7.3 Future Action May Include No Action
Subsequent Court of Appeals’ decisions, however, do not follow this tack. In Yivo Institute for Jewish Research v. Zalenski, 386 Md. 654, 874 A.2d 411 (2005), for example, the Court permitted testimony of the decedent’s intent or state of mind that did not result in future action. In Yivo, the decedent left a bequest in his will to a charity and then he later made a gift to the same institution. The issue was whether the subsequent gift adeemed the bequest in the will. The testimony sought to be excluded was that of a friend who said that the decedent declared years after making the subsequent charitable gift, that he did not need to change his will because the charitable institution would understand that the gift that he had made was adeeming the bequest in the will.
Another Maryland case illustrated the backward looking element of Maryland Rule 5-803(b)(3). National Society of Daughters of American Revolution v. Goodman, 128 Md.App. 232, 736 A.2d 1205 (1999) involved whether a restricted gift to the D.A.R. for the purpose of funding its nursing home facility lapsed because the D.A.R., in fact, did not maintain a nursing home. The decedent had prepared a will leaving part of her estate to Gallaudet University and part of her estate to the D.A.R. for the nursing home. After execution, the attorney contacted D.A.R. to discuss the gift and learned that the D.A.R. did not maintain a nursing home. He thereupon contacted his client who said that she did not want any gift going to the D.A.R. in that situation but all to Gallaudet University. The attorney prepared a new will but his client died before she adopted to execute the new will. Nevertheless, the testimony was permitted as a backward looking declaration of what she intended to do with her original will.