Estate of Nielson
105 Cal. App. 3d 796, 165 Cal. Rptr. 319 (1980)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Handwritten markings on a formal, witnessed will can constitute a valid holographic codicil if they are entirely written, dated, and signed by the testator and do not substantively incorporate the pre-printed text. Such a codicil is construed as incorporating the original will by reference, thereby republishing the will as modified.
Facts:
- On February 25, 1969, Lloyd M. Nielson executed a valid, typewritten, and witnessed will.
- The 1969 will left the bulk of Nielson's estate to his mother, or if she predeceased him, to four specified charities.
- The will also contained a clause stating Nielson's intention to omit provision for any of his heirs.
- At a later time, lines were drawn through the text naming the four charities as beneficiaries.
- Handwritten interlineations were made on the will, naming new beneficiaries: 'Shrine Hospital for Crippled Children' and 'Society for Prevention of Cruelty to Animals'.
- The testator's initials were handwritten in the margin next to the changes.
- The original date of the will was crossed out and replaced with the handwritten date 'November 29, 1974'.
- The words 'Revised by Lloyd M. Nielson November 29, 1974' were handwritten at both the top and bottom of the document.
Procedural Posture:
- The modified will of Lloyd M. Nielson was offered for probate in the trial court.
- Arthur G. Nielson, the testator's uncle and heir, filed a contest opposing the will's admission to probate.
- At the conclusion of the contestant's case-in-chief, the proponents (the charities) moved for judgment.
- The trial court granted the motion, finding no evidence that the testator had made the handwritten alterations, and admitted the original 1969 will to probate.
- Arthur G. Nielson, as contestant, appealed the trial court's judgment to the Court of Appeals of California.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a testator's handwriting on the face of a formal, typewritten will, which is entirely written, dated, and signed by the testator, constitute a valid holographic codicil under California Probate Code section 53?
Opinions:
Majority - Staniforth, Acting P.J.
Yes, a testator's handwriting on a formal will can constitute a valid holographic codicil. The trial court erred in finding there was 'no evidence' of authorship, as a trier of fact can compare the questioned handwriting with the testator's admitted signature on the same document. The key test for a holograph written on a pre-printed document is not whether the handwritten portion makes sense independently, but whether the testator intended to incorporate the printed matter into the substance of the holograph. Here, the printed words of the original will were not incorporated into, or relevant to the substance of, the handwritten changes. Instead, the valid holographic codicil incorporates by reference the unchanged portions of the typewritten will, effectively republishing the will as modified. This interpretation aligns with the judicial policy favoring the validity of wills and follows the precedent set in Estate of Atkinson.
Concurring - Wiener, J.
Yes, the judgment must be reversed, as the writing constitutes a valid holographic codicil under existing precedent like Estate of Atkinson. However, the body of law distinguishing permissible 'incorporation by reference' from impermissible 'integration' of printed material is confusing and appears conflicting with the rationale of more recent cases like Estate of Baker and Estate of Christian. The California Supreme Court should clarify this area of law to resolve the inconsistencies.
Analysis:
This case clarifies the critical distinction between two legal doctrines: impermissible 'integration' of pre-printed text into a holographic will and permissible 'incorporation by reference' of a formal will by a holographic codicil. The ruling strengthens the principle of liberal construction in favor of will validity, allowing testators to make valid, informal modifications to formal wills without re-executing them with witnesses. It establishes that as long as the handwritten changes meet the statutory requirements for a holograph (entirely written, dated, signed) and do not depend on the printed text for their substantive meaning, they can effectively amend the original document. This provides flexibility but also highlights the potential for litigation when testamentary intent is expressed in an unorthodox manner.
