dissenting. I disagree stmajority’s ice, that Ms. Fountain’s “Last Will” contained “absolutely no words of testamentary intent.” The majority states that, without testamentary intent ascertainable from the face of the document, extrinsic evidence may not be admitted. In fact, the case law cited by the majority leads one to believe that the document in question contains testamentary language sufficient to allow the trial court to consider extrinsic evidence in order to determine whether testamentary intent can be ascertained. For these reasons, I would reverse and remand in order to allow the trial court to consider extrinsic evidence.
The majority cites to David Terrell Faith Prophet Mininistries v. Estate of Varnum, 284 Ark. 108, 681 S.W.2d 310 (1984), for the proposition that the existence of testamentary intent is not a matter of inference; rather, it must be expressed so that no mistake is made as to the existence of that intention. The majority is correct as far as it goes. However, a more complete citation to this case is as follows:
Will contest cases come before this court for a trial de novo but we will affirm the order of the probate judge unless it is clearly against the preponderance of the evidence. Greenwood, Guardian v. Wilson, Adm’.x, 267 Ark. 68, 588 S.W.2d 701 (1979). The existence of testamentary intent is not a matter of inference, but must be expressed so that no mistake be made as to the existence of that intention. McDonald, Ex’x v. Petty, 262 Ark. 517, 519, 559 S.W.2d 1, 2 (1977). Inquiry may be made into all relevant circumstances where the existence of testamentary intent is in doubt. Chambers v. Younes, Adm’r, 240 Ark. 428, 399 S.W.2d 655 (1966), citing 94 C.J. S. Wills, % 203. However, use of extrinsic evidence is appropriate only when the instrument expresses an intent, it is inappropriate when the instrument expresses no intent, as in McDonald, Ex’x, supra.
David Terrell Faith Prophet Ministries v. Estate of Varnum, 284 Ark. at 112, 681 S.W.2d at 312 (emphasis added).
In Varnum, the trial court'considered, not only the purported will itself, but also several other documents that were purported wills written by the decedent. All were written in the decedent’s handwriting and each had a different principle beneficiary. Id. The document at issue in Varnum, called the “Terrell” will, might have appeared on its face to be a holographic will; but, taken together with the other documents, it was apparent that the “Terrell” will was merely a draft and not Ms. Varnum’s final will. Id.
In another case cited, and summarily overruled, by the majority, In the Matter of the Estate of O’Donnell, 304 Ark. 460, 803 S.W.2d 530 (1991), the holographic instrument at issue was very much like the document in the instant case. As recently as February of this year, this court reaffirmed the long standing legal principle that there is a strong presumption of the validity of prior decisions. Union Pacific Railroad Co. v. Barber, No. 03-57, slip op. (February 26, 2004). Although we do have the power to overrule previous decisions, it is necessary as a matter of public policy to uphold prior decisions unless great injury or injustice would result. Id. The policy behind stare decisis is to lend predictability and stability to the law. Id. In matters of practice, adherence by a court to its own decisions is necessary and proper for the regularity and uniformity of practice, and that litigants may know with certainty the rules by which they must be governed in the conducting of their cases. Id. Precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable. Id. Our test is whether adherence to the rule would result in “great injury or injustice.” Scamardo v. Taggers, No. 03-765 slip op. (February 26, 2004).
This court has long recognized that a rule of property is rarely, if ever, overturned, so that the bar can rely on the rule in drafting long term instruments and advising clients. Abrego v. United Peoples Federal Savings and Loan Association, 281 Ark. 308, 664 S.W.2d 858 (1984) (citing Gibson v. Talley, 206 Ark. 1, 174 S.W.2d 551 (1943). In Gibson, we defined a rule of property as, “A settled legal principal governing the ownership and devolution of property; the decisions of the highest court of a state when they relate to and settle some principle of local law directly applicable to title. In the plural, those rules governing the descent, transfer, or sale of property, and the rules which affect the title and possession thereto.” Id. at 7. Surely, rules governing the probate of holographic wills qualify as those governing the decent of property. Consequently, both the bar and the general public rely upon our established precedent in advising clients in the drafting of long term instruments like holographic wills. There is no reason for this court to depart from our well reasoned holding in Estate O’Donnell, 304 Ark. 460, 803 S.W.2d 530 (1991).
The O’Donnell instrument was dated, signed, had the phrase, “Last Will & Test” written in the decedent’s handwriting, and included names of beneficiaries with amounts or specific items of property written beside the names. In some cases, amounts had been crossed out and new amounts written beside them. In the instant case, Ms. Fountain’s will is dated, signed, has the phrase, “Last Will” at the top of the document, lists her children’s names, and underneath each name are listed specific dollar amounts or property. There are no cross-outs on Ms. Fountain’s will, and she has two witnesses who signed the document.
In O’Donnell, the trial court quoted the Varnum case, among others, noting that “[t]he document itself, along with all the attending circumstances, must overcome all doubt about testamentary intent.” The trial court then considered extrinsic evidence, including the-testimony of several witnesses. The court itemized this extrinsic evidence, along with the document itself, into “Factors Favoring Holographic Instrument as Will” and “Factors Indicating Holographic Instrument Not a Will.” The court finally determined the instrument was not a will, and refused to admit it to probate. In affirming the trial court, we said,
We agree with the reasoning of the probate judge who had the facts before him. His reasoning is within the framework of the applicable law which is cited in the memorandum opinion. We cannot say the probate judge was clearly erroneous in denying the holographic instrument’s admission to probate for lack of testamentary intent.
O’Donnell, 304 Ark. at 465, 803 S.W.2d at 532 (emphasis added).
It seems that if it was not error for the trial court in O’Donnell to utilize extrinsic evidence in its reasoning, then the trial court in this case at least had the option of being able to do the same, considering the holographic instrument in both cases are virtually identical. Indeed, Ms. Fountain’s instrument was witnessed and had no cross-outs or changes — both factors to show that this case is, perhaps, even stronger than that in O’Donnell.
The trial court in the instant case cited Dunn v. Means, 304 Ark. 473, 803 S.W.2d 542 (1991), for the proposition that, where a document sets forth no words of a dispositive nature, it is defective on its face because it lacks the required intent to make a will and extrinsic evidence is not admissible to prove the necessary intent. The trial court further noted the similarities with O’Donnell; and yet the trial court’s order, in paragraph seven, includes the statement, “In O’Donnell, as in the present case, there is no language of any dispositive or testamentary character.” Thus, the trial court stated it had to determine from the face of the document whether the language was testamentary.
Clearly, the O’Donnell instrument must have contained enough testamentary language for the trial court to admit extrinsic evidence, because we affirmed the trial court’s decision and its reasoning in O’Donnell. If that instrument, which is remarkably similar to Ms. Fountain’s, contained the necessary language, I am unable to discern why the trial coupt, or the majority, determined that Ms. Fountain’s instrument does not contain sufficient testamentary or dispositive language to allow the admission of extrinsic evidence. While it is true that Ms. Fountain did not use specific words such as “I give” or “I bequeath” when she listed her property, that fact is also true of the instrument in O’Donnell.
The comments to the Restatement (Third) of Property: Wills & Donative Transfers (1999) support the use of extrinsic evidence to show testamentary intent when presenting a holographic will for probate. See Restatement (Third) of Property (Wills & Don. Trans.) § 3.2 cmt. c (1999). (“[t]estamentary intent need not be shown from the face of the will, but can be established by extrinsic evidence”). Illustration 7 of the Restatement’s comment c provides the following example:
7. Extrinsic evidence of testamentary intent. After G’s death, a document was found in her desk. The document, written in G’s handwriting, appears as follows:
To A, 1/4 To B, 1/4 To C,1/4 To D,1/8 To E,1/8 /s/G 3/12/98
Two of G’s friends testified that G told them that she made a will, and that it could be found in her desk after her death. The testimony of G’s friends may be considered in determining whether G’s document was executed with testamentary intent. As in Illustration 6, the fact that the transfers add up to all of G’s estate raises an inference of testamentary intent.
Restatement (Third) of Property (Wills & Don. Trans.) § 3.2 cmt. c, illus.7 (1999).
Here, as in the Restatement’s illustration, Ms. Fountain accounted for all of her children as well as her entire estate, thus raising an inference of testamentary intent. In a seminal decision on the issue, we held that extrinsic evidence was admissible to establish testamentary intent of a purported holographic will:
Review of our cases clearly indicates that our courts have customarily admitted extrinsic testimony to establish testamentary intent, without considering whether the statute on proof of a holographic will (62-2117, supra) expressly permits such testimony. [From a] [p]erusal oí Arendt v. Arendt, 80 Ark. 204, 96 S.W. 982, and Weems v. Smith, 218 Ark. 554, 237 S.W.2d 880, and the letters therein held to be valid holographic wills, it is apparent that extrinsic testimony was necessary to fortify the finding of existence of testamentary intent. We think this is proper.
Chambers v. Younes, 240 Ark. 428, 399 S.W.2d 655 (1966).
The cases cited by the majority in support of their contention, McDonald v. Petty, 262 Ark. 517, 559 S.W.2d 1 (1977), and Dunn v. Means, 304 Ark. 473, 803 S.W.2d 542 (1991), are inapposite to the instant case. In McDonald, the document in question was nothing more than a sketch on the back of a used envelope with names in individual squares, and this court correctly held that there was absolutely nothing indicating an intent that this instrument served as a testamentary disposition. In the instant case, Ms. Fountain listed her children, and then listed various property or amounts of money after each child’s name.
In Dunn v. Means, supra, the document was not even in the decedent’s handwriting, thus violating a basic requirement of any valid holographic will in this state. See Ark. Code Ann. § 28-25-104 (Repl. 2004). Here, the document, with the exception of the witnesses, was found to be completely in Ms. Fountain’s handwriting. In Dunn v. Means, we stated that a document setting forth no words of a dispositive nature is defective on its face as a will. However, the word “dispositive” is defined by Black’s as “being a deciding factor; (of a fact or factor) bringing about a final determination.” Black’s Law Dictionary 484 (7th ed. 1999). The title “Last Will” at the top of Ms. Fountain’s holographic instrument, along with the way she has arranged the document listing all her children and all her property, and her signature at the bottom, are sufficient to show “words of a dispositive nature” enough so that extrinsic evidence should have been considered to determine whether this document is a valid holographic will.
Because I believe the caption “Last Will” meets the requirement of dispositive or testamentary language on the facts of this case, I disagree with the majority’s affirmance of the trial court. This case should be remanded for consideration of extrinsic evidence.
I respectfully dissent.
Brown, J., joins in this dissent.