Edmundson v. Estate of Fountain

Robert L. Brown, Justice,

dissenting. I join the dissent of sticDickey. e, concept behind a holographic will is to authorize a testator to bequeath and devise property in that person’s handwriting without the statutory formalities of a formal will. Here, Mrs. Fountain left the following instrument:

Last Will Jan. 1 1997
Kay Edmonston
160 acre farm & contents rema[in]ing 37 head of cattle at this time 1972 truck
Wayne Fountain cattle on Wayne’s Farm + Fiddle
Shirley Washington
200.00
E.W. Fountain
200.00 Nell Flarris
200.00
Oral W. Fountain
Witness.
Ricky Smithson Justin McAlister

To conclude, as the majority does, that evidence of testamentary intent is not raised by this writing dismisses the obvious. Mrs. Fountain titled the instrument “Last Will,” listed the heirs in conjunction with specific property, signed it at the end, dated it, and had it witnessed. The majority, however, holds that some dispositive language is essential for a valid holographic will. This court has made it clear in the past that technical testamentary language is not necessary. See, e.g., Cartwright v. Cartwright, 158 Ark. 278, 250 S.W. 11, 13 (1923) (“If the offered instrument is testamentary in effect, its particular form is unimportant. . . .”) Murphy v. Murphy, 144 Ark. 429, 222 S.W. 721 (1920) citing Arendt v. Arendt, 80 Ark. 204, 96 S.W. 982 (1906)). The principle that magic words are not necessary to prove testamentary intent is so ingrained in the country’s jurisprudence that it has found its way into our legal encyclopedias. See, e.g., Wills, C.J.S., § 200 p. 264 (“However, no particular words are required to create a will, and legal language or technical words are not necessary in making a testamentary disposition of property.”).

At this stage, we are talking about whether doubt is raised of testamentary intent from the four corners of the document so as to allow extrinsic testimony to be introduced by other witnesses to ascertain what the testator intended. We are not talking about whether the language in the Fountain will absolutely establishes testamentary intent. The majority, however, superimposes strict requirements on a holographic will and disallows extrinsic testimony of intent, which, I maintain, was never the philosophy behind the holographic procedure. Rather, the holographic will was developed to allow a testator to distribute property at his or her death by means of a handwritten document and avoid intestacy. Perhaps that testator had no access to a lawyer for purposes of a formal will or chose not to take advantage of legal services.

This court has looked to extrinsic evidence in the past to determine testamentary intent when an inference of that intent was raised by the handwritten document. We have said:

“[0]ur courts have customarily admitted extrinsic testimony to establish testamentary intent, without considering whether the statute on proof of a holographic will expressly permits such testimony.” . . . “[I]nquiry may be made into all relevant circumstances where the existence of testamentary intent is in doubt[.]”

Chambers v. Younes, 240 Ark. 428, 399 S.W.2d 655 (1966). See also Cartwright v. Cartwright, 158 Ark. 278, 250 S.W. 11 (1923); Wills — Proof of Testamentary Intent in Holographic Wills, 25 Ark. L. Rev. 376 (1971). The Restatement (Third) of Property: Wills & Other Donative Transfers § 3.2 (1999) clearly endorses this philosophy for the introduction of extrinsic evidence, as Chief Justice Dickey’s dissent describes in detail.

It may be the majority fears that allowing extrinsic evidence opens the door to multiple family squabbles in court over testamentary intent when a handwritten instrument is found after a person’s death. I do not share that concern. It is the decedent’s intent as to how his or her property will be distributed at time of death that is all-important. I am, unwilling to concede that in ascertaining this intent, our court system will be unduly burdened by efforts to discern what a testator meant by a handwritten instrument, under such facts as we have before us. The result of today’s discussion is to go back in time and limit the ability of people to write a handwritten will so as to avoid intestacy.

For these reasons, I respectfully dissent.

Dickey, C.J., joins.