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Colo. Rev. Stat. § 15-11-507(1)(b) (2010) provides that a revocatory act on a will includes burning, tearing, canceling, obliterating, or destroying the will or any part of it. Canceling a part of a will can be accomplished by drawing lines through one or more words of the will.
On December 1, 2004, David Schumacher (decedent) executed a holographic will, which contained a clause devising shares of Meyers Land & Cattle stock to decedent's cousins, petitioner, Maria Caldwell, Cheryl Smart, and respondent, Deborah Caldwell. On January 12, 2006, decedent met with his attorney, Michael Gilbert, to create a typed will. In a later hearing, attorney Gilbert testified he had no specific recollection whether he saw the original will or only the photocopy. Attorney Gilbert's copy of the will included lines crossing out the names of petitioner and Cheryl as remainder devisees of all the shares of the stock. According to Attorney Gilbert, the decedent told him that “he had prepared a holographic will and subsequent to preparing it he had decided that he did not want his . . . stock to be given to two of his three cousins . . . and those names had been crossed out on the copy of the will which I had. [Decedent] told me that, except for those deletions, he wanted me to prepare a will that contained the same dispositive provisions as in his original will from December of 2004.” Attorney Gilbert also testified that when he asked about the change, decedent essentially told him that “he felt closest to his cousin, Deborah, and he had changed his mind and he wanted the stock . . . after the death of his mother to go to Deborah alone.” However, attorney Gilbert did not ask decedent who made the cross-outs. Attorney Gilbert then drafted a typed will pursuant to decedent's instructions and transmitted it to decedent. Decedent died on July 3, 2007 without ever executing the typed will. After decedent's death, attorney Gilbert tendered the copy of the holographic will to the probate court.
Approximately six months prior to his death, decedent had sent several boxes of his personal records to his secretary with instructions that she store them in her garage and sort them out. When decedent died, decedent's secretary, her sister, and decedent's personal representative found, in an unopened box, the original holographic will signed by decedent and containing the lines crossing out the names of Maria and Cheryl as devisees of the stock. The personal representative took the original holographic will to Attorney Gilbert, who tendered it to the probate court. On April 14, 2008, the personal representative filed a petition for determination of validity of decedent's holographic will dated December 1, 2004. Petitioner and Cheryl later filed a petition for construction of the holographic will to determine the validity of the markings on the will. The probate court issued a written order, finding that decedent performed a "revocatory act" on the will by crossing out petitioner's and Cheryl's names, with the intent and for the purpose of revoking part of his holographic will. The court ordered that "the strikethroughs in the Holographic Will . . . can and must be given effect in probate."
Should the probate court’s order to give effect to the strikethroughs be reversed for insufficiency of evidence?
The record reflects that decedent did not tell attorney Gilbert that he made the cross-outs. Rather, when asked if decedent conveyed at any point that he physically made the cross-outs, attorney Gilbert testified, "[I]f he did, I have no specific recollection of him telling me that." Additionally, attorney Gilbert volunteered that he and decedent "never discussed" whether decedent personally performed the cross-outs or if anyone else did so at his direction. However, other evidence supports the probate court's conclusion that decedent made the cross-outs. Attorney Gilbert testified that when decedent visited him, decedent showed him the cross-outs on a copy of the holographic will and told attorney Gilbert he did not want his "stock to be given to two of his three cousins" and "those names had been crossed out on the copy of the will which [attorney Gilbert] had." Attorney Gilbert also testified that he "was certainly aware that [decedent] had changed his mind and he decided he wanted the stock to just go to his cousin, Deborah." Decedent told him that "except for those deletions," decedent wanted him to prepare a will that contained the same dispositive provisions as his original will. Decedent also responded to attorney Gilbert's question "about the change, why Maria and Cheryl's names had been deleted." That testimony, together with the other evidence showing that the original will with the crossed-out portions was found in decedent's possession, is sufficient evidence to demonstrate that decedent made the cross-outs.