Preparing a will is typically done by printing out the will in a format that complies with state law regarding such things as the number of witness signatures required, notary provisions, etc. But, what if you find yourself in a situation where there are no witnesses available? Or, what if you come across a handwritten will of someone who has died? Can such wills be valid?
What is a holographic will?
Handwritten wills that are written by the person making the will (called the testator), and have not been witnessed or notarized, are called holographic wills. Wills were in existence long before computers and word processing programs, and long before typewriters. If a handwritten will meets all of the legal requirements for a typed will (such as being witnessed or notarized), it is a valid will, but it is not a holographic will.
Is a handwritten will legal?
The validity of a will is a matter of state law. Holographic wills are only valid if made in one of the following states (but requirements may vary from state to state): Alaska, Arizona, Arkansas, California, Colorado, Idaho, Kentucky, Louisiana (where it is called an olographic testament), Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, New Jersey, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming.
Some of these require that the entire will be in the testator’s handwriting, while others only require that the material provisions (that is, the provisions that designate the property and who is to receive it) be in the testator’s handwriting. If only the material provisions need to be handwritten, it may be possible to use a last will and testament form that has blanks for the testator to handwrite in such provisions. Of course, it will be helpful to know how to write a will using appropriate language commonly used in wills. A few states also require that the will be dated (California, Louisiana, Michigan, Nebraska, and Nevada).
Holographic wills made in one of the above states may also be recognized in the following states: Connecticut, Hawaii, South Carolina, Washington, and Wisconsin. Also, a holographic will that has been admitted to probate in a state that recognizes holographic wills may be recognized in Alabama, Delaware, Iowa, Minnesota, New Mexico, Oregon, or Rhode Island, if it also disposes of property in one of these states.
In Maryland, a holographic will made outside of the United States by a member of the United States Armed Forces will be recognized until one year after the member is discharged from the service.
In New York, a holographic will is valid only if it is made by a member of the United States Armed Forces “while in actual military or naval service during war, declared or undeclared, or other armed conflict”; by “a person who serves with or accompanies an armed force” so engaged; or by a mariner at sea. It must be entirely handwritten; and will only be valid until one year after the member is discharged from the service, one year after the person ceased serving with or accompanying the armed force, or three years after made by a mariner at sea.
When would someone write a holographic will?
The most common time for someone to make a holographic will is when he or she is in imminent danger of death, and has not already made a will or wishes to change a will. Typical examples of such situations would include a soldier on the battlefield, someone lost in the wilderness who doesn’t expect to survive, a person on an airplane about to crash, or a person trapped in a burning building.
In order for a holographic will to be valid, it must:
- Be entirely in the testator’s handwriting, or the material provisions must be in the testator’s handwriting (depending upon the state)
- Indicate the testator’s intent to make a will (as opposed to, for instance, just some notes being used in anticipation of drafting a will)
- Clearly describe the property, and identify the beneficiaries to whom the property is to be distributed
- Be signed by the testator (some states also require that the will be dated).
Proving a holographic will in court
To prove the validity of a holographic will, many states require the testimony of various types and numbers of witnesses. Some require the testimony of witnesses who saw the testator write and sign the will, while others require witnesses to identify the handwriting as that of the testator. The handwriting may be identified by people who know the testator and his or her handwriting, or by the testimony of a handwriting expert.
In North Carolina, testimony is also required to establish that a holographic will was: “Found after the testator’s death among the testator's valuable papers or effects, or in a safe-deposit box or other safe place where it was deposited by the testator or under the testator's authority, or in the possession or custody of some person with whom, or some firm or corporation with which, it was deposited by the testator or under the testator's authority for safekeeping.”
As with any will, a holographic will could be contested for a number of reasons, such as a claim that the testator lacked the mental capacity to make a will (this is presumed unless there is evidence to the contrary).
Writing a will as a holographic will should only be done in an emergency situation as a last resort—and only if you know such a will is legally accepted in the state or states where you have property. It is much better for you to make your own will that complies with your state’s laws, and has the necessary number of witnesses.