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
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
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
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.
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.