Osborne v. Brenner

Opinion

NEAL, J.—

Summary

Photocopies of a testator’s handwritten property dispositions, included in a holographic or handwritten will, satisfy the statutory requirement that the material provisions be “in the handwriting of the testator.” Extrinsic evidence that the testator intended the handwritten instrument to be his will was properly admitted, and confirmed the validity of the instrument as a holographic will.

[1300]

Facts and Trial Court Proceedings

Appellant William James Osborne is a Los Angeles lawyer who formerly represented the decedent Morris I. Brenner. Respondent Anita Susan Brenner is decedent’s daughter, named executor under Morris Brenner’s formal will of November 6, 1990. After Morris died: in May 1996, Anita petitioned for probate of Morris’s 1990 will. Osborne then filed a petition to probate a handwritten or holographic will prepared by Morris in 1995.

Osborne’s petition was heard at a court trial, at which the following evidence was presented.

In April 1995 Morris retained Osborne to represent Morris in a personal injury case. In September Morris mentioned his 1990 will to Osborne and asked Osborne to prepare a new will. Morris showed Osborne a copy of the 1990 will, on which Morris had made handwritten changes. Osborne declined to prepare a new will, but made interlineations on the marked-up 1990 will, at Morris’s direction, changing some of its dispositions. Morris gave Osborne a copy of this marked-up will.

Soon Morris again asked Osborne to prepare a new will. Osborne again declined, but suggested Morris prepare a holographic will. Morris then sent Osborne a document which Morris said was his holographic will. Morris told Osborne that Morris intended to revoke the 1990 will, and gave Osborne several reasons for desiring to do so.

The purported holographic will which Morris gave Osborne was a three-page photocopy of a handwritten list of property dispositions, upon which there appeared handwritten ink additions, including: the note “my will of November 6, 1990 is void”; the signature “Morris Brenner”; the statements “This is my new will”; “my trustee and executor, lawyer James Osborne”; and “Will of Nov. 6, 1990 is void. M.B.” The holograph also bore the original ink notation “witness,” with the signature of a “Salvador Borja.”