A holographic will is a handwritten will made by the testator without the presence of witnesses. The testator is the person who uses the will to give away their property upon their death. Even though holographic wills are "homemade," there are certain requirements it must meet. Specifically, the will must be:
Holographic wills can be valid because courts can admit testimony from people who know the testator or from handwriting experts to determine whether the holographic will is truly in the testator’s handwriting. Holographic wills also leave a physical record of the testator’s wishes, a record which oral wills cannot provide.
Holographic wills are legal in 25 states and can be used in cases where one has little or no estate issues that can arise when they have passed away. Even though holographic wills are not recommended over self-proving wills, which face less concerns over legitimacy, holographic wills are recognized more widely than oral wills.
Almost all the states listed above require that at least two people be able to testify that the holographic will is actually in the person’s handwriting. Requirements regarding such persons will differ from state to state.
The legal requirement will depend on the state. Most states require that the material provisions and the signature be handwritten. "Material provisions" typically means the most important parts of the will: what is being given and who it is being given to.
Some states require that the entire will be handwritten. These states require everything be written, including the date.
Other states permit preprinted provisions on a holographic will as long as the person who made the will intended the preprinted provisions to be part of the will.
If you use a holographic will, it is recommended that you handwrite the entire will.
A will can be revoked through a subsequent will which explicitly voids all prior wills or which contradicts a prior will. So yes, it is possible to revoke a prior will with a holographic will.
In order to revoke prior wills with a holographic will though, the holographic will must be valid. If the holographic will does not comply with state requirements, the prior will might still be valid.
Some testators may attempt to revoke a will by handwriting "canceled" or "this will is canceled" on the will they are attempting to revoke. Although it is possible to revoke a will in this manner, this method of revocation is too ambiguous and will generate litigation. For instance, parities might dispute whether a will with the word "canceled" written on it applies to a portion of the will or the entire will.
Most probate courts disapprove of the use of holographic wills, even if the courts are in a state which recognizes holographic wills. Thus, a testator or a beneficiary of a holographic will can expect probate courts to examine a holographic will more than a will which meets formal witness requirements.
Courts disapprove of holographic wills for three main reasons:
In other cases, the holographic will might be too ambiguous. One man made a holographic will leaving his estate to his "Mother." Although "Mother" might seem obvious, the man had frequently referred to his wife as "Mother" (mother of his children that is). Since both the man’s wife and his biological mother were alive when the man died, it was very difficult to determine if the man intended to leave his estate to his mother or the mother of his children.
Since holographic wills do not require witnesses, a lawyer is not needed to draft this type of will. However, writing your own will could lead to many pitfalls and open your draft up to uncertainty. Having an estate planning lawyer draft your will can ensure that your interests will be properly protected.
Last Modified: 10-14-2013 12:51 PM PDTLaw Library Disclaimer
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