No. 93-466 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN THE MATTER OF THE ESTATE OF 

JULIAN RAMIREZ, JR., Deceased. 

BETTY J. RAMIREZ, FEB 2 2 1994 

Petitioner and Appellant, J,!? 2 #,,? 

GLERII OF S!~pi?:>;;~: c:)uRT NICHOLAS REID RAMIREZ, STATE 0:: &:aid i'~i.1~ 

Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Hon. Maurice R. Colberg, Jr., Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Craig W. Holt, Attorney at Law, 

Billings, Montana 

For Respondent: 

Damon L. Gannett, Gannett & Ventrell, 

Billings, Montana 

Filed: 

Submitted on Briefs: January 27, 1994 

Decided: February 22, 1994 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Betty J. Ramirez petitioned the District Court of the 

Thirteenth Judicial District, in Yellowstone County, to admit 

letters authored by her deceased son, Julian Ramirez, to probate as 

his holographic will. After hearing evidence, the District Court 

denied admission of the proposed will to probate. The petitioner 

appeals from the order of the District Court. We reverse. 

The following issue is presented on appeal: 

Did the District Court err when it concluded that the 

documents offered as the holographic will of Julian Ramirez were 

unsupported by testamentary intent? 

FACTUAL BACKGROUND 

Julian Ramirez, Jr., was incarcerated in the Yellowstone 

County Detention Facility between November 21, 1991, and 

December 3, 1991. During that time, he mailed a one-page, 

handwritten letter to his sister, Julie Ramirez, which contained 

the following unedited language: 

Im gonna stay with mom and help her out mom did alot of 

things for me she paid off my car and always got me out 

of jail thats why I think mom should have everything if 

anything ever happens to me I also think she should have 

nicolas because Elaine doesnt take care of him but mom 

will take care of him 

Between January 27, 1992, and February 28, 1992, Julian was 

again incarcerated in the Yellowstone County Detention Facility. 

During this time, he wrote another one-page letter to his sister, 

Julie. That letter stated in part (also unedited): 
Im so tired of living I wish I could just kill myself If 

anything ever does happen to me or I do something to 

myself tell mom I want her to have everything of mine 

Neither letter was dated, but both were signed "Julian Ramirez." 

Julian Ramirez died as a result of an automobile accident on 

September 21, 1992, at the age of 22 years. At the time of his 

death, Julian had one child, a son, Nicholas, who is now three 

years old. There is no legal relationship between Julian and the 

child's mother, Elaine Coburn. 

On December 29, 1992, Betty Ramirez, Julian's mother, filed a 

petition for formal probate of will, determination of testacy and 

heirs, and appointment of personal representative. She attached as 

Julian's holographic will, the second letter he had written to 

Julie. Nicholas, through his attorney, objected to the admission 

of the alleged will. The District Court held a hearing on the 

matter on March 11, 1993. At the hearing, Betty offered the first 

letter Julian sent to Julie to supplement the letter she attached 

to the formal probate petition. On July 19, 1993, the court issued 

its findings of fact, conclusions of law, and order, and denied 

admission of the letters to probate as holographic wills. 

Did the District Court err when it concluded that the 

documents offered as the holographic will of Julian Ramirez were 

unsupported by testamentary intent? 

In a nonjury trial, this Court will not disturb the district 

court's findings of fact unless they are clearly erroneous. Rule 

52 (a), M.R.Civ.P. ; Flikkema v. Kimm (l992), 255 Mont. 34, 37, 839 P.2d 

1293, 1295. Our standard of review for questions of law is to 

3 
determine whether the district court has correctly interpreted the 

law. Schaubv. KtaRichDairy (1989), 236 Mont. 389, 391, 770 P.2d 522, 

523. The basis for this standard of review is that no discretion 

is involved when a tribunal arrives at a conclusion of law; the 

tribunal either correctly or incorrectly applies the law. Flikkema, 

839 P.2d at 1295. 

There are three requirements for a valid holographic will in 

Montana. An individual who is eighteen years or older and is of 

sound mind has the capacity to make a will. Section 72-2-301, MCA 

(1991). A holographic will meets the formalities of execution if 

its material provisions are in the handwriting of the testator and 

signed by the testator. Section 72-2-303, MCA (1991). Finally, 

the individual must have testamentary intent; he must intend that 

the document will dispose of his property after death. SeeEstateof 

Coleman (1961), 139 Mont. 58, 359 P.2d 502; In re Van Voastns Estate 

(l954), 127 Mont. 450, 266 P.2d 377; In reAugestadns Estate (1940), 111 

Mont. 138, 106 P.2d 1087. 

There is no dispute that Julian Ramirez had the capacity to 

make a will, and the District Court concluded that both letters met 

the statutory formalities for the execution of a holographic will. 

However, the District Court refused to admit the letters as a 

holographic will because the District Court concluded that both 

letters and the surrounding circumstances failed to reflect 

sufficient testamentary intent. 
In previously addressing this issue, this Court has adopted 

several well-settled rules. The intention that must be present is 

the intention to dispose of property after the testator's death. 

Van Vonst, 266 P.2d at 378-79. There is no requirement that the 

testator realize that he is making a will, nor are there any 

particular words necessary to show a testamentary intent. Van Voast, 

266 P.2d at 378. Because it is common for people to preface their 

wishes or directions with expressions like "if anything happens to 

me," courts have long considered such language to indicate 

testamentary intent. Coleman, 359 P.2d at 503. 

Whether sufficient testamentary intent is present in an 

alleged will should be determined by first looking to the writing 

itself. Van Voast, 266 P. 2d at 378. However, if the intent is not 

clear from the writing, then the surrounding circumstances may be 

considered. Van Voast, 266 P. 2d at 378. 

In Augestad, 106 P.2d at 1088, we said that "[tlhere is no 

definite fixed rule by which testamentary intent may be gauged. 

Each case must stand on its own peculiar facts and circumstances." 

There, we held that rather than expressing testamentary intent, the 

letter of the decedent expressed an intention, at some time in the 

future, to make a will. 

The District Court mistakenly concluded that Betty, the 

proponent of the will, had the burden to show the existence of 

Julianrs testamentary intent. According to 5 72-3-310, MCA, it is 

the contestant of a will who has the burden of establishing lack of 
testamentary intent. Our review of the record causes us to 

conclude that that burden was not satisfied. 

In this case, we conclude that both the document itself and 

the surrounding circumstances indicate testamentary intent. Julian 

was in jail, contemplating his death, and according to his sister, 

had asked her to save the letters and tell his mother about their 

content. On its face, it is abundantly clear that Julianls second 

letter to Vzell mom I want her to have everything of mine" 

indicates his intent that his property should pass to his mother 

upon his death. 

We therefore reverse the order of the District Court and 

remand this case to the District Court for admission of the 

proposed will of Julian Ramirez to probate. 

We concur: