In re Estate of Pluhacek
894 N.W.2d 325
| Neb. | 2017Background
- Dorothy (Mary) Pluhacek died July 1, 2015; a document dated July 22, 1936, was submitted as her will.
- The document combined preprinted form text, typewritten material, and handwritten insertions; it was signed by Pluhacek and witnessed by two Notre Dame Sisters.
- Margaret Hickey, Provincial Superioress of the Omaha province of the Notre Dame Sisters, filed for probate and nominated herself as personal representative pursuant to the will.
- The Douglas County Court denied informal and then formal probate, reasoning the document was not "in writing" under Neb. Rev. Stat. § 30-2327 because portions were handwritten and therefore treated it as (or examined it as) a holographic or hybrid instrument under § 30-2328.
- The county court also suggested holographic wills were not recognized in 1936 and raised handwriting-authentication concerns for holographic-admissibility; Hickey appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the mixed-format document is "in writing" under Neb. Rev. Stat. § 30-2327 | Hickey: document satisfies § 30-2327 because it is written, signed by testator, and witnessed by two persons | County court: substantial handwritten portions mean it is not "in writing" and thus not valid under § 30-2327 | Court: Reversed — mixed printed/typed/handwritten document meets "in writing" requirement when signed and witnessed per § 30-2327 |
| Whether the instrument must be treated as a holographic will under § 30-2328 | Hickey: unnecessary to analyze holographic statute because § 30-2327 formalities are met | County court: treated document as holographic/hybrid and found handwriting not proven/authenticated and handwritten portions insufficient alone | Court: No need to apply § 30-2328 once § 30-2327 formalities satisfied; county court erred to recharacterize the instrument |
| Whether handwriting authentication was required for probate given witnesses | Hickey: witnesses attested; signature and attestation suffice under § 30-2327 | County court: absence of witness opinion tracing handwritten portions to testator undermines holographic claim | Court: Authentication of handwriting unnecessary because will met statutory witnessing and signature formalities under § 30-2327 |
| Effect of 1936 execution date on validity | Hickey: § 30-2327 governs and is satisfied regardless of year | County court: argued holographic wills were not recognized in 1936, so § 30-2331 argument fails if document treated as holographic | Court: Because document complies with § 30-2327, historical availability of holographic wills is irrelevant |
Key Cases Cited
- In re Estate of Balvin, 295 Neb. 346 (2016) (standard of review in probate appeals)
- In re Estate of Flider, 213 Neb. 153 (1982) (requirements for validly executed will under execution statute)
- Cummings v. Curtiss, 219 Neb. 106 (1985) (two witnesses required under execution statute)
- In re Estate of Foxley, 254 Neb. 204 (1998) (discussion of handwritten codicil and holographic concerns)
- Stuck v. Howard, 213 Ala. 184 (1925) (historical authority that mixed typed/handwritten documents satisfy writing requirement)
- Succession of Bellanca v. Schiro, 517 So. 2d 1235 (La. App. 1987) (statutory "written" includes typewritten portions with handwritten insertions)