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appealprobatewill

appealwill

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Gifford v. Estate of Gifford, 305 Ark. 46, 805 S.W.2d 71

Facts

Mary Ella Gifford died on February 26, 1989. Her daughter, Julia Gifford Haines, presented four documents as her last will: a handwritten note from January 1980, another handwritten note from June 1986, a typewritten will from July 2, 1986, and a typewritten codicil from November 21, 1986. The Probate Court accepted all four documents, but Gifford's son, Joel S. Gifford, Jr., appealed, challenging the admission of the January 1980 note, arguing that it was not incorporated by reference and that his mother intended to revoke the bequests made in that note.

Mary Ella Gifford died on February 26, 1989. Mrs. Gifford's daughter, Julia Gifford Haines, proffered four instruments as the decedent's last will and testament: a two page handwritten note dated January 1980, another handwritten note, also in two pages, dated June 1986; a typewritten will dated July 2, 1986; and a typewritten codicil dated November 21, 1986.

Issue

Whether a memorandum in the handwriting of the testatrix was incorporated into her will by reference.

The question for decision is whether a memorandum in the handwriting of the testatrix was incorporated into her will by reference.

Rule

Any writing in existence when a will is executed may be incorporated by reference if the will's language manifests such interest and describes the writing sufficiently to identify it.

Ark.Code Ann. § 28–25–107 (1987) provides that any writing in existence when a will is executed may be incorporated by reference if the will's language manifests such interest and describes the writing sufficiently to identify it.

Analysis

The court determined that the January 1980 note was indeed incorporated by reference into the will, as it was in existence at the time of the will's execution and was physically attached to it. The court noted that both the January 1980 and June 1986 writings were clearly connected, as they were paginated and referenced each other. The court found that the revocation clause in the will did not apply to the 1980 note, as it was not a formal testamentary instrument.

It is undisputed that the June 1986 writing was incorporated by reference and while the January 1980 note is not specifically identified in the will, it was in existence when the will was executed, and is unmistakeably connected to the 1986 writing.

Conclusion

The court affirmed the Probate Court's decision, ruling that the January 1980 note was incorporated into the will and that the revocation clause did not nullify it.

Finding no merit in the points argued for reversal, we affirm the order appealed from.

Who won?

Julia Gifford Haines prevailed in the case because the court upheld the inclusion of the January 1980 note as part of her mother's will, affirming the Probate Court's findings.

Julia Gifford Haines prevailed in the case because the court upheld the inclusion of the January 1980 note as part of her mother's will.

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