Valid Holographic Wills Add Spice To Estate Planning

The general rule in all fifty states is that, in order for a Last Will and Testament to be legally valid, the will must be signed by at least two witnesses. Although I recommend that all readers consult an attorney that can make sure that wills and other legal instruments follow the proper procedures, the fascinating storylines and questions tend to occur when people take matters into their own hands and exercise their freedom to ignore convention protocols.

One example is holographic wills, which refer to a will that you handwrite you a sign. It is one of only three exceptions to the standard requirement that you must obtain two witness signatures on the document (the purpose of witnesses is to verify that the testator actually signed the will, and this requirement can be sidestepped when the testator handwrites the will himself because a handwriting expert could determine authenticity in the event of a will contest).

Holographic wills are permitted in all 16 states that follow the Uniform Probate Code, as well as the 17 states that have adopted by statute Uniform Probate Code Section 2-502(b).

The case law world for holographic wills is just absolutely bizzare, to put it mildly.

One issue is that drafters of holographics wills often create ambiguities. One man handwrote a will shortly before his death that left $225,000 to “Martha”, and the rest to his children. What was the will contest about? The man’s wife was named Martha, the mother was named Martha, and he apparently had a mistress named Martha who also claimed the funds. The mistress’ attorney hired a white-shoe Alabama law firm who creatively argued that the reason for the omission was because the man was sheepish about naming his mistress as the beneficiary to his estate, and would have encountered social rebuke if he included the last name. The mom argued that his prior wills (executed prior to his second marriage) named her as a beneficiary, and therefore, she was intended to be included. The wife argued that the context of the “and the rest to children” as well as the legal presumptions of grants in favor of a spouse entitled her to the money. These are the types of fun issues that can arise.

Another issue is that the drafter of a holographic will may omit to dispose of certain assets or may be imprecise in disposing of particular property. One of the first rules that an estate planning attorney learns is that all will documents ought to have a residuary clause, which covers dispositions that are not formally granted–i.e. If your will gives the house, car, and cash to your surviving spouse, and your second car to an only child, what happens to the gold coin collection that you owned and maintained from before your marriage? A residuary clause, frequently excluded in holographic wills, identifies individuals who will receive the household items, investments, and other property that you do not specifically grant in your will.

An example of an imprecise bequest might be something like this–imagine you own 500 shares of Coca-Cola stock and you decide to draft a will that states, “I give my 500 shares of Coca-Cola stock to John.” You die ten years later, after reinvesting all the quarterly dividends, and your Coca-Cola share count sits at 748 shares at the time of death. What happens to those additional 248 shares? (If there is a residuary clause in favor of Mary, then she would get the 248 shares, which may not match your original intent).

The real risk with a holographic will is not that the will is drafted and signed by hand, but rather, that it is non-professionally prepared and may contain the class of ambiguities, omissions, or imprecisions mentioned above.

I can only think of four scenarios when it would make sense to have a holographic will that is drawn-up by hand rather than professionally prepared: (1) you truly trust no one having any knowledge of your business whatsoever; (2) you believe that you will die soon and do not have time or money to solicit professional resources; (3) you will get a lawyer-drafted will soon, but want to have a will in place in the event of your unexpected death before you get around to drafting the will; and/or (4) you hate dealing with lawyers under any circumstances.

Holographic wills are really cool documents to look at–the solemnity of seeing handwritten documents after the writer’s death makes you feel a connection to the supernatural that a typewritten pages lack. There is a cinematic cache to them. But if there any unique aspects of your estate, or you can foresee a will contest over your remaining assets, the issue with a holographic will isn’t that the document is handwritten so much as it may lack the particular components that only a professional would know.