Estate of Hazelwood

249 Cal.App.2d 263 (1967) Estate of RUTH R. HAZELWOOD, Deceased. JOSEPH JACOBSON, as Executor, etc., Plaintiff and Respondent,

v.

BALDO M. KRISTOVICH, as Public Administrator, etc., Defendant and Appellant.

Civ. No. 30988. California Court of Appeals. Second Dist., Div. One.

Mar. 8, 1967. Harold W. Kennedy, County Counsel, and William L. Owen, Deputy County Counsel, for Defendant and Appellant.

Orloff & Wilner and Robert D. Wilner for Plaintiff and Respondent. [264]

LILLIE, J.

The public administrator appeals from order admitting a holographic will to probate, appointing Joseph Jacobson executor and issuing to him letters testamentary, and denying the public administrator's petition for letters of administration.

The entire instrument, written by and in the handwriting of the deceased, bears in the top right corner the purported date of its execution, "1965." There appears to be nothing definite about this "date" except the year, the day and month having been omitted. The sole issue is whether the numerals "1965" constitute a date within the meaning or contemplation of section 53, Probate Code. The statute in pertinent part provides: "A holographic will is one that is entirely written, dated and signed by the hand of the testator himself. ..."

There is no doubt that the document written by Mrs. Hazelwood was executed with testamentary intent. Thus, the question is whether on its face the instrument shows a substantial compliance with the mandatory requirements of section 53, Probate Code; if it does not, the writing is invalid as a holographic will.

"Last wills and testaments are entirely creatures of the legislature, and, while some of the formalities with which they are required to be executed may appear to be immaterial and unnecessary, yet the right to thus dispose of one's estate being purely statutory, the manner of such disposal as prescribed by the statute must be observed with at least substantial strictness. If, therefore, there be a substantial departure from such formalities in an attempted testamentary disposal of one's property, there is no last will in law, and the decedent's estate must go to the administrator." (Estate of Price, 14 Cal.App. 462, 463 [112 P. 482]; Estate of Carpenter, 172 Cal. 268, 269 [156 P. 464, L.R.A. 1916E 498].) Citing Carpenter, the court in Estate of Thorn, 183 Cal. 512, 514 [192 P. 19], stated: "Of course, the intent of the deceased is obvious. He was endeavoring to make a valid olographic will, and the manner in which he desired his property to go is clearly specified. Nor can there be a suspicion as to the genuineness of the document. But all this is beside the question. We are confronted here with the question whether in this document there has been that substantial compliance with the mandatory requirements of our statutes relative to the execution of wills that is absolutely essential to the existence of a valid will. (See Estate of Carpenter, 172 Cal. 268, 269 [156 P. 464, L.R.A. 1916E 498].)" (P. 514.)