Probate, trust, guardianship and inheritance litigation
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North Dakota Supreme Court: Holographic Will Not Valid When Material Portions Not Proven To Be In Decedent’s Handwriting

In Estate of Beach, a January 6, 2022 opinion from the North Dakota Supreme Court, the Court upheld the decision of the district court denying the admission of a holographic will  to probate.

The Facts of Estate of Beach

Decedent, Skip Beach, was survived by seven siblings and one daughter.  Skip’s brother, Clark Beach, filed a petition to probate a holographic will.  The purported holographic will read:

My Last Will and Testament

Skip Beach

I leave to Clark Beach

Everything I own

P.S. Bury me in Carlyle

4-8-04

At the hearing on Clark’s petition to probate the holographic will, Clark presented testimony from seven witnesses.  Many of the witnesses testified that the signature and all portions of the document were in the decedent’s handwriting.

After submission of written closing arguments, the court denied the petition for formal probate of the holographic will.  The court found that the signature “Skip Beach” on the proposed holographic will was the decedent’s signature based on the evidence. The court held the clause “Everything I own” was a material portion and was not in the decedent’s handwriting. The court reasoned that the clause appeared to have been written in different ink, was lighter in appearance, and was slanted different than the rest of the document. Additionally, the court found the clause was smaller in text and was written in only printed letters while other portions of the document use a mix of cursive and printed letters. The court stated the testimony given by Clark Beach, his siblings, and others did not change the court’s finding and stated “[n]one of these individuals are handwriting experts, and none of them ever saw this purported will before Skip’s death.” The court was not convinced that the material clause “Everything I own” was in the decedent’s handwriting and held that Clark Beach failed to meet his burden of proof that a material portion of the document was in the testator’s handwriting as required by law.

Who Has The Burden Of Establishing a Will Under North Dakota Law?

“Proponents of a will have the burden of establishing prima facie proof of due execution in all cases[.]” N.D.C.C. § 30.1-15-07.

“To be ‘duly executed,’ a will must comply with the statutory requirements for execution.” Estate of Wagner, 551 N.W.2d 292, 295 (N.D. 1996).

The requirements for execution are found in N.D.C.C. § 30.1-08-02.

Are Holographic Wills Valid In North Dakota?

Yes, a holographic will can be a valid will under North Dakota law.  A holographic will is valid if “the signature and material portions of the document are in the testator’s handwriting.” N.D.C.C. § 30.1-08-02(2). Material portions of a holographic will express donative and testamentary intent. Estate of Krueger, 529 N.W.2d 151, 154 (N.D. 1995). “Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof.” N.D.C.C. § 30.1-15-07.

Here, Clark argued that the North Dakota district court created a new, steeper evidentiary standard by requiring a handwriting expert because the handwriting in this case was properly authenticated under N.D.R.Ev. 901.  The North Dakota Supreme Court reviewed the rules to authenticate evidence:

To authenticate evidence under N.D.R.Ev. 901(a), the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Rule 901(a), N.D.R.Ev., treats authentication as a matter of conditional relevance to be decided under N.D.R.Ev. 104(b). R & D Amusement Corp. v. Christianson, 392 N.W.2d 385, 386 (N.D. 1986). If the court decides sufficient proof has been introduced to allow a finding the document is authentic, Rule 901(a) is satisfied and the question of weight is for the trier of fact. Id. Here, the district court judge was also the trier of fact.

Here, simply because the witnesses testified that the will was written in the authentic handwriting of the decedent, does not mean that the court had to accept the testimony as credible.    Clark Beach not only had the initial burden of proof to show due execution of the purported holographic will, but he also had the burden of persuasion under N.D.C.C. § 30.1-15-07.

The North Dakota Supreme Court stated:

The district court in this case properly weighed the competing testimony and evidence and, on the record, has support for its findings. The court found that the clause “Everything I own” was a material portion and reasoned that without this clause, the document does not express a donative and testamentary intent. Additionally, the court held the clause was not in the decedent’s handwriting. The court reasoned that the clause appeared to have been written in different ink, was lighter in appearance, and was slanted different than the rest of the document. The court found the clause was smaller in text and was written in only printed letters while other portions of the document use a mix of cursive and printed letters. The court stated the testimony given by Clark Beach, his siblings, and others did not change the court’s finding and stated “[n]one of these individuals are handwriting experts, and none of them ever saw this purported will before Skip’s death.” The weakness of the witness testimony goes to credibility, not admissibility as Clark Beach argues. The court was not convinced based on the evidence and testimony that the material clause “Everything I own” was in the decedent’s handwriting. The court held that Clark Beach failed to meet his burden of proof that the material portions of the purported holographic will were in the testator’s handwriting as required by law.

The North Dakota Supreme Court determined that the district court did not clearly err in finding that the material portions of the purported holographic will were not in the testator’s handwriting.

Holographic wills are much harder to prove than a standard will prepared by an attorney and with the proper testamentary formalities.  This makes sense, since preparation of a will with an attorney and witnesses lends a formality to the process, as opposed to something handwritten.

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