Wills: Holographic Wills

Which of the following documents would most likely be accepted into probate as a valid holographic will? A dated handwriting, signed "Dad," stating "I hereby devise the ranch to my daughter and the rest of my estate to my son." b. A dated handwriting, captioned "Note to Self," stating "I intend to devise the ranch to my daughter and the rest of my estate to my son." c. A dated handwritten letter, signed "William A. Williams," stating "Dear Attorney Jones: please prepare a will for me reflecting my desire that at my death, my ranch is to go to my daughter and the rest of my estate is to go to my son." d. A dated handwritten diary entry, stating "I, William A. Williams, really need to get off the stick and get going on executing that will so that my daughter, Dottie, can end up with the ranch. That ranch is so valuable! And I will be sure to leave the rest to Sonny, to roughly balance things out. Worst case, they can find this diary entry and know what I have long hoped."

A dated handwriting, signed "Dad," stating "I hereby devise the ranch to my daughter and the rest of my estate to my son."

In a state that recognizes holographic wills, Quasimodo makes out the following will, in his own handwriting: I, Quasimodo, being of sound mind, leave my entire estate to the Society for the Advancement of Bell Ringers, this 4th day of July, 1990. That's the whole thing. Is it a valid will?

According to the modern view (including the UPC), yes. Holographic wills are wills handwritten and signed by the testator. The issue here is whether or not Quasimodo's handwritten name at the top rather than the end of the document can qualify as his signature. Modern courts consider this a proper signing and admit the document to probate as the testator's will. OLDER VIEW: The signature isn't valid when it's incorporated into the holographic will this way. UPC §2-502(b)

How do you determine the authenticity of holographic (handwritten) and nuncupative (oral) wills?

For holographic wills, you determine whether the testator's handwriting is genuine or not. For oral wills, you determine whether the testator's voice is genuine or not. Just kidding. Seriously, for holographic wills, at least some portion of the contents must be in the testator's handwriting, including the signature. Witnesses are not necessary. In some states, the document must consist only of handwriting; in others, only the "material provisions" need be in the testator's handwriting, and under UPC §2-502(b) only "material portions" of the document must be in the testator's handwriting. In some states the handwriting must also include the date, but not under the UPC. Approximately 30 states recognize these wills. Creating a valid nuncupative, or oral will, requires satisfying numerous requirements. Only some 20 states recognize nuncupative wills and they are not valid under the UPC, which requires all wills to be in writing. UPC §2-502

What is a "holographic" will?

It is a will handwritten by the testator and signed by the testator, and typically not witnessed by anybody. Such wills are recognized as valid in about 30 states (although some states also require that the testator date the will). The UPC adopts holographic wills and removes all formal requirements except the requirement that the signature and material portions of the document be in the testator's handwriting. UPC §2-502(b)

One afternoon, having just returned from a friend's funeral and contemplating his own mortality, Marvin sat at his desk and handwrote the following statement, restated here in its entirety: "I, Marvin Marvins, hereby execute this, my last will and testament. At my death, I leave all of my property, wherever situated, to the Red Cross." Marvin then placed the document in his top desk drawer. Perhaps he had a premonition, for Marvin died suddenly the following day. If the Red Cross contacts you for advice over the likelihood of this document's acceptance into probate, what would be your best initial response (pending state-specific research)?

The document might be accepted into probate depending on the jurisdiction's rules regarding holographic wills.

Tess has died, leaving an estate of $1 million, two Swedish cousins as her only living relatives, and a typewritten document titled "Memorandum" that states only "I intend that all of my assets are to be held for my use during life and then distributed to the Tiny Tim Foundation, a charity that helps seriously ill and impoverished children, upon my death." The memorandum is dated and signed by her but not witnessed. What arguments could be made successfully on behalf of the Tiny Tim Foundation?

The memorandum set up a valid trust for Tess for life, remainder to the Foundation The document does not satisfy the requirements of a will in any jurisdiction because it is not witnessed, and it is typewritten so it cannot qualify as a holographic will. The Tiny Tim Foundation can try to argue that the document created a valid trust. The critical issue is whether the language I intend demonstrates sufficient intent to create a trust. Specific language designating the arrangement as a trust is not necessary. The arrangement specifies a trust res and beneficiaries. A trustee is necessary, but Tess could be considered the trustee because she retained control of the assets.

Edgar validly executed Will #1, which disposed of his entire estate to his brother Tom. One year later, Edgar validly executed Will #2, which disposed of his entire estate to his sister Wilma. Will #2 did not contain a revocation clause. Six months later, Edgar validly executed Will #3, which expressly revoked Will #2 and left Edgar's estate to the American Red Cross. Will #3 made no reference to Will #1. One year later, Edgar revoked Will #3 by physical act. At Edgar's death, Will #1 was found among his important papers with an unsigned and undated note on it which read, "This is my will." Edgar was survived only by his brother Tom and his sister Wilma. How should Edgar's estate be distributed?

To Tom and Wilma by intestate succession. A will is revoked by a subsequent will that is inconsistent with the former instrument. (UPC §2-507.) Will #2 revoked Will #1 by inconsistency. Because Will #3 revoked Will #2, but gave no indication that revival of the first will was intended, revival of Will #1 will not occur. See UPC §2-509(c). Thereafter, Edgar validly revoked Will #3 by physical act. Under the revival doctrine, where a later will validly revokes a prior will, and thereafter the testator validly revokes the later will by act, the earlier will is revived as long as the testator intended to revive it and that intent is evident from (1) the circumstances under which the later will was revoked, or (2) the testator's contemporaneous or subsequent declarations. (UPC §2-509(a).) There was nothing about the circumstances surrounding Edgar's revocation of Will #3 that evidences his intent to revive Will #1.

Patricia was preparing for a trip to the Caribbean. She wrote the following and signed it in her own handwriting: I am getting ready to take a cruise. If I don't return from the cruise, I want my entire estate to go to the County Art Museum. /s/ Patricia Patricia took the cruise and returned. One month later, she died. She was survived by her mother and a brother. How should her estate be distributed?

To the County Art Museum A holographic will requires a writing, signed by the testator, with the material provisions in the testator's handwriting, and testamentary intent. (UPC §2-502(b).) Here, there is a writing, signed by Patricia, which sets forth the material provisions. The intent that this should constitute her will, though a bit ambiguous, is evidenced by the phrase if I don't return .... The issue is whether the will was intended to be valid only if she did not return from the cruise. In most jurisdictions, a testator's explanation of her motives in making a testamentary document will not ordinarily be interpreted as a condition to the effectiveness of the document. In re Taylor's Estate; Eaton v. Brown. The inference here would be that Patricia was prompted to make her will at this time because she was about to make the trip, not that she wished her will to be ignored if she returned. The writing is a valid holographic will that devises her estate to the County Art Museum.

Casper realizes that it's almost time to give up the ghost, so he decides to draft himself a will. He writes out the whole thing by hand, and signs and dates it. After that, he decides he wants to add an introductory section detailing how he feels about his life so far. He types up this section and staples it only to the front of the will. Under the modern approach, will Casper's will, including the typed section, be valid as a holographic will?

Yes. That's because the modern trend, as reflected in UPC §2-502(c), requires only that the testator's signature and material provisions (under the UPC material "portions") be in his own handwriting. The issue here is the addition of the typewritten introduction to Casper's will. Holographic wills, which are recognized by 30 states, must be written and signed by the testator. However, under the modern view, the typewritten part will not render the will invalid. The whole thing will be considered valid. RELATED ISSUE: In some states, the existence of any non-handwritten material intended to be part of the will invalidates the whole will. UPC §2-502(c); Rest3d Prop §3.2 Comment b