Lois Miller (Decedent) executed her will in 2006 as witnessed by Clark and attorney Griffith. Griffith also prepared the will for the Decedent. The will had an “Exhibit A” attached to it when it was submitted to probate by Vallandingham and Cyfers, the co-executors. Article IV of the will referenced Exhibit A and provided that other devises could be made through Exhibit A. Exhibit A also contained handwritten notations throughout the five-page document using different colors of ink and included a post-execution date in the Decedent’s handwriting. The exhibit set forth bequests made by the Decedent to various relatives as referenced in Article IV of the will. The exhibit, standing alone, was not signed by the Decedent or witnessed. There were numerous handwritten bequests on the exhibit including language leaving her friend’s only son “to have equal monies.” A dispute arose between the co-executors of the will and some of the beneficiaries of the will concerning the administration of the Decedent’s estate.

The circuit court concluded that Exhibit A was properly incorporated by reference into the Decedent’s will. It determined that Exhibit A was repeatedly referenced in the will; was attached to the will; and was written in the testator’s handwriting. As to the handwritten notations made after the will’s execution, the court determined that all of the disputed notations with dates after the will was executed were surplusage and could be disregarded as the remainder of the will was more than adequate to express the Decedent’s intent and to dispose of her property.

On appeal the decision was reversed. The appellate court concluded there was no material evidence available and therefore insufficient evidence to allow Exhibit A to be incorporated by reference into the will. The lower court erred in concluding that Exhibit A to the will was in existence at the time of execution of the will and was properly incorporated by reference into the Will. There was no dispute that there was an Exhibit A attached to the will at the time the will was submitted to probate. There was, however, no evidence regarding what bequests were contained within Exhibit A at the time the will was executed. Given the uncertainty as to what bequests were contained in Exhibit A at the date of execution of the Decedent’s will, the appellate court was compelled to conclude that there was insufficient evidence to allow the incorporation of Exhibit A by reference into the will.

Case Citation: Cyfers v. Cyfers, 2014 WL 2560718 (June 5, 2014)

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