Put on Your Blinders and Get Your Earplugs

Publication year2021
CitationVol. 78

78 Nebraska L. Rev. 147. Put on Your Blinders and Get Your Earplugs



Put on Your Blinders and Get Your Earplugs: The Nebraska Supreme Court's Construction of the Nebraska Holographic Will Statute Excludes Evidence of Testator Intent in Estate of Foxley v. Hogan, 254 Neb. 204, 575 N.W.2d 150 (1998)


I. Introduction ........................................... 148
II. Background ............................................. 149
A. Holographic Wills and Codicils ...................... 149
B. Construction vs. Interpretation of Wills ............ 151
C. Nebraska's Position Regarding the Handwritten
Alteration of an Attested Will ...................... 151
III. Analysis ............................................... 154
A. Altered Holographic Wills vs. Printed Will
Forms................................................ 154
B. The Nebraska Probate Code's Requirement that the
Material Provisions of a Holographic Will be in the
Handwriting of the Testator ......................... 155
C. The Nebraska Supreme Court's Requirement that
Ms. Foxley's Words Alone Must Establish Intent . . .. 157
D. Ms. Foxley's Intent and the Circumstances
Surrounding Her at the Time She Altered Her
Attested Will ....................................... 158
E. The Unstated Concern that the Absence of
Witnesses Casts Doubt on Whether Ms. Foxley Had
Testamentary Intent When She Made Handwritten
Alterations to Her Attested Will .................... 159
F. The Effect of Foxley on Holographs in Nebraska ...... 160
IV. Conclusion ............................................. 161



The history of wills tells us that a will is an instrument which is not immediately operative but is revocable before the testator dies.(fn1) More importantly, a will carries out a person's intent after his or her death.(fn2) The requirements for a valid will have changed over the years and have traditionally included a great deal of formalism before a court would give a will effect. Recently, courts have been requiring less formalism, and when interpreting wills, they are giving more attention to what the testator truly intended. The Uniform Probate Code, which Nebraska has adopted, recognizes holographic wills as valid testamentary instruments.(fn3) Holographic wills in general are those that are written, dated, and signed in the handwriting of the testator.(fn4) The extent of the writing that must be in the testator's handwriting differs from state to state, as do ideas about the amount of extrinsic evidence that can be looked at to determine testator intent. Nebraska has explored the limits of evidence it will consider as well as the extent of the writing required to be in the handwriting of the testator in Estate of Foxley v. Hogan.(fn5)

In Foxley, the Nebraska Supreme Court determined that the testator's changes to her attested will were not sufficient to create a valid holographic instrument. In editing the will, the testator crossed out one daughter's name, Jane F. Jones, and wrote the following interlineation: "her share to be divided to between [sic] 5 daughters E.F. 1-3-94."(fn6) She also crossed out the word "six" as follows: "to my (6) daughters in equal shares" and wrote in the number "5" below it.(fn7)

At trial, there was evidence that Ms. Foxley had planned to make a change to her will because her daughter, Ms. Jones, had predeceased her. Under Ms. Foxley's original will, Ms. Jones' share of the estate would have gone to Ms. Jones' son, Hogan, and evidence was introduced showing Ms. Foxley disliked Hogan.(fn8) Ms. Foxley told her attor-


ney and one of her daughters that she did not want Hogan participating in her estate but told her attorney that she would "take care of it."(fn9)

The court's holding in this case unwisely excluded evidence of testator intent. Although Ms. Foxley clearly did not disregard her attested will when she altered it, the court, in its analysis, read only the handwritten words, ignoring the printed words. The effect of this decision on those who attempt to create something of a holographic nature will be to strike down the testamentary instrument unless the language in the handwriting of the testator, standing alone, shows testamentary intent. Under the Nebraska Supreme Court's rule as seen in Foxley, a testamentary instrument could be struck down even though testamentary intent is clear from examining the other printed words and looking to evidence of the circumstances surrounding the testator at the time the attested will was edited.


One of the underlying purposes of the Nebraska Probate Code is "to discover and make effective the intent of a decedent."(fn10) To reach that end, the "code shall be liberally construed and applied"(fn11) and, as a general rule, the circumstances surrounding the testator at the time the instrument was created may be considered by the court in finding intent.(fn12)

A. Holographic Wills and Codicils

In Nebraska, when a person writes, dates, and signs a will in his or her own handwriting, the instrument is accepted as a valid will even though there are no witnesses as normally required for a will to be valid.(fn13) This type of testamentary instrument is referred to as a holographic will.(fn14) The policy behind accepting holographs is to allow people to write wills themselves if they can not obtain legal assistance. (fn15) Holographs are important when the testator can not afford to execute an attested will or if the person does not have time to have one drawn up with the traditional, formal requirement of two witnesses.(fn16)


It is clearly better to allow a person to write a will by hand than to allow that person to die intestate. Because the holographic will statute relaxes the traditional formality requirements, the code allows more instruments to be accepted as valid wills.

Holographic wills are recognized in over half the states but to varying degrees in each state.(fn17) In the most conservative holographic will states, the requirements include that the instrument be entirely written, dated, and signed in the handwriting of the testator, and those states will not consider anything printed or typed as part of the will.(fn18) Nebraska, on the other hand, has followed the less formalistic requirements of the original Uniform Probate Code.(fn19)

The Nebraska holographic will statute states that an instrument "is valid as a holographic will, whether or not witnessed, if the signature, the material provisions, and an indication of the date of signing are in the handwriting of the testator."(fn20) Applying this statute, the Nebraska Supreme Court determined in Cummings v. Curtiss (fn21) that a holographic will is valid if the intent of the testator can be determined from the handwritten portions of the instrument.(fn22) In reaching its decision, the court relied on case law from other states interpreting statutes similar to Nebraska's. The court came to the conclusion that all language, except for that in the testator's handwriting, is to be disregarded in determining testator intent when on a printed will form.(fn23) Nebraska's position has been that a will could be handwritten on a printed will form so long as the handwritten portions, standing alone, clearly express testamentary intent.(fn24) However, Arizona, one of the states Nebraska relied upon for this rule, went further to say that "[s]uch handwritten provisions may draw testamentary context from both the printed and the handwritten language" on a printed will form.(fn25)

Under the Nebraska Probate Code, a will is defined as "any instrument, including a codicil or other testamentary instrument complying with [the sections of this Code], which . . . revokes or revises an earlier


executed testamentary instrument."(fn26) Black's Law Dictionary defines

a codicil as follows:

A supplement or an addition to a will; it may explain, modify, add

to, subtract from, qualify, alter, restrain or revoke provisions in

existing will. Such does not purport to dispose of entire estate or

to contain the entire will of testator, nor does it ordinarily

expressly or by necessary implication revoke in toto a prior


A tentative draft of the Restatement (Third) of Property states, "In a jurisdiction that permits holographic...

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