In the Matter of Gladys G. Tipler, 414 Mass. 172, 606 N.E.2d 901, 1998 Tenn.App. LEXIS 841
Author: Anonymous

Facts: The decedent, G.Tipler, executed a formal will in 1982, leaving most of her estate behind to her husband, contingent on him surviving her.  It did not provide for distribution if he predeceased her.  Two days later she executed a holographic codicil which provided that if he predeceased her, his last will would be their agreement for distribution, and either party can elect to make changes.  Her husband did not execute his will until some years after the execution of her codicil.  It created a trust for his wife and directed that upon her death the property be distributed to his relatives. Testimony was given that testatrix’ didn’t like her family and that she felt her husband’s family as her family.

Issue: 1) Whether the doctrine of facts of independent significance applies?  Whether the holographic codicil can incorporate a document that was not in existence when the codicil was executed?

Holding: Yes the doctrine of facts of independent significance is applicable to permit Testatrix’ codicil to refer to her husband’s will, provided the document is a valid holographic codicil.

Procedure: After a bench trial, the ct issued a Memorandum Opinion.  Tr. ct found doctrine of incorporation by reference inapplicable b/c husband’s will was not in existence at the time testatrix’ codicil was written, Tr. ct applied the doctrine of facts of independent significance and ordered the decedent’s assets be distributed with her husband’s will.  Affirmed.

Rule: 1) Where disposition cannot be fully ascertained from the terms of the will, it is not invalid if it can be ascertained from the facts that have a significance apart from their effect on the disposition of the will.  Cts may use extrinsic evid to identify the persons who are to take.

2) Presumption against intestacy is applicable when the words used, by any fair interpretation, will embrace the property not otherwise devised, unless a contrary intention appears from the context.

Rationale: 1)  Testatrix left her residuary estate to her husband in her Will and then modified that provision in her codicil giving him the privilege of naming who would take his part of her estate if he died first. The doctrine of significance is satisfied b/c his will had an independent significance of distributing his estate and was not written w/ the intention of distributing her estate. 2) C.L. principles of will construction apply: presumption against intestacy (including partial), and the weight given to the testator’s intent. The presumptive rule against intestacy operates to prevent testamentary gifts from lapsing or failing.  The testator’s intent is the most important factor, unless it contravenes some law or public policy.  Testimony established that the testatrix wanted her estate to be distributed to whomever the husband wanted.  Thus, a holograph which bequeaths her estate to persons named as beneficiaries under his will would contain all the material provisions in the Testatrix handwriting, is valid, even though the specific identity of the beneficiaries is contained in another document not in her handwriting.