Opinion:Pilz v. Bond, 2022 OK CIV APP 4
Subject matter:Probate
Date Decided:May 3, 2021; Mandate Issued: March 9, 2022
Trial Court:District Court of Tulsa County; Judge Sellers
Route to this Court:Appeal of an interlocutory probate order of the district court.
Facts:Gerald Cates shot his wife, Leslie Cates, and then shot himself. Both died as a result of their gunshot wounds. At issue in this case is whether or not there is sufficient evidence to determine if Gerald and Leslie died other than simultaneously. The answer to this question is determinative of the distribution of Leslie Cate’s estate as her Will provides, in pertinent part, that “[i]f my Husband and I should die simultaneously as defined herein or my Husband predeceases me, then I give, devise, and bequeath all my property, except as otherwise bequeathed in this Will, to [Mr. Pilz].” The Will defines simultaneous death as occurring “if there is no sufficient evidence to establish that we died other than simultaneously.” 

Mr. Pilz was a longtime friend of Leslie Cates. Austin Bond and Lindsey Bond are Leslie Cates’ children from a previous marriage and claim to be her only heirs. As a first phase of the probate administration, the district court held a bench trial on the question of whether there was a simultaneous death for purposes of determining whether Mr. Pilz was a beneficiary under the Will. 

Several witnesses testified at the trial, including a forensic pathologist who testified that, “it would be very unlikely, highly unlikely that [Mr. Cates] would have died first, … and I would say [there is a] 90 percent plus likelihood that [Mrs. Cates] died first.” In addition, evidence was presented that Mr. Cates shot Mrs. Cates multiple times, including one shot to the head. Mr. Cates then telephoned Mr. Pilz and informed him that he had shot and killed Mrs. Cates. Mr. Cates subsequently committed suicide by shooting him self in hte head. 

Following the trial, the district court ruled that by a preponderance of the evidence, Mr. and Mrs. Cates did not die simultaneously, and that Mr. Pilz was therefore not a beneficiary of Mrs. Cates’estate. Mr. Pilz appealed. 
Standard of Review:Probate proceedings are of equitable cognizance. The trial court’s decision cannot be disturbed unless found to be clearly contrary to the weight of the evidence or to some governing principle of law. 
Section 1001 of the Uniform Simultaneous Death Act, 58 O.S. § 1001-1008,  provides as follows:

“Where the title to property or the devolution thereof depends upon the priority of death of two or more persons and there is no sufficient evidence to establish that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this act.”

A preponderance of evidence is equivalent to the “sufficient evidence” of survivorship referred to in the Act. Thus, parties seeking to avoid the implications of the Act must prove that death occurred “otherwise than simultaneously” by a preponderance of the evidence. If there is any sufficient evidence that either party survived the other (even by one second), even when the deaths occur at substantially the same time, the Act is inapplicable and the question of survivorship must be determined by any other fact. Survivorship may be provided by direct or circumstantial evidence and the issue is one of fact for the trial court’s determination. Although it was presented in this case, expert medical testimony is not required and lay testimony may provide sufficient evidence of survivorship. 

The trial court’s determination that Mr. and Mrs. Cates died otherwise than simultaneously is supported by the preponderance of the evidence presented at trial. We decline to award Appellees’ request under 12 O.S. § 995 for attorneys fees on appeal on the basis that Appellant’s filing is frivolous as we are unable to say that this appeal “is so totally devoid of merit” as to warrant the requested sanctions. (OCOCA also remarks further without explanation in FN 7 that 20 O.S. § 15.1 provides for an award of fees in “meritless” appeals). 
Vote:3-0CONCUR: Wiseman, P.J. Rapp, Barnes (author), JJ.