In Re Estates of McLean , 2009 Okla. Civ. App. LEXIS 139 ( 2009 )

CAROL M. HANSEN, Presiding Judge,

dissenting.

T 1 The only issue in this appeal is whether extrinsic evidence, in this case video evidence taken during the creation of the will, may be admitted to show intention on the part of the testator. There is no other issue.

2 At the time of the execution of the will, the testator was a resident of Texas, the will was executed in Texas and prepared by a Texas attorney. In the will, Testator did not mention her eldest son, Bartley. Apparently the video tape would indeed show she intended to disinherit her son and his heirs.

T8 A will must be construed according to the intention of the testator 84 0.98.2001 § 151. Clearly the tape will show testator's intent.

1 4 Title 84 0.98.2001 § 20 does not control the admission of parol evidence. Crump, cited by the majority states, "the law in force in the state when the will is made forms part of that instrument" Crump at p. 1099. Thus, the Texas law allowing extrinsic evidence forms a part of the will. We are here dealing with the correctness of the admission of parol evidence-nothing more. Texas law is the law of the state where the will was made. Texas law allows parol evidence to show the intent of the testator. The reasonable expectations of Testator when she made the will were that the video would be admitted to show her intent to disinherit Bradley and his heirs at law.

15 Probate proceedings are equitable in nature. In re Holcomb, 2002 OK 90, 63 P.3d 9. In my view, because the tape would clearly evidence Testator's intent, not only the law, but equity requires the tape to be admitted.

16 I also believe there is merit to Appellant's argument the legal differences between the two states' treatment of parol evidence creates a latent ambiguity, which in Oklahoma would allow parol evidence to be admitted to show intent of testator. "A latent ambiguity will arise from a fact or cireum-stance extraneous to the text-which renders the meaning uncertain." (Emphasis supplied) Crump at p. 1099.

T7 I would reverse and remand with directions to admit the video evidence.