Estate of Foxley, In re

Decision Date13 March 1998
Docket NumberNo. S-96-497,S-96-497
Citation575 N.W.2d 150,254 Neb. 204
PartiesIn re ESTATE OF Eileen C. FOXLEY, deceased. John FOXLEY, Personal Representative of the Estate of Eileen C. Foxley, deceased, Appellee, v. Michael Luke HOGAN, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Decedents' Estates: Appeal and Error. An appellate court reviews probate cases for error appearing on the record made in the county court.

2. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.

3. Wills: Legislature: Intent. The primary legislative purpose of a holographic will statute is to prevent fraud by virtue of the difficulty of forging an entire handwritten instrument.

4. Wills. In determining the validity of a holographic instrument, only the portion of the instrument actually in the handwriting of the testator is to be considered; all other language is to be disregarded.

5. Wills: Intent. The important determination in deciding the validity of a holographic instrument is whether the handwritten portion clearly expresses a testamentary intent.

6. Wills. A decedent's handwritten initials, as opposed to her whole name, constitute a signature within the meaning of Neb.Rev.Stat. § 30-2328 (Reissue 1995).

7. Wills: Intent: Words and Phrases. Material provisions are defined as those provisions which express donative and testamentary intent.

David L. Welch and Lisa M. Meyer, of Gaines, Mullen, Pansing & Hogan, Omaha, for appellant.

Charles F. Gotch and Michael K. Huffer, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellee.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

McCORMACK, Justice.

In his petition for further review, the appellant, Michael Luke Hogan, seeks review of the Nebraska Court of Appeals' decision admitting a purported holographic codicil for probate. We now reverse.

BACKGROUND

Eileen C. Foxley executed a valid will on February 8, 1985. Foxley received the original will and a photocopy thereof. At the time she executed the will, she had six daughters and two sons. The relevant portion of the will provided that the bulk of Foxley's estate was to be divided among her six daughters in equal shares. In December 1993, one of the daughters, Jane F. Jones, died and was survived by her only son, Hogan.

Foxley died in October 1994. Upon her death, two of her daughters found a folder containing the original will and the photocopy of the will in the den of Foxley's home. The photocopy of the will had been changed in the following manner on the first page:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The third page had been changed as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Foxley's personal representative submitted the will and the photocopy, alleged to be a codicil, for probate. Hogan objected to the admission of the photocopy, alleging that it was not executed with the formalities necessary for a valid will or codicil.

At trial, evidence was adduced that Foxley did not like Hogan, believing that Hogan abused Jones. Evidence indicated that on January 1, 1994, approximately 3 weeks after Jones died, Foxley approached one of her attorneys, James Schumacher, regarding a previously established irrevocable trust. After learning that Hogan would take Jones' share of the trust, 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 and told Schumacher that she would "take care of it." Schumacher explained that based on his long relationship with Foxley, he took Foxley's statement to mean "butt out ... this is my business."

Foxley's daughter Winifred Wells testified that after raising eight children on her own, Foxley was used to handling her own affairs and felt her opinions were "more savvy" and "meant more to her than most other people['s opinions]." Wells testified that Foxley regretted that in setting up the trust she had overlooked the possibility that one of her daughters might predecease her. Wells also testified that Foxley explicitly stated that she did not want Hogan to participate in her estate.

The trial court found that Foxley had substantially, if not fully, complied with the requirements

of a holographic codicil and admitted the photocopy and original will to probate. The Court of Appeals affirmed this decision, finding that Foxley's [254 Neb. 207] signature, the material provisions, and an indication of the date of signing were in her handwriting and that she had clearly demonstrated her intentions by her spoken words, her writings, and her actions. See In re Estate of Foxley, 6 Neb.App. 1, 568 N.W.2d 912 (1997). Therefore, the Court of Appeals found the codicil to be a valid holograph to be given effect as a testamentary instrument pursuant to Neb.Rev.Stat. § 30-2328 (Reissue 1995). See In re Estate of Foxley, supra.

ASSIGNMENTS OF ERROR

In his assignments of error in the petition for further review, Hogan contends that the Court of Appeals erred (1) in determining that Foxley's changes on a photocopy of her will evidenced testamentary intent and qualified as material provisions under § 30-2328, (2) in failing to follow § 30-2328 in not requiring the material provisions of the alleged holographic codicil to be in the handwriting of the testator, and (3) in finding that Foxley's handwritten changes on a photocopy of her will constituted a validly executed holographic codicil.

ANALYSIS

The parties do not dispute that Foxley's original 1995 will was executed with all of the formalities required by Neb.Rev.Stat. § 30-2327 (Reissue 1995) and was properly admitted to probate. The parties also concede that the changes made on the photocopy of the will were not executed with the formalities required by § 30-2327 and therefore have no legal effect unless the changes on the photocopy qualify it as a holographic document pursuant to § 30-2328.

Section 30-2328 provides in pertinent part: "An instrument which purports to be testamentary in nature but does not comply with section 30-2327 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...." The parties do not dispute that the changes made on the photocopy of the will are in Foxley's handwriting, that the signature is in Foxley's handwriting, and that Foxley dated the instrument when she made the changes.

The Court of Appeals noted that the primary legislative purpose of a holographic will statute is to prevent fraud " 'by virtue of the recognized difficulty of forging an entire handwritten instrument....' " In re Estate of Foxley, 6 Neb.App. at 12, 568 N.W.2d at 919, quoting Estate of Black, 30 Cal.3d 880, 641 P.2d 754, 181 Cal.Rptr. 222 (1982). The Court of Appeals found that the changes on the photocopy of Foxley's will met the requirements of § 30-2328 and therefore created a valid holographic codicil, which, by definition, only supplements, adds to, or qualifies an existing will. In re Estate of Foxley, supra, citing Flint v. Panter, 187 Neb. 615, 193 N.W.2d 279 (1971). In his petition for further review, Hogan does not dispute the Court of Appeals' finding that § 30-2328 may be applied to validate a holographic codicil. Rather, Hogan contends that the Court of Appeals erred in finding the altered instrument to be a holographic codicil, because the handwriting does not evidence any testamentary intent and the material provisions are not in the handwriting of the testator as required by § 30-2328.

TESTAMENTARY INTENT

In support of his argument, Hogan cites Cummings v. Curtiss, 219 Neb. 106, 361 In addressing whether handwriting on the original will constituted a valid holographic will, this 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. This court further stated that the important determination is whether " 'the handwritten portion clearly express[es] a testamentary intent.' " Id. at 109, 361 N.W.2d at 510. The handwritten portion of the document read:

N.W.2d 508 (1985). In Cummings, a client sued his attorney, claiming the attorney had made fraudulent misrepresentations because the attorney expressed reservations about a will executed on a printed will form and urged the client, one of the beneficiaries under the will, to accept a settlement offer urged by relatives of the testator. After accepting the offer, the client learned of the statute on holographic wills and [254 Neb. 209] sued his attorney for falsely representing that the will was invalid. The district court granted summary judgment in favor of the attorney, and the client appealed.

"Nebraska

Pierce

Ren J Kroupa

For helping me and taking care of me

Frank Kroupa Jr. and Bobby Cummings

w.r.o.s.

the court

who the courts decides [sic]

Pierce Pierce

Nebraska 29 Jan 79

Witness is chief of police Gordon Halbmayer [sic]

who i gave this to keep safe for me.

Ren J Kroupa."

Id. at 109, 361 N.W.2d at 510-511.

In affirming the decision of ...

To continue reading

Request your trial
8 cases
  • Lawry v. County of Sarpy
    • United States
    • Nebraska Supreme Court
    • March 13, 1998
  • Lovorn v. Brethouwer (In re Estate of Tiedeman)
    • United States
    • Nebraska Court of Appeals
    • April 10, 2018
    ... ... The district court found the purported holographic will did "not contain sufficient material provisions," which 30-2328, set forth above, clearly requires. Material provisions of a will are defined as those provisions which express donative and testamentary intent. See In re Estate of Foxley , 254 Neb. 204, 575 N.W.2d 150 (1998). The district court cited to Simonelli v. Chiarolanza , 355 N.J. Super. 380, 810 A.2d 604 (2002), which also considered a purported holographic will, to explain that testamentary intent concerns whether the document was intended to be a will and donative ... ...
  • Estate of Myers, In re
    • United States
    • Nebraska Supreme Court
    • April 29, 1999
    ...OF REVIEW An appellate court reviews probate cases for error appearing on the record made in the county court. In re Estate of Foxley, 254 Neb. 204, 575 N.W.2d 150 (1998). See, also, In re Estate of Disney, 250 Neb. 703, 550 N.W.2d 919 (1996) (holding challenge to statutory election to be r......
  • Hickey v. Estate of Pluhacek (In re Estate of Pluhacek)
    • United States
    • Nebraska Supreme Court
    • April 27, 2017
    ... ... We believe the county court was mistakenly echoing In re Estate of Foxley , 254 Neb. 204, 575 N.W.2d 150 (1998), which examined a handwritten codicil.The county court also considered an argument that the document was a validly executed will under Neb. Rev. Stat. 30-2331 (Reissue 2016), which provides:A written will is valid if executed in compliance with section 30-2327 ... ...
  • Request a trial to view additional results
7 books & journal articles
  • What's So Special About Special Proceedings? Making Sense of Nebraska's Final Order Statute
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 80, 2021
    • Invalid date
    ...In re Estate of Snover, 233 Neb. at 202-03, 443 N.W.2d at 898; NEB. REV. STAT. § 30-2465 (Reissue 1995). 235. See In re Estate of Foxley, 254 Neb. 204, 575 N.W.2d 150 (1998) (involving an appeal from order admitting will and holographic codicil to probate); In re Estate of Kleeb, 211 Neb. 7......
  • PART 5 WILLS AND WILL CONTRACTS AND CUSTODY AND DEPOSIT OF WILLS
    • United States
    • Colorado Bar Association The Green Book 2021 Tab 1: Title 15 Probate, Trusts, and Fiduciaries
    • Invalid date
    ...(Third) of Property: Wills and Other Donative Transfers § 3.2 cmt. g (1999). This position intentionally contradicts Estate of Foxley, 575 N.W.2d 150 (Neb. 1998), a decision condemned in Reporter's Note No. 4 to the Restatement as a decision that "reached a manifestly unjust result". 2008 R......
  • WILLS AND WILL CONTRACTS AND CUSTODY AND DEPOSIT OF WILLS
    • United States
    • Colorado Bar Association The Green Book 2022 Tab 1: Title 15 Probate, Trusts, and Fiduciaries
    • Invalid date
    ...(Third) of Property: Wills and Other Donative Transfers § 3.2 cmt. g (1999). This position intentionally contradicts Estate of Foxley, 575 N.W.2d 150 (Neb. 1998), a decision condemned in Reporter's Note No. 4 to the Restatement as a decision that "reached a manifestly unjust result". 2008 R......
  • PART 5 WILLS AND WILL CONTRACTS AND CUSTODY AND DEPOSIT OF WILLS
    • United States
    • Colorado Bar Association The Green Book (CBA) Tab 1: Title 15 Probate, Trusts, and Fiduciaries
    • Invalid date
    ...(Third) of Property: Wills and Other Donative Transfers § 3.2 cmt. g (1999). This position intentionally contradicts Estate of Foxley, 575 N.W.2d 150 (Neb. 1998), a decision condemned in Reporter's Note No. 4 to the Restatement as a decision that "reached a manifestly unjust result". 2008 R......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT