Opinion
C.M. 3786.
Submitted Date: February 23, 2004. Draft Report: February 27, 2004.
Final Report: March 18, 2004.
Edith West, beneficiary.
Floyd West, beneficiary.
Betty Lackus, beneficiary.
Tina Lindsley, beneficiary.
Donald H. Spriggle, beneficiary.
South Coastal Public Library, beneficiary.
Benny Hinn Ministries, beneficiary.
In Touch Ministry, beneficiary.
Harold W.T. Purnell, II, Esquire of Tunnell Raysor, P.A., Georgetown, Delaware; Attorney for Petitioner.
MASTER'S REPORT:
The estate seeks instructions on the testamentary effect of a document denominated "Separate Writing Under Section III.A.1 of Last Will and Testament of Judith Ann Spriggle." The decedent died on March 3, 2003 leaving a will. By the terms of Article III.A.1 of that will, the decedent provided that:
"I give all my interest in certain items of tangible personal property to the persons designated in a separate writing, which is signed by me, that describes those items of property and directs their disposition. To the extent any such disposition is inconsistent with the disposition made by my will, or in the event my separate writing is ineffective for any reason, I direct that the provisions of my will control."
The succeeding section of the will, Article III.A.2. reads as follows:
"Gifts of remaining tangible personal property. I give to Tina Lindsley and Betty (Liz) Lackus survive (sic) me all interest in all furniture, jewelry, clothing, personal effects, furnishings, china, silver, books, paintings, pictures, tools, recreational equipment and vehicles not otherwise disposed of by separate writing under Paragraph A.1 of this Article or in the event a disposition under Paragraph A.1 is lapsed, together with all other similar articles of tangible personal property. . . ."
In Article IV.1, the decedent left the remainder of the estate to her nephew, Donnie Spriggle.
12 Del. C. § 212 provides that a testator may dispose of tangible personal property by a separate writing, referred to in his will, identifying the property and to whom it is to be given, so long as the separate writing is either in the handwriting of the decedent, or signed by him. 12 Del. C. § 212. This device allows the testator to easily change the disposition of tangible personal property without revisiting the entire will or jeopardizing its provisions by creating an addendum.
In this case, the decedent did create something entitled "Separate Writing," however, that section is not "separate" in the sense envisioned by the statute. The "Separate Writing" was brought to the Register of Wills as part of what I will call the "testamentary document." The testamentary document begins with "Last Will and Testament of Judith Ann Spriggle." There then follow four pages of the will containing seven consecutively numbered articles. At the bottom of the fourth page of the will is the signature of the testatrix. Under the testatrix' signature is a heading "Witnesses:," followed on the next page by the signature of the two witnesses. This completes the "will" section of the testamentary document. The will section is itself a complete and valid will under Delaware law. See 12 Del. C. § 202.
Beginning under (and on the same page as) the signature of the witnesses is the section in question, headed "Separate Writing Under Section III.A.1 of Last Will and Testament of Judith Ann Spriggle: Specific Gifts of Tangible or Personal Property." The "Separate Writing" section provides that Judith Ann Spriggle makes "the following gifts of specific items of tangible personal property to the donees listed below, pursuant to Section III.A.1 of my will." There then follow four entries: her "entire book collection" to go to the "South Coastal Library;" "all other personal belongings (clothes, jewelry, household effects)" to Edith West; a 2000 Chevrolet Blazer to Floyd West; and a final entry providing for "above money amounts to be taken from sale of house — any amounts left: split between In Touch Ministry and Benny Hinn Ministries."
The reference in the "Separate Writing" section to certain "above money amounts" to be taken from the sale of the real property likely refers to specific monetary bequests found at Article III.C of the will.
That concludes the "Separate Writing" section of the testamentary document. Beginning immediately under the "Separate Writing" section is a section headed "Self-Proving Affidavit" which concludes on the next page with the signature of the same two witnesses whose signature appeared after the will, and finally a notary's seal.
The explanation for this curious testamentary document suggested by the estate, and the one that comports with the evidence of the hearing, is that this is a will form downloaded from the Internet, meant to be used in "mix and match" form, which was however filled out in the order in which downloaded by the testatrix. That is, it appears to me that the fact that the "Separate Writing" section was deposited within the body of the testamentary document, after the will but before the "self-proving affidavit," is explained by the happenstance of its placement in that position in the computer program from which it was downloaded, and not as a result of the intent of the testator. Therefore, I believe that the "Separate Writing" section is effective under 12 Del. C. § 212 if it fulfills the requirements of that section as a stand-alone document, notwithstanding the fact that it was located physically between the signature of the testatrix and the notary seal.
Having said that, however, there are significant difficulties with the "Separate Writing" document under Section § 212. First, the document is neither in the handwriting of the testator nor signed. "To be admissible . . . as evidence of the intended disposition, the writing must either be in the handwriting of the testator or be signed by the testator. . . ." 12 Del. C. § 212. Not only is the signature of the testator a statutory requirement under § 212, but the will itself, at Article III.A.1, specifically refers to the validity of gifts made "in a separate writing which is signed by me." (Emphasis added). Section 212 requires a valid "separate writing" to be "refer[ed] to" in the will. The lack of a signature on the printed "Separate Writing" section is fatal to its validity.
Moreover, the direction in the "Separate Writing" to sell the real property, make the specific bequests in the will and then pay the remainder to two separate beneficiaries is beyond the scope of a writing under 12 Del. C. § 212, which permits the bequest of "tangible property" only and specifically excludes gifts of either real property or cash.
Counsel for the estate provided letters from counsel for the two purported beneficiaries of the sale of the real property in the "Separate Writing" document. Those beneficiaries are Benny Hinn Ministries and In Touch Foundation, Inc. The latter entity concedes that the "Separate Writing" is not in compliance with Section 212 and Benny Hinn Ministries "agrees to release" its claims under the "Separate Writing" section.
In construing a will, of course, intent of the testator is controlling. In determining what validly constitutes a will, however, this court is bound by the legislative directives setting forth what constitutes a will. See Del. C. § 202, 212. Section 212 represents an informal device to bequeath tangible personalty; it dispenses with many of the formalities (and safeguards) associated with the traditional will, retaining only the mandatory requirement that the separate writing be referred to in the will and holographic or signed by the testator, the latter requirement fatally unfulfilled here. It is indeed unfortunate that Ms. Spriggle used an Internet form to create her will, rather than discussing the matter with an attorney. As a result, Ms. Spriggle's friends, Mr. And Mrs. West, will fail to receive a bequest that Ms. Spriggle may have intended them to enjoy. It may be, as the beneficiaries under the will proper have contended, that Ms. Spriggle filled out the "Separate Writing" form as it came from the Internet understanding that it would not be effective unless signed, and that she deliberately chose not to sign it because she had not yet decided whether she wanted it to take effect. It is, however, in my mind at least as likely that the testatrix used the forms as she received them and didn't sign the "Separate Writing" because the form does not seem to have provided a space for it, and because she felt it would be effective nonetheless. Deciding in favor of either of these theories, however, would be speculation, and in any case unwarranted, because the unsigned "Separate Writing" does not satisfy the requirements of § 212.
If Ms. Spriggle did intend the "Separate Writing" to be effective, however, it leaves unexplained the strange circumstance that the testatrix expressed her desire for the disposal of all her personalty to relatives (via the will), and to friends (via the "Separate Writing"), describing two incompatible testamentary schemes in documents created at the same time.
Under the clear terms of the will itself, if the "Separate Writing" is ineffective for any reason the provisions of the will control. Therefore, the estate should distribute the assets of the decedent in conformity with the provisions of the will, disregarding the "Separate Writing" provision.