In Re Estate of Baker

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of the Estate of )
) Supreme Court No. S-15971
ALVA MARIE BAKER. )
) Superior Court No. 3AN-14-00397 PR
)
) OPINION
)
_______________________________ ) No. 7143 – December 30, 2016
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Catherine M. Easter, Judge.
Appearances: Stuart C. Rader, Ingaldson Fitzgerald, P.C.,
Anchorage, for Appellants. David D. Clark, Law Office of
David Clark, Anchorage, for Appellee.
Before: Stowers, Chief Justice, Winfree, and Bolger,
Justices. [Fabe and Maassen, Justices, not participating.]
STOWERS, Chief Justice.
I. INTRODUCTION
Alaska Statute 13.12.502(b) provides that a testamentary instrument will
be “valid as a holographic will, whether or not witnessed, if the signature and material
portions of the document are in the testator’s handwriting.” Before us is a purported
holographic will, written totally in the decedent’s handwriting, with instructions to
distribute the decedent’s estate at death. The sole question on appeal is whether the
decedent’s handwritten name at the beginning of the document is a “signature” as
contemplated by AS 13.12.502(b). This is an issue of first impression in our state, and
we agree with the superior court’s conclusion that a testator’s handwritten name in the
exordium clause1 of a purported holographic will is sufficient to satisfy the signature
requirement in AS 13.12.502(b) unless the instrument is otherwise incomplete.
II. FACTS AND PROCEEDINGS
In January 2010 Alva Marie Baker handwrote a purported will. The
instrument, as closely as possible, is reproduced below [sic throughout]:
Jan 10 / 2010
Jan 10 / 2010
My name is Alva Marie Baker –
My “will” when I pass on is to go as follows!
(1) My home goes to my daughter Connie Marie Sumrall
(2) Any vehicles or vehicle! I own upon death goes to Connie
Sumrall
(3) All “tools” and “furniture” of any kind goes to Connie
Sumrall
(4) All funds held in a checking account goes to Connie
Sumrall
at Northrim Bank[2]
(5) All funds in saving accounts goes to Connie Sumrall
(6) Any Insurance I may have goes to Connie Sumrall
(7) Any Jewerly I may have upon death goes to my daughter
Connie Sumrall
1
An exordium is “[a]n introduction in a discourse or writing, esp[ecially] in
a will. In a will, the exordium usu[ally] contains statements of the testator’s name and
capacity to make the will.” Exordium, BLACK’S LAW DICTIONARY (10th ed. 2014).
2
The superior court found that the will referred to a “Northern Bank”
account, but the record shows that Baker held an account at Northrim Bank.
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(8) All pictures I have upon my death given to me by
“Connie or my grandchildren gave me, can go back to the
“giver ! ! “I can not take them with me ! !
(9) All “old” furniture can go to Connie, if she wants them if
not, let the grand children “pick” some – please do not fight
over anything !
(10) Money I have at “Key Bank Eagle River, AK)
Equal divided
Will be divided to (Equal) my 7 grand kids –
The grand kids that have passed away, if they have a child it
will go to (there child or divided between their kids)
Baker died in November 2013. In February 2014 Baker’s daughter, Connie
Marie Sumrall, filed a petition for adjudication of testacy and formal probate of the
instrument. That petition was opposed by Seth Whaley and Jessica Milwicz, two of
Baker’s grandchildren.
Sumrall moved for partial summary judgment, arguing that the document
was a valid holographic will per AS 13.12.502(b) because it was written in Baker’s hand
and signed by Baker. Whaley and Milwicz opposed that motion arguing that there were
genuine issues of material fact as to, among other things, whether the handwriting on the
will was Baker’s, whether there was testamentary intent, and whether there were issues
of incapacity or undue influence. The superior court denied Sumrall’s motion for partial
summary judgment, ruling that an evidentiary hearing would be necessary “to
determine . . . whether the identification of Ms. Baker constitutes a signature as
contemplated by [the holographic will statute].”
Prior to the hearing, Whaley and Milwicz stipulated that the handwriting
on the contested will was entirely Baker’s. And all parties stipulated that whether
Baker’s handwritten name in the first sentence of the contested will “complie[d] with the
signature requirement of AS 13.12.502” was “an issue of law for determination by the
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court,” and that Sumrall “[was] not precluded from offering extrinsic evidence in support
of her opposition to [Whaley and Milwicz’s] motion for summary judgment.” The
superior court issued orders accepting both stipulations.
Whaley and Milwicz then filed a motion for partial summary judgment
seeking a determination that Baker’s handwritten name at the top of the document was
not a signature as contemplated by AS 13.12.502(b), and that Baker therefore died
intestate. Sumrall opposed that motion and filed a cross-motion for partial summary
judgment arguing that Baker’s handwritten name was a signature as contemplated by
AS 13.12.502(b) and that the document was a valid holographic will.
In March 2015 the superior court denied Whaley and Milwicz’s motion for
partial summary judgment. The order related exclusively to the question “whether the
purported execution of the will — a signature contained in the introductory clause — can
satisfy [AS] 13.12.502(b), governing holographic wills.” Alaska Statute 13.12.502(b)
provides that a testamentary instrument may be “valid as a holographic will, whether or
not witnessed, if the signature and material portions of the document are in the testator’s
handwriting.” The court concluded that, although there “is limited Alaska precedent”
interpreting that statute, Alaska law does not require a terminal signature in order for a
holographic will to be valid.
The court reasoned that “Alaska follows a holographic will statute nearly
identical to that in California,”3 and California courts have determined that when faced
with a purported will in which the signature does not appear at the end, “the court must
determine from an inspection of the instrument’s language, form[,] and the relative
position of its parts whether or not there is a positive and satisfactory inference that the
decedent’s name was placed in that location with the intention of executing the
3
CAL. PROB. CODE § 6111 (West 2016).
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instrument.”4 Applying the California rule to this case, the superior court determined that
there was a “satisfactory inference” that Baker placed her name in the introductory clause
“with the intention of executing the instrument” and that the instrument therefore “as a
matter of law . . . meets the requirements of AS § 13.12.502(b).”
Whaley and Milwicz filed a motion for reconsideration and the superior
court denied the motion. Whaley and Milwicz then notified the court that they wished
to dismiss their “claims concerning decedent’s competence, undue influence[,] and
insane delusion”; the court issued an order dismissing those claims with prejudice.
Whaley and Milwicz sought our review of the superior court’s ruling that the document
was a valid holographic will. We denied their petition for review without prejudice
because it was not a direct appeal from the superior court’s entry of a formal testacy
order.5
The parties then stipulated that there were no more disputed issues. The
superior court entered the stipulation “[b]ased on contestants’ notice of dismissal with
prejudice as to their other objections and their request that the evidentiary [hearing] to
address other objections be vacated.” The will subsequently entered formal probate, and
Sumrall was appointed personal representative of the estate.
Whaley and Milwicz now appeal the entry of the final testacy order.
III. STANDARD OF REVIEW
The interpretation of a statute is a legal question which we review de novo.6
“We interpret . . . Alaska law according to reason, practicality, and common sense, taking
4
In re Bloch’s Estate, 248 P.2d 21, 22 (Cal. 1952).
5
Milwicz v. Sumrall, No. S-15872 (Alaska Supreme Court Order,
Apr. 20, 2015).
6
Jimerson v. Tetlin Native Corp., 144 P.3d 470, 472 (Alaska 2006) (citing
Kodiak Island Borough v. Roe, 63 P.3d 1009, 1012 n.6 (Alaska 2003)).
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into account the plain meaning and purpose of the law as well as the intent of the
drafters.”7 In interpreting statutes, we take “a ‘sliding scale’ approach . . . : ‘the plainer
the language of the statute, the more convincing any contrary legislative history must
be.’ ”8
IV. DISCUSSION
Alaska Statute 13.12.502(b) recognizes the validity of holographic wills
provided that “the signature and material portions of the document are in the testator’s
handwriting.”9 The question presented by this case is whether a testator’s handwritten
name in the exordium clause at the top of a handwritten will is sufficient to satisfy the
statute’s signature requirement. Because we agree with the superior court that there is
a “satisfactory inference that the decedent’s name was placed [in the introductory clause]
with the intention of executing the instrument,”10 we hold that the instrument meets the
requirements of AS 13.12.502(b) and is valid for probate.
A. AS 13.12.502(b) Does Not Require A Terminal Signature.
Every American holographic will statute requires the testator to sign the
will.11 Some holographic will statutes specifically require the testator’s signature to
7
Estrada v. State, 362 P.3d 1021, 1023 (Alaska 2015) (alteration in original)
(quoting Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska 1999)).
8
Id. (quoting Peninsula Mktg. Ass’n v. State, 817 P.2d 917, 922
(Alaska 1991)).
9
AS 13.12.502(b).
10
In re Bloch’s Estate, 248 P.2d 21, 22 (Cal. 1952).
11
RESTATEMENT (THIRD) OF PROP.: WILLS & OTHER DONATIVE TRANSFERS
§ 3.2 (AM. LAW INST. 1999).
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appear at the end of the document.12 The parties agree that the text of AS 13.12.502(b)
does not require a terminal signature. But in states with statutes that, like
AS 13.12.502(b), do not specify the location of the signature, courts nearly unanimously
have declined to read the signature requirement as implicitly requiring a terminal
signature.13 Yet a handful of other jurisdictions — namely, Mississippi, Louisiana, and
Puerto Rico — have determined that even when the holographic will statute is silent as
to the location of the signature, a signature will be valid only if located at the end of the
document.14
In Baker v. Baker’s Estate the Mississippi Supreme Court determined that
a handwritten caption reading “Metta G. Baker writing this” was insufficient to satisfy
the statutory requirement that a holographic will be “wholly written and subscribed by”
the testator.15 It reached its conclusion in part through reference to the Black’s Law
12
Id.
13
See, e.g., In re Estate of Phippen, 47 Cal. Rptr. 648, 652 (Cal. App. 1965);
In re Potts’ Estate, 61 A.2d 649, 650 (Union County Ct., N.J. 1948); In re Goodman’s
Will, 50 S.E.2d 34, 36 (N.C. 1948); see also M.L. Schellinger, Annotation, Place of
Signature of Holographic Wills, 19 A.L.R. 2d 926 (1951) (“In the absence of a
requirement that the testator sign at the end of a holographic instrument, his name may
appear at any place in the instrument, if it was written with an intent to execute the
testament.”).
14
See In re Armant’s Will, 9 So. 50, 51-52 (La. 1891); In re Estate of Giles,
228 So. 2d 594, 596 (Miss. 1969); Castañer v. Superior Court, 81 P.R. 841, 843-45
(P.R. 1960); see also Kevin R. Natale, Note, A Survey, Analysis, and Evaluation of
Holographic Will Statutes, 17 HOFSTRA L. REV. 159, 167-68 (1988) (indicating that
Mississippi’s and Puerto Rico’s holographic will statutes do not expressly provide that
the testator’s signature appear at the end of the will but “have been judicially construed
to require a signing at the end of the instrument”).
15
24 So. 2d 841, 841-43 (Miss. 1946) (emphasis in original); see also Giles,
(continued...)
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Dictionary definition of “subscribe”: “to write under; to write the name under; to write
the name at the bottom or end of a writing.”16 The court reasoned that the subscription
requirement implies a terminal location — as opposed to a signature requirement, which
would imply no such locational constraints.17
Other jurisdictions, though, have determined that “where the statute
requires only that the instrument be ‘signed,’ such provision contemplates that the
instrument must be signed at the end.”18 For instance, the Supreme Court of Louisiana
followed the doctrine in French law that a signature must appear at the end of an
instrument in In re Armant’s Will.19 The Supreme Court of Puerto Rico also concluded
that “the introductory words: ‘I, Adele Bandler Castañer . . .’ ” did not constitute a
signature.20 The court reasoned, based on Spanish law, that “[e]very holographic will
needs to be ‘signed by the testator’ and the signature can be no other than that which
15
(...continued)
228 So. 2d at 596 (describing a prior case that “held: (1) the testator’s signature must be
at the end of the holographic instrument, testamentary in character, which shows on its
face that the testamentary purpose therein expressed is completed; (2) the court will not
consider writing below the signature on a holographic will; and (3) if the writing does
not meet the requirements of the statute the instrument is not a will” (citing Wilson v.
Polite, 281 So. 2d 843 (Miss. 1969))).
16
Baker, 24 So. 2d at 843 (quoting Subscribe, BLACK’S LAW DICTIONARY
(2d ed. 1910)).
17
Id.
18
Schellinger, supra note 13.
19
In re Armant’s Will, 9 So. at 51-52 (holding that the handwritten caption
“Testament d’Aglae Armant” was insufficient to satisfy the Louisiana statute requiring
holographs to be signed).
20
Castañer v. Superior Court, 81 P.R. 841, 843 (P.R. 1960).
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shows a last subscription of the testamentary will, after the whole text preceding the
signature is known and considered.”21
The law of each of these jurisdictions features an idiosyncrasy that Alaska
law does not share — in Mississippi’s case, requiring “subscription” instead of a
“signature,” and in Louisiana’s and Puerto Rico’s cases, relying on French and Spanish
law. We therefore join the overwhelming consensus of American courts and hold that
Alaska law does not require a terminal signature for valid probate of a holographic will.
B. Baker’s Handwritten Name Satisfies The Signature Requirement Of
AS 13.12.502(b).
Neither AS 13.12.502(b) nor Title 13 defines “signature.” The relevant
statutory text provides that a will is “valid as a holographic will . . . if the signature and
material portions of the document are in the testator’s handwriting.”22 The superior court
concluded that whether a handwritten name is a signature depends on the intent of the
testator: “if the context of a signature found in an introductory clause shows intent to
create a valid will and there is no wont for a further mark of execution then the will is
valid.” (Emphasis in original.) Whaley and Milwicz argue that the court’s conclusion
defies the statutory command of AS 13.12.502(b) “by rendering the signature
requirement nugatory.”23 Alva Marie Baker’s name in the exordium clause, they argue,
functions as an “[i]dentification of the testatrix,” and is therefore “presumably a ‘material
portion’ of the holographic will which must be in her handwriting.” Since identification
21
Id. at 844.
22
AS 13.12.502(b).
23
Whaley and Milwicz never articulate what factors they believe would
transform a handwritten name from a “material portion” of the will to a “signature.”
They merely agree that a handwritten name need not appear at the end of a document to
constitute a signature, yet object to the superior court’s use of the testatrix’s intent to
determine whether a handwritten name is a signature.
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of the testator is a material portion of the will, the argument goes, it cannot also function
as a signature. Whaley and Milwicz’s analysis of AS 13.12.502(b) is incorrect.
The statute makes no such requirements of a holographic will. First, the
statutory text neither indicates that the handwritten signature and handwritten material
portions requirements are mutually exclusive, nor that a handwritten name cannot
function as both identification of the testatrix and signature. The statute contains no
requirement that a testatrix identify herself in addition to signing the document. Taken
to its logical conclusion, this argument would mean that holographic wills with valid
terminal signatures that also identify the testatrix — e.g., “The preceding will disposes
of the entire estate of [signature]” — would be excluded from probate, an outcome the
legislature almost certainly did not intend.
Second, AS 13.12.502(b) was added to the Alaska statutes in 1972 when
Alaska adopted the Uniform Probate Code (UPC) in near-entirety.24 Commentary from
the UPC is thus instructive in interpreting the Alaska probate statutes.25 And
commentary accompanying the holograph provision of the UPC reveals that the
“material portion” language was included in the UPC not to distinguish “material”
portions from the signature portion, as Whaley and Milwicz argue, but instead to avoid
disqualifying wills containing non-material printed language:
By requiring only the “material portions of the document” to
be in the testator’s handwriting (rather than requiring, as
some existing statutes do, that the will be “entirely” in the
decedent’s handwriting), a holograph may be valid even
24
See Jaworski v. Estates of Horwath ex rel. Streets, 277 P.3d 753, 759
(Alaska 2012) (citing ch. 78, § 1, SLA 1972).
25
See, e.g., In re Estate of Maldonado, 117 P.3d 720, 728 (Alaska 2005)
(relying on UPC commentary as legislative history in interpreting Alaska probate law).
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though immaterial parts such as date or introductory wording
are printed, typed, or stamped.
A valid holograph can also be executed on a printed will form
if the material portions of the document are handwritten. The
fact, for example, that the will form contains printed language
such as “I give, devise, and bequeath to _______” does not
disqualify the document as a holographic will, as long as the
testator fills out the remaining portion of the dispositive
provision in his or her own hand.[26]
Additionally, members of the Alaska House Judiciary Committee found Richard
Wellman’s writings on the Uniform Probate Code to be helpful in clarifying the concepts
underlying the code.27 And the practice manual Wellman would later edit explains that
“[t]he test under the [Uniform Probate] Code is much more liberal” than under “present
statutes authorizing holographic wills.”28 Thus, neither statutory text nor legislative
history suggests that Alaska law prohibits a court from considering whether a
handwritten identification of the testatrix is also a signature under AS 13.12.502.
26
UNIF.PROBATE CODE §2-502.B cmt. (UNIF. LAW COMM’N,amended 2010).
27
Minutes, H. Judiciary Comm. Hearing on S.B. 248, 7th Leg., 2d Sess. 169
(Apr. 11, 1972).
28
1 UNIFORM PROBATE CODE PRACTICE MANUAL 136 (Richard V. Wellman,
ed., 2d ed. 1977). The manual’s commentary on the lack of a requirement to date a
holographic will sheds further light on the liberal standards in the Uniform Probate Code:
The Code does not require that a holographic will be dated,
even though the failure to date may lead to fatal uncertainty
if two or more wills exist and the order of their execution
cannot be established. The draftsmen felt that it was
preferrable [sic] to validate holographs for the usual situation
when there appears to have been only one will, rather than to
invalidate all writings that, for want of a date, might cause a
problem concerning priority.
Id.
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The next question, then, is under what circumstances Alaska law permits
a court to interpret a handwritten name in the exordium clause as a signature. States with
holographic will statutes that, like Alaska’s, make no mention of any location where the
testator’s signature must be placed have taken one of two approaches. The first, as
discussed above, is to judicially construe the signature requirement to require a signing
at the end of the instrument.29 But the majority of states follow a second approach,
articulated by the Restatement (Third) of Property:
The testator’s handwritten name in freestanding form at the
end of the document unquestionably satisfies the signature
requirement. The testator’s handwritten name in freestanding
form at any other place on the document raises an inference
that the testator “signed” the document.
A person’s name written in his or her own handwriting is not
necessarily a signature. If the testator’s name is not written
in freestanding form, then there should be other evidence that
the testator adopted the document as his or her will in order
to count the handwritten name as a signature.[30]
29
See Part IV.A, supra.
30
RESTATEMENT (THIRD) OF PROP.: WILLS & DONATIVE TRANSFERS § 3.1
cmt. j (AM. LAW. INST. 1999); see also, e.g., Smith v. MacDonald, 481 S.W.2d 741, 748
(Ark. 1972) (holding that a handwritten name in title and exordium clause constituted
signature required by statute); In re Estate of Glass, 331 P.2d 1045, 1046, 1048
(Cal. App. 1958) (holding that a handwritten name in the heading of a document satisfied
the signature requirement); Burton v. Bell, 380 S.W.2d 561, 568 (Tex. 1964) (holding
that a handwritten name in exordium clause, “That I, Roy Wheeler Bell, . . . ,” satisfied
the signature requirement); Schellinger, supra note 13 (“Where the statute does not
specify the place of signature, a signing in the exordium or introductory clause . . . . [is]
sufficient where the instrument appears to be complete and there is no indication that the
testator intended to add anything to the writing.”).
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American courts have repeatedly adopted versions of this approach when faced with a
holographic will statute which merely requires a signature.31 Noting the similarity of
Alaska’s holograph statute to California’s,32 the superior court used California’s case law
as an example of this approach. The court interpreted California Supreme Court cases
In re Bloch’s Estate33 and In re Morgan’s Estate34 to stand for the proposition that a
handwritten name in the exordium clause “is a valid execution . . . [unless] the instrument
is otherwise incomplete or suggests that some further act of execution was contemplated
or required.” The California approach is followed in virtually every other jurisdiction
to have considered this question,35 including in states that, like Alaska, have adopted the
31
See Schellinger, supra note 13 (collecting cases).
32
California Probate Code § 6111(a) provides that a will is “valid as a
holographic will, whether or not witnessed, if the signature and the material provisions
are in the handwriting of the testator.”
33
248 P.2d 21, 22-23 (Cal. 1952).
34
253 P. 702, 703-04 (Cal. 1927).
35
See Thrift Tr. Co. v. White, 167 N.E. 141, 143 (Ind. App. 1929) (holding
that “The will of Belle Stockman” in the exordium clause was sufficient to satisfy the
signature requirement); Ex parte Cardoza, 109 A. 93, 95 (Md. 1919) (“For being written
by himself, and his name in the will, ’tis a sufficient signing within the statute, which
does not appoint where the will shall be signed, at the top, bottom[,] or margin, and
therefore a signing in any part is sufficient.” (quoting Higdon v. Thomas, 1 H. & G. 139,
145 (Md. 1827))); In re Thomas’ Estate, 220 N.W. 764, 765 (Mich. 1928) (“The
question is whether thus writing her name at the top of the will is a sufficient signing,
within the meaning of the statute. . . . It may be signed anywhere, providing there is an
intent to adopt the name so written as the signature to the will.”); Watts v. Pub. Adm’r,
4 Wend. 168, 168 (N.Y. 1829) (holding that handwritten name at the beginning of an
instrument was sufficient to satisfy the signature requirement because the instrument was
written “in a fair hand, engrossed on conveyancing paper, with a seal attached thereto,
evincing much deliberation and foresight in its provisions and disposing of both real and
(continued...)
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holographic will provision of the UPC.36 Indeed, sufficiency of a handwritten name in
the exordium clause to satisfy a signature requirement is a bedrock principle of probate
law dating back to 1681.37 We conclude that Alaska law permits courts to determine
35
(...continued)
personal property to a large amount”); Peace v. Edwards, 86 S.E. 807, 808 (N.C. 1915)
(“The statute does, however, require the will to be signed; but it is well settled that, if the
name of the testator appears in his handwriting in the body of the will, this is a signing
within the meaning of the statute.”); In re McNair’s Estate, 38 N.W.2d 449, 455
(S.D. 1949) (“If it can be gathered from an inspection of the whole instrument that it is
intended as a last will and testament, the statute is satisfied.” (quoting In re Brandow’s
Estate, 240 N.W. 323, 324 (S.D. 1932))); Lawson v. Dawson’s Estate, 53 S.W. 64, 65
(Tex. Civ. App. 1899) (“Our statute on the subject does not designate the place of
signature, but merely requires that it be signed. We are therefore of the opinion that the
place where the party affixes his signature is of secondary consequence if it sufficiently
appears that the intent to execute was present at the time.”); Adams v. Field, 21 Vt. 256,
260 (Vt. 1849) (“[I]f the name be inserted in such a manner, as to have the effect of
authenticating the instrument, it is immaterial in what part of it the name be found . . . .”).
36
See In re Estate of Fegley, 589 P.2d 80, 81 (Colo. App. 1978) (“[U]nder
Colorado’s version of the Uniform Probate Code the intent of the testator and not the
location of his name is the crucial factor in determining whether a holographic will has
been signed . . . .”); Estate of Erickson v. Misaka, 766 P.2d 1085, 1088 (Utah App. 1988)
(“It is, of course, possible for a handwritten name at the beginning of the body of a will
to be written with the intent that it be the requisite signature. However, there must be
support in the evidence for that intent.”), aff’d sub nom. In re Estate of Erickson,
806 P.2d 1186 (Utah 1991).
37
Schellinger, supra note 13 (“Many of the English and American cases have
been based on the decision in Lemayne v. Stanley [[1681] 83 Eng. Rep. 545] where the
name of the decedent appeared in the exordium, but the will had not otherwise been
signed. The court held the instrument to be valid, saying: ‘For being written by himself,
and his name in the will, it is a sufficient signing within the statute, which does not
appoint where the will shall be signed, in the top, bottom, or margin, and therefore a
signing in any part is sufficient.’ ”).
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“from an inspection of the instrument’s language, form[,] and the relative position of its
parts whether or not there is a positive and satisfactory inference that the decedent’s
name was placed in that location with the intention of executing the instrument.”38
Having settled that handwritten names in the exordium clause are at least
possibly sufficient to satisfy the signature requirement, the next question is whether the
superior court erred in granting summary judgment on the basis that Baker’s handwritten
name, specifically, evinces signatory intent. As the Utah Supreme Court recognized,
“[i]f the signature appears at the end of an instrument, . . . signatory intent clearly may
be inferred. . . . The problem of proof of signatory intent is more difficult where . . . the
signature appears somewhere other than at the end of an instrument.”39
The Arkansas Supreme Court identified two evidentiary sources to
determine whether there is sufficient proof of signatory intent:
When the name is used to identify the decedent as the author
of the alleged will as in Estate of Kinney, (‘I Anna Leona
Graves Kinney, do bequeath all my possessions to my four
sisters’) . . . and in addition the instrument appears to be a
complete testamentary document, it may reasonably be
inferred that the name was placed where it was with the
intention of executing the instrument. In such cases the name
is linked to the alleged testamentary act and the probabilities
that it was intended as a signature are strong.[40]
Here, the handwritten name is used to identify the decedent and that the
instrument is a complete testamentary document. It therefore may be reasonably inferred
that Baker’s name was so placed with the intention of executing the instrument.
38
In re Bloch’s Estate, 248 P.2d 21, 22 (Cal. 1952).
39
In re Estate of Erickson, 806 P.2d at 1189.
40
Nelson v. Texarkana Historical Soc. & Museum, 516 S.W.2d 882, 884
(Ark. 1974) (citations omitted).
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The first indication that the exordium clause is intended as a signature is
that it identifies the decedent as the author of the alleged will. To determine whether a
handwritten name is a signature or simply part of the text of the will, “it is necessary to
consider the functions of the signature. A signature on a will accomplishes two
functions: [f]irst, it identifies the writing as being that of the signator; second, and more
importantly, the signature evidences finality.”41 Here, the first two lines of Baker’s will
read: “My name is Alva Marie Baker – My ‘will’ when I pass on is to go as follows!”
That text both identifies the testatrix and indicates that she describes the document as a
final expression of her testamentary intent; courts have generally deemed such an
expression to be sufficient as a signature when a holographic will otherwise evinces
completeness.42 Whaley and Milwicz briefly argue that Baker’s handwritten name is not
a signature because she typically signed documents using only her middle initial in place
of her middle name, i.e. “Alva M. Baker.”43 This argument is only briefed in passing,
so we consider it waived.44
41
Richard Lewis Brown, The Holograph Problem — The Case Against
Holographic Wills, 74 TENN. L. REV. 93, 118 (2006).
42
See, e.g., In re Morgan’s Estate, 253 P. 702, 704 (Cal. 1927) (holding that
a will beginning “Last will and testament of Ynez Morgan” was signed); In re
McMahon’s Estate, 163 P. 669, 669 (Cal. 1917) (holding that an exordium clause
reading “This is the last will and testament of Elizabeth R. McMahon” was a signature
because the testatrix had “sufficiently in law on the face of the instrument adopted the
signature written by herself in the exordium of her will as her signature in execution of
it”).
43
“Appellants are unaware of any evidence in the record that the decedent
signed checks, contracts, deeds, Christmas cards[,] or other important or unimportant
documents using her full legal name, as opposed to her middle initial.”
44
See Hagan v. Strobel, 353 P.3d 799, 805 (Alaska 2015) (“[W]here a point
(continued...)
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The second evidentiary question is whether the document as a whole
appears to be a complete testamentary document. “If it is complete, a handwritten name
in an exordium or elsewhere in the will may be considered a signature.”45 On the other
hand, “[i]f the instrument propounded as a will appear from its contents and form to be
unfinished and incomplete, a presumption arises that the writer did not intend the paper
in that condition to operate as his will.”46
Other courts have concluded that an instrument has sufficient indicia of
completeness when the document was written “with studied care,”47 where the document
“reasonably support[ed] the conclusion that ‘the writer had done everything that he
intended to do,’ ”48 where the document “contains no blanks or anything that would
indicate that it was not [a] last will and testament,”49 and where the document indicated
44
(...continued)
is given only a cursory statement in the argument portion of a brief, the point will not be
considered on appeal.” (alteration in original) (quoting Glover v. Ranney, 314 P.3d 535,
545 (Alaska 2013))). We note that even if the argument were not waived, one might
expect that a testator who uses a more formal version of his or her name is more likely
to possess the requisite signatory intent.
45
In re Estate of Erickson, 806 P.2d 1186, 1189 (Utah 1991); see also
Schellinger, supra note 13.
46
M.F.L., Annotation, Testator’s Name in Body of Instrument as Sufficient
Signature Where Statute Does Not Require Will To Be Signed at End, 29 A.L.R. 891
(1924) (citing Jones v. Jones, 60 Ky. (3 Met.) 266 (Ky. 1860); Watts v. Pub. Adm’r, 4
Wend. 168 (N.Y. 1829); Crutcher v. Crutcher, 11 Hump. 377 (Tenn. 1850)).
47
In re Kinney’s Estate, 104 P.2d 782, 784 (Cal. 1940).
48
Estate of Williams, 66 Cal. Rptr. 3d 34, 43 (Cal. App. 2007) (emphasis in
original) (quoting In re Brooks’ Estate, 4 P.2d 148, 149 (Cal. 1931)).
49
Hall v. Brigstocke, 58 S.E.2d 529, 533 (Va. 1950).
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in the text that it was a will.50 The superior court’s analysis aligns with these types of
indicia. And the Baker will is unlike other purported wills courts have rejected based on
perceived incompleteness. In In re Estate of Erickson, for instance, the Utah Supreme
Court determined that an instrument was incomplete because it was written on several
notecards and there was nothing to “indicate[] that the instrument actually end[ed] at the
bottom of the third card.”51 Other courts have determined that an instrument is
incomplete where the will terminated abruptly, or where text at the end of the document
suggested that the document would be incomplete without a terminal signature.52 Unlike
these cases, nothing about the form or content of the Baker will reflects that Baker did
not conceive of the document as a final disposition of her property or that she wished to
execute the document at a later date.
The superior court determined that the will was complete. In doing so, it
considered that (1) “[t]he instrument is hand written on two pages of decorative
station[e]ry”; (2) “[t]he property division appears to follow an order of material
importance”; (3) “[t]he writing becomes progressively smaller as the document continues
and ends at the bottom of the second page . . . suggest[ing] that Ms. Baker tried to
squeeze the last provisions onto the second page”; (4) “the document ends with more
50
Id.
51
806 P.2d 1186, 1190 (Utah 1991).
52
See In re Bernard’s Estate, 239 P. 404, 405 (Cal. 1925) (holding that
handwritten name in the exordium clause was not a signature because the document
terminated abruptly after a specific bequest); In re Estate of Fegley, 589 P.2d 80, 82
(Colo. App. 1978) (holding that handwritten name in exordium clause was not a
signature because the phrase “Witness my hand on this 16th day of September, 1976”
followed by a blank signature space indicated that the testatrix intended to sign the
document later); Davis v. Davis, 207 P. 1065, 1067 (Okla. 1922) (same phrase and result
as Fegley).
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general property and includes potential (rather than specific) heirs — a reasonable point
of conclusion”; (5) “[t]here is no room below the final numbered paragraph for any other
writing”; and (6) “there are no lines or textual indications in text that otherwise suggest
the will required an execution beyond the initial declaration of testamentary intent.” This
characterization of the document is not in dispute. The question is whether this, as a
matter of law, is sufficient to show completeness. We agree with the superior court that
it is.
Whaley and Milwicz do not purport to appeal the superior court’s
determination that the form and content of the document indicate that the document is
complete and appeal only the superior court’s “determination that the identification was
a signature.” But Whaley and Milwicz do make two arguments that the will is
incomplete. The first is that some of Baker’s assets — a parcel of land on the Kenai
Peninsula and a deed of trust and promissory note — were not disposed of in the will.
But the fact that the distribution is not totally complete is irrelevant: the inquiry is not
whether a decedent completely distributed all of her property, but whether the instrument
is itself a completed instrument.53 The second is that Baker had three years between
penning the document and passing away in which to petition the court for a
determination that the purported will was a valid will, and the fact that she did not do so
“speaks volumes about [her] intention[] as to whether the purported holographic will was
valid.” But Alaska law does not require a testator to petition a court to validate her will;
it merely provides that “an interested party may petition the court to determine before the
53
In re Estate of Erickson, 806 P.2d at 1189-90 (“The statutes do not require
that a holograph must dispose of all the testator’s property, just as there is no such
requirement for formal wills. ‘Completeness’ in this context means that the instrument
must appear to be a completed instrument, not a complete disposition of all the
decedent’s property.”).
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testator’s death that the will is a valid will.”54 This argument is therefore unavailing.
Baker’s will is complete as a matter of law.
V. CONCLUSION
The superior court correctly concluded that a testator’s handwritten name
in the exordium clause of a purported holographic will is sufficient to satisfy the
signature requirement in AS 13.12.502(b) unless the instrument is otherwise incomplete.
It also correctly concluded that the Baker will was complete when it admitted the
instrument to formal probate. We AFFIRM.
54
AS 13.12.530 (emphasis added).
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