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In re Estate of Malloy

October 31, 1996

IN THE MATTER OF THE ESTATE OF CLAIRE A. MALLOY, MARY S. MALLOY, APPELLANT,
v.
HERBERT G. SMITH, RESPONDENT.



Appeal from Superior Court of Chelan County. Docket No: 93-4-00119-5. Date filed: 01/10/94. Judge signing: Hon. Ted W. Small JR.

Petition for Review Granted April 2, 1997,

Authored by Frank L. Kurtz. Concurring: John A. Schultheis, Ray E. Munson.

The opinion of the court was delivered by: Kurtz

KURTZ, J. -- Former RCW 11.12.040 *fn1 permits a testator to partially revoke her will without observing the formalities for executing a new will. The courts give effect to a testator's deletions on the face of a will if the deletions do not alter the dispositive scheme so as to constitute a new testamentary Disposition. In re Estate of Appleton, 163 Wash. 632, 2 P.2d 71 (1931); In re Estate of Eastman, 61 Wash. App. 907, 812 P.2d 521 (1991); In re Estate of Becklund, 7 Wash. App. 10, 497 P.2d 1327 (1972). In this case, we are asked to decide the effect of deletions that substantially changed the amounts, but not the beneficiaries, of the testator's bequests. We hold the deletions are ineffective as a partial revocation and affirm the superior court. Under the doctrine of dependent relative revocation, the will as originally executed remains in effect. Eastman, 61 Wash. App. at 910.

Claire Malloy executed a will on April 13, 1992, and she died a little over a year later. Before the deletions, Claire Malloy's will required her personal representative to sell her residence, which, together with other liquid assets, she bequeathed in trust to several beneficiaries, including her daughter Mary. Mary was to receive 30 percent of the trust assets, distributed to her at the rate of $1,000 per month. Significantly, Mary was also the residuary beneficiary under the will.

The deletions canceled the will provisions that made a specific bequest of the residence to the trust and also canceled Mary's share of the trust. If the deletions are effective, Mary loses her specific bequest, but she takes the residence as the residuary beneficiary, which is valued at $100,000. The effect of the deletions is to double Mary's share of the estate and reduce the amount left for distribution to the other beneficiaries by one-half.

The personal representative petitioned the court to admit the will for probate and thereafter petitioned the court for declaratory judgment regarding the deletions in the will. The declaratory judgment petition presented two issues, one legal and one factual: The first issue assumed Claire Malloy made the deletions and asked whether they were effective as a partial revocation of the will under former RCW 11.12.040. The second issue concerned whether Claire Malloy or another made the deletions. The court bifurcated the hearings on the petition, considering the legal effect of the deletions first.

The court determined that the deletions, as a matter of law, failed to effect a partial revocation of Claire Malloy's will. Specifically, the deletions "were of such a scope and to such an extent that if they were given effect, they would substantially alter the dispositive scheme of the will." The trial court relied upon the fact that the deletions in the will significantly increased Mary's share of Claire's estate and decreased the remaining beneficiaries' shares. The parties agreed to an immediate appeal.

Former RCW 11.12.040 permits the partial revocation of a will. The statute provides:

A will, or any part thereof, can be revoked

(1) By a written will; or

(2) By being burnt, torn, canceled, obliterated or destroyed,

with the intent and for the purpose of revoking the same, by the testator .

. . or by another person in [the] presence and by [the] direction ...


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