In re Estate of Pluhacek
296 Neb. 528
| Neb. | 2017Background
- Dorothy (Mary) Pluhacek (d. July 1, 2015) left a document dated July 22, 1936, titled "Last Will and Testament," combining preprinted 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 sought appointment as personal representative under the document.
- 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 suggested the document would have to be considered as a holographic will under § 30-2328.
- On formal probate after trial, the county court again denied probate, finding no witness testimony authenticating Pluhacek’s handwriting and treating the instrument as a hybrid holographic form that failed holographic requirements; it also rejected reliance on choice-of-law for 1936 execution.
- Hickey appealed to the Nebraska Supreme Court, arguing the document satisfied the statutory execution requirements of § 30-2327 and thus was a valid will.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the instrument is "in writing" under Neb. Rev. Stat. § 30-2327 so as to be a validly executed will | Hickey: the mixed preprinted/typewritten/handwritten form is nonetheless "in writing," was signed by testator, and witnessed by two, satisfying § 30-2327 | County court: large handwritten portions mean the instrument is not "in writing" under § 30-2327; thus must be treated as a holographic will | Court: Reversed — mixed-form document satisfies "in writing" requirement of § 30-2327 when otherwise properly signed and witnessed |
| Whether the instrument must be proved as a holographic will under § 30-2328 | Hickey: unnecessary because § 30-2327 requirements are met; no need to invoke holographic-will statute | County court: because handwriting is material, must treat as holographic and require handwriting authentication | Court: Holographic statute is an exception; not applicable once § 30-2327 is satisfied; no holographic proof required |
| Whether testimony authenticating handwriting was required for probate | Hickey: not required if instrument meets § 30-2327 execution formalities | County court: absence of witness familiar with handwriting precluded holographic proof | Court: Authentication not necessary because the will met § 30-2327’s witnessed-signature requirements |
| Whether 1936 execution date precludes recognition under governing law | County court: holographic wills were not recognized in 1936, so choice-of-law under § 30-2331 cannot validate it | Hickey: not applicable because instrument is valid under § 30-2327 regardless of historical holographic recognition | Court: Not reached — because § 30-2327 governs, the historical holographic question is irrelevant |
Key Cases Cited
- In re Estate of Balvin, 295 Neb. 346 (reciting standard of review for probate appeals)
- In re Estate of Flider, 213 Neb. 153 (explaining statutory execution requirements under § 30-2327)
- Cummings v. Curtiss, 219 Neb. 106 (stating two witnesses required under § 30-2327)
- In re Estate of Foxley, 254 Neb. 204 (discussing handwriting/codicil issues referenced by county court)
Outcome
The Nebraska Supreme Court reversed and remanded with instructions to admit the will to formal probate and grant appropriate relief under its terms.