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Gushwa v. Hunt

New Mexico Supreme Court
197 P.3d 1 (2008)


Facts

The decedent, George Gushwa, executed a will that left his estate in a trust for his wife, Zane Gushwa, with the remainder to be distributed to his nieces and nephews upon Zane’s death. George gave the original will to Ted Dale for safekeeping. George then decided to revoke the will. According to Zane, Ted refused to send the original will to George. According to Ted, Zane requested the original will, and George instructed Ted not to send it to her, but instead to send him a photocopy of certain pages. George wrote “revoked” on the top of the photocopied pages of his will in his possession. George and his attorney also executed a document called Revocation of Missing Will(s), which stated that George wished to revoke his will, that he had cancelled the three photocopied pages of his will with the intent to revoke the will, and that his estate would pass by intestate succession if he did not execute a subsequent will. George later acquired a photocopy of the entire will from his attorney, and wrote “revoked” on the top of all of the pages of this photocopy. After George died, Zane (plaintiff) asserted that George had died intestate because he had revoked his will by executing the revocation document and by writing “revoked” on the photocopied will. George’s niece Wanda Hunt (defendant) objected, arguing that George’s will had not been revoked because the attempted revocation did not comply with the revocation requirements under the probate code. Zane argued that Ted’s actions prevented George from being able to write “revoked” on the original will, and asked that a constructive trust be imposed on the estate if George’s will was found to not be revoked. The district court found that George’s revocation was not effective, and the court of appeals affirmed. Zane appealed.

Rule of Law

Issue

Holding and Reasoning (Bosson, J.)

Dissent (Chavez, C.J.)

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