Estate of Olschansky, Matter of, 85CA0873

Decision Date08 January 1987
Docket NumberNo. 85CA0873,85CA0873
Citation735 P.2d 927
PartiesIn the Matter of the ESTATE OF Sarah OLSCHANSKY, Deceased. Roselyn RAYMON, Appellant, v. Steven OLSCHANSKY, Judith Margolis, and Susan Olschansky, Appellees. . III
CourtColorado Court of Appeals

Albert Cohen, Denver, for appellant.

Wade Ash Woods Hill & Guthery, P.C., James R. Wade, Denver, for appellees.

BABCOCK, Judge.

In this will contest, Roselyn Raymon, the decedent's daughter, appeals the trial court's order denying her petition for admission of a letter to probate as a holographic will. We affirm.

Sarah Olschansky died in February 1984, and was survived by her daughter and three grandchildren, Steven Olschansky, Judith Margolis, and Susan Olschansky, the children of her predeceased son. Shortly after her death, a document purporting to be decedent's will dated June 26, 1980, was admitted to informal probate. This will devised one-half of decedent's property to her daughter, and the remainder in trust for the benefit of her grandchildren, to be eventually distributed one-third to each.

The daughter then discovered a handwritten letter that decedent had sent her in 1983, and filed a petition seeking formal probate of the letter as a holographic will. The letter reads:

"Tues. p.m.

"Dear Roselyn & Sid:

"Your letter really surprised me, do you think for one minute that I would be fool enough to leave anything to Steve & Susan? I will leave something for Judy because she is the only one who calls me and when she isn't too busy on a Sunday she comes to be with me for a couple of hours. Next Monday afternoon she wants to take me to Cherry Creek to lunch at a cafeteria. I haven't heard from or seen Steve & Susan since my Sams funaral [sic]. Whatever is left after I'm gone is all yours. So rest asured [sic] that I know where my belongings will go, to you and your family. Weather here is beautiful and mild in the 50s & 60s. I'm getting busy now with cleaning and preparing for Peasach. Shirley is having the first Seder and Bea has the second Seder as always. Nothing new here, my knee is fine, all is well, so I can't complain.

"Love to all, stay well all of you.

"Love, Mother."

The grandchildren filed objections to probate of the letter, alleging that it lacked testamentary intent.

At the hearing on the daughter's petition, the evidence established that the letter was entirely in decedent's handwriting and was written in February or March 1983. The grandchildren introduced two documents into evidence: decedent's June 1980 will, and an unsigned, undated copy of the June 1980 will. In the latter document, the names of Steven and Susan Olschansky were obliterated in ink, and there was a note in decedent's handwriting that read: "I Sarah Olschansky being of sound mind and body wish to leave my diamond engagment [sic] ring and my diamond wedding band to my daughter Roselyn Raymon of East Northport L.I. New York after my demise."

The trial court ruled that, although the letter discussed testamentary subjects, it was intended only as a letter, and decedent did not intend it to be a will. The daughter's petition was then denied.

In asserting that the court erred in denying her petition, the daughter argues that the language of the letter clearly demonstrates the necessary testamentary intent. We disagree.

To be a holographic will under § 15-11-503, C.R.S., an instrument must have been executed by the decedent with testamentary intent. See In re Estate of Fegley, 42 Colo.App. 47, 589 P.2d 80 (1978); In re Estate of Blake, 120 Ariz. 552, 587 P.2d 271 (Ct.App.1978). The writing, together with such extrinsic evidence as may be admissible, must establish that the decedent intended the writing itself to make a testamentary disposition of decedent's property. See In re Estate of Fegley, supra; In re Estate of Blake, supra; 1 W. Bowe & D. Parker, Page on Wills § 6.21 (1960).

In contested formal testacy proceedings, the burden is on the proponent of a purported holographic will to establish prima facie proof of due execution, while contestants bear the burden to establish lack of testamentary intent. Section 15-12-407, C.R.S.; see In re Estate of Grobman, 635 P.2d 231 (Colo.App.1981...

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3 cases
  • Breeden v. Stone, 98SC570.
    • United States
    • Supreme Court of Colorado
    • 18 d2 Janeiro d2 2000
    ...of testamentary capacity, including a lack of sound mind, by a preponderance of the evidence. See id.; see also In re Estate of Olschansky, 735 P.2d 927, 929 (Colo.App.1987); In re Estate of Grobman, 635 P.2d 231, 233 (Colo.App.1981). The issue of what constitutes sound mind has developed a......
  • Estate of Erickson v. Misaka, 880139-CA
    • United States
    • Court of Appeals of Utah
    • 23 d5 Dezembro d5 1988
    ...facie proof of their due execution, while contestants bear the burden of establishing lack of testamentary intent. See In re Estate of Olschansky, 735 P.2d 927, 929 (1987). The proof in support of probate must be sufficient to convince the court that the paper produced is the lawful will of......
  • Estate of Harrington, Matter of, 92CA0375
    • United States
    • Court of Appeals of Colorado
    • 25 d4 Fevereiro d4 1993
    ...property (testamentary intent). Moreover, the testator must have intended the writing to operate as a codicil. See In re Estate of Olschansky, 735 P.2d 927 (Colo.App.1987). We observe that both § 15-11-513 memoranda implementing enabling provisions in a will and holographic codicils to a wi......

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