In re Estate of Pluhacek
296 Neb. 528
| Neb. | 2017Background
- Dorothy (Mary) Pluhacek died in 2015; Margaret Hickey (Provincial Superioress) sought probate of a 1936 document as Pluhacek’s will and appointment as personal representative.
- The tendered document combined preprinted text, typewritten material, and handwritten insertions; it was signed by Pluhacek and witnessed by two Notre Dame Sisters.
- The Douglas County Court denied informal probate, reasoning the document was not “in writing” under Neb. Rev. Stat. § 30-2327 because portions were handwritten, and therefore examined holographic-will rules (§ 30-2328).
- On formal probate after trial, the county court again denied probate: it concluded the handwritten material either made the instrument a holographic or hybrid instrument and that handwriting was not proven, and also questioned 1936-law validity.
- Hickey appealed; the Nebraska Supreme Court reviewed de novo legal questions and addressed whether the instrument satisfied § 30-2327.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 1936 document is a valid will under § 30-2327 (execution requirement) | The mixed printed/typed/handwritten instrument is “in writing,” signed by testator, and witnessed by two — satisfies § 30-2327 | Because material provisions are handwritten, the document is not "in writing" under § 30-2327 and thus not validly executed | The document satisfied § 30-2327; it was "in writing," signed, and witnessed — probate should be granted |
| Whether the county court properly treated the instrument as a holographic will under § 30-2328 | No need to invoke holographic-will statute when § 30-2327 is met | If § 30-2327 fails, the instrument must be evaluated as holographic and it fails (handwriting not proven) | Court erred to recharacterize the instrument as holographic once § 30-2327 requirements were met; that inquiry was unnecessary |
| Whether the county court correctly required handwriting proof for holographic validity | (Implicit) Not necessary because § 30-2327 governs | No witness opinion established the testator’s handwriting, so holographic requirements not satisfied | Even if considered holographic, the court’s handwriting-proof analysis was unnecessary because § 30-2327 governed and was met |
| Whether the 1936 execution date defeats validity under choice-of-law (§ 30-2331) | Execution is valid under § 30-2327 regardless of 1936 law | Holographic wills were not recognized in 1936, so § 30-2331 cannot save a holographic form executed then | Irrelevant: because the instrument complied with § 30-2327, choice-of-law concerns about 1936 holographic recognition need not be reached |
Key Cases Cited
- In re Estate of Balvin, 295 Neb. 346, 888 N.W.2d 499 (2016) (standard of review in probate appeals)
- In re Estate of Flider, 213 Neb. 153, 328 N.W.2d 197 (1982) (elements required for valid execution under statute)
- Cummings v. Curtiss, 219 Neb. 106, 361 N.W.2d 508 (1985) (two-witness requirement under execution statute)
- In re Estate of Foxley, 254 Neb. 204, 575 N.W.2d 150 (1998) (discussion of holographic/codicil handwriting issues)
- Stuck v. Howard, 213 Ala. 184, 104 So. 500 (1925) (older authority treating mixed-type and handwritten instruments as "written")
- Succession of Bellanca v. Schiro, 517 So. 2d 1235 (La. App. 1987) (holding "written" includes typewritten with handwritten portions)