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Estate of Brenner v. Brenner12/15/1999
CERTIFIED FOR PUBLICATION
APPEAL from an order of the Superior Court of Los Angeles County. Timothy A. Whitehouse, Temporary Judge. Reversed.
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.
FACTS AND TRIAL COURT PROCEEDINGS
Appellant Osborne is a Los Angeles lawyer who formerly represented the decedent Morris Brenner. Respondent Anita Brenner is decedent's daughter, named executrix under Morris Brenner's formal will of November 6, 1990. After Morris died in May 1996, Anita petitioned for probate of Morris' 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' 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."
Following Osborne's receipt of the 1995 holograph, Morris in several conversations with Osborne referred to "his holographic will." In early 1996 Osborne prepared a draft of a new formal will for Morris, based on the dispositions in the 1995 holograph. Osborne told Morris to take the draft to an estate planning specialist, but Morris did not do so. Morris attempted instead to execute the will without assistance of counsel, did so erroneously, and thus invalidated it.
After Morris died, Borja delivered to Anita the original, yellow paper, handwritten matter which Morris had photocopied and annotated to constitute the holographic will. This was available at trial, and conformed exactly to the photocopied material in the holographic will.
A forensic document expert retained by Osborne testified that all the photocopied and ink handwriting on the holograph was Morris's, except for the notation "witness" and Borja's signature.
The trial court found that Brenner had hand-written the text of the 1995 instrument, but the instrument did not qualify as a valid holographic will because the photocopy did not contain Brenner's original handwriting. The document also failed to qualify as an attested will, s
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