Johnson v. Johnson
1954 Okla. LEXIS 748, 279 P.2d 928, 1954 OK 283 (1954)
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Rule of Law:
A validly executed holographic codicil republishes and validates a prior will that was theretofore inoperative due to defects in its execution, such as a failure to be properly signed or attested.
Facts:
- Dexter G. Johnson, a practicing attorney, prepared a will for himself on a single sheet of paper, consisting of three typewritten paragraphs.
- The typewritten portion of the document was not dated, signed by Johnson, or attested by witnesses.
- In late 1946, Johnson showed the typewritten document to his rental agent, Lowell Wickham, stating it was his will and asking him to be a witness, but they were distracted and did not complete the attestation.
- Some months later, Johnson told Wickham he had changed his will by codicil and no longer needed a witness.
- On April 6, 1947, Johnson wrote in his own handwriting at the bottom of the typewritten document.
- This handwritten portion added a bequest, stated 'This will shall be complete unless hereafter altered, changed or rewritten,' and was then dated and signed by Johnson.
Procedural Posture:
- An instrument purporting to be the last will of Dexter G. Johnson was offered for probate in the County Court of Oklahoma County.
- The County Court denied probate to the instrument.
- The proponents of the will appealed to the District Court of Oklahoma County.
- After a trial de novo, the District Court affirmed the County Court's judgment denying probate.
- The proponents of the will appealed to the Supreme Court of Oklahoma.
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Issue:
Does a valid holographic codicil, written on the same page as an inoperative typewritten will that fails to meet statutory requirements for signing and attestation, republish and validate the defective will?
Opinions:
Majority - Per Curiam
Yes. A valid holographic codicil incorporates a prior will by reference and republishes and validates it as of the date of the codicil. The court reasoned that the instrument could be viewed as two separate parts: an unexecuted non-holographic will and a holographic codicil. Although the typewritten will was defective and not entitled to probate on its own, it was still testamentary in character. The handwritten portion met all the requirements of a valid holographic codicil because it was entirely written, dated, and signed by the testator. Adopting the majority rule in the United States and England, the court held that a validly executed codicil operates as a republication of the will, curing any defects in the original document's execution, including the lack of a signature or attesting witnesses.
Dissenting - Halley, C.J.
No. An unattested holographic codicil cannot validate a prior typewritten will that was not executed according to statutory requirements. The dissent argues that the instrument is a single, integrated document, not a separate will and codicil. The handwritten portion is merely a continuation of the typewritten part, which was unfinished and legally ineffective as a will. Citing Page on Wills, the dissent contends that a holographic codicil, which needs no witnesses, cannot republish a prior non-holographic will that requires attestation. To hold otherwise would undermine statutory safeguards against fraud and permit a document not entirely in the testator's handwriting to be probated without witnesses.
Concurring - Corn, J.
Yes. The cardinal rule for construing a will is to ascertain and give effect to the testator's intent. In this case, the testator's intent was clear, and there was no evidence of fraud or undue influence. The purpose of statutory formalities for wills is to prevent such fraud, not to defeat a testator's clear wishes due to technical errors. It would be a miscarriage of justice to deny probate and allow the property to be disposed of contrary to the testator's undisputed intent.
Analysis:
This decision aligns Oklahoma with the majority of American jurisdictions by adopting the doctrine of republication by codicil, extending it to cure fundamental execution defects. The ruling establishes that a will that is legally inoperative for lack of a signature or attestation can be 'saved' by a subsequent valid holographic codicil. This lowers the formal barriers for validating wills and gives greater weight to testamentary intent, but as the dissent notes, it potentially weakens statutory safeguards designed to prevent fraud and forgery by allowing an unattested writing to validate a non-holographic instrument.
