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In re Estate of McGurrin - 113 Idaho 341, 743 P.2d 994 (Ct. App. 1987)

Rule:

The Court of Appeals of Idaho holds that Idaho Code § 15-2-502 preserves the observatory function as well as the signatory function of witnesses. In order for a will to be validly executed, each witness must have observed the testator sign the will, or must have observed the testator's acknowledgment of his signature or of the will. Accordingly, a telephonic acknowledgment by the testator, without more, will not suffice.

Facts:

While in the hospital, Edward McGurrin asked his secretary, Cindy Rood, to type a will, which came to be known as the “Rood will.” It was then sent to McGurrin’s mother and sister for the latter’s signature. After Rood returned the fully signed will to McGurrin, he asked her to call her mother and sister on a hospital telephone. She got both of them on the line and handed the telephone to McGurrin, who thanked them for "witnessing" his will.  Edward McGurrin died in 1983, about four months after signing the "Rood will." After his death, several wills were discovered. Two of them were offered for probate, including the Rood will, which was admitted by the magistrate.The Rood will nominated his friend, Avery Floyd, to serve as executor. A handwritten statement, inserted among the typed provisions of the will, gave Floyd a "one-fifth interest" in McGurrin's estate. The will further recited: "I here by [sic] nominate and appoint four (4) other people to share in my estate, share and share alike." (Emphasis added.) However, the will mentioned only three "other" persons: Cindy Rood, Erma Donelli (a former employee), and Charles Scoggin (a friend and professional associate). The magistrate who admitted the will to probate interpreted the instrument as effectively disposing of four-fifths of McGurrin's estate. The remaining one-fifth was deemed to pass by intestacy to McGurrin's sole heirs at law -- his nieces, Heidi and Flicka McGurrin. The magistrate’s ruling was overturned by the district court, which held that Rood will had not been executed in conformity with Idaho Code § 15-2-502. On appeal, the beneficiaries and the executor of the stricken will argued that Idaho Code § 15-2-502 abolished any presence requirement for witnesses.

Issue:

Did Idaho Code § 15-2-502 abolish any presence requirement for witnesses?

Answer:

No.

Conclusion:

The Court of Appeals of Idaho rejected the contention that Idaho Code § 15-2-502 abolished any presence requirement for witnesses, and affirmed the lower court’s judgment. The Court reviewed the legislative history of § 15-2-502, other relevant provisions of the Idaho Probate Code, and other jurisdictions' interpretations of this provision of the Uniform Probate Code. The Court held that § 15-2-502 preserved the observatory function as well as the signatory function of witnesses. The Court further held that, in order for a will to be validly executed, each witness was required to have observed the testator signing the will, or must have observed the testator's acknowledgment of his signature or of the will. Accordingly, the court held that the telephonic acknowledgment by the testator that his will had been witnessed was insufficient.

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