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, 

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### 21994 Petitioner and Appellant, J,!?2#,,? GLERIIOFS!~pi?:>;;~: c:)uRT NICHOLAS REID RAMIREZ, STATE 0::&:aidi'~i.1~ Respondent.

APPEAL FROM: DistrictCourt of theThirteenthJudicial 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, 1994Justice 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 lettersauthoredby her deceased son,Julian Ramirez, toprobate 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 shepaid off my car and always got me out of jail thats why I think mom should have everything if anything ever happens tome Ialso think she shouldhave 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 (alsounedited):Im so tired of living I wish I could just killmyself 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 "JulianRamirez." 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 appointmentof personal representative. Sheattached 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 probatepetition. OnJuly 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. ;Flikkemav.

### Kimm (l992), 255Mont. 34, 37, 839 P.2d 1293, 1295. Our standard of review for questions of law is to 3determinewhether the district court has correctly interpretedthe law. Schaubv.KtaRichDairy (1989), 236Mont. 389, 391, 770P.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 correctlyor incorrectlyapplies 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 soundmind has the capacity tomake a will. Section 72-2-301,MCA (1991). A holographic will meets the formalities of execution if itsmaterial provisions are in thehandwriting 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 VoastnsEstate

(l954), 127Mont. 450, 266 P.2d 377;InreAugestadnsEstate (1940), 111 Mont. 138, 106 P.2d 1087. There is no dispute that Julian Ramirez had the capacity to make awill, and theDistrict Court concluded thatboth 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. VanVonst, 266 P.2d at 378-79. There is no requirement that the testator realize that he is making a will, nor are there any particularwordsnecessaryto showa testamentary intent. VanVoast, 266 P.2d at 378. Because it is common for people topreface 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. VanVoast, 266 P.2d at 378. However, if the intent is not clear from the writing, then the surrounding circumstancesmay be considered. VanVoast, 266 P.2d at 378. InAugestad, 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 factsand circumstances." There,weheld that rather thanexpressingtestamentaryintent, the letter of the decedent expressed an intention,at some time in the future, tomake a will. The District Court mistakenly concluded that Betty, the proponent of the will, had the burden to show the existence of Julianrstestamentary intent. According to 5 72-3-310,MCA, it is the contestantof awill who has theburden of establishing

### lackoftestamentary 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, contemplatinghis death, and according tohis sister, had asked her to save the letters and tell his mother about their content. On its face, it is abundantly clear that Julianlssecond 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: