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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 21-PR-0367
IN RE ESTATE OF NICHOLAS N. KITTRIE; GEORGETTE SOBEL, APPELLANT.
Appeal from the Superior Court of the District of Columbia (2019-ADM-001384)
(Hon. Maurice A. Ross, Trial Judge)
(Submitted October 7, 2022 Decided July 25, 2024)
Jane Moretz Edmisten, with whom Cody J. Jones, was on the brief for appellant.
William A. Goldberg was on the brief for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, and BECKWITH and HOWARD, Associate Judges.
HOWARD, Associate Judge: Appellant Georgette Sobel challenges the trial
court’s order denying a petition for standard probate of a photocopy of a will
executed by Dr. Nicholas Kittrie on October 30, 1998. Ms. Sobel, an interested party
who had a romantic relationship with Dr. Kittrie, argues that the trial court erred in
finding that she failed to rebut the presumption of revocation of the missing original
will. Relying on our precedent in In re Estate of Creech, 989 A.2d 185, 188 (D.C. 2
2010), she alleges that the presumption is overcome because the record evidence
demonstrates that Dr. Kittrie intended to continue supporting her and the trial court
erroneously found her incredible. She further asserts that the trial court misapplied
legal standards for her evidentiary burden and the revocation of a will. A review of
the record demonstrates that Ms. Sobel in this case may very well have established
that Dr. Kittrie was interested in supporting her; however, because that very evidence
further strengthened the presumption of revocation—and discerning no additional
error—we affirm.
I. Background 1
Dr. Kittrie executed a will on October 30, 1998, in the office of Louis Fireison,
an attorney and Dr. Kittrie’s former colleague. Dr. Kittrie left Mr. Fireison’s office
with the original will and a copy of the will. Dr. Kittrie gave Ms. Sobel a sealed
envelope with a copy of the will, which she gave to Mr. Fireison after Dr. Kittrie’s
1 Appellee, Norda Kittrie (Dr. Kittrie’s daughter), requested that this court strike all “facts” that Ms. Sobel asserts without reference to the record. We deny this request and note that this court, as a general matter, does not consider evidence not found in the record. Nor do we discern any particular relevance to the “fact,” not found by the trial court, that appellee is primarily concerned with. 3
death. Most relevant to this case, Dr. Kittrie’s 1998 will referenced six real estate
holdings and left a two-bedroom condominium in Miami Beach, Florida, to Ms.
Sobel.
Following the 1998 will, Dr. Kittrie made multiple additional known writings,
at least two of which were considered by the trial court. These two writings include
edits to the 1998 will made on a copy of it in 2004 and a drafted will written in 2016. 2
All parties agree that neither writing is a valid codicil or will; instead appellee cites
these as dispositive evidence that Dr. Kittrie did not intend the 1998 will to remain
valid. By the time of his death, Dr. Kittrie sold or gifted four of the six properties in
the 1998 will, but the Miami condominium was still in his possession upon his death.
On December 4, 2019, Dr. Kittrie suffered a heart attack and was
incapacitated until his death on December 9, 2019. On December 26, 2019, Mr.
Fireison filed a petition for standard probate of the photocopy of the 1998 will, as
the original 1998 will could not be found. Appellee Norda Kittrie, serving as the
personal representative of the Estate of Sara Y. Kittrie (Dr. Kittrie’s wife), and
Appellee Zachary Kittrie (Dr. Kittrie’s son), both opposed probate of the
photocopied will. A virtual bench trial was held before the Honorable Maurice A.
2 These edits and drafts are referred to as “writings” throughout this opinion. 4
Ross on April 6, 2021 and April 15, 2021. Mr. Fireison, Ms. Sobel, and Norda
Kittrie testified.
On May 14, 2021, in an oral ruling, Judge Ross denied Mr. Fireison’s petition
to probate the copy of the 1998 will. Judge Ross found that Mr. Fireison, as the
proponent of the copy of the 1998 will, presented no facts to rebut the presumption
of revocation that arises when an original will cannot be found, “other than that in
the 21 years after the drafting of the 1998 will [Dr. Kittrie] never indicated to him
[that Dr. Kittrie] changed his estate plan.” 3 Judge Ross also considered evidence
that Ms. Sobel presented in support of probating the copy of the will, which we
discuss below, and found that she had not carried her burden to rebut the presumption
of revocation. Judge Ross accordingly found that Dr. Kittrie died intestate and
denied Mr. Fireison’s petition. On May 21, 2021, Judge Ross also issued a written
order denying the petition for standard probate and finding that Dr. Kittrie died
intestate.
3 During trial, Mr. Fireison testified that he spoke to Dr. Kittrie every one to six months but was unaware that Dr. Kittrie was meeting with other estate attorneys to create estate planning documents and had no idea who Dr. Kittrie talked to about his estate plans from 1998 until he died. Mr. Fireison also testified that the 1998 will was executed before Dr. Kittrie had any grandchildren and that he did not know whether Dr. Kittrie had grandchildren when he died. 5
Ms. Sobel appealed this order on May 27, 2021. In her brief, Ms. Sobel argues
that Judge Ross erred in finding that she failed to rebut the presumption of revocation
by a preponderance of the evidence. She asserts that her “uncontroverted testimony”
regarding her four-decade relationship with Dr. Kittrie in tandem with Dr. Kittrie’s
writings and testamentary documents (in 2004 and 2016) following the 1998 will
make it “more probable than not” that he did not revoke the 1998 will. Ms. Sobel
also asserts that Judge Ross “expressed conflicting approaches to the evidentiary
standard he was applying, and his oral decision leaves it entirely unclear whether he
was applying the preponderance standard required.” Finally, she argues that Judge
Ross’s credibility determinations are impossible to follow and that he displayed a
“lackadaisical approach” to credibility determinations.
II. Standard of Review
“In our review of a judgment following a bench trial[,] we[] ‘may review both
as to the facts and the law, but the judgment may not be set aside except for errors
of law unless it appears that the judgment is plainly wrong or without evidence to 6
support it.’” 4 Reed, 195 A.3d at 1204 (quoting D.C. Code § 17-305(a) (2012 Repl.)).
Under this standard of review, we view the evidence in the light most favorable to
the prevailing party and defer to the trial court’s credibility determinations unless
they are clearly erroneous. Id. at 1204. The trial court’s determination that the
evidence presented is insufficient to rebut the presumption of revocation is a
question of law, which we review de novo, that in turn depends on the trial court’s
interpretation of the presented evidence to which we defer. See Safeway Stores, Inc.
v. D.C. Dep’t of Emp. Servs., 806 A.2d 1214, 1219 (D.C. 2002); Vizion One, Inc. v.
District of Columbia Dep’t of Health Care Fin., 170 A.3d 781, 789 (D.C. 2017)
(explaining that we review legal conclusions de novo).
III. Discussion
Ms. Sobel makes the following arguments: (1) under Creech, her relationship
with Dr. Kittrie and Dr. Kittrie’s additional writings evidencing the relationship
rebut the presumption of revocation; (2) the trial court erred in determining her
4 “The ‘plainly wrong’ standard means that if the trial court’s determination is plausible in light of the record viewed in its entirety, we will not disturb it whether or not we might have viewed the evidence differently ourselves.” Reed v. Rowe, 195 A.3d 1199, 1204 (D.C. 2018) (quoting Hildreth Consulting Eng’rs, P.C. v. Larry E. Knight, Inc., 801 A.2d 967, 971-72 (D.C. 2002) (internal quotation marks omitted)). 7
credibility; and (3) the trial court applied incorrect legal standards. We are not
persuaded and address these in turn.
A. Presumption of Revocation
We turn first to Ms. Sobel’s central argument on appeal that her testimony
regarding her four-decade relationship with Dr. Kittrie provides conclusive evidence
of his continuing wish to benefit her at his death. She argues that this court’s
decision in Creech “placed heavy emphasis on evidence of a continuing close
relationship between a testator and beneficiary as a way to rebut the presumption of
revocation.” 989 A.2d at 188. She argues that Judge Ross’s failure to give the
undisputed facts regarding their relationship proper weight was clear error.
In Creech we explained that “D.C. Code § 18-109(a)(2) allows a will or
codicil to be revoked by ‘burning, tearing, cancelling, or obliterating . . . with the
intention of revoking it.’” 989 A.2d at 188 (quoting D.C. Code § 18-109(a)(2)). If
a will known to have been in existence during the testator’s lifetime, and in his
custody, or where he had ready access to it, cannot be found at his death, “a
presumption arises that such will was destroyed by testator in his lifetime with the
intention of revoking it.” Id. (quoting Webb v. Lohnes, 101 F.2d 242, 245 (1938))
(internal quotations omitted). “[I]n the absence of rebutting evidence[,] this
presumption is sufficient to justify a finding that the will was revoked.” Id. (quoting 8
Webb, 101 F.2d at 245) (internal quotations omitted). “The presumption is not
rebutted merely by producing a copy of the executed original.” Id. (quoting In re
McKeever, 361 A.2d 166, 171 (D.C. 1976)).
We also explained that “[o]nce the presumption of revocation is triggered,
the party seeking to probate a copy of the will or codicil must show, by a
preponderance of evidence, that the testator did not destroy the lost will or codicil
with the intent of revoking it.” Creech, 989 A.2d at 188. While it is “not absolutely
necessary that the original be produced or that its absence be satisfactorily
explained[,]” the proponent of the lost will must be able to offer facts to rebut the
presumption. Id.; see also In re Estate of Barfield, 736 A.2d 991, 998 (D.C. 1999).
We noted that “[a] variety of evidence may be offered in an attempt to meet this
burden.” Creech, 989 A.2d at 188.
Contrary to Ms. Sobel’s assertions, we did not place a “heavy emphasis” on
the relationship between a decedent and a beneficiary as a way to rebut the
presumption, but rather provided citations to several cases, including two where the
state of this relationship was considered alongside other available evidence. See id.;
see, e.g., Webb, 101 F.2d at 245 (considering whether any witness claimed to have
seen the will or heard any statement from decedent that it was still in existence, 9
whether the decedent maintained a friendly relationship with the beneficiary, and
evidence that decedent had access to the will and opportunity to destroy it).
Our review of the record indicates that Judge Ross considered the nature of
Ms. Sobel’s relationship with Dr. Kittrie alongside other available evidence. In his
oral ruling, Judge Ross noted that Ms. Sobel’s principal argument in support of
probating the copy of the 1998 will was that she and Dr. Kittrie were together and
that he wanted to provide for her. However, Judge Ross explained that Dr. Kittrie
“already provided some substantial amount for [Ms. Sobel] outside of probate and
that is the house over two million dollars, over 1.3 million dollars in cash, plus what
she obtained during the commissions alone that he paid her during his lifetime[.]”
Ms. Sobel testified to receiving these financial benefits at trial and we understand
Judge Ross’s point to be that if Dr. Kittrie’s intent was to continue benefiting Ms.
Sobel after his death, this goal had been accomplished. Further, Judge Ross found
that Ms. Sobel was not credible in her “explanation of her expenses” because it was
“inconsistent just like her theory of the case.” Thus, her argument that the 1998 will
was essential to fulfilling Dr. Kittrie’s goal is undercut. Judge Ross could consider
the implications of her receipt of these benefits, alongside evidence of their close
relationship, in concluding that Ms. Sobel had not met her burden. 10
However, evidence of this intent came not only from her testimony but also
from documentary evidence, which may support the intent, but strengthened the
presumption that Dr. Kittrie intended to revoke his 1998 will. Ms. Sobel argues that
Dr. Kittrie’s continued inclusion of her as a beneficiary in both a 2004 writing
(Norda Kittrie Exhibit 9) and a 2016 writing (Sobel Exhibit 7), which she found after
his death, reflect both his continuing intent to benefit her at his death and their
continued close relationship, thus making it more probable than not that he did not
revoke the 1998 will. Among other issues, this argument misunderstands Creech
and turns the presumption of revocation on its head—asking the court to either
presume or modify a will based on intent as opposed to an executed codicil.
In Creech we explicitly concluded that a later codicil, which was found to be
properly executed, invalidated relevant elements of an earlier will. Creech, 989 A.2d
at 187. Here, we have presumptive documented amendments to the 1998 will
through the 2004 and 2016 writings, which the parties agree were not properly
executed codicils. These writings, therefore, are evidence of an intent to revoke
relevant portions of the will. See Creech, 989 A.2d at 187 (A testator “may expressly
revoke [a will or codicil] (or a part thereof) by executing ‘a later will, codicil, or
other writing declaring the revocation’”). Ms. Sobel asks us to assume the converse,
that in showing intent to modify the alleged 1998 will in unexecuted amendments
we should presume the validity of the underlying absent will. We decline to do so. 11
Norda Kittrie Exhibit 9 is either an original or a copy of the 1998 will with
extensive handwritten edits, which bears the notation “Revised July 20 ‘04” in the
upper right-hand corner of the first page. The document bears Dr. Kittrie’s signature
and a July 20, 2004, notary seal. Sobel Exhibit 7 is a document entitled “LAST
WILL AND TESTAMENT” and dated September 16, 2016. The document, which
bears Dr. Kittrie’s signature, contains changes to the disposition of his assets and
includes references to his grandchildren, who were not yet born in 1998 and not
referenced in the disputed 1998 will.
While Ms. Sobel correctly understands this court in Creech to allow evidence
of the destruction of a will to establish revocation, it does not consider the intent to
modify a will as evidence to show intent not to revoke. See 989 A.2d at 187 (“[A
testator] may expressly revoke [a will or codicil] (or a part thereof) by executing ‘a
later will, codicil, or other writing declaring the revocation.’ D.C. Code
§ 18-109(a)(1) (2001). Alternatively, revocation may be accomplished by ‘burning,
tearing, cancelling, or obliterating the will or codicil, or the part thereof, with the
intention of revoking it, by the testator himself, or by a person in his presence and
by his express direction and consent.’ D.C. Code § 18-109(a)(2).”). Evidence of
more recent writings can serve as revocation evidence of older wills. Id.
Consequently, Ms. Sobel may very well be correct that Dr. Kittrie intended to
support and provide for her, but the notarized 2004 writing purporting to amend the 12
1998 will (Norda Kittrie Exhibit 9) and the 2016 writing (Sobel Exhibit 7), which
she found after his death, make it more probable that Dr. Kittrie did revoke his 1998
will, the original of which is missing. These writings show at least two instances
where Dr. Kittrie intended to modify his will—and went so far as to presumptively
have his signature confirmed by a notary, taking a strong affirmative step to
legitimize the 2004 writing.
Our law regarding decedents’ estates aims to give effect to decedents’ certain
intent and has such formal requirements to avoid speculation. See Creech, 989 A.2d
at 190 (“[t]he primary function of a court in construing the terms of a will is to
determine the intent of the testator and to give that intention full effect unless it is
contrary to law.”) As a result, similar to the preceding point that the unexecuted
amendments support an intent to revoke, the writings also evidence changing intent
over time. This begs the question of what other changes Dr. Kittrie may have made
or intended to make—a question perfectly consistent with Ms. Sobel’s argument that
Dr. Kittrie was unorganized and kept papers strewn about multiple places and she
fears some may be destroyed or missing—strengthening the presumption of
revocation. Further, at best, the documents show some use of the 1998 will as a
presumptive base document by Dr. Kittrie between 2004 and 2016, but do not
demonstrate that between 2016 and 2019 Dr. Kittrie did not destroy the original will
as is presumed by its absence. We discern no error in the trial court determining, 13
contrary to Ms. Sobel’s position, that this evidence cuts against the validity of the
alleged 1998 will.
The record shows that Judge Ross properly considered these documents in his
review of the evidence and found that they did not support probating the copy of the
original 1998 will. Judge Ross noted that “in 21 years much had changed in [Dr.
Kittrie’s] life, his real estate portfolios, his number of grandchildren” and that Dr.
Kittrie “substantially revised” the alleged 1998 will in 2004 and “further revised the
will in 2016.” Focusing on the 2004 writing (Norda Kittrie Exhibit 9), the court
found that this document “is strong evidence and consistent with the other evidence
that the decedent revoked the 1998 will.” We agree.
Additionally, the court noted that the fact that these and other testamentary
documents were readily found and available did not support Ms. Sobel’s testimony
that the original 1998 will was misplaced or that someone had destroyed it. We defer
to Judge Ross’s interpretation of this evidence as well as his assessments of Ms.
Sobel’s various theories of what happened to the original 1998 will, which were
unsupported by facts, and we do not address them in our analysis.
B. Credibility Determination
We now turn to Ms. Sobel’s critiques of Judge Ross’s finding that she was not
credible. Ultimately, in arguing this, Ms. Sobel disputes how Judge Ross weighed 14
the evidence, which was determinative in the outcome of the case in her view. Had
Judge Ross found Ms. Sobel credible, Ms. Sobel argues, the court may have found
that the presumption of revocation, based on the fact that the 1998 will could not be
found, was rebutted. Judge Ross found that much of Ms. Sobel’s testimony during
cross-examination “was unresponsive and self-serving” and noted that “after the
decedent died . . . it is uncontroverted that [Ms. Sobel] spent large sums of money
from one of his personal accounts.” Judge Ross noted that she offered “conflicting
explanations” for her spending, such as “she was in shock and . . . on auto pilot, but
at the same time several times a week she was going to the Chevy Chase shopping
district spending large sums of money from his account and then taking out large
sums of cash from an ATM nearby.” Judge Ross also questioned Ms. Sobel’s
explanations for several checks that were written after Dr. Kittrie’s death drawing
from his accounts. Judge Ross found that “she really wasn’t credible” and that her
explanation for her expenses was “inconsistent just like her theory of the case.”
“[We cannot] substitute [our] judgment for that of the fact-finder when it
comes to assessing the credibility of a witness. That determination is for the fact-
finder to make and is made in large part, based on factors that can only be ascertained
after observing the witness testify.” Robinson v. United States, 928 A.2d 717, 727
(D.C. 2007); see also Lee v. United States, 668 A.2d 822, 833 n.26 (D.C. 1995) (“We 15
are in no position to second-guess, on the basis of a paper record, a credibility
determination by a trier of fact who was in the courtroom . . . .”). Indeed, except
under rare circumstances not alleged here, a judge’s credibility determination is
“virtually unreviewable.” Jenkins v. United States, 902 A.2d 79, 87 n.12 (D.C.
2006).
We find no clear error in Judge Ross’s credibility determination as there is
record evidence to support his assessment. For example, Ms. Sobel admitted to
purchasing over $1,000 worth of merchandise from a clothing and jewelry store
using Dr. Kittrie’s ATM card shortly after his death though this account was solely
in Dr. Kittrie’s name.
Even if Judge Ross did not find Ms. Sobel incredible, there is significant other
evidence on which he could have reasonably found a revocation or revision, which
Ms. Sobel does not dispute. This includes the previously identified subsequent
writings, handwritten alterations to the 1998 will and testamentary documents, and
that no living person knows what Dr. Kittrie did with the original will—which
created the presumption of revocation in the first instance. See Creech 989 A.2d at
188 (quoting Webb v. Lohnes, 101 F.2d 242, 245 (1938)) (internal quotations
omitted). Ms. Sobel was not guaranteed a result solely based on her testimony being
credited. 16
C. Trial Court’s Application of Legal Standards
We now address Ms. Sobel’s argument that Judge Ross failed to apply the
correct legal standard, which she makes both with respect to his description of the
evidentiary standard and to the legal standard for revocation of a will. As to the
evidentiary burden, Ms. Sobel contends that Judge Ross believed that the sponsored
photocopy of the 1998 will needed to be proved by clear and convincing evidence
as opposed to the proper preponderance of the evidence standard. While the trial
transcript is admittedly challenging to follow at times, in his oral ruling, Judge Ross
discusses the applicable legal standard and states that “the preponderance of the
evidence supports those in opposition,” specifically referring to appellees,
suggesting alignment with the standard in Creech. 989 A.2d 185. Additionally, at
trial, in a discussion between Judge Ross and Ms. Sobel’s attorney regarding burdens
of proof, Judge Ross indicates his awareness that the burden is a preponderance of
the evidence. Judge Ross asked Ms. Sobel’s attorney, “[s]o, you would agree you
have the burden, right?” She responded, “I do understand that, and I understand that
that burden is a preponderance of the evidence.” Judge Ross responded, “[r]ight.
But my question is so what evidence do you have that supports you carrying the
burden?” In this exchange, Judge Ross does not challenge counsel’s understanding
of the legal standard but instead confirms it, and thus we find no merit to Ms. Sobel’s
argument on this point. 17
Further, Ms. Sobel additionally argues, essentially, that the trial court
misunderstood the standard for revoking a will; she asserts that it improperly treated
the 2004 and 2016 writings as revocation and ignored that neither indicate the
physical act of revocation that she asserts must be done to the original will based on
Creech. This argument again seeks to turn Creech on its head because it relies on a
presumption that a missing original will is valid—ignoring that the presumption is
the opposite. It is Ms. Sobel’s legal burden in this case, at its foundation, to rebut
the presumption of revocation that exists because Dr. Kittrie’s 1998 will is
indisputably missing, not because the subsequent writings are the act of revocation
themselves. Creech, 989 A.2d at 189 (“If a will or codicil, known to have been in
existence during testator’s lifetime, and in his custody, or where he had ready access
to it, cannot be found at his death, a presumption arises that such will was destroyed
by testator in his lifetime with the intention of revoking it; and in the absence of
rebutting evidence this presumption is sufficient to justify a finding that the will was
revoked.” (internal citations omitted)). We conclude that the trial court applied the
correct legal standards.
IV. Conclusion
For the foregoing reasons, we affirm the trial court’s May 21, 2021, order. 18
So ordered.