Without “Testamentary Intent” Handwritten Note is Not a Will


In 1978, shortly after his mother’s death, Donald Gilbert wrote this note on a three-by-five note card:

“Dear Lillian, 11-27-78. I’ve been very depressed—I can’t stop crying for Mom—in my death I’ve left everything to you and the children. Don’t be angry with me. Love, Don.

Mr. Gilbert died seventeen years later. His cousin Lillian Miller claimed that the note was a will, and that she and her children should inherit his estate.

California, like Arizona, recognizes “holographic” wills. A holographic will is one substantially (or, as in the case here, entirely) in the individual’s handwriting and signed by the individual. While wills usually must be witnessed by at least two persons, holographic wills do not require any witnesses. If Mr. Gilbert’s note card was a will at all, it would be valid under California law.

As is usually the case, of course, the facts were more complicated than that. After Mr. Gilbert’s death Ms. Miller had secured appointment as administrator (what in Arizona and many other states would be called “personal representative”) and had handled the estate for two years. During that time she had misused Mr. Gilbert’s funds; the probate court ultimately ordered her to repay $837,525. If she and her children were the sole devisees, however, her misuse of funds probably would not cause her any problems.

The probate court determined that the note was in Mr. Gilbert’s handwriting. One friend testified that Mr. Gilbert had said he had prepared a will; another friend swore that Mr. Gilbert had said the exact opposite. Considering all the evidence, the probate court decided that the note card was Mr. Gilbert’s last will and that Ms. Miller and her children should inherit the entire estate.

The California Court of Appeals disagreed. For the appellate court, the key question was whether Mr. Gilbert intended the note card to be a will. It would not be enough, said the court, just to determine that the note reflected what Mr. Gilbert intended to do. The note referred to a past act when it said “I’ve left everything to you….” In that case, the note was not itself a will, even though it was in Mr. Gilbert’s handwriting and signed by him.

Since no other will could be found, and there were no children or spouse surviving, Mr. Gilbert’s estate went to his cousins—including Ms. Miller, but also including several others. It is unclear how much money remains in the estate, or how much Ms. Miller will have to repay. Estate of Gilbert, October 16, 2003.

©2021 Fleming & Curti, PLC