No. 82-295 

IN THE SUPREME COURT OF TEE STATE OF MONTAP*JA 

1983 

MILANA LAZETICH, PETER LAZETICH 

and WILLIAM LAZETICH, 

Plaintiffs and Respondents, 

LUCILLE MILLER and LORRAINE DALTON, 

et al., 

Defendants and Appellants. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Deer Lodge, 

The Honorable Douglas G. Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Donald Garrity; Garrity, Keegan & Brown, Helena, 

Montana 

For Respondents: 

Moses Law Firm; Michael Moses, Billings, Montana 

Submitted on Briefs: March 4, 1983 

Decided: October 12, 1983 

Filed: Q&fT 1 2 7983 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Plaintiffs brought this action against the personal 

representatives of the estate of Mary Lazetich to enforce an 

oral agreement not to revoke the provisions of a will 

disposing of family corporation stock. The Third Judicial 

District Court, Deer Lodge County, ordered enforcement of the 

agreement, and defendants appeal. We affirm. 

The issue on appeal is whether there is sufficient 

evidence to establish that Mary Lazetich orally contracted 

not to revoke the provision of her May 2, 1966 will directing 

the disposition of family corporation stock. 

The dispute involves shares of stock in Lazetich & Sons, 

a closely-held family corporation. Peter and Mary Lazetich, 

husband and wife, each owned a one-sixth interest in the 

stock of the corporation in early 1966. On May 2, 1966, they 

executed mutual wills with clauses providing that the stock 

woilld pass to the surviving spouse. Upon the death of the 

surviving spouse, it would pass to three sons and one 

grandson, share and share alike. The provision from the will 

of Mary Lazetich was as follows: 

"My husband, PETER LAZETICH, has made and executed 

a Last Will and Testament, the same date as my 

Will, and in this Will he has provided that his 

undivided one-sixth of said stock in said 

corporation [Lazetich & Sons] will go to me in the 

event he dies before I do. Upon the death of the 

survivor of myself or husband, the one-third 

interest that we own in said stock is given and 

bequeathed to my son, MILAN LAZETICH, to my son, 

ELI LAZETICH, to my son WILLIAM LAZETICH, and to my 

grandson PETER LAZETICH, son of WILLIAM LAZETICH, 

share and share alike." 

Peter Lazetich predeceased his wife and his May 2, 1966 

will was admitted to probate. His undivided one-sixth 

interest the Lazetich Sons corporate stock was 

distributed to his wife, Mary Lazetich. 
In the 1970s Mary Lazetich executed two more wills, the 

last on November 28, 1978. Upon Mary's death, the November 

28, 1978 will was admitted to probate. It did not bequeath 

the Lazetich & Sons corporate stock in the manner provided in 

the May 2, 1966 will. The plaintiffs filed claims against 

the Mary Lazetich estate alleging they were entitled to the 

one-third stock interest in Lazetich & Sons. Plaintiffs 

claimed that Peter and Mary Lazetich had entered into an oral 

contract not to revoke that portion of their mutual 1966 

wills relating to the distribution of Lazetich & Sons stock. 

The defendant personal representatives disallowed the claims 

of the plaintiffs and this lawsuit followed. 

The case was heard by the District Court without a jury. 

Extensive findings of fact and conclusions of law were 

prepared by the District Court. 

The attorney who prepared the May 2, 1966 will also 

prepared the November 28, 1978 will of Mary Lazetich. He was 

the primary witness at the trial. The findings of the 

District Court in regard to his testimony are substantially 

as follows. Previous to execution of the mutual wills and in 

the presence of their attorney, Mary and Peter Lazetich 

agreed that upon the death of both parties, their one-third 

interest in Lazetich & Sons corporate stock would be 

distributed between their sons and one grandson, share and 

share alike. Pursuant to that agreement, mutual wills were 

drawn for Peter and Mary Lazetich and executed on May 2, 

1966. When the attorney prepared the November 28, 1978 will 

for Mary Lazetich, he had forgotten about the May 2, 1966 

will. The District Court also found as follows: 

"Peter and Mary Lazetich were very fond of each 

other before, on and after May 2, 1966, and they 

pledged that they would not change their Wills. 
"There is no evidence that the agreement between 

Mary and Peter Lazetich was induced by duress, 

menace, fraud, undue influence or mistake." 

The District Court's conclusions of law stated that 

Peter and Mary Lazetich had agreed that upon the death of the 

first of them the one-sixth stock ownership would pass to the 

survivor. Upon the death of the survivor, the total 

one-third stock interest would pass to the designated sons 

and grandson, share and share alike. In consideration of 

that agreement, the mutual wills were executed. Based upon 

these findings and conclusions, the District Court ordered 

the personal representatives to distribute the stock of 

Lazetich & Sons in accordance with the May 2, 1966 will. 

Agreements not to revoke wills are specifically 

addressed by the Montana Uniform Probate Code (UPC). Section 

72-2-105, MCA provides: 

"(1) A contract . . . not to revoke a will or 

devise . . . if executed after July 1, 1975, can be 

established only by: 

(a) Provisions of a will stating material 

provisions of the contract; 

(b) An express reference in a will to a 

contract and extrinsic evidence proving the terms 

of the contract; or 

(c) A writing signed by the decedent 

evidencing the contract. 

(2) The execution of . . . mutual wills does not 

create a presumption of a contract not to revoke 

the . . . wills." 

Because the alleged contract was entered into in 1966, the 

provisions of the UPC do not apply. 

It is clear that prior to the adoption of the Montana 

UPC a person could make a valid oral contract to dispose of 

her property by will. In Conitz v. Walker (1975), 168 Mont. 

238, 244, 541 P.2d 1028, 1031, this Court stated: 

"It is clear that in Montana a person may make a 

valid contract to dispose of his property by will. 

Erwin - v. Mark, - 105 Mont. 361, 73 P.2d 537. 

"This Court in -- Rowe v. Eggum, 107 Mont. 378, 87 

P.2d 189, enforced an oral agreement of a decedent 
not to change a will made in favor of the 

plaintiff. 

"The rule of law in Montana is that proof of an 

oral contract by a deceased to leave property by 

will: 

" ' * * * must be clear, cogent, and convincing, and 

that the making of such an oral contract or 

agreement must be established by disinterested 

witnesses. ' -- Cox v. Williamson, 124 Mont. 512, 227 

P.2d 614." 

In Conitz, as here, one party argued there was 

sufficient evidence to find a contract while the other party 

argued there was no such evidence and that the contract was 

"pulled out of the air." In holding that there was such a 

contract, the Court stated: 

"Perhaps each item of evidence above standing by 

itself does not establish a contract between Edward 

and Leona to make mutual will[s] leaving their 

property to the other. However, viewed as a whole 

this Court finds that the oral contract between 

Leona and Edward has been established in this case 

by clear, cogent and convincing evidence and by the 

testimony of disinterested witnesses . 11 . . Conitz, 168 Mont. at 245, 541 P.2d at 1031. 

The basic rule was restated more strongly in Craddock v. 

Berryman (1982) , Mont . , 645 P.2d 399, 402, 39 

St.Rep. 835, 837. There we stated that "contracts to make 

wills are looked upon with disfavor because the other 

contracting party is dead and cannot affirm or deny the 

making of the contract. The law, therefore, requires clear 

and convincing evidence." Further, this Court emphasized 

that it would not "substitute its judgment for that of the 

lower court on factual issues if there is credible evidence 

to support the court's findings." Craddock, 645 P.2d at 402, 

39 St.Rep. at 838, citing Kearns v. McIntyre Construction Co. 

(1977), 173 Mont. 239, 567 P.2d 433. 

There is no significant disagreement between the 

parties as to the law. However, the defendants contend there 

is not sufficient evidence to establish that Mary Lazetich 
orally contracted not to revoke the provisions of her May 2, 

1966 will directing the disposition of family corporation 

stock. In essence, the defendants attack the sufficiency of 

the testimony of the attorney who prepared the wills in 

question. The defendants contend that the testimony sets 

forth only the attorney's conclusion that there was -- in law an 

agreement between Peter Lazetich and Mary Lazetich, rather 

than establishing that there was -- in fact such an agreement. 

On redirect examination, the attorney-witness testified 

as follows: 

"Q. . . . [I] n your discussions with Mary and Peter 

Lazetich prior to the mutual wills, did they freely 

and mutually between themselves consent and enter 

into an agreement as to how the shares of stock of 

Lazetich and Sons, which they held, would be 

distributed at not only the first one to die but 

the second one to die? 

"A. Yes, they had a very specific agreement and 

they were totally in accord with one another. 

"Q. Is that agreement as evidenced by their wills 

of May 2, 1966? 

"A. Without any question in my mind." 

On cross examination the attorney-witness testified 

regarding the question of revocation: 

"Q. Did you advise them that upon the death of 

either of them that these wills could not be 

changed? 

"A. They understood that. They said that's the 

way they wanted it to be and pledged that to each 

other in my presence. 

"Q. Could you tell us exactly what was said? 

"A. Did I tell them what? 

"Q. Could you tell me exactly what was said at 

that time? 

"A. There was no question about the fact that they 

knew this was binding upon each one. They each 

wanted what the other wanted and as to those two 

individuals, there was no question as to the fact 

they would live up to their promises to one 

another. 
"Q. You have the well deserved reputation of being 

a careful lawyer. 

"A. I like to think I'm a careful lawyer, yes, 

sir. 

"Q. You did not specifically point out that upon 

the death of one, these wills could not be revoked? 

"A. That was discussed, Mr. Garrity, with both of 

them and this is what they wanted'. 

"Q. Why didn't you put it in the will? 

"A. Why not? It wasn't necessary. I made mutual 

wills and I don't think that is necessary if the 

people understand them." 

The defendants also question the foregoing testimony as 

being inconsistent with the subsequent drafting of wills for 

Mary Lazetich which changed the dispositive scheme for the 

stock. The attorney explained as follows on crossexamination: 

"Q. And at the time you prepared those wills, were 

you under the impression that the May 2nd, 1966 

will of Mary Lazetich was irrevocable? 

"A. At the time I prepared those wills, I did not 

have those wills in mind. I was busy in trial 

practice. I never considered it. I never keep 

copies of wills in my office. Mary Lazetich was a 

personal friend of mine. I knew she was having 

trouble with Eli Lazetich, her son, and I just did 

it without any special type of consultation with 

her whatsoever. I may have talked with her for 

five or ten minutes at the most. 

"Q. You didn't inquire as to whether she had a 

will in existence at that time? 

"A. No, I did not inquire, sir. 

"Q. You didn't review any previous wills? 

"A. No, I did not review any previous will. Had I 

reviewed the previous will, I would have advised 

her not to make any type of change and under those 

circumstances I would not have prepared another 

will for her." 

Following direct and cross-examination of the attorney, 

the court inquired as follows: 

"Q. . . . [Dl o you have a fairly good independent 

recall of the circumstances existing at the time 

the 1966 will was prepared? 
"A. Yes, I do. I might say, Your Honor, I've 

never made up many mutual wills and for that reason 

I do have an independent recollection of that 

transaction. 

"Q. Would you tell me what you can recall 

concerning the conversations that occurred, I 

assume in your office, regarding their expectations 

as far as what would happen with their estate when 

one would die and what would happen to that estate, 

what would happen upon the death of the other? 

"A. Your Honor, I looked at the copies of the two 

wills. I think their expectations were certainly 

in conformity with the language of the two 

documents. They were very close to one another. 

When they would visit with me, it was more on a -- 

I suppose a friendship basis than a technical 

professional basis. And we would sit and visit and 

enjoy each other's company. They would talk about 

things. They were proud of what they had 

accumulated and proud of their family and I was 

proud of their friendship. I would say there was 

no formal technical discussion that you might have 

under certain situations. 

"Q. You have no notes of the conversations you may 

have had with them at the time the wills were 

originally discussed or prepared in 1966? 

"A. I do not. My method of operation in my 

practice has been to make notes and I then dictate 

the will. The will is returned to me, the clients 

brought in and they look everything over. If they 

agree, then the notes are discarded or destroyed. 

As a matter of fact, I still practice that way." 

This was the essential testimony concerning the existence of 

the contract between Mary and Peter Lazetich. 

It is also important to consider the wording of the will 

of Mary Lazetich, which stated that her husband had executed 

his will on the same date and which contained the same 

provision regarding disposition of the stock. While not 

sufficient in itself to show an agreement not to revoke, this 

is strong confirmatory proof that such an agreement was made. 

In Rowe v. Eggum (1938), 107 Mont. 378, 390, 87 P.2d 189, 

193, this Court stated: 

"Where a will is executed in conformity with the 

alleged oral agreement, it is regarded as strong 

confirmatory proof that such an agreement was 

entered into, and the same degree of convincing 

evidence is not required as where no such will was 
made. (Worden - v. Worden, 96 Wash. 592, 165 Pac. 

501. ) " 

It is true that the testimony by the attorney-witness 

does not set forth exactly what was said by Mary and Peter 

Lazetich. But it is reasonable that without notes the 

attorney could not recall the specific statements or 

conversations after a lapse of more than fifteen years. 

Considering the testimony and the wording of the will itself, 

we hold that there is sufficient credible evidence to support 

the District Court's findings and conclusion. We therefore 

We concur: 

4, w*4 

Chief Justice 

Justices 

Justice Morrison deems himself disqualified and did 

not participate in this decision. 
Mr. Justice Daniel J. Shea, dissenting: 

I dissent. I do not believe the testimony of the 

attorney established the existence of an oral contract not to 

revoke dispositive provisions of mutual wills by clear, 

cogent and convincing evid.ence. 

We recognized oral contracts not to revoke a will before 

adopting the Montana Uniform Probate Code. Sanger v. 

Huguenel (1922), 65 Mont. 236, 211 P. 349. However, we have 

consistently regarded them with disfavor and require proof by 

clear, cogent and convincing evidence established by the 

testimony of disinterested witnesses. 

Other jurisdictions have defined clear and convincing: 

"Clear and convincing means simply that witnesses 

to a fact must be found credible; facts to which 

witnesses testify must be distinctly remembered, 

details must be narrated exactly and in order, 

testimony must be clear and direct and weighty and 

witnesses must be lacking in confusion as to facts 

at issue. " Schulte v. Franklin (1981), 6 

Kan.App.2d 651, 633 P.2d 1151. 

"The phrase 'clear and convincing' characterizing 

evidence required to support an oral contract for a 

devise or legacy serves as a strong a.dmonition to 

the trier of fact to bear in mind that the deceased 

is not available and that those supporting the 

claim are limited only by their own conscience and 

practiced eye and ear of the trial judge." Edwards 

v. Sentell (Ala. 19681, 208 So.2d 914. 

By either of these definitions, the evidence fails to meet 

the sta.ndard. 

The trial court refused to grant summary judgment for 

either party because of concern for the conclusory statements 

in the drafting attorney's affidavit. The affidavit provides 

no factual basis to support the assertion of an agreement 

between Mary and Peter Lazetich not to revoke dispositive 

provisions of their mutual wills. 
The hearing failed to resolve the question of exactly 

what was said nor did it resolve the question of why the 

attorney prepared and witnessed the later will knowing it was 

contrary to alleged oral contract. The attorney's testimony 

at the hearing did not provide clear and convincing answers 

to these questions. His best answer to the question of 

exactly what was said was to reply, " [tlhey understood that 

(the wills could not be changed). They said that's the way 

they wanted it to be and pledged that to each other in my 

presence. " The attorney was asked about the agreement 

several times, and his replies varied in degree of 

uncertainty. He never made a clear and convincing response 

to the questions of exactly what was said. Although the 

attorney's testimony may show some kind of past intention of 

the parties, it still falls short of clear and convincing 

evid-ence of the mutual assumption of a contract obligation. 

The trial judge's finding that an oral agreement was 

made leaves open the question of the exact terms of the 

agreement. Although the trial judge enforced only a single 

clause of Mary Lazetich's 1966 will, we do not know whether 

the agreement not to revoke was exclusive to justify that 

provision of the will, or whether she had contracted not to 

revoke the entire will. An agreement not to revoke the 

entire will would be unenforceable because no copy of the 

1966 will has produced at trial. We have only a single 

clause of that will as part of the trial and appellate 

record. In fact, a fair inference from the attorney's 

testimony (quoted in the majority opinion) is that the entire 

will was considered irrevocable rather than the one clause at 

issue here. If this is so, failure to produce full copies of 

the 1966 will would be fatal to the plaintiffs' case. 
The attorney testified that he had no notes of his 

conversations with Peter and Mary Lazetich at the time the 

wills were discussed and prepared in 1966. He testified from 

memory that Lazetichs had a specific agreement and were 

totally in accord with one another. But that testimony is 

inconsistent with the fact that he personally drafted and 

witnessed one of Mary Lazetich's later wills. This will 

changed the dispositive scheme and revoked her 1966 will. A 

valid oral contract not to revoke the 1966 will would 

invalidate the later will, yet the attorney prepared and 

witnessed the will. The attorney did not distinctly remember 

facts, the details were not exact and in order, and the 

testimony was not clear and direct. I remain unconvinced 

that the evidence meets the standard of clear, cogent and 

convincing. 

I would rule as a matter of law the evidence is 

insufficient to establish an oral contract between Mary and 

Peter Lazetich not to revoke the provision of their 1966 

mutual will distributing their stock in the family 

corporation. I would reverse the trial court.