Beneficiary from Holographic will loses appeal for home sale

Court finds holographic will is a patent ambiguity so extrinsic parole evidence unavailable to help beneficiary claim proceeds from home saleIn re Estate of Matthews, 13 Neb. App. 812 Filed August 30, 2005. No. A-04-022. Melissa Matthews appeals from an order construing a holographic will and determining that part of the estate passes pursuant to intestacy. The sole devise of the will stated: “I want Melissa to get all proceeds from the money that is left and from all contents in the house.” The county court determined that the will did not dispose of the decedent’s interest in real estate being purchased under contract and occupied as the decedent’s personal residence. The Court of appeals affirms Melissa also requests that we consider the extrinsic evidence adduced at the hearing. Melissa argues that a court can consider evidence outside the will, not for the purpose of interpreting the will, but, rather, for the purpose of considering the circumstances under which it was made.Melissa also requests that we consider the extrinsic evidence adduced at the hearing. Allemand v. Weaver, 208 Neb. 618, 305 N.W.2d 7 (1981) however in that case the Nebraska Supreme Court therein considered a patent ambiguity, which it resolved from within the four corners of the will and without consideration of extrinsic evidence. In re Estate of Dimmitt, 141 Neb. 413, 3 N.W.2d 752 (1942), that case concerned whether a separate document—an undelivered deed of real estate—was incorporated into and made a part of the will by specific language therein. In that case, the Supreme Court was faced with determining under what conditions an extrinsic document may be incorporated into a will. In the case before us, the will purports to be complete on its face and makes no reference to any extrinsic document.the Nebraska Supreme Court has stated that parol evidence is inadmissible to determine the intent of a testator as expressed in his or her will, unless there is a latent ambiguity therein which makes his or her intention obscure or uncertain. Scriven v. Scriven, 153 Neb. 655, 45 N.W.2d 760 (1951).a patent ambiguity,is one where the same word in a will has two meanings discernible from the face of the will itself, a latent ambiguity, is one where a word has two meanings but only when extrinsic evidence is brought to bear. Because the ambiguity in the instant case is patent, we reject Melissa’s contention that we may consider extrinsic evidence and we confine our analysis to the four corners of the will.Because we reject Melissa’s contention regarding the proper interpretation of the decedent’s will, Melissa’s assignment of error lacks merit. We therefore affirm the order of the county court.