Estate of Damjanovich: Holographic Will Valid Only to Appoint Personal Representative; No Power of Appointment Without Transfer and Identifiable Appointees under § 72‑7‑201, MCA

Estate of Damjanovich: Holographic Will Valid Only to Appoint Personal Representative; No Power of Appointment Without Transfer and Identifiable Appointees under § 72‑7‑201, MCA

Introduction

In Estate of Damjanovich, 2025 MT 259, the Montana Supreme Court addressed the dispositive reach of a handwritten (holographic) will that named an “executor” and purported to give that person discretion to “disburse” the decedent’s “funds” and “assets.” The case pitted the decedent’s sister, Tracy Barlow, against his adult children, Nicolette and Derek Damjanovich, over whether the 2015 handwritten document (1) constituted a valid holographic will; and (2) effectively disposed of the estate by creating either a trust or a donative power of appointment in Barlow.

The Court held that while the document is a valid holographic will for the limited purpose of appointing a personal representative, it did not create a trust and did not create a power of appointment under Montana’s Uniform Powers of Appointment Act (MUPAA), § 72‑7‑201, MCA, because it neither transferred appointive property nor identified any permissible appointees. As a result, the estate’s undisposed property must pass by intestacy to the decedent’s descendants.

Summary of the Opinion

  • Holographic Will Validity: The Court affirmed admission of the December 9, 2015 handwritten and signed document as a valid holographic will under §§ 72‑2‑521 and ‑522, MCA, because the parties stipulated to handwriting and signature, triggering the statutory presumption of testamentary intent (§ 72‑3‑310, MCA). The will is valid at least to appoint Barlow as personal representative. See § 72‑1‑103(59), MCA (a “will” includes an instrument that merely appoints an executor).
  • No Trust Created: The document did not create a trust under §§ 72‑38‑401 and ‑402, MCA. The text lacked mandatory fiduciary duties, a definite beneficiary, or identification of Barlow as trustee; its language was precatory (“I would like…”), and extrinsic testimony could not supply missing dispositive terms.
  • No Power of Appointment: Applying § 72‑7‑201, MCA, the Court held the will did not create a donative power of appointment because (i) it did not transfer any appointive property to Barlow, and (ii) it identified no “permissible appointees.” The Court expressly rejected reliance on out‑of‑state common law decisions (Lanham and Rosen) because Montana’s codified requirements control.
  • Disposition by Intestacy: Because the instrument did not effectively dispose of property, the Court ordered partial intestacy under § 72‑3‑315, MCA. With no surviving spouse, the estate passes to the decedent’s descendants by representation under § 72‑2‑113(1)(a), MCA. Barlow continues to serve as personal representative and must administer the estate accordingly.

Analysis

Precedents and Authorities Cited and Their Influence

  • Foundational will‑interpretation principles:
    • In re Kuralt (Kuralt II), 2000 MT 359, ¶ 17, 303 Mont. 335, 15 P.3d 931: Courts strive to honor testator’s intent within statutory limits.
    • In re Estate of DeLong, 242 Mont. 15, 788 P.2d 889 (1990): Courts cannot rewrite a will to achieve testacy; a will may be valid for limited purposes (e.g., appointing a personal representative) yet fail to dispose of property.
    • In re Benolken’s Estate, 122 Mont. 425, 205 P.2d 1141 (1939): Recognizes a presumption against intestacy, but Damjanovich reiterates that presumption cannot substitute for missing statutory elements.
    • In re Beldon’s Estate, 77 P.2d 1052 (Cal. 1938): Quoted for the proposition that courts cannot “under the guise of construction” make a will the testator did not write.
  • Execution and burden of proof in holographic will contests:
    • In re Estate of Brooks, 279 Mont. 516, 927 P.2d 1024 (1996); § 72‑3‑310, MCA: Proof of a holographic will’s handwriting and signature raises a presumption of testamentary intent; the contestant bears the burden to rebut.
    • In re Johnson, 2002 MT 341, 313 Mont. 316, 60 P.3d 1014; In re Estate of Hall, 2002 MT 171, 310 Mont. 486, 51 P.3d 1134: Clarify the relationship between the holographic will statute (§ 72‑2‑522) and the “harmless error” statute (§ 72‑2‑523). The latter is an alternative validation pathway for defective instruments, not applicable when a holographic will is duly executed.
    • In re Lambert, 2006 MT 229, 333 Mont. 444, 143 P.3d 426; In re Ramirez, 264 Mont. 33, 869 P.2d 263 (1994): Testamentary intent is an essential element; the document must be intended to operate at death.
    • In re Estate of Cook, 2020 MT 240, 401 Mont. 374, 472 P.3d 1179: Mixed questions; de novo review applies where legal principles applied to undisputed facts drive the outcome.
    • In re Estate of Kuralt (Kuralt I), 1999 MT 111, 294 Mont. 354, 981 P.2d 771: Limits on using extrinsic evidence to supply missing dispositive language.
  • Trust creation doctrine:
    • §§ 72‑38‑401 and ‑402, MCA; Eckart v. Hubbard, 184 Mont. 320, 620 P.2d 988 (1979): Trust creation requires clear, convincing evidence of intent, a definite beneficiary, and enforceable duties.
    • In re Charles M. Bair Family Trust, 2008 MT 144, 343 Mont. 138, 183 P.3d 61; In re Estate of Bolinger, 284 Mont. 114, 943 P.2d 981 (1997): Distinguish precatory (“wish”/“would like”) versus mandatory language; precatory words do not impose fiduciary duties or create a trust.
  • Powers of appointment:
    • Title 72, ch. 7, MCA (MUPAA); § 72‑7‑201, MCA and Official Comments; § 72‑7‑102, MCA (definitions): Codified elements govern the creation of donative powers; the instrument must be valid, transfer appointive property, and manifest intent to create a power exercisable in favor of identifiable permissible appointees.
    • Lanham v. Fleenor, 429 P.3d 1231 (Idaho 2018), and In re Estate of Rosen, 23 N.E.3d 116 (Mass. App. Ct. 2014): Distinguished because those states lacked the MUPAA’s specific statutory requirements; Montana’s codification replaces common‑law flexibility.
  • Additional probate principles:
    • § 72‑1‑103(59), MCA: A will may “merely appoint[] an executor.”
    • § 72‑6‑111(1), MCA: Nonprobate transfers (e.g., pensions, life insurance) are not disposed of by will.
    • § 72‑3‑315, MCA: Partial intestacy required where the will fails to dispose of property.
    • § 72‑2‑111(1), MCA and § 72‑2‑113(1)(a), MCA: Intestate succession rules for property not effectively disposed of by will.
    • § 72‑3‑631, MCA: Personal representative compensation provisions, relevant to interpreting “maintenance fees.”

Legal Reasoning

1) Burden of Proof and the Harmless Error Misstep

Because the parties stipulated that the 2015 document was entirely in Corbin’s handwriting and signed by him, the statutory presumption of testamentary intent applied (§ 72‑3‑310, MCA). Nicolette, as the contestant, bore the burden to rebut. The Court clarified that § 72‑2‑523, MCA—the harmless error statute—does not impose a heightened “clear and convincing evidence” burden on the proponent when the holographic will already meets § 72‑2‑522’s execution requirements. This is an important procedural reset for will contests involving holographic instruments.

2) Validity of the Holographic Will—But Only to Appoint a Personal Representative

The key textual markers—“in the event of my death,” naming Barlow “to be the executor of my estate,” and authorizing her to “oversee the disbursement” of assets—demonstrated testamentary intent. Under § 72‑1‑103(59), MCA, a will may be valid even if it “merely appoints an executor.” Thus, the instrument was admitted to probate to that extent. The Court explicitly separated the question of validity from the question of whether the instrument contained effective dispositive provisions—echoing DeLong.

3) No Trust Was Created

The document did not attempt to name Barlow as “trustee,” did not identify definite beneficiaries, and used precatory language (“I would like it to be up to her discretion…”). Without mandatory duties and a definite beneficiary, § 72‑38‑402(1), MCA, was not satisfied. The Court disallowed supplementing these missing elements with extrinsic testimony, citing Kuralt I: while extrinsic evidence may inform intent or clarify ambiguity, it cannot supply dispositive terms where the instrument is silent.

4) No Power of Appointment Under § 72‑7‑201, MCA

This is the opinion’s most significant doctrinal development. The MUPAA requires:

  1. a valid instrument;
  2. a transfer of appointive property; and
  3. terms manifesting the donor’s intent to create a power exercisable in favor of at least one “permissible appointee.”

Although the document was a valid instrument, it failed the other two elements:

  • No transfer of appointive property: The language authorized Barlow to “oversee” or “disburse” assets—classic personal representative functions—not to receive or hold ownership of appointive property as a powerholder. The text even folded in nonprobate assets (“pensions,” “life insurance”), which are not controlled by a will (§ 72‑6‑111(1), MCA), undermining any inference of a property transfer.
  • No identifiable permissible appointees: The document named no person or class who could receive the property. Under § 72‑7‑201 and the Official Comments, a power does not arise if appointees are too indefinite to identify any person to whom the power could be exercised.

The District Court’s reliance on out‑of‑state cases that relaxed power‑creation requirements was rejected. Montana’s MUPAA codifies elements that must appear in the instrument; common‑law flexibility does not apply.

5) Resulting Disposition: Partial Intestacy

With no valid trust and no valid power of appointment, the will contained no operative disposition of the estate. Under § 72‑3‑315, MCA, the unresolved remainder must pass by intestacy. Because Corbin had no surviving spouse, the estate passes to his descendants by representation (§ 72‑2‑113(1)(a), MCA). The Court retained Barlow as personal representative to administer the intestate estate consistent with this ruling.

Impact and Implications

  • Clarity on MUPAA Compliance: The Court provides a rigorous, text‑based roadmap for creating donative powers of appointment in Montana. Drafters must ensure the instrument:
    • transfers specific appointive property;
    • identifies the powerholder; and
    • names at least one ascertainable “permissible appointee” or class of appointees.
    Noncompliance means no donative power—no matter the testator’s informal or extrinsic expressions.
  • Holographic Wills’ Limited Utility: DIY handwritten wills can validly appoint a personal representative, but attempts to create flexible post‑death “discretionary distribution” schemes without clear dispositive terms will likely fail, resulting in partial or total intestacy.
  • Precatory Language Is Not Enough: “I would like…” or “it is my wish…” does not impose fiduciary duties, create a trust, or grant a donative power. Mandatory, directive language is necessary.
  • Nonprobate Asset Awareness: References to pensions or life insurance in a will do not control those assets; beneficiary designations and contractual terms govern. Including such assets in a holographic will muddies intent and can undermine arguments that property was “transferred” to a powerholder.
  • Litigation Posture: The opinion settles a recurring procedural friction: once due execution of a holographic will is shown, the presumption of testamentary intent applies; the harmless‑error statute is not a hurdle to the proponent in that posture.
  • Estate Administration Stability: Even where dispositive provisions fail, a valid appointment of a personal representative can stand, allowing efficient administration while the estate passes by intestacy as required.

Complex Concepts Simplified

  • Holographic Will: A handwritten and signed will by the testator. In Montana, it is valid if the material portions and signature are in the testator’s handwriting and the document shows testamentary intent (to operate at death).
  • Testamentary Intent: The intent that a document dispose of property upon death. Phrases like “in the event of my death” help establish this. However, intent alone does not supply missing legal elements (e.g., identifying beneficiaries).
  • Precatory vs. Mandatory Language:
    • Precatory: Suggestive or wish‑based (“I wish,” “I would like”). Generally does not create enforceable duties.
    • Mandatory: Directive (“shall,” “must,” “I give, devise, and bequeath”). Creates enforceable obligations or transfers.
  • Power of Appointment: A donor‑granted authority to a powerholder (acting in a nonfiduciary capacity) to designate who receives “appointive property.” In Montana, § 72‑7‑201 requires: a valid instrument, a transfer of appointive property, and identifiable permissible appointees.
  • Permissible Appointee: A person or class in whose favor the power may be exercised. At least one must be ascertainable from the instrument’s terms; otherwise, no power is created.
  • Appointive Property: The property over which the power may be exercised. The instrument must effect a transfer of that property to activate a donative power.
  • Personal Representative (PR): The fiduciary who collects, manages, and distributes estate assets per the will or intestacy statutes. A will may simply appoint a PR, even if it makes no other dispositions.
  • Partial Intestacy: Occurs when a will fails to dispose of all property; the undisposed portion passes according to intestate succession statutes.
  • Harmless Error Statute (§ 72‑2‑523, MCA): Allows a court to treat a defective document as a will if clear and convincing evidence shows the decedent intended it as such. It does not apply when a holographic will is already duly executed; nor can it be used to add dispositive content that is absent from the document.
  • Nonprobate Assets: Property that passes outside the will by beneficiary designation or contract (e.g., life insurance proceeds, retirement accounts). A will’s contrary instructions do not control these assets.

Practical Drafting and Litigation Checklists

To create a trust under a will (testamentary trust):

  • Use mandatory language creating a trust and naming a trustee.
  • Identify definite beneficiaries or a clearly ascertainable class.
  • Define trust property (funding source) and how it pours into the trust at death.
  • Impose enforceable fiduciary duties and include administrative powers.
  • Avoid relying on extrinsic evidence to supply any of the above.

To create a valid power of appointment under § 72‑7‑201, MCA:

  • State that the donor (testator) grants a power of appointment to the named powerholder.
  • Transfer the appointive property (e.g., “I devise my residuary estate to [Powerholder], as powerholder, to be held subject to the power of appointment described below.”).
  • Identify permissible appointees (e.g., “my descendants,” “any charity described in § 170(c), IRC,” “my siblings and their descendants”).
  • Specify whether the power is general or nongeneral; include any limitations (e.g., “not exercisable in favor of the powerholder, the powerholder’s estate, or the creditors thereof” unless a general power is intended).
  • Describe method of exercise (e.g., “by specific reference in a duly executed will”).

Litigation posture in Montana holographic will cases:

  • Proponent: Establish handwriting and signature to invoke § 72‑3‑310’s presumption.
  • Contestant: Rebut testamentary intent with contrary evidence; challenge dispositive effectiveness separately.
  • Construction: Do not rely on extrinsic evidence to fill in missing elements like beneficiaries, trustee duties, or permissible appointees.
  • Watch for nonprobate references; they do not carry dispositive weight.

Conclusion

Estate of Damjanovich delivers a clear, structured message for Montana probate law:

  • A holographic will that is handwritten and signed can be valid—and can validly appoint a personal representative—even if it fails to dispose of property.
  • Trusts and powers of appointment require precision. Under the MUPAA, a donative power does not arise unless the instrument transfers appointive property and identifies at least one ascertainable permissible appointee. Montana’s codification forecloses looser, common‑law approaches.
  • Precatory expressions and extrinsic testimony cannot cure omissions in dispositive provisions. Courts will enforce statutory elements as written, and partial intestacy will be ordered when a will does not effectively dispose of the estate.
  • Nonprobate assets remain outside the will’s control; casual references to them in a holographic document do not change their disposition.

As a practical matter, Damjanovich cautions Montanans against relying on informal, handwritten estate plans to create discretionary distribution regimes. If a testator wants a trust or a power of appointment, the instrument must say so—clearly, completely, and in compliance with Montana’s statutory requirements. The opinion strengthens predictability in probate administration and provides much‑needed guidance on the MUPAA’s operation in the testamentary context.

Case Details

Year: 2025
Court: Supreme Court of Montana

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