In re Estate of Pluhacek
296 Neb. 528
| Neb. | 2017Background
- Dorothy (Mary) Pluhacek died July 1, 2015; a document dated July 22, 1936 was offered as her will by Margaret Hickey, Provincial Superioress of the Omaha Notre Dame Sisters.
- The tendered instrument combined preprinted language, typewritten text, and handwritten insertions, and was signed by Pluhacek and witnessed by two Sisters.
- The Douglas County Court denied informal probate, finding the document was not "in writing" under Neb. Rev. Stat. § 30-2327 because material provisions were handwritten and therefore treated the document as a holographic will under § 30-2328.
- The court concluded admissibility as a holographic will could not be resolved informally and later, after a formal trial, denied formal probate for lack of evidence proving the handwriting was Pluhacek’s and because the instrument was a hybrid form.
- Hickey appealed; the Nebraska Supreme Court reviewed de novo whether the instrument satisfied § 30-2327 and whether it was a validly executed will.
Issues
| Issue | Plaintiff's Argument (Hickey) | Defendant's Argument | Held |
|---|---|---|---|
| Whether the instrument is "in writing" under § 30-2327 | The mixed form (printed/typewritten/handwritten) satisfied the statutory "in writing" requirement and was properly executed with signature and two attesting witnesses | County court: substantial handwritten portions meant it was not "in writing" under § 30-2327 and should instead be treated as holographic | The Supreme Court held the mixed-format instrument satisfied § 30-2327: it was "in writing," signed by testator, and witnessed — probate should be granted |
| Whether the court properly required holographic-will proof under § 30-2328 | Hickey: unnecessary because § 30-2327 was met; no need to treat it as holographic | County court: treated instrument as holographic and required handwriting proof | Court held § 30-2328 was irrelevant once § 30-2327 requirements were met; county court erred in shifting to holographic analysis |
| Whether hybrid/partly preprinted forms can evidence testamentary intent | Hickey: preprinted form with handwritten/typewritten insertions can still be a valid written will if signatures and witnesses comply | County court: hybrid form undermined testamentary validity as holographic material provisions did not stand alone | Court held mixed-format documents have long been accepted as "writing" for execution purposes and can satisfy testamentary requirements |
| Whether the will could be validated under conflict-of-law execution rules (§ 30-2331) given 1936 execution date | Hickey: not necessary once § 30-2327 satisfied; statutory execution controls | County court: argued holographic wills not recognized in 1936, so § 30-2331 would not save it | Court did not need to resolve § 30-2331 because § 30-2327 dispositive; reversed and remanded for probate |
Key Cases Cited
- In re Estate of Balvin, 295 Neb. 346, 888 N.W.2d 499 (reciting standard of review for probate appeals)
- In re Estate of Flider, 213 Neb. 153, 328 N.W.2d 197 (stating § 30-2327 requirements: writing, testator signature, two witnesses)
- 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 (discussed by county court regarding handwritten codicil/holographic issues)
- Succession of Bellanca, 517 So. 2d 1235 (noting that a typewritten will with handwritten portions can satisfy a statutory "writing" requirement)