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In re Estate of Hall, 2002 MT 171 - 310 Mont. 486, 51 P.3d 1134

Rule:

In contested cases, the proponent of a will must establish that the testator duly executed the will. Mont. Code Ann. § 72-3-310. For a will to be valid, two people typically must witness the testator signing the will and then sign the will themselves. Mont. Code Ann. § 72-2-522(1)(c). If two individuals do not properly witness the document, Mont. Code Ann. § 72-2-523 provides that the document may still be treated as if it had been executed under certain circumstances. One such circumstance is if the proponent of the document establishes by clear and convincing evidence that the decedent intended the document to be the decedent's will.

Facts:

James Mylen Hill executed a will on April 18, 1984 (“original will”). Thirteen years later, Hill, together with his wife Betty, executed a draft of a joint will and had the same notarized, albeit without any witnesses. Hill thereafter told Betty to tear up the original will, which Betty did. After Hill’s death on October 23, 1998, Betty applied to informally probate the joint will. Hill’s daughter from his previous marriage objected to the informal probate and requested formal probate of the original will. The trial court heard the will contest and issued an order admitting the joint will to probate. The daughter appealed, arguing that the joint will was invalid as a matter of law because no one properly witnessed it.

Issue:

Did the trial court properly admit the joint will to probate?

Answer:

Yes.

Conclusion:

The Supreme Court of Montana concluded that the district court did not err in admitting the joint will to probate. The court found that the trial court made several findings of fact that supported its conclusion. In particular, the district court noted that the joint will specifically revoked all previous wills and codicils made by either the decedent or his wife. Furthermore, the district court found that, after the decedent and his wife had executed the joint will, the decedent directed the wife to destroy the original will. Because the decedent directed the wife to destroy his original will, the instant court also concluded that the district court did not err in finding that these acts were acts of revocation of the original will.

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