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:
- Written (not typed or computer generated)
- Signed by the person making the will
Are Holographic Wills Valid?
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.
Which States Recognize Holographic Wills?
- The following states 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.
- The following states do not recognize holographic wills made in the state, but recognize holographic wills made outside the state: Connecticut, Hawaii, Oregon, South Carolina, Washington, and Wisconsin.
- The following states recognize holographic wills made by individuals in the military. Note that these states will void such wills within one year of discharge from the military: Maryland and New York.
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.
How Much of the Will Must Be Handwritten?
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.
Can I Revoke a Prior Will Through a Holographic 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.
Why Do Courts Disapprove of Holographic Wills?
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:
- First, people frequently lie about whether the will is actually in the testator’s handwriting, 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. Although handwriting experts are more neutral, such experts tend to be expensive.
- Second, holographic wills are often sloppy. Holographic wills are often messy and full of grammar and/or spelling errors. If the holographic will is too hard to understand, the judge might declare that the testator lacked mental capacity to make the will.
- Finally, testators who make holographic wills often fail to anticipate issues that an estate planning attorney might foresee. When these issues arise, the probate court is left without any guidance on the matter. For example, what happens if a beneficiary dies before the testator? Who receives the property then?
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.
Do I Need a Lawyer When Drafting My Will?
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.