In re Estate of Pluhacek
296 Neb. 528
| Neb. | 2017Background
- Dorothy (Mary) Pluhacek died in 2015; Hickey (Provincial Superioress of the Omaha province, School Sisters de N.D.) submitted a document dated July 22, 1936, as Pluhacek’s will and sought appointment as personal representative.
- The purported will combined preprinted text, typewritten material, and handwritten insertions and was signed by Pluhacek and witnessed by two Sisters.
- The Douglas County Court denied informal probate sua sponte, reasoning the document was not "in writing" under Neb. Rev. Stat. § 30-2327 because material provisions were handwritten, and thus might only be a holographic will under § 30-2328.
- An initial appeal was dismissed as not final; Hickey then petitioned for formal probate. After trial, the county court again denied formal probate, finding no evidence establishing the handwritten portions were Pluhacek’s handwriting and treating the document as an invalid hybrid holographic instrument.
- Hickey appealed to the Nebraska Supreme Court, arguing the document satisfied the § 30-2327 execution requirements (writing, testator’s signature, two attesting witnesses) regardless of mixed media.
Issues
| Issue | Plaintiff's Argument (Hickey) | Defendant's Argument (County Court) | Held |
|---|---|---|---|
| Whether the instrument is "in writing" under § 30-2327 | The mixed form (preprinted/typed/handwritten) satisfies the writing requirement and was signed and witnessed | Because material provisions were handwritten, the instrument was not "in writing" and thus not valid under § 30-2327 | Held for Hickey: mixed-media document is "in writing" if otherwise properly executed under § 30-2327 |
| Whether the instrument must be treated as a holographic will under § 30-2328 | Not necessary; § 30-2327 requirements were met, so holographic analysis is irrelevant | Court treated document as potentially holographic and found insufficient handwriting proof/witness testimony | Court rejected county's holographic analysis because § 30-2327 was satisfied |
| Whether handwriting authentication was required to probate under § 30-2327 | Authentication unnecessary if statutory execution (writing, signature, two witnesses) is satisfied | County required proof the handwritten portions were testator’s handwriting for any validity finding | Held that authentication of handwriting was unnecessary where § 30-2327 formalities are met |
| Whether choice-of-law (§ 30-2331) or historic nonrecognition of holographic wills (1936) affects validity | Not reached once § 30-2327 formalities satisfied; the will is valid as executed | County argued holographic form not recognized in 1936, undermining validity | Court did not rely on § 30-2331; reversed county and remanded for formal probate |
Key Cases Cited
- In re Estate of Balvin, 295 Neb. 346, 888 N.W.2d 499 (reciting standard of appellate review in probate matters)
- In re Estate of Flider, 213 Neb. 153, 328 N.W.2d 197 (identifying § 30-2327 execution requirements)
- Cummings v. Curtiss, 219 Neb. 106, 361 N.W.2d 508 (confirming two-witness requirement under § 30-2327)
- In re Estate of Foxley, 254 Neb. 204, 575 N.W.2d 150 (discussing holographic codicil and handwriting issues)
- Stuck v. Howard, 213 Ala. 184, 104 So. 500 (historic authority recognizing mixed typed/handwritten writings satisfy writing requirement)
- Succession of Bellanca v. Schiro, 517 So. 2d 1235 (noting statutory term "written" can include typewritten with handwritten portions)