Gushwa v. Hunt

Decision Date14 June 2007
Docket NumberNo. 26,887.,26,887.
Citation2007 NMCA 121,168 P.3d 147
PartiesIn the Matter of the Estate of George Gushwa, Deceased. Zane GUSHWA, Petitioner-Appellant, v. Wanda HUNT, Respondent-Appellee.
CourtCourt of Appeals of New Mexico

Doerr & Knudson, P.A., Randy Knudson, Portales, NM, for Appellant.

Garrett Law Firm, P.A., Michael T. Garrett, Clovis, NM, for Appellee.

OPINION

PICKARD, Judge.

{1} Petitioner appeals from the district court's award of summary judgment in favor of Respondent in a probate proceeding involving the death of Petitioner's husband. We refer to Petitioner as "Wife" and to Respondent, who is Decedent's niece, as "Niece." In granting summary judgment, the district court found that no issues of material fact existed and that, as a matter of law, Decedent did not revoke his last will and testament. On appeal, Wife argues that issues of material fact do exist and that the district court erred in granting summary judgment in favor of Niece. We hold that Decedent's "Revocation of Missing Will(s)" document does not satisfy the requirements of NMSA 1978, § 45-2-507(A)(1) (1993), and therefore did not validly revoke his prior will. We also hold that the performance of a revocatory act on a photocopy of a will does not affect a valid revocation of the original will. See § 45-2-507(A)(2). Accordingly, we affirm the district court's grant of summary judgment in favor of Niece.

BACKGROUND

{2} The pertinent facts, which we view in the light most favorable to the party appealing the district court's grant of summary judgment, are as follows. See Stieber v. Journal Publ'g Co., 120 N.M. 270, 271-72, 901 P.2d 201, 202-03 (Ct.App.1995). Decedent died on February 12, 2005, at the age of ninety. Wife subsequently filed an application for informal appointment of a personal representative, requesting that she be appointed as personal representative. In her application, Wife asserted that Decedent had died intestate and that he had left no devisees. Wife further asserted that she was unaware of "any unrevoked testamentary instrument relating to property" within the State of New Mexico. Niece subsequently filed an objection to Wife's application to be appointed personal representative. In her objection, Niece claimed that Decedent did in fact have a last will and testament and that Wife should not be appointed personal representative as she is not a devisee under the will and because Wife is in a position of conflict of interest due to her transfer of some of Decedent's assets after his death.

{3} Decedent had his will drafted while Wife was in the hospital during the spring of 2000. During Wife's hospitalization, Decedent contacted another niece and her husband, Betty and Ted Dale, and asked them to help him get a will prepared. The will provided that Decedent's separate property, which included his ranch and oil, gas, and mineral interests, would be held in trust for the benefit of Wife during her lifetime. Upon Wife's death, the will provided that the trust assets would be distributed to seven of his nieces and nephews. The original will was given to Betty and Ted Dale, who were not beneficiaries under the will, for safekeeping.

{4} When Wife learned of Decedent's will, she requested a copy from Ted Dale (Dale). Dale provided Wife with a copy of only three pages of the will. Wife asserts that Decedent eventually had second thoughts about the will because he believed he was pressured or tricked into executing it. According to Wife, Decedent then contacted Dale twice by phone and requested that Dale send him the original will so it could be destroyed. Wife asserts that Dale refused to return the will.

{5} After Dale refused to return the will, Decedent contacted a lawyer for assistance in revoking the will. The lawyer prepared a document titled "Revocation of Missing Will(s)," in which Decedent stated that he wished to revoke his prior wills and that he had written the word "revoked" on the copy of the three pages of the will, which were supposedly attached to the signed document. Decedent further stated that it was his intent that Betty and Ted Dale were not to inherit anything from his estate. The document was signed by Decedent and two witnesses and was also notarized. The document was eventually recorded with the Roosevelt County Clerk's Office, but the three photocopied pages of the will on which Decedent had written "revoked" were not attached.

{6} According to Wife, the lawyer hired by Decedent to revoke the will was eventually able to obtain a photocopy of the will from the lawyer who had originally prepared it. Decedent then wrote the word "revoked" and his initials across each page of the photocopy. This photocopy was also signed by Decedent and notarized. The photocopy of the original will was subsequently recorded with the Roosevelt County Clerk's Office along with the "Revocation of Missing Will(s)" document.

{7} Before the district court, Niece disputed Wife's claim that Decedent contacted Dale to obtain his original will and maintained that Decedent never told Dale that he wished to revoke his will. Niece argued to the district court that Decedent's method of revocation in the instant case was ineffective as a matter of law. As such, Niece claimed that Decedent's last will and testament had not been revoked and therefore should be admitted to probate. Wife disagreed, arguing that Decedent had been prevented from obtaining his original will and that his attempt to revoke his will was effective.

{8} Agreeing with Niece's assertions, the district court granted partial summary judgment in favor of Niece and denied Wife's countermotion for summary judgment. In granting Niece's motion, the district court concluded that the "Revocation of Missing Will(s)" document was not testamentary in character and therefore could not serve to revoke Decedent's will. Additionally, the court concluded that writing "revoked" on the pages of a photocopy of the will was ineffective, as the revocatory act must be done on the original will itself or on a "duplicate" original, which is not the same as a photocopy. Wife appeals.

STANDARD OF REVIEW

{9} A district court's grant of summary judgment is reviewed de novo. Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. A party moving "for summary judgment need only make a prima facie showing that there is no genuine issue of material fact, and that on the undisputed material facts, judgment is appropriate as a matter of law." Ciup v. Chevron U.S.A., Inc., 1996-NMSC-062, ¶ 7, 122 N.M. 537, 928 P.2d 263; see also Roth v. Thompson, 113 N.M. 331, 335, 825 P.2d 1241, 1245 (1992) ("If the facts are not in dispute, and only their legal effects remain to be determined, summary judgment is proper."). At that point, the burden shifts to the nonmoving party to demonstrate "at least a reasonable doubt, rather than a slight doubt, as to the existence of a genuine issue of fact." Ciup, 1996-NMSC-062, ¶ 7; see also Oschwald v. Christie, 95 N.M. 251, 253, 620 P.2d 1276, 1278 (1980) ("Summary judgment may be proper even though some disputed issues remain, if there are sufficient undisputed facts to support a judgment and the disputed facts relate to immaterial issues."). This Court "view[s] the facts in a light most favorable to the party opposing the motion and draw[s] all reasonable inferences in support of a trial on the merits." Handmaker v. Henney, 1999-NMSC-043, ¶ 18, 128 N.M. 328, 992 P.2d 879.

DISCUSSION

{10} On appeal, Wife argues that the district court erred in granting summary judgment in favor of Niece because there are material facts in dispute and because the district court incorrectly concluded as a matter of law that Decedent did not revoke his will. Specifically, Wife contends that (1) the "Revocation of Missing Will(s)" document contained testamentary language and was executed with the necessary formalities, and it was therefore effective in revoking Decedent's will; and (2) Decedent's act of writing "revoked" across the pages of a photocopy of his will was sufficient to revoke the original will. Wife also contends that whether Decedent actually contacted Dale and attempted to obtain the original will is an issue of disputed material fact that precludes summary judgment. In addressing Wife's arguments, we will first examine the law regarding revocation of wills. Next, we will determine whether either of Decedent's two attempts to revoke his will was sufficient to revoke the will under New Mexico probate law. Additionally, we will decide whether the assertion that Decedent attempted to obtain the original will is in dispute and, if so, whether it is a material fact precluding summary judgment. We have jurisdiction to consider Wife's appeal from the district court's grant of partial summary judgment pursuant to the rule described in In re Estate of Newalla, 114 N.M. 290, 294, 837 P.2d 1373, 1377 (Ct.App.1992) ("[T]he Probate Code teaches that as a practical matter each petition in a probate file should ordinarily be considered as initiating an independent proceeding, so that an order disposing of the matters raised in the petition should be considered a final, appealable order.").

{11} With some modifications, New Mexico adopted the Uniform Probate Code (UPC) in 1975. In re Estate of Duncan, 2002-NMCA-069, ¶ 14, 132 N.M. 426, 50 P.3d 175, rev'd on other grounds by Estate of Duncan v. Kinsolving, 2003-NMSC-013, 133 N.M. 821, 70 P.3d 1260; In re Estate of Jewell, 2001-NMCA-008, ¶ 8, 130 N.M. 93, 18 P.3d 334; see generally NMSA 1978, §§ 45-1-101 to -9A-13 (1975, as amended through 2005). The UPC, as adopted by New Mexico, provides that a will may be revoked in one of the following ways:

(1) by executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or

(2) by performing a revocatory act on the will if the testator performed the act with the intent and...

To continue reading

Request your trial
1 cases
  • Gushwa v. Hunt, 30,592.
    • United States
    • New Mexico Supreme Court
    • November 13, 2008
    ...will as required by statute, and therefore it did not revoke Decedent's prior Will. In re Estate of Gushwa, 2007-NMCA-121, ¶ 16, 142 N.M. 575, 168 P.3d 147. The Court of Appeals also agreed that the act of writing "Revoked" on the photocopied will was not a legally effective revocatory act ......
1 books & journal articles
  • REVOKING WILLS.
    • United States
    • Notre Dame Law Review Vol. 97 No. 2, January 2022
    • January 1, 2022
    ...IND. CODE [section] 29-1-5-6 (2021) ("destroy[ing] or mutilat[ing]" the will). (147) See, e.g., Gushwav. Hunt (In re Estate of Gushwa), 168 P.3d 147, 152 (N.M. Ct. App. 2007), aff'd in pan, rev'd in pari, 197 P.Sd 1, 5-7 (N.M. 2008) (differentiating between duplicate originals and (148) See......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT