Estate of Nielson
105 Cal. App. 3d 796, 165 Cal. Rptr. 319 (1980)

  • Nielson executed a valid will. It left everything to his mother, or if she predeceased him, to a variety of charities.
    • Nielson made a number of changes to how much $$$ went to which charity. He crossed out parts of the will and wrote new distributions in the margins. He initialed each change, then put a signature and new date in the margins.
    • Nielson’s will explicitly omitted provisions for his other relatives.
  • Nielson died. Nielson’s uncle stepped forward and challenged the will.
    • The uncle would inherit by intestate succession if the will was found to be invalid.
  • The Probate Court found the will to be valid.
    • Under California State law, a holographic will must be completely in the handwriting of the testator.
      • The uncle argued that since the will was now partially handwritten and partially typed, it was not a valid witnessed will nor was it a valid holographic will.
    • The Appellate Court found that (assuming the handwriting was proven to be Nielson’s), that the handwritten sections met the Statutory requirements of a holographic will.
    • In addition, the handwritten holographic will authorizes an inference of an intent to incorporate by reference those portions of the typewritten will that were not crossed out.
      • In essence, the handwritten parts and the typewritten parts should be looked at as two separate documents. The handwritten parts represent a valid codicil that refers the reader to the typewritten parts which are a separate memorandum.
      • “The interlineations, written, signed, and dated by the testator, constitute a holographic codicil and the doctrine of incorporation by reference gave validity to republish the will as modified by the holographic codicil.”
        • The trick was that Nielson used the word “revised” showing intent.
  • This case took place before the Uniform Probate Code came out eliminating the requirement for a holographic will to be completely in the handwriting in the testator.