Bouch v. Rombotis

Opinion

RICHARDSON, J.

Appellant Gene Ray Bouch appeals from the denial of probate of the holographic will of Frances B. Black, deceased, who died on September 6, 1977, a resident of Long Beach, California. A copy of the instrument, which purported to leave the bulk of her estate to appellant and his family, is attached as an appendix. [See post, page 909.] It may be seen from an examination that the instrument was handwritten on three pages of a partially preprinted stationer’s form. It is conceded by all parties that all of the handwriting, including the date and her name, is that of the testatrix. Probate was denied because of her incorporation of some of the printed language on the stationer’s form. Having found that none of the incorporated material is either material to the substance of the will or essential to its validity as a testamentary disposition, we conclude that the trial court erred in rejecting the holograph and reverse its order.

Facts

Testatrix used three copies of a stationer’s form, which form obviously was intended to be used for a one-page will. In appropriate blank spaces in the exordium clause at the top of each page, and in her own handwriting, testatrix inserted her signature and the place of her domicile. Other printed language on each page of the form relating to residuary gifts, the appointment of an executor, attesting witnesses and a testimonium clause generally was either stricken or ignored by testatrix. At the bottom of her third and last page, however, following all of the dispositive provisions of the will, she inserted in the appropriate spaces of the preprinted form the name and gender of her executor. And although she dated the holograph entirely in her own hand at the top of the first page of her will, she also utilized pertinent blanks to insert the date of the instrument at the end of the last page and to identify the city and state in which she executed it.

Using virtually all of the remaining space on each of the three pages, testatrix expressed in her own handwriting a detailed testamentary disposition of her estate, including specific devises and legacies to individuals and a charitable institution and a bequest of her residuary estate. As noted, no handwriting of any other person appears on any of the three pages.

Probate was denied to the holograph apparently because testatrix was seen to have “incorporated” the indicated preprinted portions of the form “as part of her will,” in violation of the presumed, implied prohibition of Probate Code section. 53, which provides: “A holographic will is one that is entirely written, dated and signed by the hand of the testator himself. It is Subject to no other form, and need not be witnessed. No address, date or other matter written, printed or stamped upon the document, which is not incorporated in the provisions which are in the handwriting of the decedent, shall be considered as any part of the will.”

Discussion

Where, as here, there is no conflict in the evidence, “‘the validity of the holographic instrument must be determined entirely by reference to the applicable statutes and principles of law.’ [Citations.]” (Estate of Baker (1963) 59 Cal.2d 680, 683 [31 Cal.Rptr. 33, 381 P.2d 913].) Unanimously in Baker, we stressed that “The policy of the law is toward ‘a construction favoring validity, in determining whether a will has been executed in conformity with statutory requirements’ [citations].” (Ibid.) Moreover, we affirmed “‘the tendency of both the courts and the Legislature ... toward greater liberality in accepting a writing as an holographic will... .’” (Ibid.) “‘Substantial compliance with the statute, and not absolute precision is all that is required....’” (Id., at p. 685, italics added.)

The interpretive principles expressed by us in Baker are fully consistent with our early analysis of the holographic will statute in In re Soher (1889) 78 Cal. 477, 482 [21 P. 8], wherein we observed that: “If testators are to be encouraged by a statute like ours to draw their own wills, the courts should not adopt, upon purely technical reasoning, a construction which would result in invalidating such wills in half the cases.” That sensible admonition is no less appropriate today. (See Bird, Sleight of Handwriting: The Holographic Will in California (1981) 32 Hastings L.J. 605, 633; Niles, Probate Reform in California (1979) 31 Hastings L.J. 185, 212.)

In construing section 53 we bear in mind the primary legislative purpose of the holographic will statute which was identified by us in Estate of Dreyfus (1917) 175 Cal. 417, 418-419 [165 P. 941], as the prevention of “fraudulent will-making and disposition of property” by virtue of the recognized difficulty of forging an entire handwritten instrument. After reviewing the legislative history of the statute in Dreyfus we had “no doubt that [the holographic provision] owes its origin to the fact that a successful counterfeit of another’s handwriting is exceedingly difficult, and that, therefore, the requirement that it should be in the testator’s handwriting would afford protection against a forgery of this character.” (Id., at p. 419.)

This same statutory purpose has received academic recognition. As noted by Professor Osborn: “An extended holograph ... is perhaps the most effective means of proving practical execution, even more than witnesses, and the law relating to holograph wills recognizes this fact. ...” (Osborn, Questioned Documents (2d ed. 1929) p. 682; see also Hancock, Equitable Conversion and the Land Taboo in Conflict of Laws (1964-1965) 17 Stan.L.Rev. 1095, 1098.) An overly technical application of the holographic will statute to handwritten testamentary dispositions, which generally are made by persons without legal training, would seriously limit the effectiveness of the legislative decision to authorize holographic wills.

In Baker we upheld a holographic will against the contention that the testator’s “incorporation” of the printed words “Modesto, California” in his will should invalidate it under the statute. We first noted that the printed words were “not relevant to [the holograph’s] substance or essential to its validity as a will or codicil . ...” (59 Cal.2d, at p. 683, italics added.) Significantly, we then declared that even if it were assumed that the testator had included the printed words because he believed the designation of a locality was necessary in a will, “It would unreasonably advance form over substance to hold that such mistaken belief, if it existed, would defeat the testator’s clearly, and otherwise validly, expressed testamentary intent.” (Id., at p. 685.) Emphasizing that the preprinted words were “immaterial to validity of the document as a holographic will,” and irrelevant to “decedent’s testamentary intent, or to the dispositive meaning or adequacy” of the instrument (ibid.), we rejected the challenge to the holograph. We concluded that “such words may not be held to have been incorporated so as to render the document ineffectual as a will and thereby defeat the decedent’s declared testamentary intent.” (Id., at p. 684.)

Our Baker analysis involved us in several separate inquiries: Was the particular provision relevant to the substance of the will? Was it essential to the will’s validity? Did the testator intend to incorporate the provision? Would invalidation of the holograph defeat the testator’s intent? In Baker, we stressed that these inquiries must not be undertaken mechanically so that a demonstrated testamentary intent is subordinated to a wooden adherence to form.

In the instant case it is argued that Frances Black’s handwritten insertions evidence an intent physically to incorporate portions of the preprinted language into her will, thus invalidating the holograph. But it is equally apparent that testatrix here, as in Baker, was mistaken as to the necessity of using the printed language to make an effective will. The printed preamble is totally superfluous to her identification of the document as a will and herself as its maker; both are accomplished in the clearly expressed words of the document written by her own hand. Her usage of the closing “testimonial” clause is also unnecessary, both because she had already dated the instrument in her own hand at the top of the first page and, as we noted in Baker, because designation of the locality of execution is not required in a will.

Similarly, the testatrix’ use of the printed clause referring to a personal representative is patently irrelevant to the “substance”—or dispositive provisions—of her will and is not essential to its validity. In the absence of such a designation, the probate court will name an administrator with the will annexed to carry out the testator’s intent and to perform the statutory obligations of a personal representative.

Baker’s common sense interpretation of section 53 evidences our inclination “to see the ‘incorporation’ language of the statute not so much as focusing on whether the testator intended to include the printed matter mechanically into the physical body of the text but more on whether, because of its importance or materiality to the testamentary message, he intended to include it.” (French & Fletcher, A Comparison of the Uniform Probate Code and Cal. Law with Respect to the Law of Wills, in Comparative Probate Law Studies (ALI 1976) pp. 342-343; see Estate of Nielsen (1980) 105 Cal.App.3d 796, 802 [165 Cal.Rptr. 319].)

Our liberal statutory interpretation and emphasis on “substantial compliance” expressed in Baker has been well understood, for there have been few reported decisions subsequent thereto which have adopted the hypertechnical application of section 53 to holographic wills which we disapproved in Baker. Only one such case deals with a partially preprinted stationer’s form, such as that herein presented—Estate of Christian (1976) 60 Cal.App.3d 975 [131 Cal.Rptr. 841]. Before rejecting the holograph offered there on the ground that the testator fatally “incorporated” into his will some of the preprinted language relating to the appointment of an executrix, the Christian court observed the judicial and legislative tendency toward upholding holographic wills, specifically acknowledging Baker’s affirmation that “unless the printed or typed matter is relevant to the ‘substance’ of the decedent’s will, it can be disregarded as surplusage. (59 Cal.2d p. 683.)” (60 Cal.App.3d at p. 981; accord Estate of Nielsen, supra, 105 Cal.App.3d at p. 802.)

The Christian court chose, however, to “interpret the term ‘substance’ as used by the Baker court in a broad sense to include all of the provisions material to the decedent’s testamentary intent with respect to the probate of his will, i.e., the administration and distribution of his estate.” (60 Cal.App.3d, at p. 982, italics added.) Because the appointment of a personal representative obviously was “pertinent to the administration of the testator’s estate,” the court in Christian concluded that the printed language “must be deemed a part of the will under the relevancy standard of Baker .. ..” (Ibid.)

In our view, Christian erred in defining overly broadly the term “substance” in order to invalidate the holograph in question. There was no indication in Christian that the testator’s “testamentary intent” extended to the statutory, administrative and procedural details encompassed within the probate of his will and the administration of his estate. Nor can we say as a matter of law, or even as a general proposition, that “testamentary intent” must be held to encompass the probate procedures utilized to implement that intent. In Baker we nowhere suggested that the details of probate administration were relevant to the “substance” of a decedent’s will so that “incorporation” of printed language pertaining thereto would invalidate a holograph. Rather, we expressed our preference for a “construction favoring validity” and “accepting a writing as an holographic will.” (Baker, supra, 59 Cal.2d at p. 683.)

To support its departure from that preference, the Christian court relied upon Estate of Helmar (1973) 33 Cal.App.3d 109 [109 Cal.Rptr. 6], where a holographic will was invalidated because of a typewritten introductory clause included therein. In so doing, however, Christian acknowledged that Helmar would necessarily require the invalidation of a holograph which incorporated printed or typewritten material “irrespective of its relevancy to the testator’s intent,” and significantly observed: “In our view this comes perilously close to reaffirming the statements and implications in [Estate of] Bower [(1938) 11 Cal.2d 180 (78 P.2d 1012)] which were expressly disapproved in Baker... .” (Christian, supra, 60 Cal.App.3d, at p. 983.) What we disapproved in Baker, of course, was Bower’s invalidation of a holograph because the testator there mistakenly had concluded that a printed introductory clause—such as we have in the instant case—was “indispensible to and should be made a part of his will,” even though the court had recognized that such “introductory ... matters are not essential to a testamentary document.” (Bower, supra, 11 Cal.2d., at p. 184, italics omitted; see Baker, supra, 59 Cal.2d, at p. 686.)

Having already rejected Bower’s reasoning in Baker, and expressly reaffirming the latter’s principles and rationale, we disapprove both Estate of Christian and Estate of Helmar, both supra, inspfar as they are inconsistent with this opinion.

Like Christian and Helmar, the dissent fails to acknowledge the sharp change in the law signaled by Baker. In order to justify its return to a mode of will construction resoundingly rejected in Baker—one which advances “form over substance” even when concededly defeating the “testator’s clearly, and otherwise validly, expressed testamentary intent” (see Baker, supra, 59 Cal.2d, at p. 685)—the dissent seeks to characterize that case as an aberration in the development of holographic will law. But Baker represents our last view on the subject and it was a unanimous view.

Read literally, section 53 requires only that a holographic will be “written, dated and signed” by the hand of the testator, and that printed matter not incorporated in the handwritten provisions not be considered as any part of the will. Under Baker’s substantive interpretation of the “incorporated” language, Frances Black’s will fully satisfies the requirements of the statute. There is no question as to the authorship or authenticity of the handwritten document before us. To reiterate: There is no handwriting on any page of the holograph which is not admittedly that of testatrix. The will is dated both at its beginning and partially at its end in the handwriting of testatrix. She wrote her name on each page and we deem this a sufficient “signature.” On each of the first two pages she referred to the instrument as her “will,” and on the last page she expressed the hope that “this writing” would be given legal effect. The completeness and integrity of the testamentary disposition written in her own handwriting is itself evidence of her intent to authenticate the document as her last will and testament by affixing her signature at the top of each page. We have repeatedly said that “It is settled in California that the signature need not be located at the end [of a holographic will] but may appear in another part of the document, provided the testator wrote his name there with the intention of authenticating or executing the instrument as his will.” (Estate of Bloch (1952) 39 Cal.2d 570, 572-573 [248 P.2d 21]; see also Estate of Kinney (1940) 16 Cal.2d 50, 53, 56 [104 P.2d 782]; Estate of McMahon (1917) 174 Cal. 423, 424 [163 P. 669].)

No sound purpose or policy is served by invalidating a holograph where every statutorily required element of the will is concededly expressed in the testatrix’ own handwriting and where her testamentary intent is clearly revealed in the words as she wrote them. Frances Black’s sole mistake was her superfluous utilization of a small portion of the language of the preprinted form. Nullification of her carefully expressed testamentary purpose because of such error is unnecessary to preserve the sanctity of the statute. Moreover, rejection of the instrument as a will would have the unfortunate practical consequence of passing her estate through the laws of intestacy to the daughter of her predeceased husband by a former marriage—in fact, a stranger to her—thereby excluding those whom she described in the holograph as “my very dear friends” and “my adopted family” and the charity which was apparently close to her heart and which she specifically wished to benefit. The resulting frustration and defeat of her testamentary plan would be directly contrary to our Baker reasoning and would serve neither valid public policy nor common sense.

The order appealed from is reversed.

Bird, C. J., Broussard, J., and Tobriner, J.,^* concurred.

* Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.