Matter of Robert A Dias Sr

Probate Notes: Appearances required. The following is noted for the Court at the hearing: Hybrid Will Decedent's will includes multiple handwritten notations and interlineations.

Petitioner admits in the Proof of Holographic Instrument, filed on October 23, 2023 that the handwriting on the will is not the handwriting of the Decedent, but is the handwriting of Roberta Starr Nielsen. This judicial admission requires the Court to deny admission of the will to probate without more.

When a will is typewritten and contains handwritten interlineations, the Court must first determine whether the handwriting on its own constitutes a holographic will pursuant to Probate Code section 6111. (Estate of Sola (1990) 225 Cal.App.3d 241, 246-47.) Here, the Court cannot so determine, because the statutory provisions of 6111 are not met.

Section 6111 requires the handwriting to be that of the testator himself, not of someone at the direction of the testator: "A will that does not comply with Section 6110 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator." (Id. at subd. (a).) Thus, the interlineations cannot be considered a valid Holographic Will.

"Where the handwriting in itself lacks testamentary intent and substance and has meaning only in relationship to the typewritten words it relates to, there is no complete testamentary document that can be deemed a holographic will." (Estate of Sola (1990) 225 Cal.App.3d 241, 247. See also Estate of Nielson (1980) 105 Cal.App.3rd 796, 804.)

As a result of the circumstances and authority above, he Court must receive sufficient evidence to satisfy the clear and convincing standard in Probate Code section 6110(c)(2), in order to admit the will as is, without discarding either the typewritten or handwritten portions. It is recommended the Court deny admission of the will to probate, unless the petitioner can submit such clear and convincing evidence that the will, as presented, reflects the intent of the Decedent.

Tentative Ruling: Matter of Robert A Dias Sr Tentative Ruling: Matter of Robert A Dias Sr Case Number