In some states, a handwritten, or holographic, will is valid even without witnesses if certain conditions are met.
Preprinted wills with filled-in sections, or “hybrid wills,” are almost never valid without witnesses.
Validating a holographic will involves proving that it is the person’s handwriting and that they were of sound mind when writing it.
It is very easy to contest a holographic will, and they often do not stand up, so they should only be used in extreme circumstances.
The wills you are probably used to seeing are carefully crafted legal documents, created according to state laws by an estate attorney, and witnessed by two neutral third parties. Following these specifications, wills are legally binding guides to the bequests and wishes of the person whose estate is being distributed.
Occasionally, however, a will is completely handwritten without the help of a lawyer and is not officially witnessed. This is also known as a holographic will.
A holographic will can be a valid legal document if it was created in a state that recognizes such wills, as long as it follows state guidelines. Many states only recognize holographic wills in limited circumstances (e.g., an active-duty soldier in times of combat), and roughly half of the states do not recognize holographic wills at all. If you encounter a holographic will, the critical first step is contacting the probate court for the state in which the will was created to find out what guidelines are in place.
Generally, in states where it is recognized, a holographic will is an option for a person who meets a three-pronged test: their death is imminent, no other will exists, and no witnesses are available. Sometimes loved ones cannot afford an attorney or do not have the resources to meet with one, so a holographic will is their best choice for making their wishes known.
A holographic will is a document that is entirely handwritten by the person (either in cursive or in print) and is not witnessed or notarized. The date should appear at the top. The contents of the will might include the person’s full name and address, a declaration that these decisions were made with a sound mind, complete bank account details, detailed descriptions of bequeathed items, full names of beneficiaries, a legible signature, and the date when it was signed. (Electronic signatures may invalidate a holographic will’s validity.) To make sure the instructions in the will are fulfilled, someone is usually named to the role of executor, as well as that of guardian when the interests of minor children or other dependents are involved.
Some people will include explanations of why specific bequests are to go to one party rather than another, as well as why they selected a certain person, such as a caretaker or relative, to help them create the document. This helps establish mental soundness and intent, should the matter go to court.
Problems and complications with holographic wills are common. They often don't conform to state law, and it can be difficult to prove their validity as there were no witnesses.
Some people also choose to create a supplementary video will, in which they are recorded reading the will aloud. Although these are not valid on their own, in conjunction with a written will, a video recording can help confirm the person’s identity and mental soundness.
Ideally, the completed documents are placed in a sealed envelope, and the will’s creator sends themselves the packet by certified mail, essentially sending mail to themselves to corroborate intent. When it is delivered, they sign for it and staple the signed receipt to the envelope. They then store the will in a safe place, such as a safe-deposit box, wall safe, or fireproof cabinet.
If some portions of the document are handwritten and some are computer-generated or pre-printed text with blanks filled in by hand, this is known as a “hybrid will.” Document templates are increasingly common and readily available from legal websites or office supply stores. Unfortunately, most states do not recognize hybrid wills at all if they are not witnessed, because they do not display a large enough sample of the person’s handwriting, particularly if the clauses that leave property are preprinted.
Problems and complications with holographic wills are common. They often don’t conform to state law, and it can be difficult to prove their validity as there were no witnesses.
Without witnesses, a will written by a sick or dying person may be deemed invalid if the document has not established mental wellness and sound mind. The intent of the document may also be questioned. Is it a real will? Were these just notes and thoughts in preparation for a formal will? Any clauses within the document that address these issues support validation.
In addition, if someone was the person’s caretaker and they are also a beneficiary of the will, many jurisdictions require them to prove that they did not have any undue influence over the person at the time that they wrote the will. Without corroborating language and the support of witnesses, this is hard to prove.
In most cases of a probate challenge, there must be evidence that the handwriting is that of the will’s author, and at least three competent witnesses must testify that they believe the will was written and signed entirely in the person’s handwriting. These may be people who were familiar with the person’s handwriting or even an expert in handwriting analysis.
Furthermore, there generally must be at least one witness who testifies that the will was found among the person’s valuable papers, in a safe-deposit box or other safe place, or that the will had been left with someone for safekeeping.
If the will is ultimately declared invalid, the probate process continues as if there were no will; the court determines the rightful heirs to the estate based on state law. Usually, the estate is divided among surviving relatives based on blood relation, with spouse and children having first claim.
The existence of a holographic will can compound the grief of family and friends because of the necessarily distressing end-of-life circumstances their loved one was experiencing, as well as the complicated process for the will’s probate. In the event that a holographic will is challenged in court, the process can be long and expensive, depending on the size of the estate and the litigiousness of any overlooked potential heirs ●
If a holographic will is judged by the probate court to be a valid will, then it is the person’s legal and binding will, unless an even newer will is found. Any earlier will is thus superseded by the new will once it is validated.In some cases, the probate court may take the contents of the earlier will into consideration when determining the validity of a holographic will, as the changes between the two may give some evidence of the person’s state of mind and intentions when creating their handwritten will.If the holographic will cannot be validated, the earlier will is considered the legally binding will, assuming it is valid.
There are many, but some of the most common are a missing date or a missing signature, printed elements or letterhead, a different writer’s handwriting, evidence that the writer was not of sound mind such as references to beneficiaries or assets that do not exist, evidence of undue influence by a beneficiary, or insufficient proof of the validity of the handwriting.
By definition, a holographic will is a will that is not officially witnessed. If there are witnesses to the will, it is a regular will, no matter if it is handwritten or typed, or if a lawyer was involved. (Using a lawyer is helpful, however, to make sure the will is valid and not challenged).Although a holographic will is not witnessed, several witnesses will almost certainly be called on by the probate court to testify on matters such as the person’s state of mind when they wrote the will and that this is their own handwriting.
Whether or not your loved one left a will, you will need to make sure their property is passed on to the right people. With a will, inheritance will follow your loved one’s wishes; without it, state law will decide. Either way, following these rules will ensure that your loved one’s life and legacy are properly honored.