March 6, 2014

Revoking a Will

When a person revokes a will, it is prudent to dispose of the old will. Out with the old and in with the new as the old adage goes. The obvious reason being is that problems can arise if the testator passes away and the 2 ostensibly valid wills are floating around. One person might find the earlier will and then petition for probate under the impression that the will is valid. Another person might find the later will and think that their will is valid as well. Such is the exact scenario of a recent court case originating from Contra Costa County Superior Court, Case # MSP0900615. Suffice to say, I was surprised to read such a peculiar situation.

On January 28, 1997, the late Daniel Bridges executed a will, written by his attorney John Busby, which named Kim Brumleve as the executor and a beneficiary. Following the will's execution, attorney Busby placed such in his will drawer. On September 28, 1997, Mr. Bridges revoked his prior will and wrote a new will that named Renee Hansen as the executor and a beneficiary. Yet attorney Busby mistakenly filed this second will in another folder. Consequently, the January Will was never properly disposed of because the September Will was not placed in the same file.

On April 10 2009, Mr. Bridges passed away. Attorney Busby then retrieved the January Will from his files so that probate could commence. Since the will was seemingly valid, letters testamentary were issued and Ms. Brumleve was appointed the executor on July 9, 2009 by the probate court in Contra Costa County. However in May 2011, Ms. Hansen located the September Will that named her as the executor and a beneficiary. Consequently, she too petitioned for probate and letters testamentary. Such was the beginning a very lengthy litigation battle.  If protracted trust litigation piques your interest, the unpublished opinion can be found on Google Scholar and the California Court of Appeal's website, Case # A137168, Hansen v. Brumleve.

What I found fascinating about the case was that an apparently innocuous oversight, i.e. the misplacing of the will, caused this entire case. A mole hill had mushroomed into a mountain as the opinion detailed the numerous hearings that had been held over the years. However, I should mention that Ms. Brumleve did not appeal the validity of the second will. Rather she appealed the trial court's decision to surcharge her for misuse, conversion and waste of estate assets. Still, the genesis of the entire case was the result of a misplaced will.