A holographic will is a handwritten will made by a person (the “testator”), without the presence of witnesses. The testator is the person who creates the will in order to distribute their property when they pass away. Even though holographic wills are somewhat "homemade," there are certain legal requirements it must meet. Specifically, the will must be:
- Handwritten (not typed or computer generated);
- Dated; and
- Signed by the person making the will.
Are Holographic Wills Considered Legally Valid?
Holographic wills can be legally valid in the eyes of an estate court. The court can review testimony from people who know the testator to help confirm the will’s validity. They can also review testimony from handwriting experts who can help determine whether the holographic will is truly in the testator’s handwriting.
Holographic wills may also carry weight in court because they leave a physical record of the testator’s wishes, a record which oral wills cannot provide.
Holographic wills are considered legal in 25 states. They can be used in various situations where one has little or no estate issues that can arise when they have passed away. Holographic wills are not recommended over self-proving wills (i.e., wills that are signed and that meet all the formalities of a will under state laws). However, holographic wills are recognized more widely than oral wills.
Which States Recognize Holographic Wills?
The status and treatment of holographic wills depends on state laws. But as of August 2019, the states and their laws regarding holographic wills are as follows:
- States the Recognize Holographic Wills: Alaska, Arizona, Arkansas, California, Colorado, Idaho, Kentucky, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, New Jersey, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming.
- States that Do Not Recognize Holographic Wills but Honor Those from Other States: Connecticut, Hawaii, Oregon, South Carolina, Washington, and Wisconsin.
- States that Recognize Holographic Wills Made By Those in the Military: Maryland and New York. Note that these states will void holographic wills within one year of discharge from the military.
Nearly all of 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 also differ from state to state.
Does a Holographic Will Need to Be Fully Handwritten?
The writing requirement regarding holographic wills will depend on the state. Most states require that the material provisions of the will and the signature be handwritten. The term "material provisions" generally refers to the most important parts of the will; that is, what is being given and who it is being given to.
Some states require that the entire holographic will be handwritten. These states require all parts of the will to be written, including the date.
Other states allow pre-printed provisions on a holographic will as long as the testator intended the pre-printed provisions to be part of the will.
If you are unsure of the writing requirements for a holographic will in your state, you should contact a lawyer. If you do use a holographic will, it is recommended that you handwrite the entire will, so as to ensure that the will is valid.
Can I Cancel a Previous Will Using a Holographic Will?
Yes, it is possible to revoke a previous existing will with a holographic will. A will can be revoked or cancelled through a subsequent holographic will, which explicitly voids all prior wills or which contradicts a prior will.
However, in order to revoke prior wills with a holographic will, the holographic will must be valid under state laws. If the holographic will does not meet state requirements, the previous will document might still be valid.
Some testators may attempt to revoke or cancel a will by handwriting "canceled" or "this will is canceled" on the will they are attempting to cancel. Although it may be possible to revoke a will in this manner, this method of revocation is too ambiguous and will often lead to litigation. For instance, parties might dispute whether the word "canceled" applies to a portion of the will or the entire will.
Why Do Courts Generally Disapprove of Holographic Wills?
Most probate courts generally disapprove of the use of holographic wills, even if the courts are in a state which recognizes holographic wills as being valid. So, a testator or a beneficiary of a holographic will can expect probate courts to examine a holographic will more closely than one which meets formal witness requirements.
Courts may disapprove of holographic wills for three main reasons:
- First, people frequently lie about whether a will is actually in the testator’s handwriting. This can happen even if they take an oath to tell the truth. It takes a significant amount of time to determine whether someone is telling the truth or not;
- Second, holographic wills are often sloppily written, especially if the person is ill or incapacitated. Holographic wills are often messy and full of grammatical and/or spelling errors. If the holographic will is too hard to read or understand, a judge might declare that the testator lacked mental capacity to make the will; and
- Finally, testators who make holographic wills often fail to anticipate legal issues that an estate planning attorney might foresee. When these issues do arise, the probate court is left without any guidance on the matter if the person is already deceased.
In other cases, the terms in a holographic will might be too ambiguous. One person may make a holographic will leaving his estate to their "Mother." Although "Mother" might seem obvious, it could be possible the man referred to his wife as "Mother" (mother of his children). If both the man’s wife and his biological mother are alive when the testator dies, it may be very difficult to determine who the testator is referring to.
Should I Hire a Lawyer if I have Issues Regarding a Holographic Will?
Since holographic wills do not require witnesses, a lawyer is typically not needed to draft this type of will. However, writing your own will could lead to many pitfalls and could open your will document up to uncertainty.
Having a wills, trusts, and estates lawyer draft your will can ensure that your interests will be properly protected under the laws in your area. Also, if there are any will contests or disputes, and attorney can provide representation in a lawsuit.