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In re Estate of Boysen

Court of Appeals of Oregon

April 10, 2019

In the Matter of the Estate of Marilyn Boysen, Deceased.
v.
Beth DEAVER, Debra Whitaker, and Jill Lane, Respondents. Erik CULVER and Toni Horn, Appellants,

          Argued and submitted January 9, 2018

          Deschutes County Circuit Court 16PB08219; Alta Jean Brady, Judge.

          Lawrence W. Erwin argued the cause for appellants. Also on the briefs was Law Offce of Lawrence W. Erwin.

          Matthew L. Mohill argued the cause and fled the brief for respondents.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.[*]

         Case Summary:

         Appellants, decedent's grandchildren, appeal a limited judgment that denied their petition to admit a writing into probate as a will or to open a small estate under ORS 112.238. That statute provides that a writing that does not satisfy the statutory will formalities may nonetheless be probated if it is proven by clear and convincing evidence that decedent intended that writing to be his or her will.

         Held:

         The probate court erred as a matter of law. The probate court failed to focus its analysis on decedent's intent that the writing function as her will at the time it was created as required by ORS 112.238, and that error formed the basis for the probate court's determination that the estate must pass by intestate succession.

         Vacated and remanded.

         [297 Or.App. 22] ORTEGA, P. J.

         Toni Horn and Erik Culver, decedent's grandchildren, appeal a limited judgment that denied their petition to admit a writing into probate as a will or to open a small estate under ORS 112.238. That statute provides that a writing that does not satisfy the statutory will formalities may nonetheless be probated if it is proven by clear and convincing evidence that decedent intended that writing to be his or her will. Because we conclude that the probate court did not base its decision on decedent's intent at the time she created the writing, we vacate and remand to the probate court to make that determination.

         Declining appellants' request for de novo review, we review for legal error and are bound by the probate court's factual findings if there is evidence to support them. ORS 111.105(2); Hobbs v. Harrington, 284 Or.App. 125, 127, 391 P.3d 915 (2017). We state the facts in accordance with that standard.

         Five days after her husband's death, decedent Marilyn Boysen, in the presence of Horn and her husband David, prepared a handwritten document. She signed the writing, placed it in an envelope with the words "To Toni [Horn] from Grandma" on the outside, and gave it to Horn with instructions to hold it until she died. The writing states:

"Bill Boysen, my husband, died May 22, 2008, early morn-[ing], leaving myself, his wife, Marilyn Boysen, his sole heir.
"In the event of my death, Marilyn Boysen, I leave my worldly possessions to our two grandchildren Toni Culver Horn and Erik Culver.
"Bill's approximately 11/4 carat ring to Erik Culver.
"Bill's 1 carat wedding band to David Horn. "My jewelry to Toni Horn.
"All real property and personal property to be divided between Toni [Horn] and Erik [Culver]. They can sell ...

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