## Facts

- Lloyd M. Nielson executed a typewritten, attested will dated February 25, 1969, leaving his estate to his mother and, if she predeceased him, distributing the residue among named charities.
- The will stated that he “intentionally omitted provision for any of his heirs.”
- After execution, the will’s charitable dispositive provisions were struck through, and handwritten interlineations substituted different charitable gifts; initials appeared next to the handwritten changes.
- The original date was crossed out and replaced with “November 29, 1974,” and the testator wrote “Revised by Lloyd M. Nielson November 29, 1974” at the top and bottom of the document.
- After the testator’s death, the charitable beneficiaries petitioned for probate; the testator’s uncle and closest heir, Arthur G. Nielson, contested.
- The contestant argued the markings revoked the 1969 will and that the handwritten material could not qualify as a holographic will or codicil because the instrument was not “entirely written” in handwriting under then-applicable California law.
- The contestant offered no evidence about who made the handwritten changes or the intent behind them.
- The probate court granted judgment for the proponents under Cal. Code Civ. Proc. § 631.8 at the close of the contestant’s case and admitted the will to probate.

## Issues

1. Whether the contestant produced sufficient evidence to overcome the presumption of validity of the will such that judgment under Cal. Code Civ. Proc. § 631.8 was improper.
2. Whether handwritten cancellations and interlineations on a previously attested, typewritten will can constitute a valid holographic codicil that modifies and republishes the prior will by incorporation by reference.
3. Whether the markings instead revoked the will and caused the estate to pass by intestacy.

## Decision

- The Court of Appeal affirmed the judgment admitting the will to probate.
- The contestant failed to carry the burden of proof to rebut the presumption of validity or to prove the testator revoked the will.
- Assuming the handwriting was the testator’s, the handwritten, dated, and signed revisions constituted a holographic codicil.
- The holographic codicil validly incorporated by reference and republished the earlier typewritten will as modified, preventing intestacy.

## Legal Principles

- A duly executed will is presumed valid; the contestant bears the burden to produce evidence sufficient to overcome that presumption.
- A court may enter judgment under Cal. Code Civ. Proc. § 631.8 when, at the close of the contestant’s evidence, the contestant has not met the burden of proof.
- Handwritten interlineations and cancellations, when written, dated, and signed with present testamentary intent, may operate as a holographic codicil even if made on an existing typewritten, attested will.
- A holographic codicil may incorporate by reference a separate document (including a prior typewritten, attested will) and thereby republish that document as modified, so long as the holographic writing manifests intent to do so.
- Cancellations accompanied by substituted handwritten dispositions may be treated as a single testamentary act of revision rather than a revocation producing intestacy, particularly where the instrument indicates an intent to exclude heirs.

## Conclusion

The court upheld probate of the altered will because the contestant offered no evidence sufficient to rebut the will’s presumed validity, and the handwritten, dated, and signed revisions were treated as a holographic codicil that incorporated and republished the prior attested will as modified, avoiding intestacy.


Estate of Nielson, 105 Cal. App. 3d 796, 165 Cal. Rptr. 319 (Cal. Ct. App. 1980)