Matter of Estate of Kerr

25. I join in Chief Judge Apodaca’s opinion except on two matters.

26. First, although I agree that the wills executed by Mr. and Mrs. Kerr were mutual wills, my analysis of the matter is a bit different from that adopted by the majority. In my view, the issue is not sufficiency of the evidence. Rather, the issue is how to interpret certain written documents — the wills. After all, the historical facts are not disputed. The authenticity of the wills was not challenged. Therefore, the sole question is whether the language in the wills created a contract between the testators requiring the…