Gushwa v. Hunt

CHÁVEZ, Chief Justice

(dissenting).

{39} Decedent George Gushwa executed a document (the Revocation of Missing Will(s) document) explaining that he wanted his pri- or will to be revoked and describing how he wished his property to be distributed upon his death. He was careful to follow all of the formalities required of a testator under the New Mexico Probate Code. After his death, the district court, without any specific fact-finding, refused to give effect to Decedent’s clearly expressed desires. The majority gives this decision its seal of approval, relying on the formalities of the Probate Code, which were designed to capture the intent of testators, not to frustrate it.

{40} I recognize that the Revocation of Missing Will(s) document is not an ideal will, and indeed that Decedent apparently believed that it did not constitute a will under New Mexico law. Decedent used language suggesting that he did not consider the document a will and that he intended to revoke his prior will by the ineffective means of performing a revocatory act on a partial photocopy of his prior will. Because of this confusion, the majority concludes as a matter of law that Decedent’s document was not a will, and as such failed to satisfy New Mexico’s statutory requirements for the revocation of a prior will. I respectfully disagree. The document met all of the formalities necessary to create a will, and the district court’s responsibility was simply to determine the testator’s intent. In re Estate of Deupree, 2002-NMCA-097, ¶ 10, 132 N.M. 701, 54 P.3d 542 (“In construing the provisions of wills and trust instruments, ‘the court must attempt to ascertain and give effect to the testator’s intent.’ ” (quoting In re Estate of Russell, 119 N.M. 43, 45, 888 P.2d 489, 491 (Ct.App.1994))). Given the document’s ambiguity, we should remand to the district court to determine, on the basis of extrinsic evidence of the testator’s intent, whether the Revocation of Missing Will(s) document should be considered a will for the purposes of NMSA 1978, Section 45-2-507(A)(1) (1993) (providing that a prior will can be revoked “by executing a subsequent will that revokes the previous will or part expressly or by inconsistency”). Only if the document is found not to be a will would I raise the issue of constructive trust. Accordingly, I respectfully dissent.

{41} I agree that the Probate Code’s formalities must be punctiliously observed, even when at times this may undermine the decedent’s intent. See, e.g., In re Estate of Martinez, 1999-NMCA-093, ¶ 9, 127 N.M. 650, 985 P.2d 1230 (implying that even if the proper formalities were observed, a document purporting to do nothing more than revoke a prior will would not be effective to do so). For this reason, I agree with the majority’s holding that a revocatory act on a partial photocopy is insufficient to revoke the prior will. Under the New Mexico Probate Code, revocation may be achieved only in the two methods provided under the Code. Perschbacher v. Moseley, 75 N.M. 252, 256, 403 P.2d 693, 695 (1965) (decided under former law) (holding that without following the Code’s explicit provisions, “mere intention alone, no matter how unequivocal, is not sufficient to effect the revocation of such a solemn instrument.”). The first method is by a subsequent testamentary instrument, where “testamentary” is defined as taking effect upon the testator’s death. Section 45-2-507(A)(l); In re Estate of Martinez, 1999-NMCA-093, ¶ 11, 127 N.M. 650, 985 P.2d 1230 (holding that a document purporting to do nothing more than revoke a prior will was ineffective to do so, since it took effect immediately and was therefore not testamentary in nature). The second, as the majority thoroughly explains, is by a revocatory act on the original will or an executed duplicate. Section 45-2-507(A)(2). While the second prong of the revocation statute has not been met, it is not clear to me that the first prong-revocation by subsequent will — has not been satisfied.

{42} Had Decedent executed, in accordance with the statutory formalities, a document purporting to be a will requesting that his property be disposed of through the intestacy laws, but specifying that nothing from his estate would be given to certain relatives, I see no reason why our courts should refuse to give effect to his desires. See NMSA 1978, § 45-l-201(A)(53) (1993) (“ “will’ includes codicil and any testamentary instrument that merely ... expressly excludes or limits the right of an individual or class to succeed to property of the decedent passing by intestate succession.”); NMSA 1978, § 45-2-10KB) (1993) (“A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession.”). See also Unif. Probate Code art. II, pt. 1, general cmt., 8 U.L.A. 79 (1990) (explaining that the provision now adopted in New Mexico as Section 45-2-101(B) provides that “[s]o-called negative wills are authorized, under which the decedent who dies intestate, in whole or in part, can by will disinherit a particular heir.”); Unif. Probate Code § 2-101, cmt., 8 U.L.A. 80 (1990) (“A clear case would be one in which the decedent’s will expressly states that an individual is to receive none of the decedent’s estate. Examples would be testamentary language such as ‘my brother, Hector, is not to receive any of my property’ or ‘Brother Hector is disinherited.’ ”). In other words, such a document would be a valid will. Furthermore, if Decedent executed such a subsequent will, it seems clear that the New Mexico Probate Code would obligate us to conclude that the previous will had been revoked, even if the new will did not explicitly recite language revoking the previous will. Section 45-2-507(C) (“The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator’s estate.”); Albuquerque National Bank v. Johnson, 74 N.M. 69, 72, 390 P.2d 657, 659 (1964) (decided under former law) (holding that an implied revocation may be worked “either by express language, or by implication by a later testamentary instrument disposing of the property in a manner inconsistent with its disposition by the former will.” (citations omitted)). Unfortunately, our decision is not so simple, since the disputed Revocation of Missing Will(s) document contains additional language suggesting that Decedent did not perceive it to be a will.

{43} Because of this additional language, the majority has concluded that the Revocation of Missing Will(s) document “was not a subsequent will in Decedent’s mind.” (Emphasis added.) I agree with the majority that this language supports such an inference. However, since Decedent is unavailable to explain his understanding of what constitutes a “will,” I find it impossible to conclude as a matter of law that his understanding coincides with the definition of “will” under the New Mexico Probate Code. Although it may appear to be a stretch to ask whether both Decedent and New Mexico law intended the same interpretation of “will,” there is evidence on the face of the Revocation of Missing Will(s) document that Decedent’s understanding was imperfect. Specifically, Decedent sought to use this document to distribute his property after his death outside of New Mexico’s exact intestacy scheme, even if only by a few details. We are not in a position to determine the importance of these details to Decedent. In New Mexico, this goal can only be achieved with a will. Section 45-2-101(A) (“Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs”). Can we be so confident, then, that Decedent did not intend to create what our law recognizes as a will?2 I prefer to simply acknowledge that the Revocation of Missing Will(s) document is ambiguous in this respect.

{44} In the context of such uncertainty, our ease law reasonably counsels us to give way to the fact-finder in determining the nature of the disputed document. In our limited capacity as an appellate court, we should not be in the position of divining Decedent’s intent from his conflicting statements. Generally speaking, when a document is not ambiguous, questions of testamentary intent are decided by the trial judge as a matter of law. In re Estate of Kerouac, 1998-NMCA-159, ¶ 10, 126 N.M. 24, 966 P.2d 191. In the vast majority of cases, it poses no problem for a trial judge to make this determination; I have no quarrel with a trial judge who refuses to probate a document that gives no indication that it disposes of property upon death. However, when clear intent cannot be discerned from a document’s face, extrinsic evidence must be admitted. In re Estate of Kelly, 99 N.M. 482, 660 P.2d 124 (Ct.App.1983). In Kelly, the Court of Appeals examined a document granting property to a decedent’s family and friends that failed to indicate “whether decedent intended the property referred to therein to pass immediately or only in the event of his death.” Id. at 488, 660 P.2d at 130. As such, the issue was whether the trial court had properly granted summary judgment to the will’s opponents. The Court of Appeals held that summary judgment had been improperly granted because “[wjhere a doubt exists as to whether an instrument was intended to be a will, the issue of testamentary intent is generally a question of fact for the trier of fact.” Id. at 489, 660 P.2d at 131; see also In re Estate of Martinez, 99 N.M. 809, 813, 664 P.2d 1007, 1011 (Ct.App.1983) (holding that there was substantial evidence to support the trial court’s findings, based on the witnesses’ testimony, that a document challenged as lacking testamentary intent was a will). In addition, the Kelly Court stressed that for a will to be valid, “it is not essential that the document expressly recite that the instrument shall take effect only at the death of the testator, if the instrument and circumstances under which it was written reasonably indicate that the document was intended to be testamentary in character.” Kelly, 99 N.M. at 489, 660 P.2d at 131; see also In re Estate of Kimble, 117 N.M. 258, 261, 871 P.2d 22, 25 (Ct.App.1994) (testamentary intent “does not depend upon the testator’s understanding of the legal effect of the document”).

{45} Although Kelly can be distinguished from the case at bar insofar as the document in Kelly did not involve any language directly suggesting that it was not a will, its essential holding applies. Where there is ambiguity involving the existence of testamentary intent-or, as the Court of Appeals put it, over the “testamentary character” of the document-summary judgment is not appropriate.

{46} I would reverse the district court because it should not have decided the issue of the will’s testamentary nature as a matter of law. The document appears to satisfy the statutory requirements for a will. The real issue is Decedent’s intent, which the evidence strongly suggests was to dispose of his property and revoke the prior will. Due to the ambiguity of the Revocation of Missing Will(s) document, there still exists a genuine issue of material fact on this subject.

{47} I recognize the majority’s concern that the issue I find compelling in this case was not preserved. However, because the district court specifically addressed the issue, as did the Court of Appeals and Wife in her brief to this Court, I conclude that the argument was preserved. Under Rule 12-216(A) NMRA, with the exception of issues of public interest or fundamental error, “[t]o preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked, but formal exceptions are not required, nor is it necessary to file a motion for a new trial to preserve questions for review.” In the case at bar, there is no argument that either of the exceptions applies, so the Court should only consider whether the normal preservation requirements have been satisfied. State v. Joanna V., 2003-NMCA-100, ¶ 10, 134 N.M. 232, 75 P.3d 832, aff'd, 2004-NMSC-024, 136 N.M. 40, 94 P.3d 783. The Court of Appeals has explained that the preservation rule serves the purposes of (1) allowing the trial court an opportunity to correct any errors, thereby avoiding the need for appeal, and (2) creating a record from which the appellate court can make informed decisions. Diversey Corp. v. Chem-Source Corp., 1998-NMCA-112, ¶ 38, 125 N.M. 748, 965 P.2d 332. Preservation requirements assure that parties “alert the mind of the trial judge to the claimed error.” Madrid v. Roybal, 112 N.M. 354, 356, 815 P.2d 650, 652 (Ct.App.1991).

{48} In this case, it is unclear whether Wife raised Section 45-2-507(A)(l)’s applicability or failed to do so in district court. Moreover, in its order granting summary judgment, the district court stated that “[n]either party proposes the revocation document satisfies the requirements of § 45-2-507A(1).” Nevertheless, the court went on to conclude that “[t]he purported revocatory document dated February 28, 2001, does not satisfy the requirements of § 45-2-507A(l)” because it “is not testamentary in character, in that it purports to act instanter and not upon the death of George Gushwa.” Similarly, Wife does not seem to have raised the issue of Section 45-2-507(A)(l) in her briefs before the Court of Appeals, but that Court quite clearly considered it in reaching its decision. In re Estate of Gushwa, 2007-NMCA-121, ¶ 12-16, 142 N.M. 575, 168 P.3d 147. In her briefs before this Court, Wife has clearly argued the issue. Since both the district court and the Court of Appeals considered and ruled on this issue, and since it has been briefed before this Court, the policies behind the preservation requirement are not offended by this Court’s review of the issue.

{49} For the foregoing reasons, I respectfully dissent.

. Consider the following analogous situation that could arise under our probate law: The testator wrote and properly executed a will giving his real property to A and the residuum of the estate to B. Later, the testator executed a codicil providing that A was to receive nothing and that C was to receive the real property. Concerned that there might be some confusion over what was supposed to happen to the residuum, which he still intended to go to B under the original will, testator entitled the codicil "Codicil-Not a Will!”

Under New Mexico law, as the majority and I agree, revocation can only be achieved by subsequent will or revocatory act. See Albuquerque National Bank, 74 N.M. 69, 72-73, 390 P.2d 657, 659-60 (1964) (decided under former law) (applying statutory revocation requirements to the question of whether a codicil could have revoked part or all of a prior will). There was no revocatory act in this scenario, so the question becomes whether the codicil could be considered a will under New Mexico statute. There is no doubt that except for the "Not a Will!” language, the revocation would be effective, since under Section 45-l-201(A)(53), a codicil is a "will.” Would we really come to the contrary conclusion, as the majority seems to have done in this case, just because of the testator’s confusion over our statutory definition of "will"?