No. 02-267 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2002 MT 341 

IN THE MATTER OF THE ESTATE OF 

EARL M. JOHNSON, Deceased. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Richland, 

The Honorable Richard G. Phillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Loren J. O'Toole II, O'Toole & O'Toole, Plentywood, Montana (For Roger 

Johnson) 

For Respondent: 

Patrick C. Sweeney, Patrick C. Sweeney, P.C., Billings, Montana (For 

Russell Johnson) 

 Submitted on Briefs: August 15, 2002 

Decided: December 23, 2002 

Filed: 

__________________________________________ 

Clerk
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Justice Jim Regnier delivered the Opinion of the Court. 

¶1 Roger Johnson, son of the deceased Earl Johnson, appeals the 

summary judgment of the Seventh Judicial District Court, Richland 

County. The District Court found that a holographic document 

executed by Earl was a list of how Earl wanted certain personal 

property to be distributed rather than a codicil to his formally 

executed will. We reverse and remand. 

¶2 We address the following issue on appeal: 

¶3 Did the District Court err in its application of the Uniform 

Probate Code, § 72-1-101, et seq., to the holographic document 

executed by Earl Johnson? 

BACKGROUND 

¶4 Earl Johnson died testate and was survived by two sons, Roger 

and Russell Johnson. Earl had executed a formal will on May 25, 

1990. Russell was appointed personal representative of Earl’s 

estate and offered the May 25, 1990, will for informal probate 

proceedings. After Russell filed the Final Account and Personal 

Representative’s Sworn Statement to Close Estate, his brother Roger 

filed a petition for a formal probate. At issue was a holographic 

document executed by Earl shortly before his death. The document 

is merely a list of some of Earl’s possessions and names. It is 

entirely in Earl’s handwriting and is signed and dated. 

¶5 In the informal probate proceeding, Russell treated the 

document as a list detailing to whom Earl wished certain property 

to be distributed. Roger alleged the document constituted a 
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codicil to the will. Whether the document is a list or a codicil 

is significant to the disposition of Earl’s estate. 

¶6 On cross motions for summary judgment, the District Court 

granted summary judgment in favor of Russell, concluding the 

holographic document is a list rather than a codicil. Roger 

appeals. 

STANDARD OF REVIEW 

¶7 Our standard of review in appeals from summary judgment 

rulings is de novo. Motarie v. N. Mont. Joint Refuse Disposal 

(1995), 274 Mont. 239, 242, 907 P.2d 154, 156. When we review a 

district court’s grant of summary judgment, we apply the same 

evaluation as the district court based on Rule 56, M.R.Civ.P. 

Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 

901, 903. In Bruner, we set forth our inquiry: 

The movant must demonstrate that no genuine issues of 

material fact exist. Once this has been accomplished, 

the burden then shifts to the non-moving party to prove, 

by more than mere denial and speculation, that a genuine 

issue does exist. Having determined that genuine issues 

of material fact do not exist, the court must then 

determine whether the moving party is entitled to 

judgment as a matter of law. We review the legal 

determinations made by a district court as to whether the 

court erred. 

Bruner, 272 Mont. at 265, 900 P.2d at 903. (Citations omitted.) 

DISCUSSION 

¶8 Did the District Court err in its application of the Uniform 

Probate Code, § 72-1-101, et seq., MCA, to the holographic document 

executed by Earl Johnson? 

¶9 In the order granting summary judgment in favor of Russell, 

the District Court first examined Earl’s formal will, which 
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provides for distribution of tangible personal property. To that 

effect the will states: “If I have left any memoranda on the 

subject of the division or distribution of such property, the 

legatee or legatees under this paragraph shall distribute such 

tangible personal property in accordance with the terms of such 

memoranda.” The District Court correctly points out that § 72-2-

533, MCA, allows a testator to leave such a list of tangible 

personal property. The District Court goes on to state that 

pursuant to § 72-2-523, MCA, such a document could be treated by 

the Court as a holographic will if the proponent of the document 

establishes by clear and convincing evidence that the decedent 

intended the document or writing to constitute (1) the decedent’s 

will; (2) a partial or complete revocation of the will; (3) an 

addition to or alteration of the will; or (4) a partial or complete 

revival of the decedent’s formally revoked will or of a formally 

revoked portion of the will. The District Court then concludes 

that the holographic document written by Earl does not show any 

intent by Earl that the document should constitute his complete 

will. Therefore, the District Court determined that the 

holographic document was a personal property list pursuant to § 72-

2-533, MCA, rather than a codicil. 

¶10 On appeal, Roger asserts the District Court erred in its 

analysis by applying § 72-2-523, MCA. Roger argues the District 

Court should have applied § 72-2-522, MCA, which pertains to 

holographic wills. As Roger notes, § 72-2-523, MCA, only applies if 

the requirements of § 72-2-522, MCA, have not been met. Russell 
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responds that the holographic document cannot be a will or codicil 

because it does not demonstrate testamentary intent on its face. 

¶11 We agree with Roger that the District Court erred by applying 

§ 72-2-523, MCA, and that it should have analyzed the holographic 

document under the statute that applies to holographic wills, § 72-

2-522, MCA. Section 72-2-523, MCA, provides: 

Although a document or writing added upon a document was 

not executed in compliance with 72-2-522, the document or 

writing is treated as if it had been executed in 

compliance with that section if the proponent of the 

document or writing establishes by clear and convincing 

evidence that the decedent intended the document or 

writing to constitute: 

(1) the decedent’s will; 

(2) a partial or complete revocation of the will; 

(3) an addition to or an alteration of the will; or 

(4) a partial or complete revival of the decedent’s 

formerly revoked will or of a formerly revoked portion of 

the will. 

Relying on this statute, the District Court placed the burden on 

Roger to establish Earl’s intent by “clear and convincing 

evidence.” Roger correctly points out that § 72-2-523, MCA, is 

inapplicable if the document meets the requirements of § 72-2-522, 

MCA. 

¶12 There are three requirements for a valid holographic will in 

Montana. First, individuals must be at least eighteen years of age 

and of sound mind. Section 72-2-521, MCA. Second, a holographic 

will meets the formalities of execution if its material provisions 

are in the handwriting of the testator and signed by the testator. 

 Section 72-2-522, MCA. Finally, the individual must have 

testamentary intent; he must intend that the document will dispose 

of his property after death. See Estate of Ramirez (1994) 264 
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Mont. 33, 36, 869 P.2d 263, 264; Estate of Coleman (1961), 139 

Mont. 58, 359 P.2d 502; In re Van Voast's Estate (1954), 127 Mont. 

450, 266 P.2d 377; In re Augestad's Estate (1940), 111 Mont. 138, 

106 P.2d 1087. 

¶13 Everyone agrees that Earl meets the first requirement. 

Therefore we need only focus on the second two requirements for a 

valid holographic will: the formalities of the document and the 

testator’s intent. 

¶14 Section 72-2-522(2), MCA, which governs holographic wills 

specifically, states in relevant part: 

(2) A will . . . is valid as a holographic will, whether 

or not witnessed, if the signature and material portions 

of the document are in the testator’s handwriting. 

(3) Intent that the document constitute the testator’s 

will may be established by extrinsic evidence, including, 

for holographic wills, portions of the document that are 

not in the testator’s handwriting. 

¶15 Applying § 72-2-522, MCA, to the instant case, we find that 

the holographic document authored by Earl satisfies the statutory 

requirements of § 72-2-522(2), MCA. It is undisputed that the 

signature and material portions of the document are in Earl’s 

handwriting. Our inquiry into the second requirement ends there. 

¶16 After having determined that the first and second requirements 

for a valid holographic will are satisfied, we turn to the third: 

testamentary intent. Did Earl intend the document to be a codicil, 

or did he intend it as a list of how he wished certain property to 

be distributed as permitted under § 72-2-533, MCA? 

¶17 Roger and Russell invited the District Court to decide this 

issue by filing cross motions for summary judgment. As stated 
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above, the District Court mistakenly analyzed Earl’s intent under 

the provisions of § 72-2-523, MCA, which required Roger to prove 

that the writing was a holographic will by clear and convincing 

evidence. However, the proper inquiry should have been first made 

under § 72-2-522, MCA. 

¶18 The parties should have the opportunity to present evidence on 

the issue of Earl's intent in a trial so the trier of fact can 

decide this matter under the correct standard. There is no 

definite fixed rule for determining testamentary intent, but each 

case must stand on its own peculiar facts and circumstances. 

Augestad, 111 Mont. at 138, 106 P.2d at 1088. On the basis of the 

record before us, we conclude that Earl’s intent is a question of 

fact to be decided by the District Judge or a jury, pursuant to § 

72-1-208, MCA. 

¶19 Reversed and remanded for proceedings consistent with this 

Opinion. 

/S/ JIM REGNIER 

We Concur: 

/S/ KARLA M. GRAY 

/S/ JAMES C. NELSON 

/S/ PATRICIA COTTER 

/S/ JIM RICE