Estate of Cumming

California Court of Appeal Sep 13, 1979 No. 54770Published

Before: Files

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Holding. The court held that a testator may revoke portions of a will by physical obliteration, but cannot create new bequests through unwitnessed and unsigned handwritten interlineations. Consequently, the original will is admitted to probate excluding the revoked portions, but the interlineations are excluded as they fail to meet statutory requirements for a codicil.

Issues

Whether handwritten interlineations on a typewritten will constitute a valid codicil.
Whether a probate court may create new dispositive language by editing a will through the deletion of lined-out text.
What constitutes the proper scope of a probate court's inquiry when determining which documents comprise a will.

Disposition. modified and affirmed

Quotations verified verbatim against the opinion

“a testator may revoke a portion of a will by obliterating it with the intent to revoke; and second, an undated and unsigned interlineation is not effective as a new or different bequest”

“The same policy which rejects an undated, unsigned and unwitnessed interlineation must also reject any attempt to create new dispositive language by any process of editing the existing language.”

“intent to make a new testamentary disposition is not enough unless expressed in a form which meets the statutory standards of a will or codicil.”

96 Cal.App.3d 867 (1979) 158 Cal. Rptr. 263 Estate of DOROTHY V. CUMMING, Deceased.

GODFREY ISAAC, as Administrator, etc., Petitioner and Respondent,

COLIN B. CAMPBELL, as Executor, etc., et al., Contestants and Appellants;

GLADYS CUMMING NOLL, Claimant and Respondent.

Docket No. 54770. Court of Appeals of California, Second District, Division Four.

September 13, 1979. [869] COUNSEL

Hartman, Hosp, Richard & Schlegel, Daniel W. Gage, Monte D. Richard and Stanford E. Reichert for Contestants and Appellants.

No appearance for Petitioner and Respondent.

Sheppard, Mullin, Richter & Hampton and Terence M. Murphy for Claimant and Respondent.

OPINION

FILES, P.J.

This appeal involves the probate of a formal will which the testatrix attempted to alter by pen and ink strikeouts and interlineations.

Dorothy V. Cumming (hereinafter the decedent) died April 22, 1975, survived by a sister Gladys Cumming Noll and a brother Ulmont Cumming. The latter died prior to the probate of Dorothy's will, and is represented in this proceeding by his executors.

The decedent left a typewritten witnessed will on the stationery of an attorney with a Portsmouth, Virginia, address, executed April 6, 1933. Mrs. Noll, as a beneficiary named in that will, petitioned for probate. The typewritten document, as offered for probate, had been mutilated by pen and ink lines drawn through portions of the text, and handwritten interlineations. Ulmont's executors contested upon the ground that the mutilations and interlineations had the effect of cancelling the bequests, creating an intestacy. After a trial, the probate court made findings of fact and conclusions of law, and a judgment overruling the contest, and [870]

Estate of Cumming

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OPINION

FILES, P.J.

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