Culver v. Deaver

“An evaluating court must look for clear and convincing evidence of whether the decedent intended the specific writing at issue to be his or her will at the time of its creation.” Estate of Whitlatch v. Richardson, 99 Or App 548, 553, 783 P2d 46 (1989).

Appellants, Decedent’s grandchildren, appealed a limited judgment denying their petition to admit a writing into probate as a will under ORS 112.238. Appellants assigned error to the probate court’s decision not to authenticate the writing as a will for probate. On appeal, Appellants argued that the probate court should have admitted a signed writing by Decedent as a noncompliant will under ORS 112.238. Further, Appellants argued that once a proponent of a noncompliant will establishes that the offered writing has been signed by the Decedent and the document is authenticated, the court should look at the four corners of the document to see if it looks like a will.  In response, Respondent’s, Decedent’s children, argued that the writing sought to be admitted into probate does not reflect Decedent’s intent at the time of her death. “An evaluating court must look for clear and convincing evidence of whether the decedent intended the specific writing at issue to be his or her will at the time of its creation.” Estate of Whitlatch v. Richardson, 99 Or App 548, 553, 783 P2d 46 (1989). The Court held that the probate court erred in its analysis because the court did not focus on whether it was the Decedent’s intent for the writing to function as her will at the time of the creation of the writing. Vacated and remanded.