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

WE CONCUR: ARMSTRONG, C.J., HOUGHTON, J.