In Berger, the decedent Melanie Berger signed an unwitnessed, typewritten letter that she herself drafted, leaving her assets to her partner of approximately six months, Maria, in August 2002. The letter did not identify itself as a will, but it did state: “I, Melanie Perry Berger, with sound mind and excellent health, name Maria … as my sole beneficiary in the event of my death.”
When she executed the letter, Melanie had just proposed to Maria and was days away from having major surgery for gender reassignment. Melanie sent Maria emails discussing the letter and her desire to leave her assets to Maria. She left a copy of the letter on Maria’s desk chair within days of executing it. Melanie and Maria continued to date until Spring 2003, when their relationship ended.
Melanie passed away in November 2020, and the letter was discovered in Melanie’s desk shortly thereafter. Maria sought to probate the will (i.e., the letter), while Melanie’s sister (who, as Melanie’s sole heir, would inherit Melanie’s assets by way of intestate succession if Melanie had no will) argued that the letter was not a valid will.
Following trial, the lower court found that the letter did not constitute a will for three reasons: first, the court had “doubts about the letter and its context” due to how the letter was kept a secret from Melanie’s other family members; second, the court questioned Maria’s credibility as an accurate reporter of the facts; and third, the court questioned the nature of Melanie and Maria’s relationship and stated the possibility that Melanie may have “forgotten” about the letter in the intervening years before her death.
Does the Letter Meet the Harmless Error Rule’s Will Requirement Standards?
The appellate court reversed the lower court’s decision, holding that the facts and circumstances surrounding the creation of the letter demonstrate that Melanie intended the letter to constitute her will as a matter of law, and that the issues considered by the lower court were irrelevant to making that determination.
First, the appellate court held that extrinsic evidence is admissible to interpret whether a given document is intended to constitute a deceased person’s will. The appellate court then looked at several pieces of extrinsic evidence in determining that: “Taken together, the words in the letter itself and the circumstances surrounding its creation and execution compel the finding, as a matter of law, that Melanie intended her letter to have testamentary effect.”
Second, the appellate court considered the language of the letter itself, as it demonstrated testamentary intent by naming Maria as Melanie’s “sole beneficiary” and by giving Maria control over how to handle the assets left to her.
Third, the appellate court considered the circumstances of Melanie’s life at the time of the letter’s creation, namely the fact that Melanie executed the letter shortly before having major surgery (which could have resulted in her death) and the fact that the evidence was uncontroverted that Melanie was in love with Maria at the time the letter was executed.
Fourth, the appellate court considered the fact that Melanie kept the letter in her desk (a place where it was likely to be found) as evidence of its importance. Additionally, the appellate court factored in the unchallenged opinion of a handwriting expert as constituting proof that the letter was authentic.
Conclusion: Will at Issue Is Valid Based on the Harmless Error Rule
The appellate court reasoned that the lower court focused on “irrelevant” facts that had no bearing on the letter’s validity as a will under the harmless error rule. These included the short length of Melanie and Maria’s relationship at the time the letter was executed, and Melanie’s failure to revisit the letter and alter her estate plan in the 18 years between its creation and her death.
The appellate court stated that it is not the job of courts to question the wisdom of competent adults’ personal decisions, and that a “person’s failure to revisit a will in light of changed circumstances has nothing to do with her intent at the time she drafted the will.” (emphasis original).
The appellate court also rejected the argument of Melanie’s sister that it was suspicious the letter was found in Melanie’s desk 18 years after its creation on Melanie’s stationery. The appellate court stated this argument was speculative (especially in light of the contemporaneous emails Melanie sent to Maria corroborating the existence of the letter and the opinion of the handwriting expert that Melanie’s signature on the letter was authentic), and that the letter is exactly the type of document — ““self-drafted will[s]” that are “type27 … on the computer, print[ed] …, and sign[ed]” — for which the “harmless error” rule for wills is intended to effectuate.
