What Is A Holographic Will And Does It Stand Up To Legal Scrutiny?

What is a holographic will? A holographic will is a handwritten will signed exclusively by the individual making the will. State laws vary regarding the legality of holographic wills.

Some states recognize holographic wills only from active members of the military.

Other state probate courts require two witness signatures on a holographic will to confirm the will’s validity.

History of Handwritten Wills

Holo– means “whole” in Latin; -graphic means “written.”Before typewriters existed, all wills were holographic. With the more widespread creation of typewritten wills over a century ago, the use of the term holographic declined. However, situations remain in the 21st century where a person may needs to make a handwritten will. For example, a person is severely injured at work and writes a short will on a notepad before going into surgery. The majority of holographic wills are created by people sudden threats to their lives.

Legal Aspects of a Holographic Will

Signature

Although a notary or witness doesn’t need to be present when someone creates a handwritten will, the maker/writer of the will must sign it. To avoid fraud, handwriting experts, or family members, will sometimes evaluate signatures on holographic wills. However, the court has the final say regarding whether the signature is authentic and solely written by the testator.

Beneficiaries

All wills must explicitly name at least one beneficiary entitled to take possession of the testator’s property. A testator making a holographic will can write one sentence to meet most state requirements regarding the validity of a written will. The handwritten sentence, “I leave all my property, bank accounts, and stocks to my wife upon my death,” accompanied by a legible signature, typically ensures a decent measure of validity in most state probate courts.

Voiding Previous Wills

Previously created wills (handwritten, typewritten, or computer-generated) may be voided by a newly written will. The testator must state they want to void previous wills by asserting that the holographic will makes them “null and void” (invalid). Depending on state laws, holographic wills claiming to invalidate wills created by an attorney may be at risk of contention by family members in probate court.

Testamentary Capacity

Testamentary capacity is a legal term referring to a testator’s ability to understand the consequences of their will. Suppose a family member argues that the testator of a handwritten will was not of “sound mind” when they wrote the will. In that case, a probate court may order an investigation into the condition of the testator’s mind when the will was written. This investigation typically involves whether the testator has been diagnosed with a severe mental illness, Alzheimer’s disease, or other health problem affecting cognitive functioning.

State Laws Regarding Holographic Wills

Currently, 20 states do not recognize the validity of handwritten wills:

  • Washington
  • Oregon
  • New Mexico
  • Maryland
  • District of Columbia
  • Rhode Island
  • Connecticut
  • Massachusetts
  • South Carolina
  • New Hampshire
  • Alabama
  • Georgia
  • Indiana
  • Wisconsin
  • Illinois
  • Missouri
  • Iowa
  • Kansas
  • Minnesota
  • Ohio

State laws vary in the way they recognize the validity of holographic wills. For example, the state of Washington does not recognize unwitnessed handwritten wills. However, a handwritten will signed by two witnesses is considered legally valid by WA probate courts. However, the two witnesses signing the will must not be named as beneficiaries or related to beneficiaries described in the will. Otherwise, Washington probate judges wouldn’t accept the holographic will as valid and binding.

New York does not recognize holographic wills, even if they are witnessed unless the will has been written by an active member of the U.S. Armed Forces (all branches). Arkansas only considers handwritten wills valid if they are signed by three witnesses who must also attest to the authenticity of the testator’s signature.

A few states, like Indiana, have no statutes regarding the legality of holographic wills. However, Indiana’s probate laws talk about nuncupative wills. Individuals near death and who do not have a will can dictate their will to at least two witnesses. Additionally, a nuncupative will issued by a testator who died while experiencing “impending peril” must be put in writing under the direction of one or more witnesses within 30 days. Once a nuncupative will is put in writing, it must be sent to a probate court within six months following the testator’s death.

How Holographic Wills are Contested in Probate Court

Handwritten wills can be contested for the same reasons attorney-created wills can be contested. A family member may question the mental health of the testator, claim the testator was “forced” to write the will in a certain way, or claim the will is a forgery. Beneficiaries named in a handwritten will often find themselves dealing with probate court due to a family member’s contention that a will is invalid.

Successfully fighting a contended holographic will without an attorney’s assistance involves:

  • Complex legal research.
  • Filing of time-sensitive documents.
  • Ensuring you understand handwritten laws established in your state.

Hiring an attorney with experience in litigating probate matters is the best way to achieve your desired results.

What a Probate Attorney Does When a Handwritten Will is Contested

After determining if the holographic will is genuinely authentic, probate attorneys carefully evaluate why the will is being contested. Suppose the attorney believes the handwritten will is authentic, and that it complies with state laws. In that case, the litigation begins with the attorney gathering evidence to counter the claims made by the petitioners. Such evidence may include other family members, doctors, psychiatrists, and close friends of the deceased.

People who commonly contest a will include individuals legally capable of inheriting some or all of the decedent’s assets. Children, grandchildren, siblings, spouses, aunts, uncles, and even business partners may contest a handwritten will, especially if the decedent did not name them as beneficiaries of an estate. Children under 17 years old typically can’t contest a holographic will until they are 18. However, a guardian or executor could challenge a holographic will on behalf of a minor.

Example Case of a Contested Holographic Will

Dave’s 80-year-old mother, Anna, died unexpectedly at home after a lengthy illness. He hired a nurse–Teresa–to take care of his mother 24/7 because he lived 500 miles away from his mother. Dave tells his lawyer that Anna told him years ago she had a will created by an attorney in which she left him all her possessions. Dave had no reason not to believe her and did not pursue the matter further.

However, Anna’s nurse presents Dave with a holographic will written on an unlined piece of white paper. She claims Anna wrote the will two days before she died. Dave recognizes his mother’s handwriting and signature. He also notices the handwritten will states that “all other wills made by Anna B. are null and void.” Remarkably, Anna also states in the will that she wants all her possessions to go to Teresa because “Teresa took such good care of her during her illness.”

Suspecting Anna coerced his mother into writing the will, Dave hires a lawyer immediately. After investigating the nurse’s background for several weeks, the lawyer uncovers evidence essential for winning Dave’s case. Teresa had a history of caring for dying patients and presenting holographic wills to the deceased’s loved ones. Although convicted of fraud twice, Anna worked as a home nurse for Dave and Anna because the nursing agency failed to perform a proper background check. Consequently, Dave’s lawyer succeeded in winning the case in probate. Dave took possession of his mother’s assets, and Anna received jail time for fraud.

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