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In re Estate of Creech

February 18, 2010


Appeal from the Superior Court of the District of Columbia. (ADM1281-06) (Hon. Ronald P. Wertheim, Trial Judge).

The opinion of the court was delivered by: Fisher, Associate Judge

Argued January 19, 2010

Before FISHER and OBERLY, Associate Judges, and FARRELL, Senior Judge.

Sustaining objections to a codicil executed by Anna Creech in 1995, the Superior Court admitted her 1992 will to probate. We reverse and remand for further proceedings consistent with this opinion.

I. Facts

On August 13, 1992, Anna Creech executed a will ("1992 will") which contained eighteen items. Several of those items bequeathed various possessions to specific persons. For example, in Item VI, Ms. Creech left her china closet to her nephew, Cleveland Mitchell. In Item XIII, Ms. Creech bequeathed "the entire residue of my estate, whether real, personal or mixed, of every kind, nature and description whatsoever . . . to all of my nieces and nephews who survive me." In addition, in Item XIV, Ms. Creech nominated Mr. Mitchell as her personal representative, and named one of her nieces, appellee Lettie Gaskins, as his alternate.

On August 11, 1995, Ms. Creech executed a codicil ("1995 codicil") to the 1992 will, explicitly revoking Items VI, XIII, and XIV. She now bequeathed her china closet to Special T. Allen instead of Mr. Mitchell; she devised her real property (her home at 131 U Street, N.E.), to Bettye Ward Garner and Bobbie Jean Ward-Allen as tenants in common; and, although she again nominated Mr. Mitchell as her personal representative, she named Ms. Ward-Allen as the alternate instead of Ms. Gaskins.*fn1 Ms. Creech ratified, confirmed, and republished her 1992 will "in all respects except as altered or modified by this First Codicil thereto."

Anna Creech died on December 15, 2001, at the age of 94. Nearly five years later, on November 7, 2006, Ms. Ward-Allen filed a petition for standard probate in which she sought appointment as Ms. Creech's personal representative. Ms. Ward-Allen attached the 1992 will and a copy of the 1995 codicil to her petition. In June 2008, two of Ms. Creech's nieces, Lettie Gaskins and Jessie Marie Davis,filed objections to admission of the 1995 codicil and to Ms. Ward-Allen's petition for standard probate. They based their objections on the fact that Ms. Ward-Allen filed a copy of the 1995 codicil, instead of the original, with the register of wills.

After a hearing in August 2008, the trial judge sustained appellees' objections to probating a copy of the 1995 codicil because there was too "much uncertainty about what became of the original" and Ms. Ward-Allen did not meet her burden to "prove what happened to it." He then denied Ms. Ward-Allen's petition for standard probate and admitted the 1992 will to probate. The court also appointed Ms. Gaskins as personal representative, Mr. Mitchell having previously renounced the appointment. Ms. Ward-Allen filed a notice of appeal; Ms. Gaskins is the only appellee to have filed a brief in this court.

II. Analysis

A. Revocation and Revival

In the District of Columbia, a testator may revoke a will or codicil in two ways.*fn2 He may expressly revoke the instrument (or a part thereof) by executing "a later will, codicil, or other writing declaring the revocation." D.C. Code § 18-109 (a)(1) (2001). Alternatively, revocation may be accomplished by "burning, tearing, canceling, or obliterating the will or codicil, or the part thereof, with the intention of revoking it, by the testator himself, or by a person in his presence and by his express direction and consent." D.C. Code § 18-109 (a)(2). Both of these forms of revocation are at issue in this case.

There is no dispute that in her 1995 codicil, Ms. Creech explicitly "revoke[d]" critical items from the 1992 will."[I]n place of said Item[s]," she, among other changes, appointed a new alternate personal representative and disposed of her home differently.These revocations became effective upon execution of the 1995 codicil. D.C. Code § 18-109 (a) (a will may be revoked in part); In re Burleson, 738 A.2d 1199, 1205 (D.C. 1999) ("[W]e now hold that under D.C. Code § 18-109, a prior will may be revoked upon the execution of a subsequent will . . . .") (emphasis in original).

Even if it were true, as the trial court seems to have concluded, that Ms. Creech revoked the 1995 codicil by destroying it (more on that later), the court erred by admitting the 1992 will to probate in its entirety. D.C. Code § 18-109 (b) provides that: "A will or codicil, or a part thereof, after it is revoked, may not be revived otherwise than by its re-execution, or by a codicil executed as provided in the case of wills, and then only to the extent to which an intention to revive is shown." As we explained in Burleson, "under D.C. Code § 18-109, a prior will [once revoked] . . . may not be revived unless [it] has been re-executed or a codicil [is] executed in accordance with other statutory provisions." In re Burleson, 738 A.2d at 1205. In other words, revocation of the codicil would not reinstate Items VI, XIII, and XIV of the earlier will. Id. at 1205-06 ("[E]ven if we were to assume, from the fact that the original 1994 will was not found at the time of his death, that Burleson intended to revoke his 1994 will, . ...

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