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Matter of Estate of Cox

621 P.2d 1057, 190 Mont. 436, 1980 Mont. LEXIS 918
Montana Supreme Court·Decided December 24, 1980·No. 80-072·Published·Cited by 4 cases

Opinion

MR. JUSTICE SHEEHY

delivered the opinion of the Court.

Appellant, Raymond Cox appeals from an order of the Tenth Judicial District Court, Fergus County, admitting the holographic will of Mabel I. Cox to probate.

The determinative question is whether a will, bearing unexplained markings through its text when discovered, has been revoked by cancellation pursuant to section 72-2-321, MCA. We hold that such a will shall be presumed canceled by the testator with the intent to revoke, unless proven otherwise.

Mabel Cox died on May 16, 1979, leaving six children as survivors. The decedent’s holographic will was found in her bedroom nightstand the following day by respondent Richard Cox, proponent of the will.

The will is written entirely in decedent’s handwriting with two different-colored inks, on a single page of notebook paper. It is signed and dated May 30, 1973. The will consists of seven paragraphs listed down the page, plus an eighth paragraph slanted in the lower right-hand corner. Eight large X’s have been drawn on the sheet such that all paragraphs except the slanted writing have markings through them or partially through them. Additionally, the words “Will and Testamony” (sic) which begin the will have been lined out three times. Thus, the will appears as follows:

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Matter of Estate of Cox, 621 P.2d 1057, 190 Mont. 436, 1980 Mont. LEXIS 918 (Mo. 1980).

621 P.2d 1057 (Matter of Estate of Cox) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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