# In Re the Estate of Bergau

> Washington Supreme Court · January 10, 1985 · 103 Wash. 2d 431

URL: https://www.frixlaw.com/law-library/cases/9547419

## Case

- **Full name:** In the Matter of the Estate of Kurt H. Bergau
- **Court:** Washington Supreme Court
- **Decided:** January 10, 1985
- **Citations:** 103 Wash. 2d 431; 693 P.2d 703; 1985 Wash. LEXIS 1050
- **Precedential status:** Published
- **Opinion:** Dissent by Dolliver
- **Judges:** Dolliver
- **Cited by:** 49 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9547419

## Opinion text

Dolliver, J.
(dissenting) — The heart of the majority argument is contained in this paragraph:
If, however, analysis is focused on the entire price clause, two possible "assessed" values exist. The language in question reads, "110% of the County assessed fair market value at the date of my death”. The testator here expressly provided that the value to be used in the option was to be determined at the date of his death. Although the intent of the testator is to be viewed from the perspective of the date of execution, it is presumed that the testator was familiar with the circumstances at that time which could affect the construction of the will. Therefore, it is presumed that he knew of the two assessment programs in existence at the time of execution and of the possibility his particular assessment program might change by the date of his death. The language "at the date of my death" admits to the possibility that the *440 change of assessment programs was envisioned and, therefore, creates an ambiguity as to which assessment program, RCW 84.40 (true and fair value) or RCW 84.34 (current use value), should now be used.
(Citations omitted. Italics mine.) Majority, at 438. To find an ambiguity in this language for the reasons given by the majority seems to me nothing more than a judicial sleight of hand.
I would agree that if the testator had referred only to the "assessed value at the date of my death" there would be an ambiguity as to what value — current use or fair market— was meant. No doubt, however, was left by the testator as to the value upon which the price was to be based at the time of his death. It was clearly and expressly stated in the will: assessed fair market value.
As the majority concedes, the term "assessed fair market value" has only one possible interpretation: fair market value. This is not changed by the added words "at the time of my death". The meaning of this phrase to me seems obvious. Since land values and thus assessed values change, the testator wanted to make certain the "assessed fair market value" stated in the will would be that fair market value at the time of his death. The language is simple, straightforward, and unambiguous. The words of the will certainly may be challenged, but merely to assert an ambiguity cannot create an ambiguity when none exists.
As the majority states, the testator well may have known of two assessment programs. In his will, however, he explicitly and unequivocally refers only to "assessed fair market value".
The Court of Appeals should be affirmed.
Dore, J., and Cunningham, J. Pro Tern., concur with Dolliver, J.
Reconsideration denied February 21, 1985.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9547419. Public record. Not legal advice.