Gushwa v. Hunt, 30,592.

• Decision Date: 13 November 2008
• Docket Number: No. 30,592.,30,592.
• Citation: 2008 NMSC 064,197 P.3d 1
• Parties: In the Matter of the Estate of George Gushwa, deceased. Zane GUSHWA, Petitioner-Petitioner, v. Wanda HUNT, Respondent-Respondent.
• Court: New Mexico Supreme Court

197 P.3d 1

2008 NMSC 064

In the Matter of the Estate of George Gushwa, deceased.

Zane GUSHWA, Petitioner-Petitioner, v. Wanda HUNT, Respondent-Respondent.

No. 30,592.

Supreme Court of New Mexico.

November 13, 2008.

Doerr & Knudson, P.A., Randy J. Knudson, Portales, NM, for Petitioner.

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

OPINION

BOSSON, Justice.

{1} The New Mexico Probate Code specifies the means by which a testator may revoke a prior will. See NMSA 1978, § 45-2-507(A) (1993) (stating that a will may be revoked by either executing a subsequent will or by performing a revocatory act on the will). The district court, concluding that the purported revocation in this case was legally ineffective, granted summary judgment, and the Court of Appeals affirmed in a well-reasoned opinion. On certiorari, we affirm most of that opinion, reversing only a small part and remanding for the district court to adjudicate a remaining allegation of fraud and to consider the propriety of a constructive trust in this case.

BACKGROUND

{2} In June 2000, Decedent George Gushwa executed his Last Will and Testament (the Will) while his wife, Zane Gushwa, the Petitioner in this appeal, was in the hospital. Decedent was assisted in preparing the Will by his niece, Betty Dale, and her husband, Ted Dale (Ted). The Will provided that Decedent's separate property be held in trust for the support of Wife, during her life, and upon her death it was to be distributed to Decedent's nieces and nephews. Wife received no permanent distribution under the Will. Decedent named Ted as the trustee, and gave the original Will to him for safekeeping. The Dales were not beneficiaries under the Will.

{3} Shortly thereafter, it appears that Decedent decided he wanted to revoke the Will. According to Wife, Decedent called Ted to regain possession of the original Will, but Ted refused to send it. Ted denies receiving such a request from Decedent. Instead, Ted submitted an affidavit stating that Wife called him and requested that he send her the original Will. Ted then notified Decedent's attorney and asked whether he should send Wife the original Will, because Ted knew that Decedent did not want her to see it. Decedent's attorney told Ted to contact Decedent, which Ted did. According to Ted, Decedent asked him to discuss the Will only in general terms with Wife, and told Ted which pages of the Will to send to Decedent. Ted then sent photocopies of those pages to Decedent.

{4} In January 2001, Decedent contacted another lawyer to help him revoke the Will. In February 2001, his new lawyer assisted him in drafting a document entitled "Revocation of Missing Will(s)," in which Decedent repeatedly stated that he wanted to revoke his previous Will. At the same time, on the advice of counsel Decedent wrote "Revoked" on the copy of three pages of the Will, presumably the same three pages that he received from Ted, and attached those pages to the Revocation of Missing Will(s) document. That document was signed by Decedent and two witnesses and was notarized. In April 2001, Decedent received a photocopy of the entire Will from his previous attorney and wrote "Revoked" on each page of that copy of the Will.

{5} Decedent died in 2005. After his death, Wife filed an application for informal appointment of a personal representative. Wife asserted that her husband died intestate and that she was not aware of any unrevoked testamentary instruments. In her application, Wife listed the names of several interested parties, including Wanda Hunt (Wanda), Decedent's niece, the Respondent in this appeal. Wanda objected to Wife's application, arguing that the June 2000 Will had not been revoked and was still in force, because Decedent had failed to follow the statutory formalities for revocation set forth in the Probate Code.

{6} In response to Wanda's objections, Wife argued that the June 2000 Will had been revoked by the Revocation of Missing Will(s) document, and also by Decedent's act of writing "Revoked" on the photocopied pages of the Will. She further contended that Ted's behavior prevented Decedent from obtaining possession of the original Will so that he could write "Revoked" on the original instead of just a copy. Wife asked the district court to impose a constructive trust upon Decedent's estate if the court found that the Will had not been successfully revoked under the statute. In July 2006, the district court agreed with Wanda that Decedent's will had not been revoked in a manner consistent with the requirements of the Probate Code and granted summary judgment in her favor and against Wife.

{7} The Court of Appeals affirmed the district court, concluding that the Revocation of Missing Will(s) document was not testamentary in nature; it was not a subsequent 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 because such an act must be done on an original or a duplicate original and not a photocopy. Id. ¶ 29. Finally, the Court of Appeals concluded that Ted's refusal to surrender the original will did not preclude summary judgment. Id. With the exception of the last point, we agree with much of the Court of Appeals' analysis.

DISCUSSION

{8} This appeal raises two questions under the Probate Code and one question of equity. First, we consider whether Decedent's execution of the Revocation of Missing Will(s) document satisfies the requirements of Section 45-2-507(A)(1), dealing with revocation by writing. Second, we determine whether Decedent's act of writing "Revoked" on a photocopy is a revocatory act within the meaning of Section 45-2-507(A)(2). Finally, we examine whether the allegations of fraud against Ted create a genuine issue of material fact that, if proven, might justify relief and preclude summary judgment.

{9} We review a district court's grant of summary judgment de novo. Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. "Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Id. Because resolution on the merits is favored, a reviewing 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.

{10} Our Probate Code provides that a will or any part thereof may be revoked in one of two ways. See § 45-2-507. A testator may revoke a previous will "by executing a subsequent will that revokes the previous will or part expressly or by inconsistency." Section 45-2-507(A)(1). A testator may also revoke a previous will "by performing a revocatory act on the will if the testator performed the act with the intent and for the purpose of revoking the will or part." Section 45-2-507(A)(2). A "revocatory act on the will" includes "burning, tearing, canceling, obliterating or destroying the will or any part of it." Id. For purposes of this appeal, we concentrate on the word "canceling," but we turn first to the requirement in Section 45-2-507(A)(1) for revocation by a "subsequent will."

Revocation by Writing

{11} In this case, the district court specifically found that "[n]either party proposes the revocation document satisfies the requirements of § 45-2-507A(1)." Nevertheless, the court conducted its own analysis of the Revocation of Missing Will(s) document and concluded that the document was not a "subsequent will" as set forth in Subsection -507(A)(1). The court specifically noted that the document "act[ed] instanter and not upon [Decedent's] death[,]" and therefore could not be a testamentary disposition.

{12} Relying on In re Estate of Martinez, 1999-NMCA-093, 127 N.M. 650, 985 P.2d 1230, the Court of Appeals agreed that the Revocation of Missing Will(s) document was not a subsequent will within the meaning of the Code. Gushwa, 2007-NMCA-121, ¶¶ 12-16, 142 N.M. 575, 168 P.3d 147. The Court noted that "although some portions of the document may arguably contain testamentary language, the document itself was not intended to be a subsequent will." Id. ¶ 16.

{13} At the outset, we note that our Probate Code, unlike that of other states, does not allow for revocation of a will by any "other writing." Compare § 45-2-507(A)(1) ("A will or any part thereof is revoked ... by executing a subsequent will that revokes the previous will or part expressly or by inconsistency ....") with Fla. Stat. § 732.505(2) (2002) ("A will or codicil, or any part of either, is revoked ... [b]y a subsequent will, codicil, or other writing executed with the same formalities required for the execution of wills declaring the revocation." (Emphasis added.)). As our Court of Appeals has previously explained:

Generally, the question whether a will can be revoked by a writing not testamentary in character depends upon the provisions of the governing statute.... [W]here the statute omits the clause "some other writing" or its equivalent, and simply states that no will shall be revoked except by some other "will, testament or codicil in writing, declaring the same," it has been held that a will may not be revoked by a writing not testamentary in character.

Martinez, 1999-NMCA-093, ¶ 11, 127 N.M. 650, 985 P.2d 1230 (quoting E.T. Tsai, Annotation, Revocation of Will By Nontestamentary Writing, 22 A.L.R.3d § 2(a), at 1351 (1968)).

{14} Wife argues that the Revocation of Missing Will(s) document should be given the effect of a subsequent will because of its language expressly revoking Decedent's prior will. Wife relies on the definition of "will" contained in the definitions section of the Probate Code. See NMSA 1978, § 45-1-201...