## Facts

- David Schumacher executed a holographic will (Dec. 1, 2004) devising shares of Meyers Land & Cattle stock to three cousins: Maria Caldwell, Cheryl Smart, and Deborah Caldwell.
- In January 2006, Schumacher consulted an attorney to draft a typed will; the attorney’s copy of the holographic will showed Maria’s and Cheryl’s names crossed out as remainder devisees of the stock.
- Schumacher told the attorney he no longer wanted the stock to go to two of the three cousins and wanted a typed will mirroring the holographic will except for those deletions; he indicated he wanted Deborah to receive the stock.
- The attorney drafted a typed will consistent with those instructions, but Schumacher died in July 2007 without executing it.
- After Schumacher’s death, the original holographic will was found among his records and contained the same cross-outs of Maria’s and Cheryl’s names.
- In probate, Maria and Cheryl sought construction of the will, arguing the strikethroughs should not be given effect; the probate court held the cross-outs partially revoked the stock devises to them and awarded the stock to Deborah.
- Maria appealed the order giving effect to the cross-outs.

## Issues

1. Whether cross-outs on a holographic will may operate as a valid partial revocation of specific devises under Colorado law.
2. What proof is sufficient to show the testator made the cross-outs with intent to revoke.
3. Whether the probate court clearly erred in finding the testator made and intended the cross-outs despite no direct testimony identifying who physically struck the names.

## Decision

- The Colorado Court of Appeals affirmed.
- The court held the probate court did not err in treating the strikethroughs as a valid partial revocation of the stock devises to Maria and Cheryl.
- The court concluded the record supported the finding that Schumacher made the cross-outs with revocatory intent, and the probate court’s factual determinations were not clearly erroneous.
- The unexecuted typed will did not control distribution, but it was relevant evidence of Schumacher’s intent regarding the cross-outs.

## Legal Principles

- A will (including a holographic will) may be revoked in whole or in part by a physical act, including canceling or crossing out portions, when performed by the testator with intent to revoke.
- Testamentary effect may be given to alterations on a holographic will when circumstantial evidence supports both (a) the testator’s authorship of the physical act and (b) the testator’s intent to change the disposition.
- Appellate review defers to the probate court’s factual findings; an appellate court will not reweigh evidence and will overturn such findings only if clearly erroneous.
- An unexecuted later draft will is not itself operative, but it may be considered as evidence bearing on the testator’s intent about changes to an existing will.

## Conclusion

The court upheld a probate order enforcing cross-outs on a holographic will as a partial revocation of specific gifts where testimony and surrounding circumstances supported that the testator made the markings intending to eliminate two beneficiaries and leave the asset to the remaining beneficiary.


In re Estate of Schumacher, 253 P.3d 1280 (Colo. App. 2011)