Determining Testamentary Intent in a Holographic Will by Referencing Typewritten Language? Not in Nebraska: an Analysis of the Nebraska Supreme Court's Ruling in Estate of Foxley v. Hogan

• Publication year: 2022

33 Creighton L. Rev. 199. DETERMINING TESTAMENTARY INTENT IN A HOLOGRAPHIC WILL BY REFERENCING TYPEWRITTEN LANGUAGE? NOT IN NEBRASKA: AN ANALYSIS OF THE NEBRASKA SUPREME COURT'S RULING IN ESTATE OF FOXLEY V. HOGAN

Creighton Law Review

Vol. 33

INTRODUCTION

Nebraska Revised Statute section 30-2328, which applies to both holographic wills and codicils, requires an instrument claimed to be testamentary in nature to have "the signature, the material provisions, and an indication of the date of signing . . . in the handwriting of the testator."(fn1) The Nebraska Supreme Court has defined "material provisions" to mean those sections of the instrument that express testamentary and donative intent.(fn2) Previously, in interpreting section 30-2328 the Nebraska Supreme Court in Cummings v. Curtiss(fn3) held that when determining testamentary intent, only the handwritten portions may be considered, all other language is to be disregarded.(fn4) In Estate of Foxley v. Hogan,(fn5) the Nebraska Supreme Court applied the holding of Cummings to determine whether Eileen C. Foxley's handwritten portions, made on a photocopy of her will, clearly expressed testamentary intent so as to qualify the instrument as a holographic codicil.(fn6) The Nebraska Supreme Court found that the statutory requirements for a holographic will or codicil, requiring the material provisions to be in the handwriting of the testator, remain the same, whether the case involves an original, validly executed will or a will created from a preprinted form.(fn7) Therefore, for the first time, the Nebraska Supreme Court held that the statutory requirements for an original, validly executed will also apply to wills created from a pre-printed will form.(fn8)

This Note will first carefully review the Nebraska Supreme Court's holding in Foxley.(fn9) Second, this Note will examine a previous decision of the Nebraska Supreme Court and decisions from other states that have a similar holographic will statute.(fn10) Next, this Note will illustrate that the court's decision in Foxley conforms with the three factors that are required, in determining the legal certainty of a will.(fn11) Further, this Note will demonstrate that the court's decision in Foxley is consistent with the majority view that courts may only consider the testator's actual handwriting in determining the testator's intent.(fn12) Finally, this Note will explain how the doctrine of partial revocation, if applied to the facts of Foxley, would not have altered the court's decision in Foxley.(fn13)

FACTS AND HOLDING

On February 8, 1985, Eileen C. Foxley ("Foxley") executed a valid will, of which she possessed an original and a photocopy.(fn14) The provisions of her will divided most of her estate in equal shares among her six daughters.(fn15) Jane F. Jones ("Jones"), one of Foxley's daughters, died in December 1993, survived by her only child Michael Luke Hogan ("Hogan"), the appellant.(fn16) Then in October 1994, Foxley died.(fn17) On the day of her death, two of Foxley's daughters found her original will and its photocopy in a folder in her den.(fn18) Foxley, in her own handwriting, made the following alterations to the photocopy of her will (handwritten alterations in bold type):

ARTICLE I

My only children are William C. Foxley, Sarah F. Gress, John C. Foxley, Winifred F. Wells, Elizabeth F. Leach, Sheila F. Radford, Mary Ann Pirotte, and Jane F. Jones. her share to be divided to between 5 daughters E. F. 1-3-94.(fn19)

ARTICLE III

I hereby give, devise and bequeath all of the rest of my proper [sic] to my six (6) daughters in equal shares.(fn20)

5

On December 2, 1994, the personal representative of Foxley's estate submitted the original will and the altered photocopy for probate in Douglas County Court, claiming the altered photocopy was a holographic codicil.(fn21) Hogan filed an objection to the personal representative's Petition for Formal Probate of Will alleging that the altered photocopy did not comply with the formalities necessary for a will or codicil pursuant to Nebraska Revised Statute section 30-2328.(fn22) Hogan contended that the altered photocopy should not be admitted to probate and asserted that he was entitled to Jones's portion of Foxley's estate.(fn23) Hogan did not challenge that Foxley intended him to be excluded from her estate by altering the photocopy, and neither party suggests undue influence, fraud, mistaken intent, or lack of testamentary capacity when the will was altered.(fn24) The parties also did not question whether Foxley made the alterations on the photocopy of her will.(fn25)

John Foxley, Foxley's son, testified that his mother had very negative feelings towards Hogan.(fn26) John Foxley also testified that these feelings were related to Foxley's belief that Hogan physically and verbally abused Jones.(fn27) In addition, James Schumacher ("Schumacher"), Foxley's attorney, testified that Foxley conveyed negative feelings about Hogan during a meeting with him regarding her previously established irrevocable trust.(fn28) During this meeting Schumacher informed Foxley that Hogan would take Jones's share of the trust.(fn29) Subsequently, Foxley told Schumacher that "she wanted [Hogan] bought out" and that she "didn't want him as an ongoing beneficiary of that trust."(fn30)

Additionally, Schumacher testified that he and Foxley also discussed Hogan's interest in Foxley's estate.(fn31) Schumacher further testified that Foxley "emphatically" indicated that Hogan's interest in her estate should be removed and told Schumacher she would "'take care of it.'"(fn32) Schumacher explained that he had a good relationship with Foxley over the years and understood Foxley's statement to mean "'butt out . . . this is my business.'"(fn33)

Furthermore, Winifred Wells ("Wells"), Foxley's daughter, testified that she was not surprised by the way her mother handled her affairs, because her mother was "used to handling her own affairs," having raised eight children by herself.(fn34) Wells explained that her mother "felt her own opinions were more savvy and meant more to her than most people whether they be professional people or her children."(fn35) Wells also testified the possibility that one of Foxley's chil-dren could predecease her was overlooked when the will was set up, and that Foxley regretted this oversight.(fn36) Relying on this testimony, along with Schumacher's, the trial court held that Foxley substantially complied with the provision of section 30-2328, and admitted both the original and altered photocopy to probate.(fn37)

Subsequently, Hogan appealed the Douglas County Court's decision to the Nebraska Court of Appeals, arguing the trial court erred in ruling that the altered photocopy of the will was a valid holographic codicil.(fn38) Hogan argued that testamentary intent was not evidenced by any handwriting on the altered photocopy and that the "material provisions" of the purported codicil were not in Foxley's handwriting, both of which are express requirements under section 30-2328.(fn39)

The Nebraska Court of Appeals affirmed the trial court's decision.(fn40) Judge Wesley Mues, writing for the three-judge unanimous decision, stated that Foxley's original will was appropriately admitted to probate, because the original will complied with all the requirements under Nebraska Revised Statute section 30-2327.(fn41) The parties conceded that the photocopy of the will, containing the alterations, was not executed in the manner required by section 30-2327 and therefore, could only have a legal effect if the alterations made to the photocopy qualified as a holographic codicil under section 30-2328.(fn42) The relevant portion of section 30-2328 provides that: "An instrument which purports to be testamentary in nature but does not comply with section 30-2327 is valid as a holographic will, whether or not witnessed, if the signature, the material provisions, and an indication of the date of the signing are in the handwriting of the testator "(fn43) The Nebraska Court of Appeals also quoted the comment to section 30-2328 which provides:

This section enables a testator to write his own will in his handwriting. There need be no witnesses. By requiring only the "material provisions" to be in the testator's handwriting (rather than requiring, as some existing statutes do, that the will be "entirely" in the testator's handwriting) a holograph may be valid even though immaterial parts such as introductory wording be printed or stamped. A valid holograph might even be executed on some printed will forms if the printed portion could be eliminated and the handwritten portion could evidence the testator's will.(fn44)

In affirming the county court's decision to admit the altered photocopy as a holographic codicil to probate, the court of appeals stated that Foxley's testamentary intent was sufficiently demonstrated.(fn45) The court concluded that Foxley's testamentary intent was demonstrated by her crossing out "Jane F. Jones" and writing "her share to be divided to between 5 daughters" on the photocopy.(fn46) The court reasoned that Foxley referenced her intent by using a verb in the phrase "to be divided."(fn47) Her intent is again demonstrated by other testimony, which established that she wanted to disinherit Hogan from her estate.(fn48) Therefore, the court of appeals reasoned that Foxley's handwritten alterations to the...