Wunder v. Biddlecomb

470 November 4, 2026 No. 1081 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON In the Matter of the Estate of Leroy Alphonse Dufault, deceased. Patricia WUNDER, Personal Representative, Appellant, v. Kenneth BIDDLECOMB, Personal Representative of the Estate of Diane Dufault Biddlecomb, Respondent. Deschutes County Circuit Court 21PB02377; A184077 Beth M. Bagley, Judge. Argued and submitted May 6, 2026. Anthony V. Albertazzi argued the cause for appellant. Also on the briefs was Albertazzi Law Firm. Christopher L. Cauble argued the cause for respondent. Also on the brief was Cauble Furr & Beguin, LLP. Before Aoyagi, Presiding Judge, Lagesen, Chief Judge, and Egan, Judge.* AOYAGI, P. J. Reversed and remanded. ______________ * Lagesen, Chief Judge, vice Pagán, Judge. Nonprecedential Memo Op: 354 Or App 470 (2026) 471 AOYAGI, P. J. This appeal concerns the distribution of the estate of Leroy Dufault. Leroy had three sisters—Rose Schott, Diane Dufault, and petitioner.1 Diane died shortly after Leroy. A disagreement arose between petitioner, who is the personal representative of Leroy’s estate, and Kenneth Biddlecomb, who is the personal representative of Diane’s estate, regard- ing the terms of Leroy’s will. The probate court concluded that the will unambiguously provided for each sister to receive one-third of Leroy’s estate, entered a general judg- ment to that effect, and entered a supplemental judgment awarding attorney fees to Biddlecomb. Petitioner appeals. As explained below, we conclude that the will is ambiguous, necessitating further proceedings, which should occur in the probate court given the posture of this case. Accordingly, we reverse and remand. Facts. Leroy died on January 13, 2021. He left a writing dated January 12, 2000, which was determined to be his will.2 The will is very short. It states: “Diane and Patty will be co-[executors]. “All my stuff will go to my three sisters Rose Schott, Diane Dufault, and Patty Wunder. Divide it up any way you like!” The will then lists five specific items that Leroy was “keep- ing for Sue Griego,” directs their return to her, and concludes with a brief farewell message to his sisters. On January 18, 2021, five days after Leroy’s death, Diane died. She was survived by her husband, Biddlecomb, and two children. In March 2021, petitioner petitioned for probate of Leroy’s estate. The court entered a limited judgment 1 Because the testator shares a last name with one of his sisters, we use first names to refer to the testator and his sisters. 2 The writing was not witnessed and thus does not comply with the formal- ities required by ORS 112.235. However, ORS 112.238 allows a writing not exe- cuted in compliance with ORS 112.235 to be treated as if executed in compliance with that statute if, as relevant here, the proponent of the writing establishes by clear and convincing evidence that the decedent intended the writing to consti- tute his will, and the court determines that to be so after a hearing or based on affidavits. Here, no one has ever disputed that the writing constitutes Leroy’s will, and the court determined that it did. 472 Wunder v. Biddlecomb admitting the will to probate and appointing petitioner as personal representative of the estate. In May 2022, petitioner filed a final accounting and petition regarding final distribution. She stated that the estate’s assets—which consisted of a little over $450,000 in cash—were ready to be distributed and proposed to dis- tribute them in equal thirds to petitioner, Rose, and Diane’s estate. Petitioner amended her filing in August 2022, how- ever, changing the distribution so that “100%” would go to petitioner, based on an agreement among the sisters described in an attached declaration of Rose Schott. Rose attested that, after Leroy’s death, the three sisters had agreed that petitioner would receive all of Leroy’s estate because she had assumed responsibility for Leroy’s care at the end of his life. The probate court approved the amended final accounting, authorized the distribution, discharged petitioner, and closed the estate in September 2022. In March 2023, Biddlecomb, on behalf of Diane’s estate, filed a motion under ORCP 71 B to set aside the judg- ment and reopen Leroy’s estate. He disputed the existence of any agreement among the sisters and argued that peti- tioner had effectively disinherited Diane, contrary to the terms of Leroy’s will and without following the statutory procedures for a will contest. Petitioner did not respond to the motion. The court set aside the September 2022 judg- ments and reopened the estate. In August 2023, petitioner filed a second amended accounting and petition, which was materially identical to the first amended one. Biddlecomb objected, arguing that Diane’s estate was entitled to one-third of Leroy’s estate under the terms of Leroy’s will and, further, that Rose’s dec- laration amounted to a disclaimer of her share. Biddlecomb also requested an award of attorney fees. In March 2024, after a hearing, the probate court sustained Biddlecomb’s objection. There followed much debate over a long period as to the exact import of the court’s ruling and what it meant for further proceedings. For pres- ent purposes, we need not describe those intervening events. We jump to May 2025, when the probate court entered a Nonprecedential Memo Op: 354 Or App 470 (2026) 473 general judgment disallowing the second amended final accounting and ruling: “1. The plain reading of the will provides that the estate be distributed three ways between Patricia Wunder, Rose Schott, and Kenneth Biddlecomb as personal repre- sentative of Diane Biddlecomb’s estate; “2. A change to the distribution scheme will require evidence of an agreement between Patricia Wunder, Rose Schott and Diane Biddlecomb for such alternate distribu- tion scheme; and “3. Change from the distribution scheme specified in the will may not be done through the accounting process but must be done by will contest under ORS 113.075.” The court awarded attorney fees to Biddlecomb in a supple- mental judgment. Need for a will contest. In her first assignment of error, petitioner contends that the probate court erred in “ruling that [she] was obligated to initiate a will contest under ORS 113.075 to change or modify the initial distri- bution * * * and replace it with the [100% distribution to petitioner].” We reject that assignment of error. The court’s ruling is not concerned with the difference between petition- er’s filings. Rather, as quoted above, the court ruled that a will contest would be necessary for petitioner to distrib- ute the assets of Leroy’s estate in a manner different from “the distribution scheme specified in the will.” (Emphasis added.) That is legally correct, or at least petitioner has not explained how it is not. Petitioner disagrees with the court’s interpretation of the will, but that is a separate matter. We see no error in the court ruling that a will contest would be necessary to avoid the terms of the will. Power of appointment. In her second assignment of error, petitioner claims that the probate court made an erroneous “ruling that the [w]ill does not create a power of appointment in favor of [d]ecedent’s [p]ersonal [r]epresenta- tive.” We do not understand the probate court to have made an actual ruling on that issue, and error is to be assigned only to rulings. ORAP 5.45(3). To the extent that petitioner is advocating for a different interpretation of the will, we 474 Wunder v. Biddlecomb address the court’s ruling on the meaning of the will in the next section. See Towey v. City of Hood River, 321 Or App 414, 420 n 7, 516 P3d 738 (2022) (error is to be assigned to “a ruling, not the reasoning for the ruling”). Interpretation of Leroy’s will. In her third assignment of error, petitioner contends that the probate court erred in ruling that Leroy’s will requires his estate to be distrib- uted in equal thirds to his three sisters (or, in Diane’s case, her estate). Biddlecomb maintains that no error occurred. The parties’ disagreement turns on the will’s key provision: “All my stuff will go to my three sisters Rose Schott, Diane Dufault, and Patty Wunder. Divide it up any way you like!” In the probate court, Biddlecomb argued, and the court agreed, that “[a]ll my stuff will go to my three sisters” meant that Leroy intended each sister to receive one-third of his estate. The probate court did not address the meaning of “[d]ivide it up any way you like.” Meanwhile, petitioner reads “[d]ivide it up any way you like” to mean that Leroy wanted his executor(s) to decide how to divide up the estate among the three sisters. That is, petitioner believes that she, as named executor, is the “you” who is to “[d]ivide it up any way you like.” Petitioner also proffers some possible alternative interpretations as back-up arguments, including that Leroy intended the three sisters to decide how to divide up the estate, or that he intended his estate to go only to those sisters still alive at the time of distribution. The probate court viewed Leroy’s will as unambig- uous, adopting the interpretation that Biddlecomb put for- ward in the probate court—that each sister was to receive an equal share—as the “plain reading of the will.” We dis- agree. In our view, there is more than one plausible inter- pretation of the will, making it ambiguous. “The intention of a testator as expressed in the will of the testator controls the legal effect of the dispositions of the testator.” ORS 112.227. The “general rule is that a will speaks for itself.” Kidder v. Olsen, 176 Or App 457, 463-64, 31 P3d 1139 (2001). That is, an unambiguous will must be enforced as written. Id. at 464; see also LaGrand v. LaGrand, 47 Or App 81, 86, 613 P2d 1091, rev den, 290 Or 211 (1980) Nonprecedential Memo Op: 354 Or App 470 (2026) 475 (“It is what a testator said in his will rather than what he meant to say that should be determined.” (Internal quota- tion marks omitted.)). But wills are not always unambigu- ous. “[C]onstruction of a will often requires resort to maxims of construction and, where appropriate, extrinsic evidence.” Kidder, 176 Or App at 463. Extrinsic evidence may be used to put the court in the position of the testator at the time the will was made, or to “identify and resolve latent ambiguities in a will.” Id.; see also ORS 41.740 (providing that, in inter- preting a will, the writing is to be considered as containing all its terms, and parol evidence may be considered only in limited circumstances, but “this section does not exclude” consideration of evidence of the circumstances under which a writing was made or evidence “to explain an ambiguity, intrinsic or extrinsic, or to establish illegality or fraud”). In this case, no extrinsic evidence was admitted to shed light on the meaning of Leroy’s will. “Whether a term in a legal instrument is ambig- uous is a legal question.” Garcia v. Clark, 300 Or App 463, 466, 455 P3d 560 (2019). A term is ambiguous when it “is reasonably capable of more than one plausible interpreta- tion.” Dombrowsky and Beaumont, 350 Or App 92, 100, 593 P3d 668 (2026) (internal quotation marks omitted). For example, in Garcia, 300 Or App at 466, the term “my chil- dren” in a will was ambiguous as to whether it included the testator’s stepchildren, and, in Raymond v. Lillegard, 35 Or App 225, 227, 508 P2d 1078 (1978), the phrase “to be equally divided between our two daughters Marjorie R. Raymond and Patricia L. Lee and their children” was ambiguous as to how exactly that division was to occur. All of the words of a will are to be considered when interpreting it. “In construing a testator’s intentions, courts prefer a construction that will give harmonious effect to every part of the will.” Roley v. Sammons, 215 Or App 401, 408, 170 P3d 1067, rev den, 343 Or 690 (2007). “The four cor- ners of the instrument will be looked to, with effect given, if possible, to every sentence, clause and word, in arriving at the testator’s intention.” Unander v. U. S. Nat’l Bank et al, 224 Or 144, 153, 355 P2d 729 (1960); see also Pioneer Trust Co. v. Thielsen et al., 199 Or 206, 213, 258 P2d 788 (1953) 476 Wunder v. Biddlecomb (“We must assume that by everything he put into the writ- ing the testator meant something and had a purpose for his utterances.” (Internal quotation marks omitted.)). In this case, based on the words alone (as there is no extrinsic evidence in the existing record), and seeking to give effect to all the words, there is more than one plausible interpretation of “All my stuff will go to my three sisters Rose Schott, Diane Dufault, and Patty Wunder. Divide it up any way you like!” One plausible interpretation is that the first sentence defines the universe of beneficiaries (the three sisters), and the second directs the executors to decide how to distribute the estate among those beneficiaries. Another plausible interpretation is a variation on the same, in which the first sentence defines the universe of beneficiaries (the three sisters), and the second provides for the beneficia- ries themselves to decide how to divide up the estate. As for interpreting the will to require an exact three-way split among the three sisters, we do not necessarily foreclose that interpretation but, based on the arguments made, find it dif- ficult to square with the directive to “[d]ivide it up any way you like!” Because there is more than one plausible interpre- tation of the will (and perhaps several), it is ambiguous as a matter of law, Garcia, 300 Or App at 466, and the pro- bate court erred in concluding otherwise. As for where to go from there, had the parties addressed this scenario in their briefing, we might be in a position to resolve the ambiguity by reference to maxims of construction. See Kidder, 176 Or App at 463 (“[C]onstruction of a will often requires resort to maxims of construction and, where appropriate, extrinsic evidence.”). However, both parties’ briefs are entirely silent on the issue of resolving an ambiguity in a will—as well as being entirely silent on the consequences if an ambiguity cannot be resolved, or if its resolution leads to an interpre- tation that renders the will ineffective.3 Under the circum- stances, the proper course is to simply reverse the probate court’s ruling that “[t]he plain reading of the will provides 3 See McClain v. Hardy, 184 Or App 448, 454, 56 P3d 501 (2002) (“Because the will does not effectively dispose of the net estate, ORS 112.015 provides that the net estate must pass in accordance with the law of intestate succession.”). Nonprecedential Memo Op: 354 Or App 470 (2026) 477 that the estate be distributed three ways between Patricia Wunder, Rose Schott, and Kenneth Biddlecomb as personal representative of Diane Biddlecomb’s estate” and remand for further proceedings consistent with this opinion. Fee award. In her final assignment of error, peti- tioner challenges the fee award in the supplemental judg- ment. Because we have reversed the general judgment, the supplemental judgment is also reversed by operation of law. ORS 20.220(3)(a); Archbold v. Div. of Child Support, 348 Or App 316, 336, 592 P3d 513, rev den, 375 Or 472 (2026). Reversed and remanded.