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Clark v. Greenhalge | 582 N.E.2d 949 (1991)
It’s common for lawyers to include in their clients’ wills a provision incorporating a written memorandum directing the disposition of their tangible personal property. This type of provision ensures the lawyer’s time and the client’s money aren’t wasted if the client later changes how certain assets should be distributed. In the 1991 case of Clark versus Greenhalge, the Supreme Judicial Court of Massachusetts considered whether a woman’s written notebook was memorandum incorporated by reference in her will.
In 1977, Helen Nesmith duly executed a will that named her cousin, Frederic Greenhalge, as the executor of her estate. Greenhalge was also identified in the will as the principal beneficiary of Nesmith’s estate. Upon Nesmith’s death, Greenhalge was entitled to receive all of Nesmith’s tangible personal property, except those items specifically designated by a memorandum. Among Nesmith’s most prized possessions was a large 1833 oil painting of a farm scene, valued at $1,800. The farm scene painting, however, was never identified in Nesmith’s will.
Additionally, Nesmith kept a notebook in which she listed items that she wanted others to receive upon her death. In the notebook, Nesmith stated that she wanted her close friend, Virginia Clark, to have the farm scene painting. Nesmith’s private home-care nurses also stated that on several occasions Nesmith expressed to them her intention of giving the farm scene painting to Clark. Nesmith passed away in January 1986, and Greenhalge refused to deliver the farm scene painting to Clark because it interested him and he wanted to keep it for himself.
Clark then brought an action against Greenhalge, as executor of Nesmith’s estate, in probate court, seeking to compel Greenhalge to deliver the farm scene painting to her. Greenhalge argued that the notebook couldn’t be considered a memorandum because it wasn’t specifically identified as a memorandum and wasn’t known to him until after Nesmith’s death. The probate court disagreed, concluding that the notebook was memorandum incorporated by reference in the will. Greenhalge appealed, and the appeals court affirmed. The Supreme Judicial Court of Massachusetts granted Greenhalge’s petition for further appeal.
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Clark v. Greenhalge | Case Brief for Law School – LexisNexis
Clark v. Greenhalge – 411 Mass. 410, 582 N.E.2d 949 (1991). Rule: A properly executed will may incorporate by reference into its provisions any document or …
Source: www.lexisnexis.com
Date Published: 6/15/2022
View: 6419
Clark v. Greenhalge | Case Brief for Law Students
Clark v. Greenhalge Case Brief – Rule of Law: A document may be incorporated into a will by reference if the will makes reference to the document, …
Source: www.casebriefs.com
Date Published: 7/8/2022
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Clark v. Greenhalge, 582 N.E.2d 949 (1991) – Quimbee
Get Clark v. Greenhalge, 582 N.E.2d 949 (1991), Supreme Judicial Court of Massachusetts, case facts, key issues, and holdings and reasonings online today.
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Date Published: 9/13/2021
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Clark v. Greenhalge, 411 Mass. 410 | Casetext Search + Citator
First, Greenhalge contends that the judge wrongly concluded that the notebook could be consered a “memorandum” within the meaning of Article Fifth, because it …
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Clark v. Greenhalge – Case brief – Incorporation by reference
Reasoning: A properly executed will may incorporate by reference any document or paper not so executed and witnessed whether it was referred to in the form of a …
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Date Published: 1/2/2021
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Clark v. Greenhalge
Clark v. Greenhalge · Nesmith executed a will naming her cousin, Greenhalge as the executor of her estate as well as the principle beneficiary. · Nesmith died.
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Date Published: 1/23/2022
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CLARK V. GREENHALGE, 411 Mass. 410 … – Law School Case Briefs
CLARK V. GREENHALGE, 411 Mass. … FACTS: Testatrix executed a will in 1977 naming Greenhalge (D) as both her principal beneficiary and the executor of her …
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Date Published: 6/17/2021
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Clark v. Greenhalge
Brief Fact Summary. Helen Nesmith executed a will and made reference to a document outside of the will that would give guidance on how to distribute her estate. The executor, also a beneficiary under the will, refused to distribute a painting in accordance with a notebook that listed how Nesmith wanted to distribute certain pieces of personal property at her death. The probate judge found that the notebook was incorporated by reference into the will.
Synopsis of Rule of Law. A document may be incorporated into a will by reference if the will makes reference to the document, the document was in existence at the time that the will was created, and is the document is sufficiently identifiable in the will.
Points of Law – Legal Principles in this Case for Law Students. The cardinal rule in the interpretation of wills, to which all other rules must bend, is that the intention of the testator shall prevail, provided that it is consistent with the rules of law. View Full Point of Law
Facts.
Nesmith executed a will in 1977 that named Frederic T. Greenhalge as the executor. The will also made Greenhalge her principal beneficiary to all of their tangible personal property upon her death except the items that she “designated by a memorandum left by her and known to Greenhalge, as in accordance with her known wishes to be given to others at her death.” Nesmith kept a plastic covered notebook in her drawer and named it “List to be given Helen Nesmith 1979.” One of the entries among others read, “Ginny Clark farm picture hanging over fireplace.” Several times Nesmith told her home care nurses that the painting should go to Virginia Clark. Nesmith also told Clark that she wanted her to have the painting. Nesmith executed two codicils to her 1977 will, one on May 30, 1980 and one on October 23, 1980. The codicils amended certain bequests and deleted others while ratifying the will. Nesmith also created a document called “MEMORANDUM” with Greenhalge in 1972 and identified it as a list of items of personal property prepared with Miss Helen Nesmith upon September 5,1972 for the guidance of myself in the distribution of personal tangible property. Greenhalge was the executor for Nesmith’s estate. As executor he distributed Nesmith’s property in accordance with the will as amended, the 1972 memorandum as amended in 1976, and certain provisions of the notebook. Greenhalge did not give the painting to Clark because he wanted to keep it. Greenhalge was aware of the notebook and its contents but made no attempt to determine the validity of the gift of her farm scene painting to Clark. Nesmith’s notebook was in existence at the time of the execution of the 1980 codicils. The probate judge ruled that the notebook was a part of the will and Greenhalge appealed.
Issue. Whether a document may be incorporated by reference into a will if the will refers to the document even though it may not be in the same form as stated in the will, but serves the same function as the document stated in the will, and was in existence at the time the codicils to the will were created.
Held. Yes. A notebook that gives the executor guidance in distributing the testator’s estate may be incorporated by reference to a will that includes the language of a memorandum that serves as a guide to the executor on the distribution of her estate. The language in the will, “a memorandum” does not preclude the existence of more than one memorandum. It also does not preclude the existence of a document in the form of a notebook from being included in the will. The fact that it was not labeled as such does not mean that it was not intended by the testator to be an instruction as to how to distribute her property at death. Since the testator retained the right to amend and alter her will after execution, the notebook is sufficiently described since it guides the executor in distributing her estate at death and the notebook was in existence at death.
Discussion. A document may be incorporated by reference if the will refers to the document and the document was in existence with codicils were made to the will, even if it did not exist at the time the original will was created. Also, the item is sufficiently described in the will even if it is not specifically referred to if it serves the same purpose as is indicated in the will.
Clark v. Greenhalge, 582 N.E.2d 949 (1991): Case Brief Summary
Supreme Judicial Court of Massachusetts
582 N.E.2d 949 (1991)
Helen Nesmith executed a will making her cousin, Frederic T. Greenhalge, II (defendant), executor and primary beneficiary of her tangible personal property. However, Article Fifth of Nesmith’s will limited the bequest to Greenhalge by requiring that property specifically described by Nesmith in a “memorandum” that was known to Greenhalge, be distributed to the persons identified therein, if living, or according to Nesmith’s “known wishes.” In 1972, Nesmith created a document titled “Memorandum” (Memorandum) that listed specific bequests of her tangible personal property. Nesmith also maintained a notebook titled “List to be given Helen Nesmith 1979” (Notebook) that also contained a list of specific bequests of personal property, including a bequest of a farm scene painting (Painting) to Virginia Clark (plaintiff), a close friend and neighbor of Nesmith. Over their ten years of friendship, Nesmith often stated her intention to give the Painting to Clark and told Clark that she would record the gift in a book she maintained for that purpose. In 1980, Nesmith executed two codicils to her will, changing some bequests not affecting Article Fifth and otherwise reaffirmed the will. After Nesmith’s death in 1986, Greenhalge distributed the gifts described in the Notebook, including gifts to himself, but refused to distribute the Painting to Clark. Clark then commenced an action against Greenhalge. Greenhalge claimed that he was unaware of the Notebook until he received it after Nesmith’s death, however, Nesmith’s home care nurses testified that Greenhalge was aware of the Notebook and its contents. The probate judge found that the Notebook was a “memorandum” incorporated by reference into Nesmith’s will since it was in existence at the time of execution of the codicils and awarded the Painting to Clark. Greenhalge appealed to the Supreme Judicial Court of Massachusetts.
Incorporation by reference: a valid will can incorporate by
Incorporation by reference: a valid will can incorporate by reference a document that was not executed with Wills Act formalities, thereby giving effect to the intent expressed in the incorporated document, as long as: (1) the will expresses the intent to incorporate the document (2) the will describes the document with reasonable certainty, and (3) the document being incorporated was inn existence when the will was executed UPC § 2-510.
1 and describe requirements: the courts apply a rather low threshold for the first two requirements. If the will makes reference to another document, arguably that is enough to constitute the intent to incorporate it. If the wills description of the document is not 100% accurate, but the court is persuaded that this is the document to which the testator was referring, the court will find that the will describes the document with reasonable certainty.
2 in existence requirement: the courts strictly apply the requirement that the document has to have been in existence at the time the will was executed. Exact dating is not necessary but the plaintiff bears the burden of proving a preponderance of the evidence that the document was in existence when the will was executed. If the document changes over time the only document as it existed at the time the will was executed is incorporated by reference (unless the will is reexecuted under republication by codicil)
Name: Clark v. Greenhalge Court: Supreme Judicial Court of MA Date: 1991 Citation: 411 Mass. 410
Procedural History:
Facts: Nesmith executed a will in 1977 naming her cousin Frederic Greenhalge executor and principle beneficiary. He would get all personal property except those items which she designated by a memorandum known to Greenhalge or in accordance with her known wishes. There was a painting assessed at $1800. In 1972 Memo drafted with a list of specific bequests of items of property. In 1976 , she modified it. Neither version referred to the painting. She kept a notebook in her desk where she kept a list of the bequests and one entry read that the painting was to go to Ginny Clark. Her homecare nurses knew about the book and saw her write in it. She also told them that the painting was to go to Ginny. They were neighbors and close friends. She also told Ginny she would leave her the painting. Greenhalge got the notebook on or shortly after her death. Greenhalge distributed the property as per the most recent will and consistent with certain provisions in the
notebook. But he refused to give Ginnie the painting because he wanted to kep it himself, along with all of the other things listed in the notebook which were left to him. Probate judge found that Nesmith wanted Ginnie to have it. Notebook was “known wishes”. He found that the notebook was incorporated by reference since it was in existence at the time of the most recent codicil.
Issue: did the probate judge correctly conclude that specific, written bequests of personal property contained in a notebook maintained by the testatrix were incorporated by reference into her will?
Holding: Affirmed. It was incorporated by reference.
Reasoning: A properly executed will may incorporate by reference any document or paper not so executed and witnessed whether it was referred to in the form of a list or memo if it was in existence at the time of the execution of the will and it can be identified as the paper referenced in the will. Parties agree that the memo was in existence as of the date of the execution so it was incorporated by reference. The notebook – intention of testator prevails. Language in the will and the ratification by codicil, and circumstances at the time of execution indicate that she intended to retain the right to alter and amend bequests without having to formally amend the will. In article fifth she said she would express her wishes in a memorandum. The statements in the notebook reflect nesmith’s exercise of her power to change distributions. It doesn’t matter that the notebook is not titled memorandum. It is obviously intended to guide Greenhalge in distributions. Just because it says memorandum doesn’t mean she is limited to that format. The notebook was in existence when she executed the codicils. The notebook was also known to him. The court held that the language of the will was broad enough to include both the memo and the notebook, and that the will described the notebook with reasonable certainty.
Dissent:
Concurrence:
Definitions:
Notes:
*she made the entry after the will was executed, however in the codicil it said he wrote his intent and court applies the doctrine of republication by codicil republishes the will and now the notebook is in existence at the time of the execution of the will and the will speaks of the date of the codicil
Clark v. Greenhalge
Clark v. Greenhalge
411 Mass. 410, 582, N.E.2d 949 (1991) Nesmith executed a will naming her cousin, Greenhalge as the executor of her estate as well as the principle beneficiary.
The will left everything to Greenhalge, except items “designated by a memorandum left by Nesmith and known to Greenhalge, or in accordance with Nesmith’s known wishes.”
A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit identification.
Nesmith kept a list of items (aka the memorandum) she wanted to give to other people, and made frequent changes to the list.
After executing the will, Nesmith began keeping a list of items in a separate notebook, including an entry giving her neighbor Clark a painting of a farm (worth $1800).
Clark testified that Nesmith told her she could have it.
This notebook was not in existence at the time the will had been executed.
After creating the notebook, Nesmith executed a codicil to the official will.
Nesmith died. Greenhalge divvied up the property, following the will and the bequests made in the memorandum, but refused to make gifts that were specified in the notebook. Clark sued.
The Probate Court found for Clark. Greenhalge appealed.
The Probate Court found that the notebook qualified as a ‘memorandum’.
Since the will takes the date of the codicil , the will was officially executed after the notebook came into existence, even though the original will was executed before the notebook was created.
Therefore it can be incorporated by reference .
The Appellate Court affirmed. Greenhalge appealed.
The Massachusetts Supreme Court affirmed.
Greenhalge unsuccessfully argued that the notebook was not part of the memorandum and was therefore not a testamentary devise .
It could be argued that the notebook was just for drafts of what Nesmith was thinking about giving, and that if she really intended the gifts to be given, she could have easily included them in the memorandum.
Under the Uniform Probate Code , there are three things outside of a will that can be transferred during probate:
Things that are incorporated by reference ( UPC § 2-510 )
)
Such as items on an independent list.
The list must be mentioned in the will, and be in existence at the time the will was written.
Things of independent significance that aren’t specified at the time the will is executed. ( UPC § 2-512 )
For example, “the car that I own when I die.”
Legal lists ( UPC § 2-513 )
Personal property other than money on a list prepared before or after execution of the will.
Must be signed.
Only available in some States.
Better than an incorporation by reference because you can change it after the will is signed, but it is limited to non-monetary gifts.
Law School Case Briefs: CLARK V. GREENHALGE, 411 Mass. 410, 582 N.E.2d 949 (1991) CASE BRIEF
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