In Re: Estate of Feldman ( 2015 )

 vacated and to admit the 2006 will into probate. The district court
vacated its prior order and revoked the March 12 letter and March 16 will
from probate, and the court reserved judgment on admitting the 2006 will
into probate.' Zuritsky and Winigrad appealed.
Zuritsky and Winigrad argue that the March 12 letter was a
holographic will incorporating the March 16 will by reference and that,
together, they effectively revoked the 2006 will and directed that Zuritsky
and Winigrad receive all of Feldman's property. We review de novo
whether a document is a valid will and the interpretation of a will or a
statute. In re Estate of Melton, 128 Nev., Adv. Op. 4, 272 P.3d 668, 673
(2012).
"A holographic will is a will in which the signature, date and
material provisions are written by the hand of the testator, whether or not
it is witnessed or notarized." NRS 133.090(1). In this case, it is not
disputed that the signature, date and provisions of the March 12 letter
were handwritten by Feldman. The parties dispute, however, whether the
language Feldman used in the letter is sufficient to• demonstrate
Feldman's testamentary intent, and the district court determined that it
was not sufficient. In that regard, the letter indicates that Feldman was
enclosing copies of his will, that he wished Zuritsky and Winigrad to
receive the equity in his home, and that Zuritsky and Winigrad were the
'As a consequence, the admission of the 2006 will into probate is not
before this court, and we make no comments and reach no legal
conclusions regarding the merits of admitting the 2006 will into probate or
what effect the 2012 documents may have on the 2006 will, if any.
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only family he had left. We hold that these material provisions are
sufficient indicia of testamentary intent for the March 12 letter to qualify
as a holographic will. See In re Estate of Melton, 128 Nev., Adv. Op. 4, 272
P.3d at 674 (construing a letter as a will); see also In re Van Voast's Estate,
266 P.2d 377, 379 (Mont. 1953) (stating that a letter may be construed as
a will where the letter demonstrates the testator's "intention to create a
revocable disposition of his property" that will "take effect only upon his
death" (internal quotations omitted)). Accordingly, we reverse the portion
of the district court's order revoking the March 12 letter from probate.
Regarding the March 16 will, the probate commissioner and
the district court found that the March 16 will was not a valid will because
it contained the signature of only one witness, in violation of NRS 133.040.
To the extent that the March 16 will contains only one signature, we
affirm the district court's order that the March 16 will does not comply
with the strict formalities of NRS 133.040. However, the probate
commissioner and the district court did not consider whether some other
means might be used to admit the March 16 will, including whether the
March 16 will might be incorporated by reference into the March 12 letter.
See In re Foster's Estate, 82 Nev, 97, 101-02, 411 P.2d 482, 484-85 (1966);
see also Restatement (Third) of Property (Wills and Other Donative
Transfers) §§ 3.3 (defining harmless error), 3.6 (defining incorporation by
reference) (1999). Extrinsic evidence is admissible when making these
inquiries. 2 See Restatement §§ 3.3, 3.6. We decline to reach these issues
2 For
example, the probate commissioner and the district court made
no findings concerning whether the date on the March 12 letter was a
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and remand this matter to the district court for it to consider these factual
matters. Accordingly, we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for further proceedings.
Saitta
J.
Gib bo ris Pickering
cc: Hon. Gloria Sturman, District Judge
Lansford W. Levitt, Settlement Judge
Gordon Silver/Las Vegas
Gordon Silver/Reno
Johnson & Johnson
Eighth District Court Clerk
...continued
mistake in light of, among other things, the March 16 will and Winigrad's
affidavit stating that both documents were received in the same envelope.
While we highlight this question as one of the factual issues that remains,
we make no findings or conclusions that the date actually was a mistake;
this is for the fact finder to consider in the first instance.
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