## Facts

- George K. Lewis died survived by his wife, Rhoda Lee Lewis.
- Before his death, George wrote a short holographic will.
- The will stated that the “first bequest” was to “insure for [Rhoda’s] comfort, security and her fair portion,” but it did not identify specific property to pass to Rhoda, state a percentage or formula for her share, or include a residuary clause.
- The will designated George’s brother, Ben E. Lewis, as executor and directed Ben to seek legal guidance from a named attorney.
- The will further instructed Rhoda to “work harmoniously” with Ben and the attorney.
- After George’s death, Ben petitioned the district court sitting in probate for authority to distribute the estate under Utah’s intestate-succession statute.
- The intestate-succession statute limited how much of the estate could pass to a surviving spouse in the circumstances presented.
- Rhoda objected, arguing in the alternative that: (i) the will granted Ben a power of appointment to allocate estate property for her benefit; (ii) the will should be read as devising the entire estate to her; (iii) the will should at least be construed to give her the widow’s intestate share; or (iv) the will showed an intent that she receive the bulk of the estate.
- The district court rejected Rhoda’s interpretations, held that the will created no power of appointment, and concluded the will’s purported dispositive language was ineffective, leaving the estate to pass by intestate succession.
- Rhoda appealed.

## Issues

1. Whether the holographic will’s statement that the “first bequest” was to ensure Rhoda’s “comfort, security and her fair portion” was sufficiently definite to operate as a testamentary disposition of estate property.
2. Whether the will’s appointment of Ben as executor, coupled with directions to consult an attorney and work with Rhoda, created a power of appointment authorizing Ben to decide what property Rhoda would receive.
3. If the will did not make an effective disposition, whether the court could construe the instrument to award Rhoda at least her statutory widow’s share or the bulk of the estate based on perceived intent.

## Decision

- The Utah Supreme Court affirmed the district court.
- The court held the will did not create a power of appointment in the executor.
- The court held the will’s general language concerning Rhoda’s welfare and “fair portion” did not dispose of property because it lacked definite, operative gift terms.
- Because the will did not effectively dispose of the estate, distribution was governed by Utah intestate-succession law.

## Legal Principles

- A will must contain operative dispositive language that identifies, with reasonable certainty, the property interest passing and the beneficiary’s entitlement; generalized statements of purpose or desire are not enough to transfer title.
- Words expressing concern for a beneficiary’s well-being (such as “comfort,” “security,” or “fair portion”) are commonly treated as precatory unless the instrument clearly makes a mandatory gift and provides a workable measure of what is given.
- A power of appointment is not inferred from routine executor instructions (e.g., to consult counsel or cooperate with a beneficiary); the instrument must clearly grant authority to determine beneficial ownership or allocate shares.
- When a will fails to dispose of property, courts do not supply missing dispositive terms or rewrite the instrument to match an assumed plan; undisposed property passes under the intestate-succession statute.

## Conclusion

In re Estate of Lewis holds that a holographic will’s vague direction to ensure a spouse’s “comfort, security and her fair portion,” along with administrative directions to an executor, neither creates a power of appointment nor makes a definite devise; therefore, the estate is distributed under intestate succession rather than under an implied or reconstructed testamentary scheme.


In re Estate of Lewis, 738 P.2d 617 (1987)