HomeESTATE PLANNINGPROBATED WILL BENEFITED FORMER WIFE

In re CABANISS’ ESTATE, 1942 OK 311, 129 P.2d 1003, 191 Okla. 340 the Supreme Court held in its syllabus that the Common-law doctrine of implied revocation of wills would not be recognized in Oklahoma. The Supreme Court said that the legislature had removed the application of the doctrine at 84 O. S. 1941 § 101, which provides that no written will, nor any part thereof, can be revoked or altered otherwise than by a written will or other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which a will should be executed by such testator; or, by being burnt, torn, canceled, obliterated or destroyed, with intent and for the purpose of revoking the same, by the testator himself, or by some person in his presence and by his direction.

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In the cited case the will of a married man, William F. Cabaniss, left his wife at the time the will was written certain property from his estate. Mr. Cabaniss and his wife divorced. Mr. Cabaniss did not revoke his will.
The Supreme Court held that their subsequent divorce did not revoke the provisions in his will for his wife. That the common-law doctrine of implied revocation by reason of subsequent changes in the condition or circumstances of the testator was no longer recognized in Oklahoma.
The Court explained that under his will the devise “to my wife Ada Cabaniss” was not conditional upon Ada remaining his wife. The Court, incredibly, said that the phrase “to my wife Ada Cabaniss” is not intended to limit the right of Ada Cabaniss to take on condition that she remain his wife. The phrase “to my wife” was merely descriptive of the person. Sort of like if he had said to my “pretty” Ada.
William F. Cabaniss died testate and his will was duly admitted to probate. The second paragraph of the will is as follows:

Second: To my wife Ada Cabaniss I will and bequeath the home place which contains one hundred forty-five acres or about, until her death or until she marries again. This does not include any live stock.

The will also contained several specific devises and bequests, and a residuary clause in favor of his three sons and one daughter. After the will was executed Ada Cabaniss secured a divorce from testator together with judgment for alimony, which was paid. About two months after the divorce decree was entered William F. Cabaniss died without having changed his will.

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The will was duly admitted to probate, and thereafter Ada Cabiness filed petition for distribution to her of the property covered by the clause in the will above quoted. Two of the residuary devisees filed objections to the said petition on the ground, among others, that the divorce had the effect of revoking the provision in favor of Ada Cabaniss. From an order overruling the objections thereto and sustaining the petition, the objecting devisees appealed to the district court.

¶3 Prior to the filing of the petition by Ada Cabaniss and the objections thereto, the two objecting residuary devisees filed an independent action in the district court asking that the will be construed and that the district court decree that Ada Cabaniss take nothing by said provision in the will, and that title to the property be quieted as against her. The probate appeal and the independent action were heard at the same time, and the district court affirmed the judgment of the county court and sustained a demurrer to the petition in the independent action. At the same time, and by agreement of the parties, the two cases were consolidated so that they could be appealed to this court as one case, and they were docketed under another number. A separate motion for new trial was filed in the consolidated case and the same was overruled, and the two residuary devisees appeal.

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The first question presented is this: Is a provision in a will made by one spouse in favor of the other spouse revoked by the subsequent divorce of the parties in which the devisee is awarded and collects judgment for alimony? We think this question must be answered in the negative.

84 O. S. 1941 § 101 provides:

“Except in the cases in this article mentioned no written will, nor any part thereof, can be revoked or altered otherwise than: . . .”

The section then provides that a will may be revoked by the testator by another instrument properly executed, or by being burnt, torn, canceled, obliterated, or destroyed. The next five sections of the statute elaborate on the methods of revocation by the positive acts of the testator as provided in section 101. Section 107 provides that, with certain exceptions, the subsequent marriage, or the subsequent marriage and birth of a child as a result of such marriage, revokes the will. Section 108 provides that a will executed by an unmarried woman is revoked by her subsequent marriage. Our statutes make provision for the revocation of a will by operation of law in only the two instances indicated. Many states have statutes containing a general provision for the revocation of wills “implied by law from subsequent changes in the condition or circumstances of the testator,” or similar provisions (68 C. J. 825, note 36), but our statute contains no such provision.

Section 101 of our statute, above, contains no ambiguity. It makes the specified methods of revocation exclusive. Such was the holding of this court in the case of In re Ballard’s Estate, 56 Okla. 149, 155 P. 894. The California statute is identical with our section 101, and in the case of In re Comassi’s Estate, 107 Cal. 1, 40 P. 15, it was held that the statutory methods of revocation are exclusive and abrogate the doctrine of implied revocation except as is provided by statute. It is true that the California Code contains an additional provision that “a written will cannot be revoked or altered otherwise than as provided in the Civil Code,” yet we think such provision adds nothing to section 101, above. It merely expresses in different language the thought expressed in section 101.

What we have said is in accord with the general rule that, when a statute provides the manner in which a will may be revoked, the statutory method is exclusive. See 68 C. J. 800, 826; 28 R. C. L. 171; Thompson on Wills (2d Ed.) § 176; Schouler on Wills, Executors, and Administrators (6th Ed.) § 577; Ross, Probate Law and Practice, §33; Bohleber v. Rebstock, 255 111. 53, 99 N. E. 75, 41 L. R. A. (N. S.) 105, Ann. Cas. 1913D, 307; Gay v. Gay, 60 Iowa, 415, 14 N. W. 238, 46 Am. Rep. 78.

It is intimated in the brief of the appellants by the fact that the devise was “to my wife Ada Cabaniss” the testator did not intend the devise to Ada Cabaniss if she ceased to be his wife. There is no provision in the will to the effect that she should not take the devise if she ceased to be his wife. We are of the opinion, and hold, that the use of the term “my wife” is merely descriptive of the person and was not intended as a limitation upon the right of Ada Cabaniss to take. 69 C. J. 194, note 64; 25 A. L. R. 53, annotation; 28 R. C. L. 254, § 227; Meeker v. Draffen, 201 N. Y. 205, 94 N. E. 626, 33 L. R. A. (N. S.) 816 and note, Ann. Cas. 1912A, 930, and note; Card v. Alexander, 48 Conn. 492, 40 Am. Rep. 187; Re Jones’ Estate, 211 Pa. 364, 60 Atl. 915, 69 L. R. A. 940, 107 Am. St. Rep. 581, 3 Ann. Cas. 221; In re Simpson’s Will, 280 N. Y. S. 705. Contra, In re Gilmour’s Estate, 260 N. Y. S. 761.

The Oklahoma legislature eventually reversed the decision by the Supreme Court by legislation found at 84 OS Section 114 – Divorce or Annulment as Revoking Will

A. If, after making a will, the testator is divorced, all provisions in such will in favor of the testator’s spouse so divorced are thereby revoked. Annulment of the testator’s marriage shall have the same effect as a divorce. In the event of either divorce or annulment, the testator’s former spouse shall be treated for all purposes under the will as having predeceased the testator. Provided, however, this section shall not apply if the decree of divorce or of annulment is vacated or if the testator remarries his former spouse, or following said divorce or annulment, executes a new will or codicil which is not revoked or held invalid.

B. This section shall apply to any will of a decedent dying on or after November 1, 1987.

Laws cannot usually be constitutional if they are applied retroactively. The above statute only applied after 1987. I often probate wills executed before 1987. I know wills, once signed, are rarely reviewed. This is not a good idea. If you have a will over 5 years old it is a good idea to have your probate and trust attorney review it.

The same law was adopted for beneficial designations. Title 15 OS. Section 178 – Providing Death Benefits – Contracts of Designating Former Spouse as Beneficiary – Effect of Divorce or Annulment provides:

A. If, after entering into a written contract in which a beneficiary is designated or provision is made for the payment of any death benefit (including life insurance contracts, annuities, retirement arrangements, compensation agreements, depository agreements, security registrations, and other contracts designating a beneficiary of any right, property, or money in the form of a death benefit), the party to the contract with the power to designate the beneficiary or to make provision for payment of any death benefit dies after being divorced from the person designated as the beneficiary or named to receive such death benefit, all provisions in the contract in favor of the decedent’s former spouse are thereby revoked. Annulment of the marriage shall have the same effect as a divorce. In the event of either divorce or annulment, the decedent’s former spouse shall be treated for all purposes under the contract as having predeceased the decedent.

B. Subsection A of this section shall not apply:

1. If the decree of divorce or annulment is vacated;

2. If the decedent had remarried the former spouse and was married to said spouse at the time of the decedent’s death;

3. If the decree of divorce or annulment contains a provision expressing an intention contrary to subsection A of this section;

4. If the decedent makes the contract subsequent to the divorce or annulment;

5. To the extent, if any, the contract contains a provision expressing an intention contrary to subsection A of this section; or

6. If the decedent renames the former spouse as the beneficiary or as the person or persons to whom payment of a death benefit is to be made in a writing delivered to the payor of the benefit prior to the death of the decedent and subsequent to the divorce or annulment.

C. For purposes of subsection A of this section, “death benefit” shall not include:

1. Any interest in property in which the decedent’s former spouse has an interest as a joint tenant; or

2. Any interest in property in which the decedent’s former spouse has a beneficial interest in an express trust created by the decedent during the decedent’s lifetime for which provision is made in Section 175 of Title 60 [60-175] of the Oklahoma Statutes.

D. This section shall apply to any contract of a decedent made and entered into on or after November 1, 1987 and to depository agreements and security registrations made and entered into on or after September 1, 1994.

This statute if not applied retroactively. You need to review all life insurance beneficial designations. Especially for those paid-up policies for which you have not thought about. I frequently run into policies that are required to paid to former spouses because the beneficial designation was before 1987 and was never changed.

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