The Case Against A Holographic Will

In California, you can make a will in one of three ways:

A will prepared by a California lawyer. A qualified estate planning lawyer can make sure that your will conforms with California law. The California attorney can also offer suggestions and help you understand the many ways that property can be transferred to or for the benefit of your beneficiaries. I, as a California lawyer, can also help you develop a complete estate plan and offer alternative plans which may save taxes. This kind of planning can be extremely helpful and economical in the long run for you and your beneficiaries. No matter what kind of will you use, the will should be solely your will and not a joint will with your spouse or any other person.

Also, keep in mind that your will is not a living will. The term living will is used in many states to describe a legal document stating that you do not want life-sustaining treatment if you become terminally ill or permanently unconscious.

A statutory will. California law provides for a “fill-in-the-blanks” will form. The will form is designed for people with relatively small estates. If there is anything you do not understand or if you are making any provisions which are complicated or unusual, you should ask a qualified lawyer to advise you.

A handwritten or holographic will. This will must be completely in your own handwriting. You must date and sign the will. Your handwriting has to be legible, and the will must clearly state what you are leaving and to whom. A handwritten will does not have to be notarized or witnessed. However, any typed material in a handwritten will may invalidate the will. A typed will must be signed by two witnesses. It is a good idea to consult with a qualified lawyer to make sure your will conforms with California law and does not have any unintended consequences.

Richard Lewis Brown (Professor of Law, University of Nevada, Las Vegas) has published “The Holograph Problem–The Case Against Holographic Wills”, in 74 Tenn. L. Rev. 93 (2006).

Here is the introduction:

Holographic wills are a problem on several different levels. They are a problem to the coherence of the law of wills, to the decedents who have relied on them to guide the distribution of their estates, and to the court systems that must grapple with their chronic issues of validity and interpretation.

Holographic wills are entirely or largely in the handwriting of the decedent. Yet the term “holographic will” is not simply descriptive of the form of the will or whether it is handwritten, typed, or printed. Rather, it is a term of considerable legal significance.

In just over half of the states, a will that qualifies as a holographic will can be admitted to probate without attestation. As a result, statutes that authorize holographic wills create an exception to the nearly universal rule that a valid will must be witnessed.

Holographic will statutes are not simply anachronisms fading quietly out of favor. In fact, over the last half-century, there has been a modest increase in the number of states authorizing holographic wills. In these states, a motley parade of home crafted documents have been admitted to probate, ranging from hand completed pre-printed will forms, to excerpts from the most casual of letters, to a handwritten note on the back of a receipt, to informal notes, to eight handwritten words on the back of a greeting card, to a handwritten marriage contract. More troubling, similarly artless instruments that almost certainly were intended by their creators to be valid wills have been denied probate.

Why do many states authorize the creation of such problematic wills? The announced purpose is to allow for the creation of valid wills by those who are unable or unwilling to obtain the professional assistance of a lawyer. But in doing so, holographic will statutes have constituted a legislative invitation to create homemade wills. Therein lies the fundamental problem with holographic wills; they are invariably homemade, either in whole-as in the common case of a totally handwritten will, letter, or memorandum that is submitted for probate as a holographic will-or in part-as in the common case of handwritten entries on pre-printed will forms. Because they are invariably homemade, holographic wills present a range of chronic and unnecessary problems.

Part II of this Article places holographic wills in the context of the broader law of wills, including a brief discussion of the goals of the law of wills, the functions of the required formalities of execution, and the evolving movement toward “deformalizing” the law of wills. This is most notably evidenced by the development of the substantial compliance doctrine and the dispensing power.

Part III outlines and provides examples of significant problems inherent in holographic wills, including their susceptibility to invalidation and frequent issues of interpretation.

Part IV focuses on the central weakness of holographic wills-the fact that they are invariably homemade, drafted by amateurs without professional advice, and executed without any formalities.

Part IV, further argues that by encouraging the creation of such problematic testamentary instruments, statutes that authorize holographic wills undermine the ability of testators to effectuate their testamentary intentions.

Finally, Part V makes three proposals: First, that statutes authorizing holographic wills be repealed; second, that states avoid the unnecessary invalidation of imperfectly executed wills-including handwritten, un-witnessed wills that are unlikely to be completely eradicated by the repeal of holographic will statutes-by adopting the substantial compliance doctrine or the dispensing power; and, third, that state legislatures and the practicing bar provide more satisfactory mechanisms than holographic wills for lawyer-resistant testators who currently use holographic wills.

To speak with a qualified estate planning attorney in California about this and other federal estate tax topics, contact Mitchell A. Port at 310.559.5259.