## Facts

- Margaret Edith Kirkeby executed a formally attested will in 1989 creating a trust for her husband Orrin, with an ultimate charitable remainder to Mille Lacs Health System.
- In 1992, Margaret prepared a new instrument intended to replace the 1989 will, including a bequest of the Kirkebys’ home and five acres to neighbors Donald E. Curtis and Gayle R. Lyman in exchange for providing care, and charitable beneficiaries (including Covenant House) for the residue.
- Margaret signed the 1992 instrument at home, outside the presence of any witnesses.
- Margaret telephoned a notary, Patricia Horton, requesting notarization; the document was delivered to Horton by a third party, and Horton notarized Margaret’s signature without seeing Margaret sign or acknowledge in person.
- Margaret later telephoned friend Hazel Ortega to sign as a witness; the document was delivered to Ortega and signed outside Margaret’s presence.
- A second witness, James Pullen, signed as a witness without seeing or communicating with Margaret.
- Margaret retained the 1992 instrument until her death; Orrin survived her briefly and then died.
- After Margaret’s death, the personal representative challenged the 1992 instrument’s validity; 1992 beneficiaries asserted it controlled; Mille Lacs contended the 1989 will governed if the 1992 instrument was invalid.
- Orrin signed a surviving-spouse statutory election, but it was not filed with the court until after Orrin’s death.

## Issues

1. Whether the 1992 instrument was validly executed under ORS 112.235(1)(c) when the testator neither signed nor acknowledged her signature in the physical presence of the attesting witnesses.
2. If the 1992 instrument was invalid, whether it nonetheless revoked the valid 1989 will or otherwise displaced it.
3. Whether a surviving spouse’s election under ORS 114.105 is effective when signed during the spouse’s lifetime but filed only after the spouse’s death.

## Decision

- The Oregon Court of Appeals affirmed the judgment on appeal and cross-appeal.
- The court held the 1992 instrument was invalid because Margaret did not sign in the witnesses’ presence and did not acknowledge her signature to them in their presence as required by ORS 112.235(1)(c).
- The court held the 1989 will remained valid and operative because it was properly executed and not revoked in a manner recognized by statute.
- The court held Orrin’s ORS 114.105 election was ineffective because it was filed after his death.

## Legal Principles

- Under ORS 112.235(1)(c), will execution requires either (a) signing in the presence of at least two witnesses, or (b) acknowledging the signature to the witnesses in their presence; “in the presence” requires contemporaneous physical presence.
- Telephone communications and circulating the document among notary and witnesses outside the testator’s presence do not satisfy the statutory presence requirement.
- Absent statutory authorization, courts do not apply a “substantial compliance” or functional-equivalence approach to excuse noncompliance with will-execution formalities.
- An invalid later testamentary instrument does not revoke a prior valid will unless statutory revocation requirements are met.
- A surviving spouse’s election under ORS 114.105 requires timely filing consistent with the statutory scheme; filing after the spouse’s death is ineffective even if the election was signed earlier.

## Conclusion

The court invalidated a replacement will that was executed through remote, document-circulation procedures because Oregon law requires physical presence for signing or acknowledgment before witnesses; it therefore applied the earlier valid will and rejected a surviving-spouse election that was not filed until after the spouse’s death.


Kirkeby v. Covenant House, 157 Or. App. 309, 970 P.2d 241 (1998)