Wills – Holographic will, conditional will, extrinsic evidence: Fisher v. Gray (COA 7/2/2009)

Fisher v. Gray
2008-CA-000171 07/02/2009 2009 WL 1884425 DR Pending

Opinion by Judge Keller; Judge Wine concurred; Senior Judge Lambert dissented by separate opinion.

The Court affirmed a summary judgment of the circuit court entered in favor of one of three sisters in an original action filed pursuant to KRS 394.240, asserting that their father’s holographic will was a conditional will and that it was without effect because the condition did not occur. The Court held that the trial court did not err in relying upon extrinsic evidence or in concluding that the instrument was conditional and that the condition did not occur. Extrinsic evidence was admissible to prove the circumstances surrounding the execution of the will to construe the language that the will was “written in case of emergency,” where the disposition of the estate was unnatural. The Court then held that the trial court did not err in finding that the father intended the will to be conditional upon his death due to an emergency during an upcoming surgical procedure. Therefore, the trial court did not err in when it found, as a matter of law, that the father died intestate when he died eight years later from lung cancer, allowing all three sisters to share equally in their father’s estate.

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