Opinion
No. 76-543
Decided June 23, 1977.
In estate proceeding, caveator presented issue of whether revocation clause contained in propounded will operated to revoke an earlier will where the earlier will had, in contrast to the propounded will, made a complete disposition of decedent's assets. From a finding that later will was mere codicil to earlier will, proponent appealed.
Reversed
1. WILLS — Any Instrument — Requisite Statutory Formalities — Sufficient — Revoke Prior Will — Revoking Will — Printed Form — Not Sufficient. Generally, any instrument executed with the requisite statutory formalities for wills is sufficient to revoke a prior will, and no exception to this rule is created merely because the revoking will is part of a printed form.
2. Construction of Will — Avoid Partial Intestacy — Rule — Not Permit — — Courts — Write Provision — Not Included — Testator. While, in construing a will, that interpretation should, if possible, be adopted which avoids partial intestacy, this rule will not permit courts to write into a will some provision clearly omitted by the testator.
3. Express Clause — Revocation of Prior Will — Operative — Second Will — — Not Dispose — All Property — Testator — Partially Intestate — Without Effect. An express clause of revocation contained in a second will is operative even if the second will does not dispose of all the testator's property, and even if, as a result of the revocation of the first will, he will die intestate as to certain property.
Appeal from the District Court of El Paso County, Honorable Howard E. Purdy, Judge.
Sheldon, Bayer, McLean Glasman, P.C., Robert L. McGee, Jr., Gary L. Palumbo, for caveator-appellant.
Isaac, Walsh Johnson, Howard J. Alpern, for proponent-appellee.
In this estate proceeding, the dispositive issue is whether a revocation clause contained in a 1966 printed form will, which will made specific disposition of only part of the testator's assets, revoked a 1963 will which made full disposition of the estate. The clause in the 1966 will reads as follows:
"I hereby make, constitute and appoint Mr. Stanley Robert White to be executor of this my Last Will and Testament, hereby revoking all former and other Wills by me made."
We hold that this unambiguous and all-encompassing language does precisely what it says, i.e., revokes the former will. We do not agree with the conclusion of the trial court that the 1966 document should be treated as a mere codicil to the 1963 will.
In 1963, the decedent, Joseph White, made a will naming his wife, Lois, the proponent herein, residuary legatee and devisee. She was to take substantially all of the estate under that document. Between 1963 and 1966, Lois sold some assets held jointly by her and decedent and allegedly converted the proceeds by depositing them in an account exclusively in her own name. For this and other reasons, the decedent drew a new will on a stationer's form in 1966. The 1966 will bequeathed a home to Stanley White, decedent's son and the caveator here. The 1966 will was admitted to probate, which action was affirmed by this court, In re Estate of White, 34 Colo. App. 398, 527 P.2d 928 (1974).
[1] Generally, any instrument executed with the requisite statutory formalities for wills is sufficient to revoke a prior will. Section 15-11-507, C.R.S. 1973; C.R.S. 1963, 153-5-3; Bailey v. Kennedy, 162 Colo. 135, 425 P.2d 304 (1967); Twilley v. Durkee, 72 Colo. 444, 211 P. 668 (1923). While an exception to this rule may exist where the document merely revokes a prior will but makes no property disposition, Twilley v. Durkee, supra, such is not the situation here. The 1966 will both revoked former wills and disposed of some of White's property. Moreover, we know of no reason to hold, as the proponent of the first will argues, that the 1966 revocation clause is of less significance because it is part of a printed form. Indeed, the trial court neither referred to nor relied upon the fact that the second will was a printed form.
The proponent of the 1963 will contends, however, that the trial court's interpretation of the 1966 document was appropriate because decedent intended to give the house to his son and name him executor, but otherwise to have his estate distributed under the 1963 will. In support of this contention, the proponent relies heavily on the fact that, because only partial disposition of decedent's property was made in the 1966 will, a finding of absolute revocation of the 1963 will would lead to partial intestacy. We do not find this argument persuasive.
[2] In the face of the express language "hereby revoking all former and other wills by me made," we decline to hold that, as a matter of law, the testator did not intent all of his estate, except the home given to his son, to pass by the laws of intestacy. While it is true in construing a will, that interpretation "should, if possible, be adopted which avoids partial intestacy. . . . this rule will not permit courts to write into a will some provision clearly omitted by the testator." Westlake v. Westlake, 83 Colo. 540, 266 P. 714 (1928).
[3] The general rule is well stated in 2 W. Bowe D. Parker, Page on the Law of Wills 410 (Rev. Treatise):
"An express clause of revocation is operative, even if the second will does not dispose of all the testator's property and, as a result of the revocation of the first will, he will die intestate as to certain property."
Especially is this rule applicable where, as here, there is an indication in the record that decedent believed his wife had improperly converted joint assets, thus creating a reason in his mind to disinherit her to the extent allowable by law.
Since the revocation clause in the 1966 will meets the statutory requirements for such clauses, and since no reason for failing to follow it has been demonstrated, it operates to revoke the 1963 will in full.
Judgment reversed and cause remanded for further proceedings consistent with this opinion.
JUDGE PIERCE and JUDGE BERMAN concur.