Estate of Krueger, Matter of

• Decision Date: 28 February 1995
• Docket Number: No. 940091,940091
• Parties: In the Matter of the ESTATE OF Diana C. KRUEGER, also known as Diana Krueger, Christina Krueger, Christina Diane Kruger, Christina Diane Krueger, Diana A. C. Krueger and Diana Aneta Christine Krueger, Deceased. William BIEBER, Rhinhold Bieber and Daniel Bieber, Petitioners and Appellees, v. Fred BIEBER, Personal Representative of the Estate of Diana C. Krueger, also known as Diana Krueger, Christina Krueger, Christina Diane Kruger, Christina Diane Krueger and Diana Aneta Christine Krueger, Respondent and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 151

529 N.W.2d 151

In the Matter of the ESTATE OF Diana C. KRUEGER, also known

as Diana Krueger, Christina Krueger, Christina Diane Kruger,

Christina Diane Krueger, Diana A. C. Krueger and Diana Aneta

Christine Krueger, Deceased.

William BIEBER, Rhinhold Bieber and Daniel Bieber, Petitioners and Appellees, v. Fred BIEBER, Personal Representative of the Estate of Diana

C. Krueger, also known as Diana Krueger, Christina Krueger,

Christina Diane Kruger, Christina Diane Krueger and Diana

Aneta Christine Krueger, Respondent and Appellant.

Civ. No. 940091.

Supreme Court of North Dakota.

Feb. 28, 1995.

Malcolm H. Brown, Bismarck, for respondent and appellant.

Ronald S. Efta, Wibaux, Montana, and Michael J. Maus of Howe, Hardy, Galloway & Maus, Dickinson, for petitioners and appellees.

LEVINE, Justice.

Fred Bieber appeals from a county court judgment, entered in a formal testacy proceeding, denying probate of the purported holographic will of Diana C. Krueger. ¹ We affirm.

Diana C. Krueger died on May 3, 1992. Her heirs are four nephews, Fred Bieber, William Bieber, Rhinhold Bieber, and Daniel Bieber. During her lifetime, Krueger executed two wills: a holographic will, executed on January 8, 1979, and a formally attested will, drafted by an attorney, and executed on March 9, 1990. The second will ("1990 will") contained a clause expressly revoking all previous wills, including the holographic will. The 1990 will was not located after Krueger's death. ²

Following Krueger's death, Fred Bieber petitioned the county court for formal probate of the holographic will and for appointment as personal representative of Krueger's estate. His brothers, William, Rhinhold, and Daniel Bieber [collectively "William"] objected to the probate of the will. They contended, inter alia, that a material provision of the will had been altered by someone other than the testator, invalidating the will under NDCC Sec. 30.1-08-03. ³ William also argued that Krueger did not reexecute the altered will and, once altered, it could not be revived.

The original holographic will contained a specific bequest of Krueger's "Books and Diploma" to her niece, Doris. However, at the time of probate, Doris's name had been crossed out and the phrase, "Fred Bieber daughters," inserted in its place. At the probate hearing, Fred testified that on March 14th or 15th of 1990, shortly after the execution of the 1990 will, he and his wife accompanied Krueger home from the hospital to Krueger's farm in Regent, North Dakota. After supper, Krueger asked him to retrieve a box from a dining room closet. As he and Krueger sat in her bedroom, Krueger took an envelope, containing the holographic will, out of the box and said, "Look, we still have our will." Then, Krueger read the contents of the two-page document to him "word for word." Fred testified that he could see cross-outs on the first page of the document. After she finished reading the will, Fred said that "Diane crossed [Doris's] name out" and, at Krueger's request, he wrote in its place, "Fred Bieber daughters," while Krueger held the document. ⁴

The county court found that "[e]ven if Fred Bieber's testimony is true, the holographic will as altered no longer complies with Sec. 30.1-08-03, NDCC. A material provision of the holographic will is not in the handwriting of the testator after the alteration." The county court also found that Krueger did not reexecute the altered holographic will and absent reexecution, the altered will could not be reviewed under NDCC Sec. 30.1-08-09. ⁵ On appeal, Fred contends that the trial court erred in concluding that the bequest of Krueger's books and diploma to a specific legatee is a material provision of the holographic will and that the trial court's finding that Krueger did not reexecute her holographic will is clearly erroneous.

I. Material Provision

The right to make a will disposing of one's property is statutory and unless a testator complies with the prescribed statutory formalities, the will is invalid. In re Lyons' Estate, 79 N.D. 595, 58 N.W.2d 845 (1953); Montague v. Street, 59 N.D. 618, 231 N.W. 728 (1930). Probate proceedings in North Dakota are governed by the Uniform Probate Code (UPC), codified at Title 30.1, NDCC. See, e.g., Matter of Estate of Ketterling, 515 N.W.2d 158 (N.D.1994).

A holographic will is valid if "the signature and the material provisions of the will are in the handwriting of the testator." NDCC Sec. 30.1-08-03. Fred contends that his handwritten insertion, "Fred Bieber daughters," is not a material provision because of the insignificant value of the books and diploma in light of the total value of the estate. We cannot agree.

The interpretation and application of a statute is a question of law fully reviewable on appeal. Olson v. N.D. Dept. of Transp. Director, 523 N.W.2d 258 (N.D.1994). Neither the UPC, nor the general provisions of the North Dakota Century Code, define the term "material provisions." We construe words undefined in the Code by attributing to them their "plain, ordinary, and commonly understood meaning." Stewart v. Ryan, 520 N.W.2d 39, 45 (N.D.1994). We construe uniform laws and model acts in the same manner as other jurisdictions to provide consistency and uniformity in the law. Zuger v. N.D. Ins. Guaranty Ass'n, 494 N.W.2d 135 (N.D.1992). Our consideration of other states' similar statutes and court decisions interpreting those statutes is relevant and appropriate. J.P. Furlong Enterprises, Inc. v. Sun Exploration and Production Co., 423 N.W.2d 130 (N.D.1988).

Generally, "material" means "relevant," "consequential," or "having a certain or probable bearing ... on the effect of an instrument." Webster's Third New Int'l Dictionary, 1392 (1971). "Material provisions" are those portions of a holographic will which express the testamentary and donative intent of the testator. Matter of Estate of Muder, 156 Ariz. 326, 751 P.2d 986 (Ariz.App.1987). Specific bequests to particular legatees indicate testamentary intent and are uniformly held to be material provisions of holographic wills which must be in the handwriting of the testator. Estate of Johnson, 129 Ariz. 307, 630 P.2d 1039 (App.1981) [words are material if essential to the testamentary disposition]; In Re Estate of Cunningham, 198 N.J.Super. 484, 487 A.2d 777, 778-779 (L.1984) [describing the material provisions of the will as "instructions concerning the donation of [the testator's] bodily remains, specific bequests and the devise and bequest of the remainder of [the] estate"]; Matter of Estate of Fitzgerald, 738 P.2d 236 (Utah App.1987) [admitting holographic will to probate because material provisions were in handwriting of testator]. The Drafters' Comments to UPC Sec. 2-503, from which our holographic wills statute is derived, supports this interpretation:

"By requiring only the 'material provisions' to be in the testator's handwriting ..., a holographic will may be valid, even though immaterial parts such as date or 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." Comment UPC Sec. 2-503. Uniform Probate Code Practice Manual 2d, v. 1 (1977).

We construe the material provisions requirement of NDCC Sec. 30.1-08-03 to mean that those provisions which express donative and testamentary intent must be in the handwriting of the testator. ⁶

The bequest of Krueger's books and diploma to Doris reflects Krueger's donative intent. Therefore, the alteration made by Fred resulted in a material provision of Krueger's will being in his handwriting and not in Krueger's. Insertion of the designation, "Fred Bieber daughters," as legatees is relevant and consequential, and it changes the effect of the instrument by altering the disposition of assets under the will. Compare Bell v. Timmins, 190 Va. 648, 58 S.E.2d 55 (1950) [deleting confusing language or inserting corrections in punctuation and spelling, although not done by the testator, did not alter the testamentary dispositions and hence were not material].

Fred cautions that a "strict construction" of NDCC Sec. 30.1-08-03 would elevate form over substance and defeat Krueger's testamentary intent. He urges us to liberally construe the provisions of the UPC to effectuate that intent. While we adhere to the credo of liberal construction of a will, once it is admitted to probate, in order to effectuate the intent of the testator, see Matter of Estate of Klein, 434 N.W.2d 560 (N.D.1989), this case involves the threshold question of the validity of the will under an unambiguous statute.

The requirement under NDCC Sec. 30.1-08-03, that the material provisions of a holographic will be in the testator's handwriting, is designed to ensure the authenticity of holographs, while still permitting lay persons to prepare their own wills without the expense and formality associated with attested wills. See Matter of Estate of Erickson, 806 P.2d 1186 (Utah 1991); Estate of Black, 30 Cal.3d 880, 181 Cal.Rptr. 222, 641 P.2d 754 (1982). Section 30.1-08-03, NDCC, provides a straightforward means of ensuring that a will is truly the testator's, recognizing the difficulty of forging an entire handwritten document. Black, 181 Cal.Rptr. 222, 641 P.2d 754. We share the county court's apprehension that:

"[i]f the holographic will in this case was admitted to probate with all of the cross-outs and writing on it, a precedent would be set which could open the door to forged and fraudulent documents being admitted as a decedent's will."

We conclude that a material provision of the will was not in Krueger's handwriting, and the trial court did not err in denying probate of the invalid will.

II. Reexecution

Fred also contends that the county court's finding that Krueger did not reexecute her holographic will is clearly erroneous. A finding is clearly erroneous when,...