Brown v. Brown
2009 WL 1099711, 2009 Ala. Civ. App. LEXIS 110, 21 So.3d 1 (2009)
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Rule of Law:
Under Alabama Code § 43-8-136(a), a will can only be revoked by a subsequent will. A written instrument that merely expresses an intent to revoke a prior will but is not itself testamentary in nature does not qualify as a 'subsequent will' and is therefore ineffective.
Facts:
- In 1957, R.B. Brown ('the decedent') executed a will leaving his entire estate to his wife, Emily Brown, and appointing her as the personal representative.
- On August 8, 2006, the decedent executed a document titled 'Revocation of Last Will and Testament' ('the revocation document').
- The revocation document stated that the decedent revoked all prior wills.
- The revocation document also expressly stated, 'it being my intention and desire to die without a will.'
- After R.B. Brown passed away, he was survived by his wife, Emily, and at least one son, A.J. Brown.
Procedural Posture:
- Emily Brown filed a petition in the DeKalb Probate Court to probate the 1957 will of her deceased husband, R.B. Brown.
- A.J. Brown, the decedent's son, filed a contest of the 1957 will in the probate court.
- The case was removed from the probate court to the DeKalb Circuit Court at A.J. Brown's request.
- A.J. Brown amended his will contest, arguing the 1957 will was voided by the 2006 revocation document.
- Emily Brown filed a motion for summary judgment, arguing the revocation document was legally ineffective.
- The circuit court granted summary judgment in favor of Emily Brown, ruling that the 1957 will was valid and should be admitted to probate.
- A.J. Brown's subsequent motion to alter, amend, or vacate the judgment was denied by operation of law.
- A.J. Brown (appellant) appealed the circuit court's summary judgment to the Court of Civil Appeals of Alabama.
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Issue:
Does a standalone written instrument that expressly revokes a prior will, but is not itself a testamentary instrument, constitute a 'subsequent will' sufficient to revoke the prior will under Alabama Code § 43-8-136(a)?
Opinions:
Majority - Moore, J.
No. A written instrument that only purports to revoke a prior will but is not testamentary in nature is not a 'subsequent will' and cannot effect a revocation under Alabama statute. The court reasoned that Alabama's current Probate Code, § 43-8-136, provides only two methods for revoking a will: (1) by a subsequent will, or (2) by a physical act of destruction. The court noted that the legislature deliberately omitted the prior statutory language that had allowed revocation by 'some other writing.' The court defined a 'will' under § 43-8-1(34) as a 'testamentary instrument,' which is an instrument intended to dispose of property upon the testator's death. The revocation document in this case was not testamentary because it did not dispose of property and, by its own terms, expressed an intent to die intestate (without a will), indicating it was meant to be effective immediately rather than upon death. Therefore, because the revocation document was not a 'subsequent will,' it failed to meet the statutory requirements for revocation.
Analysis:
This decision clarifies and narrows the methods for will revocation in Alabama, reinforcing a strict, formalistic approach over a testator's apparent intent. By holding that a non-testamentary writing is insufficient for revocation, the court emphasizes the significance of the legislature's 1983 removal of the 'some other writing' language from the statute. This ruling establishes a clear precedent that any written revocation must be embedded within a new testamentary instrument, such as a new will or a codicil, to be valid. Consequently, estate planners and individuals in Alabama must be advised that a simple declaration of revocation, no matter how clear, is legally ineffective on its own.
