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February 12, 1990


Appeal from the Superior Court, of the District of Columbia; Hon. Iraline G. Barnes, Trial Judge.

Before Belson and Terry, Associate Judges, and Mack, Senior Judge.*

The opinion of the court was delivered by: Mack

MACK, Senior Judge: This case raises issues as to the circumstances under which an incompetent surviving spouse may renounce the will of the predeceasing spouse. Appellant, the personal representative of the decedent's estate, appeals from an order of the trial court ratifying the decision of the conservator for the decedent's incompetent wife to renounce the decedent's will on the wife's behalf and elect instead for her to receive the statutory share of his estate. Appellant asserts three errors on appeal: (1) that the conservator's election was not timely; (2) that the trial court applied an incorrect standard in determining whether to ratify the renunciation of the will; and (3) that even under the standard applied, the renunciation should not have been approved. We affirm.


Loy W. Henderson and Elise M. Henderson were married on December 3, 1930, and remained married for almost fifty-six years, until Mr. Henderson's death on March 24, 1986. Mr. Henderson had a distinguished career as a Foreign Service officer; during their marriage, Mrs. Henderson did not have salaried employment outside the home. The Hendersons had no children.

At the time of Mr. Henderson's death, he was ninety-three years old and his wife was eighty. Since August 1980, Mrs. Henderson had been living in a nursing home. She was apparently infirm, although no formal finding of incompetency was made. On March 14, 1985, Mr. Henderson executed his last will and testament.

On April 15, 1986, Mr. Henderson's will was admitted to probate, and Samuel Spencer was appointed personal representative of the estate. On May 21, 1986, Mr. Spencer filed a petition seeking the appointment of a conservator for Mrs. Henderson. After an investigation by a guardian ad litem and a hearing, the court concluded that Mrs. Henderson was "incapable of caring for her person and estate" and, on July 11, 1986, appointed Julia B. Williams as conservator for Mrs. Henderson, a position for which Ms. Williams qualified six days later.

On October 14, 1986, Ms. Williams filed, on behalf of Mrs. Henderson, a Renunciation of Devises and Bequests with the Office of the Register of Wills. Ten days later, Mr. Spencer, the personal representative of Mr. Henderson's estate, sent a letter objecting to this renunciation. Subsequently, on November 14, 1986, the conservator filed a motion asking the court to ratify the renunciation nunc pro tunc. Mr. Spencer filed a response, and a hearing was held on the matter. Mrs. Henderson subsequently died on April 24, 1987. On June 3, 1987, the trial court issued an order ratifying the renunciation of the will. *fn1 Mr. Spencer now appeals this decision.


The first issue presented to this court is whether Ms. Williams, in her capacity as conservator of Mrs. Henderson's person and estate, filed a timely renunciation of the will. D.C. Code § 19-113 (1989 Repl.) provides, in pertinent part, as follows:

(a) . . . surviving spouse is, by a devise or bequest . . . barred on any statutory rights or interest he has in the real and personal estate of the deceased spouse or dower rights, as the case may be, unless, within six months after the will of the deceased spouse is admitted to probate, he files in the Probate Court a written renunciation . . . .

(c) . . . A renunciation or election may be made in behalf of a spouse unable to act for himself by reason of infancy, incompetency, or inability to manage his property, by the guardian or other fiduciary acting for the spouse when so authorized by the court having jurisdiction of the person of the spouse.

Thus, a competent spouse who wishes to renounce the will of the predeceased spouse and instead take the amount provided for by statute must file a statement to this effect within six months after the will is admitted to probate. Appellant asserts, however, that where the surviving spouse is incompetent, the statute requires that the conservator have received prior court authorization before any renunciation is effective to toll the statute. In other words, appellant argues, where there is an incompetent spouse, both the election and court approval of it must occur within the six-month period.

In the present case, the will was admitted to probate on April 15, 1986. On October 14, 1986, one day before the six-month period was to expire, Mrs. Henderson's conservator filed the renunciation. Approximately a month later, on November 24, the conservator, by motion, formally requested that the trial court ratify the election. And on June 3, 1987, thirteen-and-a-half months after the will was admitted to probate (and a ...

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