Estate Of Gushwa

197 P.3d 1 (2008)

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Nature of the Case

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Facts

George executed his Last Will and Testament while his wife, Zane (P) was in the hospital. George was assisted in preparing the Will by his niece, Betty Dale, and her husband, Ted Dale (Ted). George's separate property was to be held in trust for the support of P, during her life, and upon her death, it was to be distributed to George's nieces and nephews. P received no permanent distribution under the Will. George named Ted as the trustee and gave the original Will to him for safekeeping. The Dales were not beneficiaries under the Will. George decided he wanted to revoke the Will. According to P, George called Ted to regain possession of the original Will, but Ted refused to send it. Ted claims that P called him and requested that he send her the original Will. Ted then notified George's attorney and asked whether he should send P the original Will because Ted knew that George did not want her to see it. The attorney told Ted to contact George. George asked him to discuss the Will only in general terms with P and told Ted which pages of the Will to send to George. Ted then sent George photocopies of those pages. George contacted another lawyer to help him revoke the Will. A 'Revocation of Missing Will(s),' was created there George stated that he wanted to revoke his previous Will. George wrote 'Revoked' on the copy of three pages of the Will. The Revocation of Missing Will(s) document was signed by George and two witnesses and was notarized. George also received a photocopy of the entire Will from his previous attorney and wrote 'Revoked' on each page of that copy of the Will. George died in 2005. P claimed that George died intestate. George's niece, D objected. She claimed the Will had not been revoked and was still in force because George did not follow the statutory formalities for revocation set forth in the Probate Code. P claimed revocation from the Missing Wills document and that Ted prevented George from obtaining possession of the original. P asked for a constructive trust. The court granted D summary judgment. The court of appeals affirmed. The Revocation document was not a subsequent will as required by statute, and therefore it did not revoke the prior Will. It held that the act of writing 'Revoked' on the photocopied will was not a legally effective revocatory act because such an act must be done on an original or a duplicate original and not a photocopy.