REIBER, C.J. The question presented in this will contest is whether the trial court correctly determined on summary judgment that the testator intended a last will and testament which she executed on the eve of surgery to be absolute rather than contingent on her surviving the surgery. We conclude that summary judgment was premature in this case because material factual issues remained in dispute concerning the testator’s intent, and therefore reverse.
The court found that neither of the competing inferences from the evidence was "more compelling than the other." and concluded that "the presumption against intestacy" must control, thus precluding a construction of the will as conditional.
It is correct that there is a general reluctance in estate law to find intestacy, hence the general preference for a clear expression of contingency. But when the evidence is in conflict on a genuine, material issue of fact—in this case whether testator intended the will to expire or to remain in effect after she survived her surgery—the usual and proper course is not to ignore that evidence as "ambiguous" but to deny the motion for summary judgment and permit the case to proceed to trial, where the trier of fact may weigh all of the evidence, assess the credibility of the witnesses, and ultimately resolve the factual dispute. The court could not rely on "presumptions."
Because the parties here offered conflicting evidence as to whether testator intended the will to be a conditional or absolute will, the case must be remanded for a trial to resolve that issue.
Because the parties here offered conflicting evidence as to whether testator intended the will to be a conditional or absolute will, the case must be remanded for a trial to resolve that issue.
Reversed and remanded
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