Court Enforces Codicil Written In Decedent’s Blood (Yes, You Read That Correctly)

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Will (pd)I never took trusts and estates in law school because I thought it would be boring. Had I known that there were cases like In the Matter of The Will of E. Warren Bradway, then I might have felt differently. The Appellate Division's opinion in that case begins: "This appeal arises out of a dispute concerning a holographic codicil to a will, written with the blood of the decedent, E. Warren Bradway." If you are intrigued, and how could you not be, please read on.

In Bradway, decedent was in a long-term relationship with defendant. They lived together and filed documents with the Philadelphia Commission on Human Relations recognizing their relationship as life partners. While they were together, decedent executed a will that named defendant as his primary beneficiary and executor of his estate.

Three years after executing the will, the relationship ended. Both decedent and defendant moved on to new relationships. Decedent filed a certified life partnership termination statement with the Philadelphia Commission on Human Relations and, on the same day, drafted a one-page codicil to his will. The codicil named decedent's new partner as his primary beneficiary and executor by directing that all references to defendant in the prior will be replaced with his new partner's name. Oh, and decedent "drafted the codicil using his own blood as ink." 

Two years after drafting the codicil, and while still living with his new partner, decedent passed away unexpectedly. Decedent's estate filed an action to admit his will and codicil to probate. Defendant responded by contesting the validity of the codicil. Each side retained experts to examine the blood and the handwriting on the codicil. Each of these experts testified at trial. The experts did not have a DNA sample from decedent, so they compared the DNA extracted from the blood on the codicil to DNA extracted from the blood of decedent's two brothers. Decedent's expert concluded that there was a 99.9999% probability that the blood on the codicil came from a full sibling of decedent's brothers. Defendant's expert claimed that the DNA in the blood on the codicil "reflected mixed-source profiles that came from more than one contributor." But, she nonetheless acknowledged that "the major contributor of the DNA was a full-sibling of decedent's brothers, and that the mixed-source profiles may have been caused by transfer of DNA left by others who handled the codicil prior to her analysis." Decedent had no brothers other than the two who provided DNA samples to the experts, therefore both experts effectively agreed that the blood on the codicil was decedent's blood. 

The handwriting experts also agreed that the signature on the codicil was decedent's signature. But defendant's expert opined that he "could not rule out that the signature had been placed there by a 'robotic machine' or 'cut-and-paste'" after decedent died.

After the experts testified, decedent moved for a directed verdict. Defendant opposed, arguing that he still had two witnesses to present, each of whom would purportedly testify that, at the time of decedent's death, there was no signature on the codicil. Decedent also moved for sanctions against defendant, arguing that his objections to the codicil were frivolous. The trial court granted defendant's motion for directed verdict, holding that, even without a signature, there was clear and convincing evidence that decedent intended the codicil to alter his will. But the trial court denied the motion for sanctions, holding that defendant had "taken reasonable positions in light of the 'eccentric' nature of [decedent's] preparation of the codicil using his own blood."

Defendant appealed the trial courts decision on the directed verdict, and Decedent cross-appealed the denial of its motion for sanctions. The Appellate Division affirmed both decisions. (This post focuses only on the Appellate Division's decision on decedent's motion for directed verdict.)

The Appellate Division observed that its role in probate matters was to "ascertain and give effect to the probable intention of the testator." To do that, it would "look to the language of the will to determine if the testator expressed an intent as to how the property should be distributed." The court further observed that, when a written will is involved, there are several statutes that come into play. These statutes authorize two types of wills that are in writing and signed by the testator — traditional wills and holographic wills. But they also authorize wills that are not signed by the testator, so long as the "proponent of the document or writing establishes by clear and convincing evidence" that "the decedent intended the document or writing" to be decedent's will or an addition to, or alteration of, decedent's will.

In Bradway, the Appellate Division held that the trial court accepted defendant's argument that "the codicil was unsigned at the time of [decedent's] death." It therefore focused, not on the issues related to decedent's signature, but on whether there was clear and convincing evidence that decedent intended to alter his will. The trial court held that there was and the Appellate Division agreed. To support this conclusion, it held:

  • that decedent used "language showing a clear intent to be a freely attested to 'codicil,'";
  • that the codicil stated that it was decedent's "wish" to amend his will, that it mentioned defendant by name, and that it "directed" any references to defendant to be removed; and
  • that the codicil was prepared using decedent's own blood.

On appeal, defendant again argued that he should have had the opportunity to present additional witnesses who would have testified that the codicil was unsigned when decedent died. But the Appellate Division, like the trial court, held that this testimony would not have changed the result because, "the lack of [decedent's] signature [did] not undercut the clear and convincing evidence of [decedent's] intent as expressed in the codicil which he indisputably wrote." 

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