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  • Will probated even though date was erroneous

  • Nevada Estate Lawyer

    Will probated even though date was erroneous

    Kanable v. Birch, 86 Nev. 558, 471 P.2d 237 (1970):

    Notwithstanding the strictness with which California interprets its holographic will statute, its Supreme Court held such a will could be probated even though the year was obviously erroneous. In In re Fay's Estate, 78 P. 340 (Cal. 1904), it was stated: "An holographic will must be dated for the reason that the Legislature has said so, but we do not think it would be a sound rule to hold that any mistake or error in the date would invalidate the will. It will be presumed that the date given is the true date. We apprehend that cases will rarely occur in which this is not so. If it becomes necessary in any case upon a question as to the sanity of the testator or probably other questions, the true time at which the will was made may be inquired into; but we hold that simply showing that an olographic will was made at a time different from that written therein will not invalidate it. The date is not the material thing, although made necessary by the statute. It is a means of identification, and aids in determining the authenticity of the will; but the main and essential thing is that the will be wholly written and signed by the hand of the testator." 78 P. at 341. Accord, In re Vance's Estate, 162 P. 103 (Cal. 1916). See particularly In re Clisby's Estate, 78 P. 964 (Cal. 1904), a case closely in point with the issue here.

    We hold a bare factual showing that the date on a holograhic will which is admittedly different from the date it was executed is not sufficient as a matter of law to preclude its petition for probate. We believe many factual issues remain which must be resolved at a trial. Under those circumstances summary judgment is not proper. Zuni Constr. Co. v. Great Am. Ins. Co., 86 Nev. 364, 468 P.2d 980 (1970); Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979 (1963).

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