Subject matter:Holographic wills and pretermitted heirs
Date Decided:March 23, 2021
Trial Court:District Court of Grady County (J. Brauer)
Route to this Court:On certiorari from a decision of the Court of Civil Appeals (Division III) affirming the trial court.
Facts:The decedent left a holographic will leaving everything to a grandson. The will made no mention of the decedent’s daughter or son. Decedent’s son requested that the trial court determine that he was a pretermitted heir. The trial court determined that the omission of the son as a beneficiary was not accidental and that the face of the will showed the testator’s intent to omit the son. The Court of Civil Appeals affirmed on the basis that the test for a pretermitted heir does not apply to holographic wills (a question that the Court of Civil Appeals stated was an issue of first impression in Oklahoma). 
Standard of Review:Not stated, but presumably de novo with respect to the applicability of  84 O.S. §132 to holographic wills and then abuse of discretion as to the trial court’s determination that the testator’s will evidenced intent to omit his son. 
Analysis:The application of the pretermitted heir statute (84 O.S. §132) to holographic wills is well settled. The test for a pretermitted heir is not whether it was an unintentional omission, but rather whether it appears on the face of the will in strong and convincing language that the omission was intentional. The will in this case was not ambiguous, therefore, extrinsic evidence of the testator’s intent is not admissible. The recent case of In re Estate of James, 2020 OK 7, set out the many ways a person can express in his or her will the intention to omit to provide for a child. The will in this case contains no such expression of the testator’s intent. The testator neglected to list either of his two children or acknowledge their existence. The son was pretermitted in his father’s will. 
Outcome:Court of Civil Appeals decision vacated; Trial court reversed and the cause remanded for distribution of the estate consistent with this decision. 
Vote:8-0. Opinion by J. Kauger. All other Justices concur. 
Other: The daughter was also pretermitted, but she did not argue that she was in the trial court. The appellee also argued that the will was not a valid holographic will because the testator printed some of the words and wrote others in cursive. The statute requires that a holographic will be “written” by the hand of the testator. The Court noted that handwriting is done with a writing instrument, by hand, and includes both printing and cursive styles.