CREIGHTON LAW REVIEW. [Vol. 33

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1 DETERMINING TESTAMENTARY INTENT IN A HOLOGRAPHIC WILL BY REFERENCING TYPEWRITTEN LANGUAGE? NOT IN NEBRASKA: AN ANALYSIS OF THE NEBRASKA SUPREME COURT'S RULING IN ESTATE OF FOXLEY V. HOGAN INTRODUCTION Nebraska Revised Statute section , which applies to both holographic wills and codicils, requires an instrument claimed to be testamentary in nature to have "the signature, the material provisions, and an indication of the date of signing... in the handwriting of the testator."' The Nebraska Supreme Court has defined "material provisions" to mean those sections of the instrument that express testamentary and donative intent. 2 Previously, in interpreting section the Nebraska Supreme Court in Cummings v. Curtiss 3 held that when determining testamentary intent, only the handwritten portions may be considered, all other language is to be disregarded. 4 In Estate of Foxley v. Hogan, 5 the Nebraska Supreme Court applied the holding of Cummings to determine whether Eileen C. Foxley's handwritten portions, made on a photocopy of her will, clearly expressed testamentary intent so as to qualify the instrument as a 1. NEB. REV. STAT (Reissue 1995). Section provides that "[an instrument which purports to be testamentary in nature but does not comply with section is valid as a holographic will, whether or not witnessed, if the signature, the material provisions, and an indication of the date of signing are in the handwriting of the testator...." Id.; Estate of Foxley v. Hogan, 254 Neb. 204, , 575 N.W.2d 150, (1998) (using NEB. REV. STAT to determine the validity of a holographic codicil). The Nebraska Court of Appeals noted that: A 'codicil' in reality, is a will or testamentary instrument. However it is not a new will; a 'codicil' is a supplement to, an addition to or qualification of, an existing will, made by the testator, to alter, enlarge, or restrain the provisions of the will, to explain or republish it, or to revoke it... A codicil is dependent for its life and force on the life and force of the will to which it is an adjunct. It does not supercede the will, as an after-made will would do; it is a part of the will; and both the codicil and the will make only one will. Estate of Foxley v. Hogan, 6 Neb. Ct. App. 1, 10, 568 N.W.2d 912, 918 (1997) (citations omitted), rev'd 254 Neb. 204, 575 N.W.2d 150 (1998). The court further noted that: A codicil republishes the will, and the several clauses of a will and codicil should, if possible, be harmonized so as to give effect to every provision of each instrument, provided that such construction is not inconsistent with the general intent and purpose of the testator as gathered from the entire instrument. Id. (citations omitted). 2. Fox/ey, 254 Neb. at 211, 575 N.W.2d at Neb. 106, 361 N.W.2d 508 (1985). 4. Cummings v. Curtiss, 219 Neb. 106, 109, 361 N.W.2d 508, 510 (1985) Neb. 204, 575 N.W.2d 150 (1998).

2 CREIGHTON LAW REVIEW [Vol. 33 holographic codicil. 6 The Nebraska Supreme Court found that the statutory requirements for a holographic will or codicil, requiring the material provisions to be in the handwriting of the testator, remain the same, whether the case involves an original, validly executed will or a will created from a preprinted form. 7 Therefore, for the first time, the Nebraska Supreme Court held that the statutory requirements for an original, validly executed will also apply to wills created from a pre-printed will form. s This Note will first carefully review the Nebraska Supreme Court's holding in Foxley. 9 Second, this Note will examine a previous decision of the Nebraska Supreme Court and decisions from other states that have a similar holographic will statute. 10 Next, this Note will illustrate that the court's decision in Foxley conforms with the three factors that are required, in determining the legal certainty of a will. 1 1 Further, this Note will demonstrate that the court's decision in Foxley is consistent with the majority view that courts may only consider the testator's actual handwriting in determining the testator's intent.12 Finally, this Note will explain how the doctrine of partial revocation, if applied to the facts of Foxley, would not have altered the court's decision in Foxley. 13 FACTS AND HOLDING On February 8, 1985, Eileen C. Foxley ("Foxley") executed a valid will, of which she possessed an original and a photocopy. 14 The provisions of her will divided most of her estate in equal shares among her six daughters. 15 Jane F. Jones ("Jones"), one of Foxley's daughters, died in December 1993, survived by her only child Michael Luke Hogan ("Hogan"), the appellant. 16 Then in October 1994, Foxley died. 17 On the day of her death, two of Foxley's daughters found her original will and its photocopy in a folder in her den. 1 8 Foxley, in her own handwriting, made the following alterations to the photocopy of her will (handwritten alterations in bold type): 6. Foxley, 254 Neb. at 210, 575 N.W.2d at Id. at 209, 575 N.W.2d at Id. 9. See infra notes and accompanying text. 10. See infra notes and accompanying text. 11. See infra notes and accompanying text. 12. See infra notes and accompanying text. 13. See infra notes and accompanying text. 14. Estate of Foxley v. Hogan, 254 Neb. 204, 205, 575 N.W.2d 150, 152 (1998). 15. Foxley, 254 Neb. at 205, 575 N.W.2d at Estate of Foxley v. Hogan, 6 Neb. Ct. App. 1, 2, 568 N.W.2d 912, 913 (1997), rev'd 254 Neb. 204, 575 N.W.2d 150 (1998). 17. Foxley, 254 Neb. at 205, 575 N.W.2d at Id.

3 19991 ESTATE OF FOXLEY V. HOGAN ARTICLE I My only children are William C. Foxley, Sarah F. Gress, John C. Foxley, Winifred F. Wells, Elizabeth F. Leach, Sheila F. Radford, Mary Ann Pirotte, and Jane F. Jones. her share to be divided to between 5 daughters E. F ARTICLE III I hereby give, devise and bequeath all of the rest of my proper [sic] to my six (6) daughters in equal shares On December 2, 1994, the personal representative of Foxley's estate submitted the original will and the altered photocopy for probate in Douglas County Court, claiming the altered photocopy was a holographic codicil. 2 1 Hogan filed an objection to the personal representative's Petition for Formal Probate of Will alleging that the altered photocopy did not comply with the formalities necessary for a will or codicil pursuant to Nebraska Revised Statute section Hogan contended that the altered photocopy should not be admitted to probate and asserted that he was entitled to Jones's portion of Foxley's estate. 2 3 Hogan did not challenge that Foxley intended him to be excluded from her estate by altering the photocopy, and neither party suggests undue influence, fraud, mistaken intent, or lack of testamentary capacity when the will was altered. 24 The parties also did not question whether Foxley made the alterations on the photocopy of her will Id. 20. Id. at 206, 575 N.W.2d at Foxley, 6 Neb. Ct. App. at 1-2, 568 N.W.2d at (stating that "Foxley's personal representative submitted the original will and the photocopy,alleged to be a codicil, for probate."); Brief for Appellant at 3, Estate of Foxley v. Hogan, 254 Neb. 204, 205, 575 N.W.2d 150, 152 (1998) (No. A ) (stating that "on December 2, 1994, Appellee, John Foxley, as personal representative, filed a Petition for Formal Probate of Will... in the Douglas County Court."); A codicil is a "supplement or addition to a will; it may explain, modify, add to, subtract from, qualify, alter, restrain or revoke provisions in existing will." BLAcK's LAW DICTIONARY 258 (6th ed. 1990). The Nebraska Court of Appeals explained: A 'codicil' in reality, is a will or testamentary instrument. However it is not a new will; a 'codicil' is a supplement to, an addition to or qualification of, an existing will, made by the testator, to alter, enlarge, or restrain the provisions of the will, to explain or republish it, or to revoke it.... A codicil is dependant for its life and force on the life and force of the will to which it is an adjunct. It does not supersede the will, as an after-made will would do; it is a part of the will; and both the codicil or codicils and the will make only one will. Foxley, 6 Neb. Ct. App. at 10, 568 N.W.2d at 918 (citations omitted). 22. Brief for Appellant at 4, Foxley (No. A ). 23. Foxley, 254 Neb. at 206, 575 N.W.2d at 152 (stating that "Hogan objected to the admission of the photocopy."); Foxley, 6 Neb. Ct. App. at 6, 568 N.W.2d at 915 (stating that "Hogan asserts that he is entitled to a portion of Foxley's estate."). 24. Foxley, 6 Neb. Ct. App. at 5, 13, 568 N.W.2d at 915, Foxley, 254 Neb. at 208, 575 N.W.2d at 153.

4 CREIGHTON LAW REVIEW [Vol. 33 John Foxley, Foxley's son, testified that his mother had very negative feelings towards Hogan. 26 John Foxley also testified that these feelings were related to Foxley's belief that Hogan physically and verbally abused Jones. 27 In addition, James Schumacher ("Schumacher"), Foxley's attorney, testified that Foxley conveyed negative feelings about Hogan during a meeting with him regarding her previously established irrevocable trust. 28 During this meeting Schumacher informed Foxley that Hogan would take Jones's share of the trust. 2 9 Subsequently, Foxley told Schumacher that "she wanted [Hogan] bought out" and that she "didn't want him as an ongoing beneficiary of that trust." 30 Additionally, Schumacher testified that he and Foxley also discussed Hogan's interest in Foxley's estate. 3 1 Schumacher further testified that Foxley "emphatically" indicated that Hogan's interest in her estate should be removed and told Schumacher she would "'take care of it.'" 3 2 Schumacher explained that he had a good relationship with Foxley over the years and understood Foxley's statement to mean 3 3 "'butt out... this is my business.' Furthermore, Winifred Wells ("Wells"), Foxley's daughter, testified that she was not surprised by the way her mother handled her affairs, because her mother was "used to handling her own affairs," having raised eight children by herself. 34 Wells explained that her mother "felt her own opinions were more savvy and meant more to her than most people whether they be professional people or her children." 35 Wells also testified the possibility that one of Foxley's chil 26. Brief for Appellee at 3-5, Estate of Foxley v. Hogan, 254 Neb. 204, 575 N.W.2d 150 (1998) (No. A ). 27. Brief for Appellee at 4-5, Foxley (No. A ). 28. See Foxley, 254 Neb. at 206, 575 N.W.2d at 152 (stating that "Foxley told Schumacher that she wanted Hogan bought out and did not want him to be an ongoing beneficiary or to participate in the trust. During the same conversation, Foxley 'emphatically' indicated that she did not want Hogan participating in her estate... "); see also Brief for Appellee at 3-4, Foxtey (No. A ). The Appellee, in its brief, stated that: The testimony of attorney James R. Schumacher clearly reveal Mrs. Foxley was of sound mind when she made the handwritten alterations, and that her intent was to eliminate Hogan as a beneficiary under her Will. Schumacher testified he and Mrs. Foxley specifically discussed changing her Will and her intent to eliminate Hogan from her estate. Mrs. Foxley emphatically indicated to Schumacher that she did not want Hogan to participate in her estate. Id. 29. Foxley, 254 Neb. at 206, 575 N.W.2d at Foxley, 6 Neb. Ct. App. at 3, 568 N.W.2d at Id. 32. Id. 33. Foxley, 254 Neb. at 206, 575 N.W.2d at Foxley, 6 Neb. Ct. App. at 3, 568 N.W.2d at Id.

5 1999] ESTATE OF FOXLEY V. HOGAN dren could predecease her was overlooked when the will was set up, and that Foxley regretted this oversight. 36 Relying on this testimony, along with Schumacher's, the trial court held that Foxley substantially complied with the provision of section , and admitted both the original and altered photocopy to probate. 3 7 Subsequently, Hogan appealed the Douglas County Court's decision to the Nebraska Court of Appeals, arguing the trial court erred in ruling that the altered photocopy of the will was a valid holographic codicil. 38 Hogan argued that testamentary intent was not evidenced by any handwriting on the altered photocopy and that the "material provisions" of the purported codicil were not in Foxley's handwriting, both of which are express requirements under section The Nebraska Court of Appeals affirmed the trial court's decision. 40 Judge Wesley Mues, writing for the three-judge unanimous decision, stated that Foxley's original will was appropriately admitted to probate, because the original will complied with all the requirements under Nebraska Revised Statute section The parties conceded that the photocopy of the will, containing the alterations, was not executed in the manner required by section and therefore, could only have a legal effect if the alterations made to the photocopy qualified as a holographic codicil under section The relevant portion of section provides that: "An instrument which purports to be testamentary in nature but does not comply with section is valid as a holographic will, whether or not witnessed, if the signature, the material provisions, and an indication of the date of the signing are in the handwriting of the testator...."43 The Nebraska Court of Appeals also quoted the comment to section which provides: This section enables a testator to write his own will in his handwriting. There need be no witnesses. By requiring only the "material provisions" to be in the testator's handwriting 36. Foxley, 254 Neb. at 206, 575 N.W.2d at Id. at 206, 575 N.W.2d at Foxley, 6 Neb. Ct. App. at 1, 3, 568 N.W.2d at Id. at 6, 568 N.W.2d at Id. at 3, 568 N.W.2d at Id. at 1, 4, 568 N.W.2d at 913, 915; NEB. REV. STAT (Reissue 1995). Section provides that: Except as provided for holographic wills, writings within section , and wills within section , every will is required to be in writing signed by the testator or in the testator's name by some other individual in the testator's presence and by his direction, and is required to be signed by at least two individuals each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will. Id. 42. Foxley, 6 Neb. Ct. App. at 4, 568 N.W.2d at Id.

6 CREIGHTON LAW REVIEW [Vol. 33 (rather than requiring, as some existing statutes do, that the will be "entirely" in the testator's handwriting) a holograph may be valid even though immaterial parts such as introductory wording be printed or stamped. A valid holograph might even be executed on some printed will forms if the printed portion could be eliminated and the handwritten portion could evidence the testator's will. 44 In affirming the county court's decision to admit the altered photocopy as a holographic codicil to probate, the court of appeals stated that Foxley's testamentary intent was sufficiently demonstrated. 45 The court concluded that Foxley's testamentary intent was demonstrated by her crossing out "Jane F. Jones" and writing "her share to be divided to between 5 daughters" on the photocopy. 46 The court reasoned that Foxley referenced her intent by using a verb in the phrase "to be divided." 47 Her intent is again demonstrated by other testimony, which established that she wanted to disinherit Hogan from her estate. 48 Therefore, the court of appeals reasoned that Foxley's handwritten alterations to the photocopy were "material provisions." 49 The court of appeals also concluded that Hogan's assertion to view only Foxley's handwritten alterations as if they "appeared on a blank piece of paper,'_ her share to be divided to between 5 daughters E.F :'" was incorrect. 50 The court noted that "it would be absurd to say that the line through the name [Jane F. Jones] can legally be considered because it is in Foxley's handwriting, but the name through which the line is drawn must be ignored." 51 In affirming the district court's decision, the court of appeals noted a relevant part of the Nebraska Probate Code's general comment section which provides that: "'If the will is to be restored to its role as the major instrument for disposition of wealth at death, its execution must be kept simple. 44. Id. at 5, 568 N.W.2d at 915 (quoting a section of the comment to ); NEB. REV. STAT (Reissue 1995). Section provides that: Except as provided for holographic wills, writings within section , and wills within section , every will is required to be in writing signed by the testator or in the testator's name by some other individual in the testator's presence and by his direction, and is required to be signed by at least two individuals each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will. Id. 45. Foxley, 6 Neb. Ct. App. at 9, 13, 568 N.W.2d at 917, Id. at 8, 568 N.W.2d at Id. 48. Brief for Appellee at 3-4, Foxley (No. A ). 49. Foxley, 6 Neb. Ct. App. at 9-10, 568 N.W.2d at Id. at 10, 568 N.W.2d at Id. at 10, 568 N.W.2d at

7 1999] ESTATE OF FOXLEY V. HOGAN The basic intent of these sections is to validate the will whenever possible." 52 Furthermore, the court reasoned that the very nature of codicils gives Foxley's handwritten words meaning by reference to the original will and therefore, there was much more before the court than what Hogan would have the court view. 5 3 The court stated: A "codicil" in reality, is a will or testamentary instrument. However it is not a new will; a "codicil" is a supplement to, an addition to or qualification of, an existing will, made by the testator, to alter, enlarge, or restrain the provisions of the will, to explain or republish it, or to revoke it... A codicil is dependent for its life and force on the life and force of the will to which it is an adjunct. It does not supersede the will, as an after-made will would do; it is a part of the will; and both the codicil or codicils and the will make only one will. A codicil republishes the will, and the several clauses of a will and codicil should, if possible, be harmonized so as to give effect to every provision of each instrument, provided that such construction is not inconsistent with the general intent and purpose of the testator as gathered from the entire instrument. 54 The court reasoned that Foxley's handwritten alterations on the altered photocopy identifies the altered photocopy as a codicil to her original will. 55 The court of appeals ruled that whether the handwritten alterations were viewed alone or read together with the original will, it was undeniable that "her share" meant Jones's share and this share was intended to be distributed to Foxley's surviving daughters. 5 6 Finally, the court of appeals concluded that under the circumstances, the writings and alterations on the photocopy of the original will complied with the requirements of section The court noted that a will, which is being modified by a codicil, must be identifiable, because a codicil depends on an existing will for its own life. 58 Thus, the court reasoned that Foxley's handwriting on the photocopy of the will is a simple, yet effective method to unquestionably indicate her intent to identify the existing will. 5 9 Therefore, the court found 52. Id. at 12, 568 N.W.2d at 919 (citations omitted). 53. Id. at 10, 568 N.W.2d at Id. (citations omitted). 55. Id. 56. Id. at 11, 568 N.W.2d at Id. (citing NEB. REV. STAT (Reissue 1995)). 58. Id. at 10-11, 568 N.W.2d at Id. at 11, 568 N.W.2d at 918.

8 206 CREIGHTON LAW REVIEW [Vol. 33 the altered photocopy was a valid holographic codicil to Foxley's original will. 60 Subsequently, Hogan appealed the Nebraska Court of Appeals', decision to the Supreme Court of Nebraska, arguing that the court of appeals erred in finding the altered photocopy was a holographic codicil, because no testamentary intent was evidenced by the handwriting and the material provisions of the codicil were not in Foxley's handwriting, as required by section The Nebraska Supreme Court reversed the court of appeals' ruling. 6 2 Justice Michael McCormack, writing a unanimous decision, determined that Foxley's handwritten alterations on the photocopy did not comprise a valid holographic codicil and therefore, could not be incorporated into the original will by reference. 6 3 The supreme court stated that "only the portion of the will actually in the handwriting of the testator is to be considered; all other language is to be disregarded." 64 The court also stated that the critical determination is whether "'the handwritten portion clearly express[es] a testamentary intent.'" 65 Furthermore, the court noted that the rule in Cummings v. Curtiss 66 must apply in order to determine whether the photocopy is a valid holograph. 67 The Cummings court provided that the court must only look at the handwritten portions in determining whether testamentary intent is clearly expressed. 68 The court stated that in this case these handwritten portions consisted of "her share to be divided to between 5 daughters. E.F and 5."69 The court determined that it was not clear which daughters were to receive the divided share without referencing to the typewritten words on the altered photocopy. 70 Similarly, the court stated that the line through "Jane F. Jones" is meaningless unless reference is made to the typewritten words on the altered photocopy. 7 1 The court concluded that Foxley's testamentary intent was not evidenced by the handwritten words standing alone and, without the required testamentary intent, Foxley's handwritten alterations may not be considered to be material provisions. 72 Therefore, the supreme court 60. Id. 61. Foxley, 254 Neb. at 208, 575 N.W.2d at Id. at 204, 212, 575 N.W.2d at 150, Id. at 205, 212, 575 N.W.2d at , Id. at 209, 575 N.W.2d at Id. (citations omitted) Neb. 106, 361 N.W.2d 508 (1985). 67. Foxley, 254 Neb. at 210, 575 N.W.2d at Cummings v. Curtiss, 219 Neb. 106, 109, 361 N.W.2d 508, 510 (1985). 69. Foxley, 254 Neb. at 210, 575 N.W.2d at Id. 71. Id. at 211, 575 N.W.2d at Id. at , 575 N.W.2d at

9 1999] ESTATE OF FOXLEY V. HOGAN determined that the altered photocopy containing Foxley's handwritten alterations was not a valid holographic codicil and subsequently, could not be incorporated by reference into Foxley's original will. 73 Finally, the court noted that the testimony of Wells and Schumacher suggested that Foxley was at least pondering, maybe even intending, to exclude Hogan from her will. 7 4 Additionally, the court reasoned that Foxley's possession of both the original will and a photocopy creates the argument that Foxley may have simply been making notes of possible changes. 75 The court further reasoned that Foxley could have made the changes on the original will. 76 The court stated that: [Tihe Legislature has chosen to require that testamentary intent be expressed in certain ways.., an exception in this case to the rule that holographic words, standing alone, have to demonstrate a clear testamentary intent... would be to invite mischief or outright fraud by overreaching heirs, friends, or other potential beneficiaries taking advantage of testators in their most vulnerable moments, such as advanced age or right after an argument with one of the children or grandchildren. 77 Therefore, the court concluded that Foxley had not reached a final decision regarding the distribution of her estate. 78 Ultimately, the Nebraska Supreme Court reversed the court of appeals holding that the handwritten alterations on the photocopy of Foxley's original will demonstrated the required testamentary intent, and the altered photocopy was denied probate. 7 9 BACKGROUND DECISIONS OF OTHER STATE COURTS WITH SIMILAR HOLOGRAPHIC WILL STATUTES Decades of caselaw exists defining the statutory requirements for holographic wills and codicils. 8 0 The disposition of this caselaw is continuing to develop towards a standard which provides that a ho- 73. Id. at 212, 575 N.W.2d at Id. at 210, 575 N.W.2d at Id. at 210, 575 N.W.2d at Id. at 210, 575 N.W.2d at Id. at , 575 N.W.2d at Id. at 210, 575 N.W.2d at Id. at , 575 N.W.2d at Estate of Foxley v. Hogan, 6 Neb. Ct. App. 1, 12, 568 N.W.2d 912, 919 (1997) (stating and citing the changing case law in the area of holographic wills and holographic codicils starting with Estate of Sola v. Sola, 275 Cal. Rptr. 98 (Cal. Ct. App. 1990), and ending with Poole v. Starke, 324 S.W.2d 234 (Tex. Civ. App. 1959) (citations omitted)), rev'd 254 Neb. 204, 575 N.W.2d 150 (1998).

10 CREIGHTON LAW REVIEW [Vol. 33 lographic will or codicil need not conform strictly with the statutory requirements for holographic wills and codicils. 8 1 This is evidenced by some courts' use of the liberal theory of "substantial compliance," which provides that if the instrument substantially complies with the statutory requirements for holographic codicils, then the instrument will be considered a valid holographic codicil. 8 2 Yet, regardless of a court's sympathy towards a testator's perceived intentions, the legislatures have decided to require that a testator's intent be expressed in specific ways before an alleged will or codicil is entitled to probate. 8 3 Therefore, Nebraska courts have utilized the following cases in determining what requirements must be met for a holographic will or codicil to be admitted to probate. 8 4 In Poole v. Starke, 8 5 the Court of Civil Appeals of Texas, Fort Worth, held that the testator's intent "must be ascertained alone from the meaning of the words used by him" in the alleged holographic will. 8 6 The court continued that the testator's "intent must be drawn from the purported will, not the will from the [testator's] intent." 8 7 In Poole, Minnie M. Bradley ("the testator") died leaving an instrument, claimed to be a valid will, and was survived by her niece, Mrs. M. H. Starke ("Starke"). 8 8 The instrument was wholly in the handwriting of the testator and contained her signature and a short list of beneficiaries. 8 9 The instrument, which devised her money and property to Calvary Missionary Baptist Church and Texas Baptist Orphanage, was admitted to probate in county court. 90 Starke appealed the county court's decision to admit the instrument to probate to the district court, arguing that she was an heir and could not be disinherited, because the testator's intentions were not expressed or manifested with legal certainty in the instrument. 9 1 On appeal, the district court refused to admit the instrument to probate Foxley, 6 Neb. Ct. App. at 12, 568 N.W.2d at 919 (stating that "[wie have found the law in this area is continuing to develop and change."); Sola, 275 Cal. Rptr. at 100 (stating that the tendency of courts and legislatures has been toward "greater liberality in accepting a writing as a holographic will... Substantial compliance with the statute, and not absolute precision is all that is required."). 82. Sola, 275 Cal. Rptr. at Estate of Foxley v. Hogan, 254 Neb. 204, 210, 575 N.W.2d 150, 154 (1998). 84. See infra notes and accompanying text S.W.2d 234 (Tex. Civ. App. 1959). 86. Poole v. Starke, 324 S.W.2d 234, 236 (Tex. Civ. App. 1959). 87. Poole, 324 S.W.2d at Id. at Id. at Id. at Id. 92. Id.

11 1999] ESTATE OF FOXLEY V. HOGAN A. B. Poole ("Poole"), a trustee of the Calvary Missionary Baptist Church ("Church"), appealed the decision of the district court to the Court of Civil Appeals of Texas, Fort Worth, arguing the district court erred in refusing to admit the instrument to probate. 93 The Court of Civil Appeals of Texas, Fort Worth, affirmed the decision of the district court, holding that there was not a single word of a dispositive nature in the instrument. 94 The court stated that it knew the testator meant the instrument to be her will, but it did not know what the instrument was supposed to accomplish. 95 Justice Ben Boyd, writing for the majority, stated that "[i]n construing the will... it was the plain duty of the trial court.., to determine what the testatrix meant by what she actually said in her will, and not by what we think she may have intended to say but did not say." 9 6 In affirming the district court's decision, the court concluded that it could not give effect to utter speculation of what the testator's intentions are, and to do so would be assuming the power to make wills, a power which courts do not possess. 9 7 Additionally, in Estate of Erbach v. Citizens State Bank & Trust Co., 9 s the Wisconsin Supreme Court held that changes made to a properly executed will by the testatrix can be divided into two categories, crossouts and interlineations. 9 9 The court held that interlineations, such as writing in names, made subsequent to the execution of a will, have no effect, but that a crossout of words can be a sufficient partial revocation. 0 0 In Erbach, the decedent, Laura Erbach ("the testatrix"), executed a valid will, but subsequent to the execution she made handwritten interlineations and crossouts to the face of the will The testatrix's handwritten interlineations consisted of the name of a co-executor and the married names of her beneficiaries, and cross-outs of those persons who predeceased the testatrix The probate court admitted the holographic instrument as a codicil to her will for probate.' 0 3 Laura Erbach's estate ("estate") appealed the decision of the probate court to the Supreme Court of Wisconsin Id. at 234, Id. at 234, Id. at Id. at (citations omitted). 97. Id. at N.W.2d 238 (Wis. 1969). 99. Estate of Erbach v. Citizens State Bank & Trust Co., 164 N.W.2d 238, 245 (Wis. 1969) Erbach, 164 N.W.2d at Id. at Id at Id. at Id. at 238,

12 CREIGHTON LAW REVIEW [Vol. 33 On appeal, the Wisconsin Supreme Court reversed and remanded the probate court's decision for further proceedings in accordance with their opinion Justice Leo Hanley, writing for the majority, determined that the will should be construed in its original form and any interlineations on the will, made subsequent to its execution, would have no effect.106 The court was also confronted with the issue of partial revocation, because the testator completely crossed out the typewritten names of those persons who predeceased her The court referenced the case of Estate of Holcombe v. McGaffee, l08 where the testator crossed out the beneficiaries' names with a softly drawn pencil mark In Holcombe, the court stated that a softly drawn pencil mark could not "indicate a finality of decision," and concluded that "all pencil alterations and interlineations on the will are ineffective....11o Based on the court's decision in Holcombe, the Wisconsin Supreme Court in Erbach held that the testatrix's will, containing heavily crossed out names, indicated a finality of decision and therefore, constituted a partial revocation."' The court reasoned that because the names were so heavily crossed out and the original typewritten words were almost totally obliterated, the testatrix must have reached a final decision. 112 Later, in a case concerning the probate of a holographic codicil, the Court of Civil Appeals of Texas, San Antonio, in Scott v. Schwartz, 1 13 held that handwritten words on an original will or photocopy have no force or effect, unless reference is also given to the typewritten words of the original will. 114 In Scott, the decedent, William L. Dugger, Jr. ("the testator") executed a will dated August 21, 1964, in which all of his property was bequeathed to his sister, Sarah Dugger Schwartz ("sister"). 115 On August 9, 1968, approximately one year before his death, the testator photocopied his will and handwrote interlineations on the photocopy." l 6 These changes added Lizabeth Scott ("fiancev) to the will, which in effect created a short list of beneficiaries, and divided his property in "equal shares" between fianc6 and 105. Id. at 238, Id. at 241, Id. at N.W.2d 914 (Wis. 1951) Erbach, 164 N.W.2d at 245 (citing Estate of Holcombe v. McGaffee, 49 N.W.2d 914, 918 (Wis. 1951)) Id. (citing Holcombe, 49 N.W.2d at 918) Id Id S.W.2d 587 (Tex. Civ. App. 1971) Scott v. Schwartz, 469 S.W.2d 587, 589 (Tex. Civ. App. 1971) Scott, 469 S.W.2d at Id.

13 1999] ESTATE OF FOXLEY V. HOGAN sister The Probate Court of Bexar County admitted to probate the altered photocopy as a holographic codicil to the testator's will. 118 Sister appealed the decision of the probate court to district court arguing the codicil should not be admitted to probate On appeal, the district court reversed the probate court's decision, holding that the codicil was not a valid holographic codicil. 120 The court found that the testator's will was validly executed and entitled to probate, but the handwritten words on the photocopy of the will were meaningless by themselves The handwritten words on the photocopy, having been found to be meaningless by themselves, therefore, did not comply with the Texas Probate Code and the court denied probate of the altered photocopy as a holographic codicil. 122 Fianc6 appealed the district court's decision to the Court of Civil Appeals of Texas, San Antonio, asserting that the district court erred in denying probate of the altered photocopy as a holographic codicil The court of civil appeals affirmed the district court's decision.' Justice Fred Klingeman, writing for the majority, held that the handwritten words did not contain words of a dispositive nature, and when considered alone were meaningless, fragmentary, and incomplete. 125 Thus, unless reference is made to the typewritten words of the original will, these handwritten words are meaningless and incomplete. 126 The court stated that it would have been ineffective for the testator to make handwritten changes on his original will, because the changes did not contain any words of a dispositive nature Therefore, the 117. Id Id. The admitted codicil was a copy of a validly executed original will that contained handwritten interlineations made by the decedent. Id Scott, 469 S.W.2d at Id Id Id. (stating that the codicil did not comply with Texas Probate Code sections 59, 60 and 63.) The court noted that: Section 59 of the Texas Probate Code provides that every will, if not wholly in the handwriting of the testator, be attested by two or more credible witnesses above the age of fourteen who shall subscribe their names thereto in their own handwriting in the presence of the testator. Section 60 provides that where the will is written wholly in the handwriting of the testator, the attestation of the subscribing witnesses may be dispensed with. Section 63 provides that no will in writing, and no clause thereof or devise therein shall be revoked, except by a subsequent will, codicil, or declaration in writing executed with like formalities. Id. at Scott, 469 S.W.2d at Id. at 587, Id. at Id. at Id. at 589.

14 CREIGHTON LAW REVIEW [Vol. 33 trial court's decision, refusing to admit the alleged holographic codicil to probate, was affirmed. 128 Similarly, in Estate of Johnson v. Johnson, 129 the Arizona Court of Appeals, Division 1, Department A, held that the handwritten portions on the decedent's preprinted will form lacked testamentary meaning, and dismissed the argument that the court could examine other extrinsic evidence to ascertain the testator's intent. 130 In Johnson, the decedent, Arnold Johnson ("the testator"), died on January 28, 1978, leaving a preprinted will form containing handwritten sections. 13 ' This instrument consisted of a preprinted will form bearing "printed provisions followed by blanks where the testator could insert any provisions he might desire." 1 32 The blank sections of the preprinted will form were filled in with the testators's handwriting. 133 Thereafter, Barton Lee McLain and Marie Ganssle ("devisees"), devisees of property under the will, filed for probate of the instrument. 134 John Johnson ("Johnson"), the testator's court-appointed personal representative, filed a motion for summary judgment, arguing that the instrument failed to comply with the statutory requirements for a will, because the instrument was not attested to by any witness. 135 Johnson also argued that the instrument failed as a holographic will, because the material provisions of the instrument were not handwritten by the testator. 136 Subsequently, the trial court granted Johnson's motion. 137 The devisees appealed the trial court's decision to the Arizona Court of Appeals, Division 1, Department A, arguing that the purported will should be admitted to probate, because all the material provisions were handwritten by the testator. 138 The court of appeals 128. Id P.2d 1039 (Ariz. Ct. App. 1981) Estate of Johnson v. Johnson, 630 P.2d 1039, 1043 (Ariz. Ct. App. 1981) Johnson, 630 P.2d at Id Id Id Id. The court noted that Arizona Revised Statute section provides: Except as provided for holographic wills, writings within and the wills within , every will shall be in writing signed by the testator or in the testator's name by some other person in the testator's presence and by his direction, and shall be signed by at least two persons each of whom witnessed either the signing or the testators acknowledgement of the signature or of the will. Id. at n. 1 (citations omitted) Johnson, 630 P.2d at The court further noted that Arizona Revised Statute section provides that: "A will which does not comply with is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator." Id. (citations omitted) Johnson, 630 P.2d at Id. at 1039, 1041.

15 1999] ESTATE OF FOXLEY V. HOGAN affirmed the trial court's decision. 139 Chief Judge Laurance Wren, writing for the majority, determined that only the pre-printed portion of the will form, not the handwritten portion, established the required testamentary intent.140 The court also determined that even though the word "estate" was handwritten by the testator, this word by itself was insufficient to show "animus testandi." 14 1 The court concluded that one of the meanings of "estate" is "the assets and liabilities left by a person at death," but "estate" can also mean "the degree, quality, nature, and extent of one's interest in land or other property." 14 2 Further, the court noted that "[c]learly then the word 'estate' is not the sine qua non of an intent to draft a will." 1 43 To clarify, the court quoted the Arizona Supreme Court which stated: The omission of any of the requirements of the statute will not be overlooked on the ground that it is beyond question that the paper was executed by the decedent as his will while he possessed abundant testamentary capacity, and was free from fraud, constraint or undue influence, and there is no question of his testamentary purpose, and no obstacle to carrying it into effect had his will been executed in the manner prescribed by the statute. 4 Furthermore, the court determined that because the instrument failed to meet the statutory requirements for a will, the court could not look to other extrinsic evidence to ascertain the testator's intent, and the instrument should not be admitted to probate. 145 Almost seven years later, in Estate of Muder v. Muder, 1 46 the Supreme Court of Arizona held that when a testator uses a preprinted will form, the handwritten portions may extract testamentary intent from both the printed and handwritten words on the preprinted will form In Muder, the testator's surviving wife, Ruth Muder ("Muder"), submitted her husband's will to probate court, which was contested in probate court by the testator's daughters ("daughters") from a previous marriage. 148 Daughters were unsuccessful in the pro Id. at Id. at 1039, 1041, Id. at Animus testandi is defined as an intention to make a will. BLAcK's LAW DICTIONARY 88 (6th ed. 1990) Johnson, 630 P.2d at 1042 (citations omitted) Id. at Sine qua non is Latin for "without which not" and means "[an indispensable condition requisite." BLAcK's LAW DICTIONARY 1385 (6th ed. 1990) Johnson, 630 P.2d at 1043 (citations omitted) Id P.2d 997 (Ariz. 1988) Estate of Muder v. Muder, 765 P.2d 997, 1000 (Ariz. 1988) (stating that "handwritten provisions may draw testamentary context from both the printed and the handwritten language on the form."); Johnson, 630 P.2d at 1039 (stating that the opinion was rendered on March 19, 1981) Muder, 765 P.2d at 998.

16 214 CREIGHTON LAW REVIEW [Vol. 33 bate court and appealed to the Arizona Court of Appeals arguing the will should be denied probate.' 49 The court of appeals, in a divided decision, reversed the probate court's holding that the instrument did comply with the holographic will statute.' 50 Muder appealed to the Supreme Court of Arizona, arguing the will should be admitted to probate and the Supreme Court of Arizona granted review.' 5 ' On appeal, the Supreme Court of Arizona vacated the court of appeals' decision and affirmed the probate court's decision. 152 Justice James Duke Cameron, writing for the majority, held that a valid holographic will is created when a testator uses a preprinted will form and designates beneficiaries and apportions his estate by filling in blanks with his own handwriting.' 53 The court also held that "[s]uch handwritten provisions may draw testamentary context from both the printed and the handwritten language on the form. We see no need to ignore the preprinted words when the testator clearly did not, and the statute does not require us to do so." i 1 4 The court examined Arizona's holographic will statute section , which provides that "[a] will which does not comply with is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator." i 55 The court reasoned that the legislature enacted section intending to permit "printed portions of the will form to be incorporated into the handwritten portion of the holographic will as long as the testamentary intent of the testator is clear and the protection afforded by requiring the material provisions be in the testator's handwriting is present."' 56 The court stated that the testator's only fault was his superfluous use of a small segment of the language on the preprinted will form.' 57 The court further stated that "[n]o sound purpose or policy is served by invalidating a holograph where every statutorily required element of the will is concededly expressed in the 149. Id Id Id Id. at Id. at 998, Id. at Id. at 999. The court noted that Arizona Revised Statute section provides: Except as provided for holographic wills...every will shall be in writing signed by the testator or in the testator's name by some other person in the testator's presence and by his discretion, and shall be signed by at least two persons each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will. Id. at (citations omitted) Muder, 765 P.2d at Id.

17 1999] ESTATE OF FOXLEY V. HOGAN [testator's] own handwriting and where [his] testamentary intent is clearly revealed in the words as [he] wrote them." 158 The court concluded that nullifying his carefully expressed testamentary intent, because of such an error, was unnecessary to retain the sanctity of the holographic will statute. 159 Justice James Moeller dissented, stating that the majority interpreted the holographic will statute to provide that printed portions of a preprinted will form may be "incorporated" into the handwritten sections, so as to satisfy the statutory requirements for a will. 160 Justice Moeller further stated that he was "unable to discern such expansiveness in the statute," and in his opinion, "the statute is clear: [In a holographic will the 'signature and the material provisions' must be in the handwriting of the testator." 16 1 Justice Moeller explained that he "felt sympathetic" to the majority's desire to give effect to the testator's "perceived" testamentary intent, but the legislature requires that testamentary intent be stated in a specific way before a will can be admitted to probate Thus, Justice Moeller concluded that there was no compliance with the holographic will statute. 163 In a similar case, Estate of Sola v. Sola,' 6 4 a different result was rendered by the California Court of Appeals, First District, Division 1, holding that the testator's handwritten interlineations and provisions, made on a photocopy of his 1963 attested will, were meaningless without reference to the formal attested will. 165 In Sola, Fred Sola ("the testator"), with the assistance of his attorney, executed a formal, attested will. 166 In several discussions with his brother, the testator expressed that he wanted to ensure that his nephews and nieces would not receive any share of his estate Subsequently, in 1987, the testator handwrote several interlineations and provisions, including the words "USE THIS WILL" on a photocopy of his original 1963 attested will. 168 On July 17, 1987, the testator died leaving no wife or issue. 169 The testator's brother petitioned the Superior Court of San Mateo County for probate of the photocopy of his original attested will, claim Id Id Id. at 1002 (Moeller, J., dissenting) Id. at (Moeller, J., dissenting) Id. at 1003 (Moeller, J., dissenting) Id. (Moeller, J., dissenting) Cal. Rptr. 98 (Cal. Ct. App. 1990) Estate of Sola v. Sola, 275 Cal. Rptr. 98, 99, (Cal. Ct. App. 1990); see infra notes and accompanying text Sola, 275 Cal. Rptr. at Id Id. at 99, Id. at 99.

18 CREIGHTON LAW REVIEW [Vol. 33 ing it was a holographic will. 170 The Superior Court of San Mateo County denied probate of the altered photocopy and ordered the prior 1963 attested will to be admitted to probate The court found that even though the words, interlineations, and signature were in the testator's handwriting, the altered photocopy was insufficient to satisfy the statutory requirements for a holographic will The court reasoned that the typewritten sections on the altered photocopy were pertinent to the substance of his original attested will and that the testator intended to incorporate the printed text of his original will, because of its materiality and importance The testator's brother appealed the superior court's decision to the California Court of Appeals, First District, Division 1, arguing that the court should determine "the validity of the [altered photocopy] in light of the policy.., favoring a construction resulting in the validity of a holographic will." 1 74 The testator's brother argued, alternatively, that the instrument, containing the interlineations and the writings should be found to be a holographic codicil. 175 The California Court of Appeals, First District, Division 1 affirmed the trial court's decision to deny probate of the altered photocopy Associate Justice William Stein, writing for the majority, reasoned that where the testator's handwriting lacks testamentary intent, it is meaningless without reference to the typewritten words it relates to Thus, there is not an instrument containing the required testamentary intent which satisfies the statutory requirements for a holographic will. 178 The court stated that the testator's handwriting interpreted along with the testator's signature and arrows pointing to the typewritten words, demonstrates the testator's intent "that the [handwritten] words [are] not [to] be read apart from the... typewritten words on the rest of the page."' 7 9 The court further stated that while there is a liberal trend to find "substantial compliance" with the statutory requirements to make a writing a valid holograph, "these notations cannot be deemed to be 'material provisions' of substance in the handwriting of the testa Id. at Id Id. at Id Id. at 98, Id. at Id. at 98, Id. at 98, Id. at Id. at

19 1999] ESTATE OF FOXLEY V. HOGAN tor." i8 0 The court noted that the handwritten portions could not be understood without reference to the typewritten words The court also stated that the testator's intent, as indicated on the face of the alleged will, was to combine the testator's handwritten words with the preceding pre-printed words to define the devise.' 8 2 The court concluded that the testator's use of the handwritten words "USE THIS WILL" refer to the entire will; therefore, the typewritten and handwritten words are to be interpreted together as the will.' 8 3 Therefore, the photocopy of the will containing the testator's interlineations and writings was not a valid holographic codicil because the handwritten changes could not be understood without reference to the typewritten text NEBRAsKA's RULE REGARDING HOLOGRAPHIC WILLS AND CODICILS Prior to the Nebraska Supreme Court's ruling in Cummings v. Curtiss' 8 5 there were no Nebraska cases that interpreted Nebraska Revised Statute section s6 Thus, the Nebraska Supreme Court referred to other states' statutes similar to section and their caselaw in interpreting section In Cummings, the Nebraska Supreme Court.decided that "only the portion of the will actually in the handwriting of the testator is to be considered," and that "all other language is simply to be disregarded."' 8 8 Bobby Cummings ("Cummings") and Frank Kroupa ("Kroupa") approached Bruce Curtiss ("Curtiss") regarding the probate of the testator's will, which named them as the beneficiaries under the testator's will.' 8 9 Cummings and Kroupa filed for probate of the will. 190 Relatives of the testator ("Relatives") objected to the probate of the will, arguing that the will was not properly attested, executed or signed, and that the testator lacked testamentary intent Relatives also offered a settlement 180. Id. at 102 (referring to the California Supreme Court decision in Estate of Black v. Rombotis, 641 P.2d 754 (Cal. 1982), establishing that "substantial compliance" with the statutory sections of holographic will statute was sufficient to render an instrument a valid holographic will) Id Id Id Id. at Neb. 106, 361 N.W.2d 508 (1985) Cummings v. Curtiss, 219 Neb. 106, 109, 361 N.W.2d 508, 510 (1985) (stating that "there is no Nebraska case law interpreting the statute."); NEB. REV. STAT (Reissue 1995) (discussing requirements of a holographic will) Cummings, 219 Neb. at 109, 361 N.W.2d at Id Id. at 106, 361 N.W.2d at Id Id. at , 361 N.W.2d at 509.