Nielson

Arthur G. Nielson (contestant) opposed the admission to probate of the will of his deceased nephew, Lloyd M. Nielson (testator). At the close of contestant’s evidence, the trial court granted the proponent’s motion for judgment made pursuant to Code of Civil Procedure section 631.8, denied the contest and admitted the will to probate. The court found contestant had failed to meet his burden of proof to overcome the presumption of validity of the will. The court concluded there was no evidence to show that the testator had made the strikeover, interlineations appearing on the face of his 1969 will.

Contestant appeals asserting his evidence had established the absence of any valid will and therefore testator’s estate was required to pass by rules of intestate succession to the nearest heirs-at-law.

Facts

Testator executed a typewritten witnessed will dated February 25, 1969 (1969 will) disposing of the bulk of his estate to his mother. If the mother predeceased him, it would go to the Salvation Army of San Diego, the Braille Club of San Diego, the San Diego County Association for Retarded Children, and the National Anti-Vivisection Society *800 (Chicago, Ill.)…

I agree the judgment must be reversed.

The writing by the decedent constitutes a valid holographic codicil, under the authority of Estate of Plumel (1907) 151 Cal. 77 [ 90 P. 192 ] and its progeny including Estate of Atkinson (1930) 110 Cal.App. 499 [ 294 P. 425 ]. I am unable, however, to reconcile Plumel and Atkinson with Estate of Baker (1963) 59 Cal.2d 680 [ 31 Cal.Rptr. 33 , 381 P.2d 913 ], Estate of Christian (1976) 60 Cal.App.3d 975 [ 131 Cal.Rptr. 841 ], and Estate of Helmar (1973) 33 Cal.App.3d 109 [ 109 Cal.Rptr. 6 ], If the rationale of the latter three cases were to be followed here, the interlineations would have the effect of integrating relevant printed *809 matter from the decedent’s 1969 will to revise the entire document in accordance with the decedent’s later wishes. This result would be contrary to the “unambiguous expression of legislative intent” embodied in Probate Code section 53. (Estate of Helmar, supra, 33 Cal.App.3d 109, 114 .) Different holdings in this area of the law should not turn on the alleged semantic differences between the phrases “incorporation by reference” or “integration.” I doubt whether our holding erodes Probate Code section 53 “under…