In Re Estate of Schumacher
2011 WL 1419725, 253 P.3d 1280 (2011)
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Rule of Law:
A partial revocation of a holographic will by a physical act, such as crossing out a devisee's name, is valid if accompanied by the testator's intent to revoke. When a will with such markings is found in the testator's possession at death, a presumption arises that the testator performed the act with the requisite intent, which can be further established by extrinsic evidence.
Facts:
- On December 1, 2004, David Schumacher executed a holographic will devising shares of stock to his three cousins: Maria Caldwell, Cheryl Smart, and Deborah Caldwell.
- On January 12, 2006, Schumacher met with his attorney, Michael Gilbert, to draft a new, typed will.
- During the meeting, Schumacher showed Gilbert a copy of the holographic will on which the names of Maria Caldwell and Cheryl Smart had been crossed out.
- Schumacher informed Gilbert that he no longer wanted the stock to go to Maria and Cheryl, stating he felt closest to Deborah and wished for her to be the sole recipient.
- Schumacher instructed Gilbert to draft a new will reflecting this change, but Schumacher died on July 3, 2007, without ever signing the new typed will.
- Approximately six months before his death, Schumacher had given his secretary several boxes of his personal records for storage.
- After his death, the original holographic will, with the names of Maria and Cheryl crossed out, was discovered in an unopened box at the secretary's home.
Procedural Posture:
- The personal representative of David Schumacher's estate filed a petition in probate court to determine the validity of the holographic will.
- Maria Caldwell (petitioner) and Cheryl Smart filed a petition for construction of the will to determine the validity of the cross-outs.
- The probate court held a hearing and issued an order finding that Schumacher had performed a valid revocatory act with intent and that the cross-outs must be given legal effect.
- Maria Caldwell and Cheryl Smart appealed the probate court's order to the Colorado Court of Appeals.
- Cheryl Smart's appeal was subsequently dismissed, leaving Maria Caldwell as the sole petitioner-appellant and Deborah Caldwell as the respondent-appellee.
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Issue:
Does crossing out the names of devisees on a holographic will constitute a valid partial revocation under Colorado law when the original will is found among the decedent's personal effects after his death and extrinsic evidence confirms his intent to remove those devisees?
Opinions:
Majority - Judge Márquez
Yes, crossing out the names constitutes a valid partial revocation. Under Colorado statute § 15-11-507, a will or any part of it may be revoked by a 'revocatory act,' which includes 'canceling' or 'obliterating' any part of it, if performed with the intent to revoke. The court found that when a will is found in the testator's possession at death with such cancellations, a legal presumption arises that the testator made the markings with the intent to revoke. Although the will was physically at his secretary's home, it was deemed to be in Schumacher's constructive possession because she was his employee acting on his behalf. This presumption was strongly supported by extrinsic evidence, namely the testimony of attorney Gilbert, who stated Schumacher explicitly communicated his desire to remove the other two cousins and leave the stock solely to Deborah. The combination of the physical act, the presumption arising from possession, and the clear evidence of intent satisfied the statutory requirements for a valid partial revocation.
Analysis:
This case clarifies the doctrine of partial revocation by physical act and the scope of the common law presumption of revocation. The court's holding broadens the concept of 'possession' to include constructive possession through an agent, meaning a will does not need to be in the testator's exclusive physical custody for the presumption to apply. It reinforces the principle that a testator's intent is paramount and that extrinsic evidence, such as testimony from the testator's attorney, is highly persuasive in proving that intent. This decision provides a pathway for courts to validate clear testamentary intentions even when formal execution of a new will is incomplete, thereby preventing a result the testator actively sought to avoid.
