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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Estate of Baker (12/30/2016) sp-7143

In Re Estate of Baker (12/30/2016) sp-7143

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                      THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

In  the  Matter  of  the  Estate  of	                         )  

                                                              )         Supreme  Court  No.  S-15971  

ALVA  MARIE  BAKER.	                                          )  

                                                              )         Superior  Court  No.  3AN-14-00397  PR  




                                                              )         O P I N I O N  




_______________________________ )                                       No. 7143 - December 30, 2016  


                     Appeal from the Superior Court of the State of Alaska, Third  


                     Judicial District, Anchorage, Catherine M. Easter, Judge.  


                     Appearances:   Stuart C. Rader, Ingaldson Fitzgerald, P.C.,  


                     Anchorage, for Appellants.  David D. Clark, Law Office of  


                     David Clark, Anchorage, for Appellee.  


                     Before:         Stowers,  Chief  Justice,  Winfree,  and  Bolger,  


                     Justices.  [Fabe and Maassen, Justices, not participating.]  


                     STOWERS, Chief Justice.  



                     Alaska Statute 13.12.502(b) provides that a testamentary instrument will  


be "valid as a holographic will, whether or not witnessed, if the signature and material  


portions of the document are in the testator's handwriting."  Before us is a purported  


holographic  will,  written  totally  in  the  decedent's  handwriting,  with  instructions  to  


distribute the decedent's estate at death.  The sole question on appeal is whether the  


decedent's  handwritten  name  at  the  beginning  of  the  document  is  a  "signature"  as  


contemplated by AS 13.12.502(b).  This is an issue of first impression in our state, and  

----------------------- Page 2-----------------------

we agree with the superior court's conclusion that a testator's handwritten name in the                                                                                           

exordium clause                     1  


                                       of a purported holographic will is sufficient to satisfy the signature  


requirement in AS 13.12.502(b) unless the instrument is otherwise incomplete.  




                            In  January  2010  Alva  Marie  Baker  handwrote  a  purported  will.                                                                               The  


instrument, as closely as possible, is reproduced below [sic throughout]:  


                                                                       Jan 10 / 2010  

                            Jan 10 / 2010  



                            My name is Alva Marie Baker -  

                            My "will" when I pass on is to go as follows!  


                             (1) My home goes to my daughter Connie Marie Sumrall  


                             (2) Any vehicles or vehicle ! I own upon death goes to Connie  




                             (3) All "tools" and "furniture" of any kind goes to Connie  



                             (4)  All funds  held  in  a checking account goes to  Connie  



                                                                  [  ]  



                            at Northrim Bank 

                             (5)  All funds in saving                         accounts  goes to                   Connie Sumrall   


                             (6) Any Insurance I may have goes to Connie Sumrall  


                             (7) Any Jewerly I may have upon death goes to my daughter  


                            Connie Sumrall  

              1             An exordium is "[a]n introduction in a discourse or writing, esp[ecially] in                                                                             

a will.        In a will, the exordium usu[ally] contains statements of the testator's name and                                                                                  

capacity to make the will."                                Exordium, B                 LACK 'S  LAW  DICTIONARY  (10th ed. 2014).                                   

              2             The   superior   court  found  that   the   will   referred   to   a   "Northern   Bank"  

account, but the record shows that Baker held an account at Northrim Bank.                                                                            

                                                                                         -2-                                                                                 7143

----------------------- Page 3-----------------------

                    (8)   All   pictures   I   have   upon   my   death   given   to   me   by  


                    "Connie or my grandchildren gave me, can go back to the  


                    "giver ! !  "I can not take them with me ! !  


                    (9) All "old" furniture can go to Connie, if she wants them if  


                    not, let the grand children "pick" some - please do not fight  


                    over anything !  


                    (10) Money I have at "Key Bank Eagle River, AK)


                    Equal divided


                    Will be divided to (Equal) my 7 grand kids -


                    The grand kids that have passed away, if they have a child it


                    will go to (there child or divided between their kids)  


                    Baker died inNovember 2013. InFebruary2014 Baker's daughter, Connie  


Marie Sumrall, filed a petition for adjudication of testacy and formal probate of the  


instrument.  That petition was opposed by Seth Whaley and Jessica Milwicz, two of  


Baker's grandchildren.  


                    Sumrall moved for partial summary judgment, arguing that the document  


was a valid holographic will per AS 13.12.502(b) because it was written in Baker's hand  


and signed by Baker. Whaley and Milwicz opposed that motion arguing that there were  


genuine issues of material fact as to, among other things, whether the handwriting on the  


will was Baker's, whether there was testamentary intent, and whether there were issues  


of incapacity or undue influence. The superior court denied Sumrall's motion for partial  


summary  judgment,  ruling  that  an  evidentiary  hearing  would  be  necessary  "to  


determine  .  .  .  whether  the  identification  of  Ms.  Baker  constitutes  a  signature  as  


contemplated by [the holographic will statute]."  


                    Prior to the hearing, Whaley and Milwicz stipulated that the handwriting  


on the contested will was entirely Baker's.   And all parties stipulated that whether  


Baker's handwritten name in the first sentence of the contested will "complie[d] with the  


signature requirement of AS 13.12.502" was "an issue of law for determination by the  

                                                               -3-                                                         7143

----------------------- Page 4-----------------------

 court," and that Sumrall "[was] not precluded fromoffering extrinsic evidence in support                                                                                                                                                                                                                                                                                                     

 of her opposition to [Whaley and Milwicz's] motion for summary judgment."                                                                                                                                                                                                                                                                                                                                The  

  superior court issued orders accepting both stipulations.                                                                                                                                                         

                                                                 Whaley and Milwicz then filed a motion for partial summary judgment                                                                                                                                                                                                                                               

  seeking a determination that Baker's handwritten name at the top of the document was                                                                                                                                                                                                                                                                                                                         

 not a signature as contemplated by AS 13.12.502(b), and that Baker therefore died                                                                                                                                                                                                                                                                                                                         

 intestate.   Sumrall opposed that motion and filed a cross-motion for partial summary                                                                                                                                                                                                                                                                                              

judgment arguing that Baker's handwritten name was a signature as contemplated by                                                                                                                                                                                                                                                                                                                                    

 AS 13.12.502(b) and that the document was a valid holographic will.                                                                                                                                                                                                                                                     

                                                                  In March 2015 the superior court denied Whaley and Milwicz's motion for                                                                                                                                                                                                                                                                           

 partial summary judgment.                                                                                                            The order related exclusively to the question "whether the                                                                                                                                                                                                                   

 purported execution of the will -a signature contained in the introductory clause -can                                                                                                                                                                                                                                                                                                                           

  satisfy [AS] 13.12.502(b), governing holographic wills."                                                                                                                                                                                                                             Alaska Statute 13.12.502(b)   

 provides that a testamentary instrument may be "valid as a holographic will, whether or                                                                                                                                                                                                                                                                                                                                

 not witnessed, if the signature and material portions of the document are in the testator's                                                                                                                                                                                                                                                                                          

 handwriting."   The court concluded that, although there "is limited Alaska precedent"                                                                                                                                                                                                                                                 

 interpreting that statute, Alaska law does not require a terminal signature in order for a                                                                                                                                                                                                                                                                                                                                 

 holographic will to be valid.                                                                                                              

                                                                  The court reasoned that "Alaska follows a holographic will statute nearly                                                                                                                                                                                                                                                        

                                                                                                                                                    3  and California courts have determined that when faced  

 identical to that in California,"                                                                                                                                                                                                                                                                                                                                                                      

 with a purported will in which the signature does not appear at the end, "the court must  


 determine from an inspection of the instrument's language, form[,] and the relative  


 position of its parts whether or not there is a positive and satisfactory inference that the  


 decedent's  name  was  placed  in  that  location  with  the  intention  of  executing  the  


                                 3                                CAL.  PROB.  CODE   §  6111  (West  2016).   

                                                                                                                                                                                                            -4-                                                                                                                                                                                                                  7143  

----------------------- Page 5-----------------------


instrument."   Applying the California rule to this                                                                                             case, thesuperior court determined                                                                    that  

therewas                     a"satisfactory inference" that Baker placed her name in the introductory                                                                                                                                          clause  

"with the intention of executing the instrument" and that the instrument therefore "as a                                                                                                                                                                      

matter of law . . . meets the requirements of AS § 13.12.502(b)."                                                                                 

                                        Whaley and Milwicz filed a motion for reconsideration and the superior                                                                                                                           

court denied the motion.                                                   Whaley and Milwicz then notified the court that they wished                                                                                                      

to   dismiss their                                "claims concerning                                            decedent's competence,                                                     undue influence[,] and                                     

insane delusion"; the court issued an order dismissing those claims with prejudice.                                                                                                                                                

Whaley and Milwicz sought our review of the superior court's ruling that the document                                                                                                                                               

was a valid holographic will.                                                              We denied their petition for review without prejudice                                                                                     

because it was not a direct appeal from the superior court's entry of a formal testacy                                                                                                                                                      


                                        The parties then stipulated that there were no more disputed issues.  The  


 superior court entered the stipulation "[b]ased on contestants' notice of dismissal with  


prejudice as to their other objections and their request that the evidentiary [hearing] to  


address other objections be vacated." The will subsequently entered formal probate, and  


 Sumrall was appointed personal representative of the estate.  


                                        Whaley and Milwicz now appeal the entry of the final testacy order.  


III.                STANDARD OF REVIEW  


                                        The interpretation of a statute is a legal question which we review de novo.6  




"We interpret . . . Alaska law according to reason, practicality, and common sense, taking  

                    4                   In re Bloch's Estate                                        , 248 P.2d 21, 22 (Cal. 1952).                                                            

                    5                   Milwicz    v.    Sumrall,    No.   S-15872    (Alaska    Supreme    Court    Order,  

Apr. 20, 2015).            

                    6                   Jimerson v. Tetlin Native Corp., 144 P.3d 470, 472 (Alaska 2006) (citing  


Kodiak Island Borough v. Roe, 63 P.3d 1009, 1012 n.6 (Alaska 2003)).  


                                                                                                                             -5-                                                                                                                   7143

----------------------- Page 6-----------------------

into account the plain meaning and purpose of the law as well as the intent of the                                                          



                   In interpreting statutes, we take "a 'sliding scale' approach . . . :  'the plainer  


the language of the statute, the more convincing any contrary legislative history must  



be.' " 


                      Alaska Statute 13.12.502(b) recognizes the validity of holographic wills  


provided that "the signature and material portions of the document are in the testator's  


handwriting."9             The question presented by this case is whether a testator's handwritten  


name in the exordium clause at the top of a handwritten will is sufficient to satisfy the  


statute's signature requirement.  Because we agree with the superior court that there is  


a "satisfactory inference that the decedent's name was placed [in the introductory clause]  


with the intention of executing the instrument,"10 we hold that the instrument meets the  


requirements of AS 13.12.502(b) and is valid for probate.  


           A.         AS 13.12.502(b) Does Not Require A Terminal Signature.  


                      Every American holographic will statute requires the testator to sign the  


will.11      Some holographic will statutes specifically require the testator's signature to  


           7          Estrada  v.  State,  362  P.3d  1021,  1023  (Alaska  2015)  (alteration  in  original)  

(quoting  Native   Vill.  of  Elim  v.  State,  990  P.2d   1,  5  (Alaska   1999)).   

           8          Id.    (quoting   Peninsula   Mktg.   Ass'n    v.    State,   817   P.2d    917,    922  

(Alaska   1991)).   

           9          AS  13.12.502(b).  


           10         In re Bloch's Estate, 248 P.2d 21, 22 (Cal. 1952).  



§ 3.2 (AM. LAW  INST . 1999).


                                                                      -6-                                                               7143

----------------------- Page 7-----------------------


appear at the end of the document.                                                                     The   parties agree that the text of AS 13.12.502(b)                                                     

does    not    require    a    terminal    signature.       But    in    states    with    statutes    that,    like  

AS 13.12.502(b), do not specify the location of the signature, courts nearly unanimously                                                                                                                         

have   declined   to   read   the   signature   requirement   as   implicitly   requiring  a   terminal  

                            13   Yet a handful of other jurisdictions - namely, Mississippi, Louisiana, and  


Puerto Rico - have determined that even when the holographic will statute is silent as  


to the location of the signature, a signature will be valid only if located at the end of the  



                                      In Baker v. Baker's Estate the Mississippi Supreme Court determined that  


a handwritten caption reading "Metta G. Baker writing this" was insufficient to satisfy  


the statutory requirement that a holographic will be "wholly written and subscribed by"  


the testator.15                            It reached its conclusion in part through reference to the Black's Law  


                   12                 Id.  

                   13                 See, e.g.              ,  In re Estate of Phippen                                          , 47 Cal. Rptr. 648, 652 (Cal. App. 1965);                                                        

In re Potts' Estate                                 , 61 A.2d 649, 650 (Union County Ct., N.J. 1948);                                                                                              In re Goodman's     

 Will, 50 S.E.2d 34, 36 (N.C. 1948);                                                                     see also                  M.L. Schellinger, Annotation,                                                           Place of   

Signature   of   Holographic   Wills,   19   A.L.R.2d   926   (1951)   ("In  the   absence   of   a  

requirement that the testator sign at the end of a holographic instrument, his name may                                                                                                                                                  

appear at any place in the instrument, if it was written with an intent to execute the                                                                                                                                                      


                   14                 See In re Armant's Will, 9 So. 50, 51-52 (La. 1891); In re Estate of Giles,  


228 So. 2d 594, 596 (Miss. 1969);  CastaƱer v. Superior Court, 81 P.R. 841, 843-45  


 (P.R.  1960); see also  Kevin R. Natale, Note, A Survey, Analysis, and Evaluation of  


Holographic Will Statutes, 17 HOFSTRA   L. R                                                                                       EV. 159, 167-68 (1988) (indicating that                                                                


Mississippi's and Puerto Rico's holographic will statutes do not expressly provide that                                                                                                                                                    

the testator's signature appear at the end of the will but "have been judicially construed                                                                                                                               

to require a signing at the end of the instrument").                                                                                            

                   15                 24 So. 2d 841, 841-43 (Miss. 1946) (emphasis in original); see also Giles,  



                                                                                                                       -7-                                                                                                             7143

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Dictionary definition of "subscribe":                            "to write under; to write the name under; to write                           

the name at the bottom or end of a writing."                                16  


                                                                                The court reasoned that the subscription  


requirement implies a terminal location - as opposed to a signature requirement, which  



would imply no such locational constraints. 

                       Other  jurisdictions,  though,  have  determined  that  "where  the  statute  


requires only  that the instrument be 'signed,'  such  provision  contemplates that the  


instrument must be signed at the end."18  

                                                                       For instance, the Supreme Court of Louisiana  


followed  the doctrine in  French  law that a signature must appear  at the end  of  an  



instrument in In re Armant's Will .  



                                                               The Supreme Court of Puerto Rico also concluded  


that "the introductory words:  'I, Adele Bandler CastaƱer . . .' " did not constitute a  



                      The court reasoned, based on Spanish law, that "[e]very holographic will  


needs to be 'signed by the testator' and the signature can be no other than that which  



228 So. 2d at 596 (describing a prior case that "held: (1) the testator's signature must be  


at the end of the holographic instrument, testamentary in character, which shows on its  


face that the testamentary purpose therein expressed is completed; (2) the court will not  


consider writing below the signature on a holographic will; and (3) if the writing does  


not meet the requirements of the statute the instrument is not a will" (citing  Wilson v.  


Polite, 281 So. 2d 843 (Miss. 1969))).  

            16         Baker, 24 So. 2d at 843 (quoting Subscribe, BLACK 'S  LAW  DICTIONARY  


(2d ed. 1910)).     

            17         Id.   

            18         Schellinger,  supra  note   13.  

            19         In re  Armant's   Will, 9  So. at 51-52 (holding that the handwritten caption  

"Testament  d'Aglae  Armant"  was  insufficient  to  satisfy  the  Louisiana  statute  requiring  

holographs  to  be  signed).   

            20         CastaƱer v. Superior Court, 81 P.R. 841, 843 (P.R. 1960).  


                                                                        -8-                                                                  7143

----------------------- Page 9-----------------------

shows a last subscription of the testamentary will, after the whole text preceding the                                                         

signature is known and considered."                           21  

                       The law of each of these jurisdictions features an idiosyncrasy that Alaska  


law  does  not  share  -  in  Mississippi's  case,  requiring  "subscription"  instead  of  a  


"signature," and in Louisiana's and Puerto Rico's cases, relying on French and Spanish  


law.  We therefore join the overwhelming consensus of American courts and hold that  


Alaska law does not require a terminal signature for valid probate of a holographic will.  


           B.	         Baker's Handwritten Name Satisfies The Signature Requirement Of  


                       AS 13.12.502(b).  


                       Neither AS 13.12.502(b) nor Title 13 defines "signature."  The relevant  


statutory text provides that a will is "valid as a holographic will . . . if the signature and  


material portions of the document are in the testator's handwriting."22  The superior court  


concluded that whether a handwritten name is a signature depends on the intent of the  


testator:  "if the context of a signature found in an introductory clause shows intent to  


create a valid will and there is no wont for a further mark of execution then the will is  


valid."  (Emphasis in original.)  Whaley and Milwicz argue that the court's conclusion  


defies  the  statutory  command  of  AS  13.12.502(b)  "by  rendering  the  signature  


requirement nugatory."23   Alva Marie Baker's name in the exordium clause, they argue,  


functions as an "[i]dentification ofthetestatrix,"and is therefore "presumably a 'material  


portion' of the holographic will which must be in her handwriting." Since identification  


           21          Id.  at  844.  

           22          AS   13.12.502(b).   

           23          Whaley   and   Milwicz   never   articulate   what   factors  they   believe   would  

transform   a  handwritten  name   from   a   "material  portion"   of  the  will  to   a   "signature."   

They  merely  agree  that  a  handwritten  name  need  not  appear  at  the  end  of  a  document  to  

constitute  a  signature, yet  object  to  the  superior  court's  use  of  the  testatrix's  intent  to  

determine  whether  a  handwritten  name  is  a  signature.  

                                                                       -9-	                                                                7143

----------------------- Page 10-----------------------

of the testator is a material portion of the will, the argument goes, it cannot also function                                                                                                                                                                      

as a signature.                                  Whaley and Milwicz's analysis of AS 13.12.502(b) is incorrect.                                                                                                                         

                                            The statute makes no such requirements of a holographic will.                                                                                                                                                     First, the  

statutory text neither indicates that the handwritten signature and handwritten material                                                                                   

portions   requirements   are   mutually   exclusive,   nor   that   a   handwritten  name   cannot  

function as both identification of the testatrix and signature.                                                                                                                                               The statute contains no                                                 

requirement that a testatrix identify herself in addition to signing the document.                                                                                                                                                                                      Taken  

to its logical conclusion, this argument would mean that holographic wills with valid                                                                                                                                                                                         

terminal signatures that also identify the testatrix - e.g., "The preceding will disposes                                                                                                                                                                          

of the entire estate of [signature]" - would be excluded from probate, an outcome the                                                                                                                                                                                                

legislature almost certainly did not intend.                                                                         

                                             Second, AS 13.12.502(b) was added to the Alaska statutes in 1972 when                                                                                                                               

                                                                                                                                                                                                                          24   Commentary from  

Alaska adopted the Uniform Probate Code (UPC) in near-entirety.                                                                                                                                                                                                                

the  UPC  is  thus  instructive  in  interpreting  the  Alaska  probate  statutes.25                                                                                                                                                                                             And  


commentary  accompanying  the  holograph  provision  of  the  UPC  reveals  that  the  


"material portion" language was included in the UPC not to distinguish "material"  


portions from the signature portion, as Whaley and Milwicz argue, but instead to avoid  


disqualifying wills containing non-material printed language:  


                                            By requiring only the "material portions of the document" to  


                                            be  in  the  testator's  handwriting  (rather  than  requiring,  as  


                                             some existing statutes do, that the will be "entirely" in the  


                                             decedent's  handwriting),  a  holograph  may  be  valid  even  


                      24                    See Jaworski v. Estates of Horwath ex rel. Streets                                                                                                                            , 277 P.3d 753, 759                                    

(Alaska 2012) (citing ch. 78, § 1, SLA 1972).                                                                                                             

                      25                    See, e.g., In re Estate of Maldonado, 117 P.3d 720, 728 (Alaska 2005)  


(relying on UPC commentary as legislative history in interpreting Alaska probate law).  


                                                                                                                                         -10-                                                                                                                                  7143

----------------------- Page 11-----------------------

                                                    though immaterial parts such as date or introductory wording                                                                                                                                         

                                                    are printed, typed, or stamped.                                                   

                                                    A valid holograph can also be executed on a printed will form                                                                                                                                                      

                                                    if the material portions of the document are handwritten. The                                                                                                                                                         

                                                    fact, for example, that the will formcontains printed language                                                                                                                                     

                                                    such as "I give, devise, and bequeath to _______" does not                                                                                                                                          

                                                    disqualify the document as a holographic will, as long as the                                                                                                                                                            

                                                    testator   fills   out   the   remaining   portion   of   the   dispositive  

                                                   provision in his or her own hand.                                                                                               [26]  

Additionally,  members  of  the  Alaska  House  Judiciary  Committee  found  Richard  


Wellman's writings on the UniformProbate Code to be helpful in clarifying the concepts  


underlying the code.27   And the practice manual Wellman would later edit explains that  


 "[t]he test under the [Uniform Probate] Code is much more liberal" than under "present  


 statutes authorizing holographic wills."28                                                                                                                            Thus, neither statutory text nor legislative  


history  suggests  that  Alaska  law  prohibits  a  court  from  considering  whether  a  


handwritten identification of the testatrix is also a signature under AS 13.12.502.  


                          26                       UNIF.P                      ROBATE  CODE  §2-502.Bcmt. (U                                                                                           NIF .L               AW  COMM'N,amended 2010).                                                                                         



                                                    Minutes, H. Judiciary Comm. Hearing on S.B. 248, 7th Leg., 2d Sess. 169  

 (Apr. 11, 1972).                    

                          28                         1 U        NIFORM  PROBATE  CODE  PRACTICE  MANUAL  136 (Richard V. Wellman,                                                                                                                                                                      

 ed., 2d ed. 1977).                                                      The manual's commentary on the lack of a requirement to date a                                                                                                                                                                                                

holographic will sheds further                                                                                    light ontheliberal standards in the UniformProbate Code:                                                                                                                                            

                                                    The Code does not require that a holographic will be dated,   

                                                    even though the failure to date may lead to fatal uncertainty                                                                                                                            

                                                    if two or more wills exist and the order of their execution                                                                                                                                   

                                                    cannot   be   established.     The   draftsmen   felt   that   it   was  

                                                   preferrable [sic] to validate holographs for the usual situation                                                                                                                                     

                                                   when there appears to have been only one will, rather than to                                                                                                                                                                  

                                                    invalidate all writings that, for want of a date, might cause a                                                                                                                                                                 

                                                   problem concerning priority.                                                    


                                                                                                                                                               -11-                                                                                                                                                       7143

----------------------- Page 12-----------------------

                                       The next question, then, is under what circumstances Alaska law                                                                                                                                 permits  

a court to interpret a handwritten name in the exordium clause as a signature. States with                                                                                                                                                        

holographic will statutes that, like Alaska's, make no mention of any location where the                                                                                                                                                              

testator's signature must be placed have taken one of two approaches.                                                                                                                                                   The first, as                   

discussed above, is to judicially construe the signature requirement to require a signing                                                                                                                                              

at the end of the instrument.                                                         29        But the majority of states follow a second approach,  


articulated by the Restatement (Third) of Property:  


                                       The testator's handwritten name in freestanding form at the  


                                       end of the document unquestionably satisfies the signature  


                                       requirement. Thetestator's handwritten namein freestanding  


                                       form at any other place on the document raises an inference  


                                       that the testator "signed" the document.  


                                       A person's name written in his or her own handwriting is not  


                                       necessarily a signature.  If the testator's name is not written  


                                       in freestanding form, then there should be other evidence that  


                                       the testator adopted the document as his or her will in order  


                                       to count the handwritten name as a signature.[30]  


                    29                 See  Part IV.A,                             supra.   

                    30                 RESTATEMENT   (THIRD)  OF  PROP.:    WILLS & D                                                                                           ONATIVE  TRANSFERS   § 3.1   

                         M. L         AW. I  NST . 1999);                              see also, e.g.                        ,   Smith v. MacDonald                                           , 481 S.W.2d 741, 748                                 

cmt. j (A 

(Ark. 1972) (holding that a handwritten name in title and exordium clause constituted                                                                                                                                         

signature   required   by   statute);   In   re   Estate   of   Glass,   331   P.2d   1045,   1046,   1048  

(Cal. App. 1958) (holding that a handwritten name in the heading of a document satisfied                                                                                                                                               

the signature requirement);  Burton v. Bell, 380 S.W.2d 561, 568 (Tex. 1964) (holding  

that a handwritten name in exordium clause, "That I, Roy Wheeler Bell, . . . ," satisfied                                                                                                                                             

the signature requirement); Schellinger,                                                                                 supra   note 13 ("Where the statute does not                                                                               

specify the place of signature, a signing in the exordium or introductory clause . . . . [is]                                                                                                                                                  

sufficient where the instrument appears to be complete and there is no indication that the                                                                                                                                                            

testator intended to add anything to the writing.").                                                                                                  

                                                                                                                          -12-                                                                                                                  7143

----------------------- Page 13-----------------------

American courts have repeatedly adopted versions of this approach when faced with a                             

holographic will statute which merely requires a signature.                                      31  


                                                                                                      Noting the similarity of  



Alaska's holograph statuteto California's,                                                                                               

                                                                       the superior court used California's caselaw  


as an example of this approach.  The court interpreted California Supreme Court cases  

                                  33                                              34  


In re Bloch's Estate                 and In re Morgan's Estate                        to stand for the proposition that a  


handwritten name in the exordiumclause "is a valid execution . . . [unless] the instrument  


is otherwise incomplete or suggests that some further act of execution was contemplated  


or required."  The California approach is followed in virtually every other jurisdiction  



to have considered this question,                                                                                                         

                                                        including in states that, like Alaska, have adopted the  

           31         See  Schellinger,  supra  note   13  (collecting  cases).  

           32         California   Probate   Code   §   6111(a)   provides   that   a   will   is   "valid  as   a  

holographic  will,  whether  or  not  witnessed,  if  the  signature  and  the  material  provisions  

are  in  the  handwriting  of  the  testator."   

           33         248 P.2d 21, 22-23 (Cal. 1952).  


           34         253 P. 702, 703-04 (Cal. 1927).  


           35         See Thrift Tr. Co. v. White, 167 N.E. 141,  143 (Ind. App. 1929) (holding  


that "The will of Belle Stockman" in the exordium clause was sufficient to satisfy the  


signature requirement); Ex parte Cardoza, 109 A. 93, 95 (Md. 1919) ("For being written  


by himself, and his name in the will,  'tis a sufficient signing within the statute, which  


does not appoint where the will  shall be  signed, at the top, bottom[,] or margin, and  


therefore a signing in any part is sufficient." (quoting Higdon v. Thomas, 1 H. & G. 139,  


 145 (Md.  1827))); In  re  Thomas'  Estate,  220  N.W.  764,  765  (Mich.  1928) ("The  


question is whether thus writing her name at the top of the will is a sufficient signing,  


within the meaning of the statute. . . .  It may be signed anywhere, providing there is an  


intent to adopt the name so written as the signature to the will.");  Watts v. Pub. Adm'r ,  


4 Wend.  168, 168 (N.Y. 1829) (holding that handwritten name at the beginning of an  


instrument was sufficient to satisfy the signature requirement because the instrument was  


written "in a fair hand, engrossed on conveyancing paper, with a seal attached thereto,  


evincing much deliberation and foresight in its provisions and disposing of both real and  



                                                                    -13-                                                              7143

----------------------- Page 14-----------------------


holographic will provision of the UPC.                                   Indeed, sufficiency of a handwritten name in                                

the exordium clause to satisfy a signature requirement is a bedrock principle of probate                                                   

law dating back to 1681.                    37  


                                                 We conclude that Alaska law permits courts to determine  



personal property to a large amount"); Peace v. Edwards, 86 S.E. 807, 808 (N.C. 1915)  


("The statute does, however, require the will to be signed; but it is well settled that, if the  


name of the testator appears in his handwriting in the body of the will, this is a signing  


within  the  meaning  of  the  statute.");  In  re  McNair's  Estate,  38  N.W.2d  449,  455  


(S.D. 1949) ("If it can be gathered from an inspection of the whole instrument that it is  


intended as a last will and testament, the statute is satisfied." (quoting In re Brandow's  


Estate, 240 N.W. 323, 324 (S.D. 1932))); Lawson v. Dawson's Estate, 53 S.W. 64, 65  


(Tex. Civ. App. 1899) ("Our statute on the subject does not designate the place of  


signature, but merely requires that it be signed. We are therefore of the opinion that the  


place where the party affixes his signature is of secondary consequence if it sufficiently  


appears that the intent to execute was present at the time."); Adams v. Field , 21 Vt. 256,  


260 (Vt. 1849) ("[I]f the name be inserted in such a manner, as to have the effect of  


authenticating the instrument, it is immaterial in what part of it the name be found . . . .").  

            36         See In re Estate of Fegley, 589 P.2d 80, 81 (Colo. App. 1978) ("[U]nder  


Colorado's version of the Uniform Probate Code the intent of the testator and not the  


location of his name is the crucial factor in determining whether a holographic will has  


been signed . . . ."); Estate of Erickson v. Misaka, 766 P.2d 1085, 1088 (Utah App. 1988)  


("It is, of course, possible for a handwritten name at the beginning of the body of a will  


to be written with the intent that it be the requisite signature.  However, there must be  


support  in  the  evidence  for  that  intent."),  aff'd  sub  nom.  In  re  Estate  of  Erickson,  


806 P.2d 1186 (Utah 1991).  


            37          Schellinger, supra note 13 ("Many of the English and American cases have  


been based on the decision in Lemayne v. Stanley [[1681] 83 Eng. Rep. 545] where the  


name of the decedent appeared in the exordium, but the will had not otherwise been  


signed. The court held the instrument to be valid, saying: 'For being written by himself,  


and his name in the will, it is a sufficient signing within the statute, which does not  


appoint where the will shall be signed, in the top, bottom, or margin, and therefore a  


signing in any part is sufficient.' ").  


                                                                        -14-                                                                   7143

----------------------- Page 15-----------------------

 "from an inspection of the instrument's language, form[,] and the relative position of its                                                                        

 parts whether or not there is a positive and satisfactory inference that the decedent's                                                           

 name was placed in that location with the intention of executing the instrument."                                                                                  38  

                          Having settled that handwritten names in the exordium clause are at least  


possibly  sufficient to satisfy the signature requirement, the next question is whether the  


 superior court erred in granting summary judgment on the basis that Baker's handwritten  


 name, specifically, evinces signatory intent.  As the Utah Supreme Court recognized,  


 "[i]f the signature appears at the end of an instrument, . . . signatory intent clearly may  


 be inferred. . . .  The problem of proof of signatory intent is more difficult where . . . the  


 signature appears somewhere other than at the end of an instrument."39  


                          The  Arkansas  Supreme  Court  identified  two  evidentiary  sources  to  


 determine whether there is sufficient proof of signatory intent:  


                          When the name is used to identify the decedent as the author  


                          of the alleged will as in Estate of Kinney, ('I Anna Leona  


                          Graves Kinney, do bequeath all my possessions to my four  


                          sisters') . . . and in addition the instrument appears to be a  


                          complete  testamentary  document,  it  may  reasonably  be  


                          inferred  that  the  name  was  placed  where  it  was  with  the  


                          intention of executing the instrument. In such cases the name  


                          is linked to the alleged testamentary act and the probabilities  


                          that it was intended as a signature are strong.[40]  


                          Here, the handwritten name is used to identify the decedent and that the  


 instrument is acomplete testamentary document. It therefore may be reasonably inferred  


 that Baker's name was so placed with the intention of executing the instrument.  


             38           In  re  Bloch's  Estate,  248  P.2d  21,  22  (Cal.   1952).   

             39           In  re  Estate  of  Erickson,  806  P.2d  at   1189.   

             40           Nelson   v.   Texarkana  Historical   Soc. &  Museum,   516   S.W.2d   882,   884  

 (Ark.   1974)  (citations  omitted).   

                                                                                -15-                                                                          7143

----------------------- Page 16-----------------------

                                The first indication that the exordium clause is intended as a signature is                                                                                            

that it identifies the decedent as the author of the alleged will.                                                                                To determine whether a                                     

handwritten name is a signature or simply part of the text of the will, "it is necessary to                                                                                                           

consider   the   functions   of   the   signature.     A   signature   on   a   will   accomplishes   two  

functions: [f]irst, it identifies the writing as being that of the signator; second, and more                                                                                                  

importantly, the signature evidences finality."                                                            41   Here, the first two lines of Baker's will  



read:  "My name is Alva Marie Baker - My 'will' when I pass on is to go as follows!"  


That text both identifies the testatrix and indicates that she describes the document as a  


final  expression  of  her  testamentary  intent;  courts  have  generally  deemed  such  an  


expression to be sufficient as a signature when a holographic will otherwise evinces  

                                 42    Whaley and Milwicz briefly argue that Baker's handwritten name is not  


a signature because she typically signed documents using only her middle initial in place  


of her middle name, i.e. "Alva M. Baker."43  This argument is only briefed in passing,  


so we consider it waived.44  


                41             Richard   Lewis   Brown,   The   Holograph   Problem   -   The   Case   Against  

Holographic Wills                           , 74 T        ENN. L. R             EV. 93, 118 (2006).                            

                42             See, e.g.           ,  In re Morgan's Estate                              , 253 P. 702, 704 (Cal. 1927) (holding that                                              

a  will  beginning  "Last  will  and  testament  of  Ynez  Morgan"  was  signed);  In  re  


McMahon's Estate                              , 163 P.             669,  669 (Cal.                       1917)   (holding   that an                                exordium clause   

reading "This is the last will and testament of Elizabeth R. McMahon" was a signature                                                                                                

because the testatrix had "sufficiently in law on the face of the instrument adopted the                                                                                                            

signature written by herself in the exordium of her will as her signature in execution of  




                43              "Appellants are unaware of any evidence in the record that the decedent  


signed checks, contracts, deeds, Christmas cards[,] or other important or unimportant  


documents using her full legal name, as opposed to her middle initial."  


                44             See Hagan v. Strobel, 353 P.3d 799, 805 (Alaska 2015) ("[W]here a point  



                                                                                                 -16-                                                                                          7143

----------------------- Page 17-----------------------

                       The   second   evidentiary   question   is   whether   the   document   as   a   whole  

appears to be a complete testamentary document. "If it is complete, a handwritten name                                                         

in an exordium or elsewhere in the will may be considered a signature."                                                      45  


                                                                                                                                  On the other  


hand, "[i]f the instrument propounded as a will appear from its contents and form to be  


unfinished and incomplete, a presumption arises that the writer did not intend the paper  



in that condition to operate as his will." 


                       Other courts have concluded that an instrument has sufficient indicia of  



completeness when the document was written "with studied care,"                                                     where the document  


"reasonably support[ed] the conclusion that 'the writer had done everything that he  



intended to do,' "                  where the document "contains no blanks or anything that would  



indicate that it was not [a] last will and testament,"                                     and where the document indicated  



is given only a cursory statement in the argument portion of a brief, the point will not be  


considered on appeal." (alteration in original) (quoting Glover v. Ranney, 314 P.3d 535,  


545 (Alaska 2013))).  We note that even if the argument were not waived, one might  


expect that a testator who uses a more formal version of his or her name is more likely  


to possess the requisite signatory intent.  

            45         In  re  Estate  of  Erickson,  806  P.2d  1186,  1189  (Utah  1991); see  also  


Schellinger, supra note 13.  


            46         M.F.L., Annotation, Testator's Name in Body of Instrument as Sufficient  


Signature Where Statute Does Not Require Will To Be Signed at End, 29 A.L.R. 891  


(1924) (citing Jones v. Jones, 60 Ky. (3 Met.) 266 (Ky. 1860); Watts v. Pub. Adm'r, 4  


Wend. 168 (N.Y. 1829); Crutcher v. Crutcher, 11 Hump. 377 (Tenn. 1850)).  


            47         In re Kinney's Estate, 104 P.2d 782, 784 (Cal. 1940).  


            48         Estate of Williams, 66 Cal. Rptr. 3d 34, 43 (Cal. App. 2007) (emphasis in  


original) (quoting In re Brooks' Estate, 4 P.2d 148, 149 (Cal. 1931)).  


            49         Hall v. Brigstocke, 58 S.E.2d 529, 533 (Va. 1950).  


                                                                        -17-                                                                   7143

----------------------- Page 18-----------------------


in the text that it was a will.                               The superior court's analysis aligns with these types of                                                       

indicia. And the Baker will is unlike other purported wills courts have rejected based on                                                                                    

perceived incompleteness.                               In  In re Estate of Erickson                           , for instance, the Utah Supreme                

Court determined that an instrument was incomplete because it was written on several   

notecards and there was nothing to "indicate[] that the instrument actually end[ed] at the                                                                                  

bottom   of   the   third   card."51                            Other  courts  have  determined  that  an  instrument  is  


incomplete where the will terminated abruptly, or where text at the end of the document  


suggested that the document would be incomplete without a terminal signature.52  Unlike  


these cases, nothing about the form or content of the Baker will reflects that Baker did  


not conceive of the document as a final disposition of her property or that she wished to  


execute the document at a later date.  


                           The superior court determined that the will was complete.  In doing so, it  


considered  that  (1)  "[t]he  instrument  is  hand  written  on  two  pages  of  decorative  


station[e]ry";  (2)  "[t]he  property  division  appears  to  follow  an  order  of  material  


importance"; (3) "[t]hewriting becomes progressively smallerasthedocumentcontinues  


and ends at the bottom of the second page . . . suggest[ing] that Ms. Baker tried to  


squeeze the last provisions onto the second page"; (4) "the document ends with more  


              50           Id.  

              51            806  P.2d   1186,   1190  (Utah   1991).  

              52           See  In   re   Bernard's   Estate, 239 P.   404,   405   (Cal.   1925)   (holding   that   

handwritten  name   in  the   exordium   clause  was  not   a   signature  because  the   document  

terminated   abruptly  after   a   specific  bequest);  In  re  Estate  of  Fegley,   589  P.2d   80,   82  

(Colo.   App.   1978)   (holding   that   handwritten   name   in   exordium   clause   was   not   a  

signature because  the  phrase "Witness my hand on this 16th day  of  September, 1976"  

followed   by   a   blank   signature   space   indicated   that   the   testatrix   intended   to   sign   the  

document  later);  Davis  v.  Davis,  207  P.  1065,  1067  (Okla.  1922)  (same  phrase  and  result  

as  Fegley).  

                                                                                    -18-                                                                               7143

----------------------- Page 19-----------------------

general property and includes potential (rather than specific) heirs - a reasonable point                                                                                                                                                                                                                                                         

of conclusion"; (5) "[t]here is no room below the final numbered paragraph for any other                                                                                                                                                                                                                                                          

writing"; and (6) "there are no lines or textual indications in text that otherwise suggest                                                                                                                                                                                                                                             

the will required an execution beyond the initial declaration oftestamentary                                                                                                                                                                                                                                      intent." This    

characterization of the document is not in dispute.                                                                                                                                                                  The question is whether this, as a                                                                                                           

matter of law, is sufficient to show completeness.                                                                                                                                                           We agree with the superior court that                                                                                                      

it is.   

                                                        Whaley   and   Milwicz   do   not   purport   to   appeal  the   superior   court's  

determination that the form and content of the document indicate that the document is                                                                                                                                                                                             

complete and appeal only the superior court's "determination that the identification was                                                                                                                                                                                                                                                               

a   signature."     But   Whaley   and   Milwicz   do   make   two   arguments   that   the   will  is  

incomplete.   The first is that some of Baker's assets - a parcel of land on the Kenai                                                                                                                                                                                                                                                       

Peninsula and a deed of trust and promissory note -                                                                                                                                                                            were not disposed of in the will.                                                                                                            

But the fact that the distribution is not totally complete is irrelevant:  the inquiry is not                                                                                                                                                                                                                                                             

whether a decedent completely distributed all                                                                                                                                            of her property, but whether the instrument                                                                                        

                                                                                                                                        53           The second is that Baker had three years between  

is itself a completed instrument.                                                                                                                                                                                                                                                                                                   

penning  the  document  and  passing  away  in  which  to  petition  the  court  for  a  


determination that the purported will was a valid will, and the fact that she did not do so  


"speaks volumesabout [her]intention[]as to whether the purported holographic will was  


valid." But Alaska law does not require a testator to petition a court to validate her will;  


it merely provides that "an interested party may petition the court to determine before the  


                            53                         In re Estate of Erickson                                                                          , 806 P.2d at 1189-90 ("The statutes do not require                                                                                                                              

that a holograph must dispose of all the testator's property, just as there is no such                                                                                                                                                                                                                                                             

requirement for formal wills. 'Completeness' in this context means that the instrument                                                                                                                                                                                                                                     

must   appear   to   be   a   completed   instrument,   not  a   complete   disposition   of   all   the  

decedent's property.").   

                                                                                                                                                                            -19-                                                                                                                                                                   7143

----------------------- Page 20-----------------------


testator's death that the will is a valid will."                                       This argument is therefore unavailing.                                    

Baker's will is complete as a matter of law.                            

V.          CONCLUSION  

                         The superior court correctly concluded that a testator's handwritten name  


in  the  exordium clause  of  a  purported  holographic  will  is  sufficient  to  satisfy  the  


signature requirement in AS 13.12.502(b) unless the instrument is otherwise incomplete.  


It  also  correctly  concluded  that  the  Baker  will  was  complete  when  it  admitted  the  


instrument to formal probate.  We AFFIRM.  


            54          AS   13.12.530  (emphasis  added).   

                                                                            -20-                                                                           7143  

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