In Re the Estate of Kleinman

970 P.2d 1286, 359 Utah Adv. Rep. 52, 1998 Utah LEXIS 96, 1998 WL 901706
CourtUtah Supreme Court
DecidedDecember 29, 1998
Docket960495
StatusPublished
Cited by2 cases

This text of 970 P.2d 1286 (In Re the Estate of Kleinman) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Estate of Kleinman, 970 P.2d 1286, 359 Utah Adv. Rep. 52, 1998 Utah LEXIS 96, 1998 WL 901706 (Utah 1998).

Opinions

HOWE, Chief Justice:

The Humane Society of Utah appeals from a district court judgment construing two handwritten documents prepared by Mary Miles Kleinman, now deceased. The court held that these documents, which purported to bequeath money to the Humane Society of Utah and the testator’s church, merely constituted memoranda disposing of tangible personal property as permitted by a provision of her 1986 will, pursuant to Utah Code Ann. § 75-2-513, and that they did not constitute separate holographic wills authorized by section 75-2-503. The court concluded that the bequests of money made in those writings were void because bequests of money in a memorandum are impermissible under section 75-2-513.

FACTS

Mary Miles Kleinman died on February 5, 1993, leaving a will dated March 5, 1986, which was admitted to probate. In the will, she expressly revoked all previous wills and codicils. In article V of her will, she gave “my personal property in accordance with a memorandum signed by me or in my handwriting which I intend to leave at my death.”

Carol Vincent, the personal representative of Mrs. Kleinman’s estate, filed a petition for an “Order Construing Will,” seeking a ruling on the legal effect of two documents written by Mrs. Kleinman, labeled “1984 and Up” and “Tangible Personal Property,” which did not bear a date. In the “1984 and Up” writing, Mrs. Kleinman left a long list of instructions regarding the care of her cat Troy, who was clearly very important to her. Included in that writing was a statement that Mrs. Kleinman wanted “$30,000 in trust for Troy.... If he should get lost or dies the fund balance is to go to a Humane Society. If none here give to Salt Lake City Society.” The “Tangible Personal Property” writing was much more detailed. In that writing, Mrs. Kleinman left instructions as to the disposition of her personal property, leaving her jewelry, photographs, books, and various other household possessions to nieces and nephews. Then, before giving another set of extremely detailed instructions regarding the care of Troy, she stated: “Miles [Mrs. Klein-man’s deceased son] and I love animals. We wanted to donate the sum of $75,000 to the Humane Society of Utah.” Vincent petitioned the court to find that the two writings constituted memoranda for the purpose of disposing of personal property pursuant to section 75-2-513 and, based on that finding, to invalidate the cash bequests found in the writings on the ground that cash bequests cannot be made in a memorandum but only in a will or codicil.

The Humane Society of Utah filed an objection to the petition for “Order Construing Will,” asserting that the two documents were valid holographic wills, and seeking validation of the bequests of money made in those documents. At an evidentiary hearing, the Humane Society conceded that the “1984 and Up” writing was not a valid holographic will because it did not contain Mrs. Kleinman’s signature, but contended that the undated “Tangible Personal Property” writing constituted a holographic will.

The court entered its findings of fact and conclusions of law and an “Order Construing Will.” The court found that the two handwritten documents were not executed with the necessary testamentary intent to constitute holographic wills, but were signed with the intent only to make a memorandum disposing of tangible personal property pursuant to article V of Mrs. Kleinman’s 1986 will. Therefore, the court declared void the cash bequests to the Humane Society, as well as an additional cash bequest to the St. George [1288]*1288Fifth Ward of the Church of Jesus Christ of Latter-day Saints.

ANALYSIS

Section 75-2-513, governing memoranda disposing of personal property, provides:

Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money .... To be admissible under this section as evidence of the intended disposition, the writing must either be in the handwriting of the testator or be signed by him and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator’s death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing which has no significance apart from its effect upon the dispositions made by the will. If there are several writings in existence which contain conflicting provisions, the writing which is established by a date or other circumstances to be the most recent shall control. If it is impossible to determine which writing is the most recent, the consistent provisions of the several writings shall be considered valid, and the conflicting provisions shall be considered invalid.

(Emphasis added.)

Section 75-2-503, which governs holographic wills, provides:

A will which does not comply with Section 75-2-502 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator. If there are several holographic wills in existence with conflicting provisions, the holographic will which is established by date or other circumstances to be the will that was last executed shall control. If it is impossible to determine which will was last executed, the consistent provisions of the several wills shall be considered valid and the inconsistent provisions shall be considered invalid.

A memorandum, which may be employed to dispose of items of tangible personal property other than money, must either be in the testator’s handwriting or bear her signature. In contrast, a holographic will can be used to dispose of any property, including money, but its material provisions must be in the handwriting of the testator and signed by her. Inasmuch as the Humane Society conceded at trial that the “1984 and Up” writing was not a valid holographic will because it did not contain Mrs. Klein-man’s signature, we need only consider what legal effect should be given to the “Tangible Personal Property” writing.

After Mrs. Kleinman made her 1986 will, she was free to revoke it, to make a memorandum disposing of her tangible personal property not otherwise specifically disposed of in her will (excluding money), or to amend it by making a codicil. The writing that she labeled “Tangible Personal Property” was made with all of the formalities required of a holographic will because it is in her handwriting and bears her signature. However, it is not dated. If it was made prior to her 1986 will, it was revoked by that will. If, on the other hand, it was made subsequent to her 1986 will, it operates as a holographic codicil to that will. In it, she made bequests of money to her church and to the Humane Society that she could not make under the statutory limitations of a memorandum. Since she was free to make a holographic will, this court must give full legal effect to her expressed intention.

The legislature decreed in section 75-1-102(1) that the Utah Uniform Probate Code is to be “liberally construed and applied to promote its underlying purposes and policies.” Two of those “purposes and policies” are set out in subsections (2)(a) and (b). [1289]

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Related

Uzelac v. Uzelac
2008 UT App 33 (Court of Appeals of Utah, 2008)
In Re the Estate of Kleinman
970 P.2d 1286 (Utah Supreme Court, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
970 P.2d 1286, 359 Utah Adv. Rep. 52, 1998 Utah LEXIS 96, 1998 WL 901706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-kleinman-utah-1998.