Clark v. Greenhalge

The Facts

  • T executed a will in 1977 naming her cousin, Frederic (F), as executor and principal beneficiary, entitling F to receive all personal property not listed on the attached memorandum of her known wishes
  • T owed a painting at her death valued at $1800
  • The memo was drafted in 1972 and revised in 1976
  • Neither edition listed the painting
  • T promised painting to P, and indicated she would write as much in a notebook she kept to track her future bequests
  • T executed 2 codicils to her 1977 will; one in May 1980 and the other in Oct. 1980
  • The codicils amended certain bequests and deleted others, while ratifying the will in all other respects.
  • F received T’s notebook on Jan. 28, 1986 and distributed T’s property according to the will as amended, the 1972 and 1976 memos and the provisions contained in the notebook
  • F liked the painting and kept it for himself instead of giving it to P
  • F claimed he was not bound to give effect to the expressions of T’s wishes in the notebook, particularly as to the painting.
  • F did distribute to himself all the property bequeathed to him by the notebook.

Procedural History

  • P sued F to compel him to give her the painting
  • TC found that T wanted P to have painting, concluding that the notebook qualified as memorandum with the meaning of T’s will, the language of which was ratified by the codicils.
  • TC awarded painting to P
  • F appealed

The Issue

  • Whether TC correctly concluded that specific, written bequests of personal property contained in a notebook maintained by T were incorporated by reference into the terms of T’s will

The Rule

  • A properly executed will may incorporate into its provisions any “document or paper not so executed and witnessed, whether the paper referred to be in the form of…a mere list or memorandum.”

The Holding/Disposition

  • Yes, affirmed

Court’s Reasoning

  • Parties agree the documents entitled “memorandum” were incorporated into the will
  • Parties do no agree that the notebook was incorporated into the will as memorandum
  • F argues that TC wrongly concluded that the notebook was a memorandum because it was not specifically titled so
  • T intended by the language in Art. 5 of her will granted her the right to make changes to the will w/o having to amend it formally.
  • The notebook was the manner in which she accomplished this, thus its purpose is consistent with that of a memorandum
  • Language does not preclude the existence of more than one memorandum, as F argues
  • F argues that the notebook is invalid as a memorandum because it was not known to him prior to T’s death

T’s nurse testified that F knew of the notebook and made no attempt to question its validity

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