- T died on Oct 23, 1998
- At death, T was 75 yrs. old and living in Cascade Co, Montana
- Had a W and 2 daughters from a previous marriage (S and C)
- OW was executed on April 18, 1984
- 13 yrs later, lawyer (L) drafted a JW
- T and W met at L’s office to discuss JW on June 4, 1997.
- T and W make several changes before agreeing on terms of JW
- T and W were prepared to execute JW when L sent them a final version.
- T asked L if draft could stand as a will until final version was sent.
- L said yes if they executed it.
- L notarized execution
- W said no one else was in the office to attest as witness
- T and W signed JW draft w/o anyone else present
- W, upon T’s instruction, tore up OW when they got home.
- When T died, W tried to informally probate will, to which S objected
- S requested formal probate of OW
- TC heard the will contest in Aug 2001 and issued order to admit JW to probate
- TC found that:
- JW specifically revoked all previous wills and codicils made by either T or W
- After executing JW, T instructed W to destroy OW
- S appealed
- Whether the TC erred in concluding that T intended the JW to be his will under the statutory exception
- In contested cases, the proponent of a will must establish that the T duly executed the will.
- No, affirmed
- In Montana, for a will to be duly executed 2 people should witness and sign
- If this does not happen, the will can still be treated as executed in certain circumstances, on of which being if proponent of will can establish by clear and convincing evidence the T intended the document to be T’s will
- S argues that court should not use this exception because she argues that it was not “an innocent omission” on their the part of T and W
- Court says S’s arguments about improper execution are irrelevant since no one disputes that no witnesses were present
- S does not dispute TC’s findings
S points to no evidence that T did not intend for JW to be his will