Opinion
No. 2-082 / 01-0879.
Filed July 3, 2002.
Appeal from the Iowa District Court for Jones County, KRISTIN L. HIBBS, Judge.
Beneficiary of an attempted modification of will appeals a district court ruling finding a partial revocation and codicil failed for lack of formal execution. AFFIRMED.
Stephen W. Scott of Kintzinger Law Firm, P.L.C., Dubuque, for appellant.
Brendan T. Quann and Rodney T. Carrol of O'Connor Thomas, P.C., Dubuque, for appellee.
Heard by VOGEL, P.J., and MILLER and VAITHESWARAN, JJ.
At issue is the effect of George R. Phillips's post-execution attempt to modify his handwritten will. At the time the will was admitted to probate, it appeared, in pertinent part as follows:
Leave my farm in the estate 3 years before you sell the farm and modernize house. Leader of this church died of cancer and no longer on T-V or radio and members split up the church and no longer the same so I leave the balance to Hillcrest Family Service, 2005 Asbury Road, P.O. Box 1160, Dubuque, Iowa 52004-1160.
The original will was written in blue ink. The underlining is used to indicate text written in black ink. The strikethrough was also done with black ink.
The parties stipulated Phillips struck the bequest to his brother and the residual bequest and/or devise to Worldwide Church of God (Worldwide), and added the final sentence substituting Hillcrest Family Services (Hillcrest) as the residual beneficiary, sometime after the will was validly executed. They further stipulated the modification, which was neither signed nor witnessed, failed to comply with the formal statutory requirements of the Iowa Code. See Iowa Code §§ 633.279,.284 (1999). Hillcrest nevertheless argued the partial revocation and new codicil were valid, as application of a "harmless error" analysis required the district court to reform the will to comply with Phillips's testamentary intent. Hillcrest also contended strict application of the statutory requirements for a signature and witnesses denied a testator the constitutional right to dispose of property in accord with his or her intent. The district court rejected these arguments, finding the failure to comply with the mandated execution requirements rendered the attempted modification invalid.
Pursuant to § 633.279(1), "[a]ll wills and codicils, . . . to be valid, must be in writing, signed by the testator, . . . and witnessed. . . ." Pursuant to § 633.284, "[w]hen done by cancellation, the revocation must be witnessed in the same manner as the making of a new will."
Hillcrest appeals. Although matters of will construction are typically subject to de novo review, Iowa Code § 633.33; Iowa R. App. P. 6.4, where the facts are undisputed, our review is for errors at law. Benton v. Slater, 605 N.W.2d 3, 4 (Iowa 2000). However, to the extent constitutional issues are raised, our review remains de novo. Blumenthal Inv. Trusts v. City of Des Moines, 636 N.W.2d 255, 260 (Iowa 2001). After careful consideration of the issues presented, we affirm.
Hillcrest urges us to validate the post-execution modification by application of the harmless error doctrine. That doctrine states:
To support this argument Hillcrest relies heavily on a post-ruling letter from John H. Langbein, a professor at Yale Law School. Worldwide has filed a motion to strike any reference to the letter, as it was not a part of the record, and Professor Langbein did not appear as either a witness or counsel in this case. We agree the opinion forwarded by the letter should not have been presented to, and should not be considered by, this court. However, that fact will not prevent us from considering any recognized, published works cited to in the letter, such as the Uniform Probate Code and the Restatement (Third) of Property.
A harmless error in executing a will may be excused if the proponent establishes by clear and convincing evidence that the decedent adopted the document as his or her will.
Restatement (Third) of Property § 3.3 (1998) (concerning wills and donative transfers). This standard has not before been adopted in Iowa, and we decline to do so now.
The fundamental problem with Hillcrest's argument was succinctly stated by the district court: "[A]dopting such a view is a matter for the legislature." In Iowa, the devising and bequeathing of property by will is purely a creature of statute. See In re Estate of Mettel, 566 N.W.2d 863, 864 (Iowa 1997). Those statutes require formal execution and currently provide no avenue for excuse of noncompliance. Iowa Code §§ 633.279, .284. The appellate courts do not have the authority to amend statutory provisions. Cf. Goetzman v. Wichern, 327 N.W.2d 742, 748-52 (Iowa 1982) (finding deference to legislature unnecessary where considering common-law doctrine that had been modified, but not codified or preempted by, a statutory enactment). Nor are we generally empowered to rewrite or reform a will. In re Estate of Boldt, 342 N.W.2d 463, 466 (Iowa 1983). But see In re Estate of Keenan, 519 N.W.2d 373, 377-78 (Iowa 1994) (reformation possible under statutory grant of authority).
Accordingly, we can find no error in the district court's determination that Phillips's attempt to remove Worldwide and substitute Hillcrest as the residual beneficiary was invalid. We also reject Hillcrest's constitutional arguments. It is well established the disposal of property by will is a statutory, rather than a constitutional, right. See Mettel, 566 N.W.2d at 864-65.
AFFIRMED.