## Facts

- Frank Gilbert died testate on June 5, 1979.
- Frank had executed an eight-page, attorney-prepared typewritten will dated April 2, 1976.
- After Frank’s death, his brother James Gilbert submitted three writings for probate: the 1976 typewritten will and two handwritten items dated December 8, 1978.
- The handwritten items were (1) writing on the back of a business card and (2) writing on the back of one of Frank’s pay stubs; they were folded together and found inside a sealed envelope.
- On the envelope, Frank wrote: “This day 12/8/1978 I gave to Jim and Margaret this card which I Stated what to do.”
- On the business card, Frank wrote (with date and signature): “12/8/1978 Jim and Margaret I have appro $50,000 in Safe. See Buzz if anything happens.”
- On the pay stub, Frank wrote (with date and signature): “Jim & Margaret $20,000.00 the Rest divided Equally the other Living Survivors Bro. & Sisters.”
- “Jim and Margaret” referred to James Gilbert (Frank’s brother) and Margaret Gilbert (Frank’s sister-in-law).
- Frank kept a significant amount of cash in a safe at his workplace, matching the handwritten reference to “$50,000 in Safe.”
- On September 4, 1979, the Jefferson Circuit Court admitted the typewritten will to probate and admitted the handwritten items as a codicil.
- Frank’s other siblings (appellants) filed a will-contest action arguing the handwritten items were a second, superseding will that displaced the 1976 will and limited James’s recovery to the $20,000 referenced in the handwritten note.
- After a hearing, the circuit court construed the handwritten items as a codicil affecting only the money in the safe, leaving the 1976 will otherwise in place; the disappointed siblings appealed.

## Issues

1. Were the two handwritten (holographic) writings actually admitted to probate so they could be given effect?
2. Did the trial court commit reversible error by admitting testimony allegedly barred by Kentucky’s Dead Man’s Statute, KRS 421.210(2)?
3. Should the December 8, 1978 handwritten writings be construed as a second and superseding will, or as a codicil limited to the safe money and read together with the 1976 typewritten will?

## Decision

- The Kentucky Court of Appeals affirmed.
- The court held the trial court’s finding that the two handwritten writings were admitted to probate was supported by overwhelming evidence and was not clearly erroneous.
- The court rejected the challenge based on KRS 421.210(2), finding no basis to reverse for the complained-of testimony.
- The court held the December 8, 1978 handwritten writings were properly construed as a codicil that addressed only the cash in the safe, not as a replacement will revoking the 1976 will.

## Legal Principles

- Separate handwritten documents may be treated as a single testamentary instrument when they are contemporaneous, signed (and here dated), physically connected (folded together in a sealed envelope), and relate to the same disposition.
- A later testamentary writing is not treated as revoking an earlier formal will unless revocation is shown by clear intent or by unavoidable inconsistency; courts prefer a construction that gives effect to both instruments when reasonably possible.
- Language narrowly focused on a specific asset or fund supports treatment as a codicil rather than a complete new will, particularly when the earlier will is detailed and the later writing does not purport to dispose of the entire estate.
- Appellate courts defer to trial-court fact findings unless clearly erroneous, including findings about what documents were admitted to probate.

## Conclusion

The Court of Appeals affirmed the judgment construing Frank Gilbert’s December 8, 1978 handwritten business-card and pay-stub notes, found together in a marked envelope, as a codicil limited to the workplace safe cash—directing $20,000 to Jim and Margaret and the remainder to be divided equally among surviving siblings—without revoking or replacing the comprehensive 1976 typewritten will.


Gilbert v. Gilbert, 652 S.W.2d 663 (1983)