Summary
In Welsh, it was held that the decedent's former wife could recover under his will despite their divorce, because the General Assembly had inadvertently created a gap in the statute automatically revoking wills after divorce. It had done so by repealing the former statute (KRS 394.095), and limiting the current statute (KRS 394.092) to wills executed after a certain date, which date was after the will at issue there was executed.
Summary of this case from Fryxell v. ClarkOpinion
January 17, 1986.
Appeal from the Warren Circuit Court, David Francis, J.
Max B. Harlin, III, Michael K. Bishop, Harlin, Parker Rudloff, Bowling Green, for appellants.
S. Frank Smith, Jr., Funk Smith, John M. Milliken, Wade T. Markham, II, Milliken Milliken, John R. Grise, Bowling Green, for appellees.
Before HAYES, C.J., and HOWARD and WHITE, JJ.
Appellants appeal a Warren Circuit Court Order directing the District Court to accept for probate the Will of James E. Robison. We affirm.
In a nutshell, the salient facts are as follows. On September 22, 1980, James Robison executed his Last Will and Testament. He added a codicil on October 9, 1980. On August 18, 1982, Robison and his wife were granted a divorce. Robison died on February 20, 1983.
At the time Robison made his Will, Kentucky statutory law provided that divorce revoked all Wills. KRS 394.095. In 1980, that particular statute was amended so as to protect the integrity of such Wills in cases where they provide a power of appointment which, if left unexercised, would cause the estate to pass from the rightful heirs, or in cases where the spouse made no bequest or devise to his former spouse. The statute was ultimately repealed in 1982. At the same session, the Legislature enacted KRS 394.092, which, in brief, provides that a Will made by a party later divorcing his spouse was revoked only with respect to any provisions in the Will regarding that spouse. That statute, however, applied only to Wills executed on or after July 15, 1982. KRS 394.092(2). Also enacted during that session was the following statute:
KRS 394.080. Revocation of will — How effected. — No will or codicil, or any part thereof, shall be revoked, except:
(1) As provided in KRS 394.090; [marriage]
(2) By subsequent will or codicil;
(3) By some writing declaring an intention to revoke the will or codicil, and executed in the manner in which a will is required to be executed; or
(4) By the person who made the will, or some person in his presence and by his direction, cutting, tearing, burning, obliterating, canceling, or destroying the will or codicil, or the signature thereto, with the intent to revoke.
This statute, as well as KRS 394.092, was in effect at the time of Robison's death. The appellants argue that KRS 394.095, which revoked all Wills of persons who later divorced, should apply to the Will of Mr. Robison and revoke it. In support of this argument, they contend that the repealing of that statute in 1982, coupled with the enactment of the partial revocation statute, KRS 394.095, left a void in the law regarding Wills executed prior to 1982 by persons who were later divorced. We do not agree.
It is a long-standing rule of law in this state that a Will speaks at the time of the death of the testator. Gibson v. Crawford, 247 Ky. 228, 56 S.W.2d 985 (1933). In order to determine which statutes control Mr. Robison's will, it is then necessary to look to the law in effect at the time he died. KRS 394.095, which provided that divorce revoked all Wills, was repealed prior to Robison's death, so it has no effect on the document. Likewise, KRS 394.092, which provided for partial revocations, operated only on Wills executed after July 15, 1982. We must then look to KRS 394.080 for guidance. It is clear that under no section of that statute did Robison revoke his Will. Therefore, the Warren Circuit Court was correct in its finding that the Will was not revoked.
We do not find appellants' argument wholly without merit; however, we would merely point out that they cited no case or statutory law to us which would support their interpretation of the circumstances surrounding this case.
We find no abuse of discretion in the actions of the Warren Circuit Court and therefore affirm.
All concur.