In re Estate of Barrett

Superior Court of Guam

In re Estate of Barrett

Superior Court of Guam·Decided November 8, 2023·No. PR0069-23·Unknown

Opinion

IN THE SUPERIOR COURT OF GUAM

IN THE MATTER OF THE ESTATE PROBATE CASE NO. PR0069-23

of DECISION AND ORDER DENYING PETITION TO PROVE LOST WILL AND WALTER SCOTT BARRETT, PETITION FOR PROBATE OF WILL AND FOR LETTERS OF Deceased. ADMINISTRATION WITH THE WILL ANNEXED

This matter came before the Honorable Dana A. Gutierrez on June 28, 2023 for a hearing

on Petition to Prove Lost Will and Petition for Probate of Will and for Letters of Administration

with the Will Annexed (together, "Petitions"), filed on April 20, 2023 by Sinforoso M. Tolentino

("Petitioner"). 1 Present at the hearing was Petitioner and Michael Barrett ("Michael"), an heir of

Walter Scott Barrett ("Decedent"). Because the Will at issue is lost and Petitioner has failed to

meet the requirements to prove a lost will under 15 GCA § 1525, the Court hereby DENIES the

Petitions.

BACKGROUND

Petitioner asserts "after reasonable search and inquiry, Petitioner is unable to locate the

original Will" of the Decedent. Pet. to Prove Lost Will, at 2 (April 20, 2023). Petitioner claims

"[t]o the best of Petitioner's knowledge, the copy of the Will ... is the exact copy of the original

1 Sinforoso M. Tolentino is also serving as the attorney for the Estate of Walter Scott Barrett. DECISION AND ORDER DENYING PETITION TO PROVE LOST WILL AND PETITION FOR PROBATE OF WILL AND FOR LETTERS OF ADMINISTRATION WITH THE WILL ANNEXED PR0069-23; In the Matter of the Estate of Walter Scott Barrett

Will and the original Will was in existence at the time of the Decedent's death." Id. At the June

28, 2023 Petition hearing, Petitioner called Michael as the only witness to testify. At the Petition

hearing, Petitioner asked for two weeks to file supplemental documentation to support his

Petitions. After two weeks passed and receiving no supplemental filings, the Court took the

Petitions under advisement on July 14, 2023. Under Advisement Notice (July 14, 2023). On

August 25, 2023, Petitioner filed a Supplemental Briefing Regarding Petition to Prove Lost Will

("Supplemental Briefing") with the Affidavit of Cathryn Frisby attached. Petitioner requests "the

Court to find that Michael's testimony, the appearance and consent of all other heirs, and the

Affidavit of Cathryn Frisby provide the Court sufficient proof to establish that the will was in

existence at the time of the testator's death." Suppl. Brief, at 3 (Aug. 25, 2023). Despite the late

filing of the Supplemental Briefing, in the interest of judicial efficiency, the Court will consider

the arguments and facts raised in the filing.

DISCUSSION

The Superior Court of Guam may probate a decedent's lost will. 15 GCA § 1503. To prove

a lost will, 15 GCA § 1525(a)(l) requires a petitioner prove the will "to have been in physical

existence at the time of the testator's death." Further, a lost will's provisions must be "clearly and

distinctly proved by the sworn testimony of at least two credible witnesses in open court." 15 GCA

§ 1525(b).

A. Petitioner Failed to Prove the Will was in Physical Existence at the Time of Testator's Death

Petitioner has not established that the Will was in physical existence at the time of the

testator's death as required by 15 GCA § 1525(a)(l). The burden to prove the existence of the will

2 DECISION AND ORDER DENYING PETITION TO PROVE LOST WILL AND PETITION FOR PROBATE OF WILL AND FOR LETTERS OF ADMINISTRATION WITH THE WILL ANNEXED PR0069-23; In the Matter of the Estate of Walter Scott Barrett

is upon the proponents of the will. In re Estate of LeSure, 68 P.2d 313,315 (Cal. Dist. Ct. App.

1937). 2

Petitioner has failed to meet his burden to prove the Will was in existence at the time of

Decedent's death. Petitioner argues "Michael Barrett and the record compellingly establish the

[W]ill was in existence at the time of the Decedent's death." Suppl. Brief, at 2. However, upon

review of Michael's testimony, Michael never testified that he knew the Will was in physical

existence at the time of Decedent's death. The only assertion that the Will was in physical existence

at the time of the Decedent's death is through the Affidavit of Cathryn Frisby, the Decedent's

daughter. In her Affidavit, Ms. Frisby states she has personal knowledge of the Will; the Will was

in existence at the time of Decedent's death; and since the Decedent's death, the original Will was

lost. Affidavit of Cathryn Frisby, at 1-2 (August 25, 2023). However, Ms. Frisby fails to assert any

facts which indicate how she knows the Will was in existence at the time of Decedent's death.

Compare In the Matter of the Estate of Samuel Joseph Jones, PR0236-22, at 2 (Super. Ct. Guam

April 24, 2023) (holding that a declaration that a deposited will was withdrawn from the Superior

Court clerk's office upon the decedent's death established the will was in physical existence at the

time of death). Without more, Ms. Frisby's statement does not prove the physical existence of the

Will at the time of Decedent's death.

2 This rule was derived from California Probate Code § 350. 15 GCA § 1525, SOURCE. Therefore, California's interpretation of Probate Code§ 350 is persuasive in this Court's interpretation of 15 GCA § 1525. "Generally, when a legislature adopts a statute which is identical or similar to one in effect in another jurisdiction, it is presumed that the adopting jurisdiction applies the construction placed on the statute by the originating jurisdiction." Sumitomo Cons tr. Co. v. Zhong Ye, Inc., 1997 Guam 8 ,r 7. For instance, in M Electric Corporation v. Phil-Gets (Guam) Intl. Trading Corp. dba J&B Modern Tech et. al., 2016 Guam 35 ,r 40, the Supreme Court of Guam held federal interpretation of Federal Rules of Civil Procedure Rule 15 was persuasive when interpreting Guam Rules of Civil Procedure Rule 15 because the federal rule was the source of Guam's statute, and the two statutes have similar language.

3 DECISION AND ORDER DENYING PETITION TO PROVE LOST WILL AND PETITION FOR PROBATE OF WILL AND FOR LETTERS OF ADMINISTRATION WITH THE WILL ANNEXED PR0069-23; In the Matter of the Estate of Walter Scott Barrett

B. Petitioner Failed to Establish the Provisions of the Will

Petitioner argues that Michael's June 28, 2023 testimony "indicated that he had personal

knowledge of the provisions in the original will." Suppl. Brief, at 2. During his testimony, Michael

stated that he believed the copy of the Will was an accurate copy of the Decedent's lost Will.

Minute ("Min.") Entry, 9:53 AM (June 28, 2023). However, when the Court asked Michael to

clarify when the Decedent presented the Will to Michael and his family, Michael replied "I don't

think there was a presentation. It was probably more of a notification." Min. Entry, 9:58 AM.

Michael elaborated that the notification may have been around 1993, but that Decedent "was

private about his own affairs and his own finances." Min. Entry, 9:58 AM. Further, when Petitioner

asked Michael ifhe remembers the first time he saw the Will, Michael replied "I don't even know

if I looked at it after my father died ... I think it's been more recently ... I probably did see it

some time ago." Min. Entry, 9:59 AM.

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