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To satisfy the "in the presence" requirement of Or. Rev. Stat. § 112.235(1)(c), the will, bearing the signature that the testator acknowledges, must be before the witness at the time of the acknowledgment. The "in the presence" requirement requires at least the "concurrence" of the testator's acknowledgment and the witnesses' "perception."
In May 1989, Margaret Kirkeby executed a will that provided that the proceeds of her estate be placed in trust, with "income earnings" to be distributed to her husband, Orrin, during his life, then to other beneficiaries for a period not to exceed five years. The corpus was then to be distributed to a named charitable beneficiary, Mille Lacs Health System (Mille Lacs). In June 1992, Margaret decided to revise some of the provisions of the 1989 will. She drafted a handwritten codicil dated June 10, 1992, which, among other things, included a specific bequest of the Kirkebys' home, including five acres of land, to two neighbors, Don Curtis and Gayle Lyman, in exchange for them providing physical care for both Margaret and Orrin until their deaths. However, the codicil was not properly executed, ORS 112.235. In July 1992, Margaret again decided to change her will. After marking through the 1989 will and codicil and adding notes, she asked Gayle Lyman to type up a new will with the indicated changes. On July 15, 1992, Lyman took the document to her house, typed it on two pages and delivered it to Margaret, who signed it that same day. That 1992 will, although still providing that the assets be placed in trust with income distributions to Orrin for life, and then to other named beneficiaries, provided that the trust corpus be distributed to a different named charitable beneficiary, Covenant House. It also incorporated the specific bequest of the Kirkebys' house and land to Curtis and Lyman, which had been originally set out in the ineffective June 1992 codicil. The will was signed without the presence of the purported witnesses. The “witnesses” later signed Margaret’s will without full knowledge of the instrument they were signing. Margaret died in September 1992. In October 1992, Glenn Kirkeby (Glenn), Orrin's brother, filed a petition in probate alleging that the 1992 will was invalid as "not properly attested in that decedent did not sign her Will in the presence of the witnesses nor did she acknowledge to said witnesses that she had signed her Will," and that, consequently Margaret had therefore died intestate. Covenant House, Lyman, and Curtis, as named beneficiaries of the 1992 will (hereinafter, "objectors"), filed objections to Glenn's petition, alleging that the 1992 will was valid or, in the alternative, that Margaret's 1989 will and the June 10, 1992 codicil were valid. The court issued an order determining that the July 1992 will and the June 1992 codicil to the 1989 will were both invalid as improperly executed; but that Margaret did not die intestate because, applying the doctrine of "dependent relative revocation," the 1989 will remained valid. In 1993, Orrin signed an election as the surviving spouse to take against Margaret's will, ORS 114.105, but instructed attorney William Kirby to "hold" the document and not to file it. Orrin subsequently died. In 1997, the court entered a comprehensive decree of final distribution, reiterating that Margaret’s 1989 will was valid, and that the written election signed by Orrin was not effective under ORS 114.105. All parties appealed or cross-appealed.
The court affirmed the judgment and rejected both appeals. The testator's "acknowledgement" of her signature via the telephone was not "in the presence" of either of the witnesses as required by Or. Rev. Stat. § 112.235(1)(c). The "acknowledgement" made to witnesses who could not perceive what was being "acknowledged" was meaningless. The testator's husband's right to election under Or. Rev. Stat. § 114.105 was personal to him and could have been exercised only during his lifetime, and the trial court did not err in refusing to give effect to the purported election made after his death.