by Morgan Wiener
Readers of this blog who are also fans of Downton Abbey were no doubt excited by the variety of estate planning issues that surfaced in the first episode of season 4 – death duties, holographic wills, and witty remarks by the Dowager Countess, oh my! They may have also wondered whether the late Matthew’s letter to Lady Mary declaring that he wished her to be his sole heiress would actually qualify as a holographic will. While the lawyer’s assessment that the letter, which was signed by the decedent and two witnesses, demonstrated testamentary intent certainly seems correct, testamentary intent is only one factor in determining whether a document constitutes a will.
Section 15-11-502 of the Colorado Probate Code sets forth the requirements for a holographic will in Colorado. This section provides that a will that does not otherwise comply with the requirements for a will (generally, the document must be in writing, signed by the testator, and signed by two witnesses or a notary) may be admitted to probate as a holographic will if the signature and material portions of the document are in the testator’s handwriting. The portions of the holographic will that are not in the testator’s handwriting may be used as evidence of the testator’s intent that the document constitute his will.
But what if, as with Matthew’s letter to Lady Mary, the document in question is not fashioned as a last will and testament, can it still serve as a valid will? Under Colorado law, it must clear a fairly high hurdle. Section 15-11-503 sets forth when a document that does not comply with § 15-11-502 may be treated as a will. This section provides that such a document is a will when it is established by clear and convincing evidence that the decedent intended the document to be either (1) a will, (2) a partial or complete revocation of a will, (3) an addition or alteration to a will, or (4) a partial or complete revival of a formerly revoked will or portion of a will. Even if the foregoing is proved, the document will only be considered a will if (1) the document is signed or acknowledged by the decedent as his will, or (2) it is shown by clear and convincing evidence that the decedent mistakenly signed a document intended to be the will of his spouse. The determination under § 15-11-503 is a question of law for the court and may not be decided by a jury.
The requirements for a whether a document constitutes a will can vary, sometimes significantly, from state to state, regardless of whether the state has adopted the Uniform Probate Code. For example, unlike the Colorado Probate Code, the Utah Uniform Probate Code provides that a document may be considered a will so long as it is established by clear and convincing evidence that the decedent intended the document to be either (1) a will, (2) a partial or complete revocation of a will, (3) an addition or alteration to a will, or (4) a partial or complete revival of a formerly revoked will or portion of a will. There is no additional requirement that (1) the document be signed or acknowledged by the decedent as his will, or (2) that it is shown by clear and convincing evidence that the decedent mistakenly signed a document intended to be the will of his spouse. There is also no mandate that the question of whether the document was intended as a will be decided by the court as a matter of law. See Utah Code Ann. § 75-2-503. (Section 75-2-502 specifically addresses holographic wills.)
The Wyoming Probate Code also has different requirements for a holographic will than either Colorado or Utah. Section 2-6-113 provides that a will may be a holographic will, whether or not witnessed, if it is entirely in the testator’s handwriting and signed by the testator. The Wyoming Probate Code also limits the class of persons who may properly witness a will to, with certain limited exceptions, those who are not beneficiaries under the will. See § 2-6-112. Neither Colorado nor Utah have any such limitation.
So what to make of the late Matthew Crawley’s letter? Is it a valid will? Given that the letter was neither styled as a will nor signed and acknowledged as a will, it seems that it would have the best chance of being accepted as a will in Utah. Under the Utah Uniform Probate Code, if it was proven by clear and convincing evidence that Matthew intended the letter to be a will (and, really, what else could he have meant by the statement that he wanted Mary to be his sole heiress?), then it would be considered a will regardless of the fact that he did not sign or acknowledge the letter as his last will and testament. In Colorado or Wyoming, however, this statement of testamentary intent might not be enough, and baby George would stand to inherit quite the fortune.