In Defense of the Holographic will

 

This guest post is from Perri Lembo, Regent Law December 2022 graduate:

67% of Americans have no estate plan. Although that number is affected by the relative lack of estate planning among the young, even older populations are neglecting to plan for the disposal of their assets after their demise. While 33% of those with no plan claim that they don’t have enough assets to leave to their loved ones, 13% said they didn’t make a will because estate planning is too costly and 12% said they don’t even know how to get a will. But in the absence of a will, a deceased person’s assets will pass according to the laws of intestacy, which may not be in accordance with the wishes of the decedent, especially if that person has an estranged relationship with his spouse or children or if she has only distant relatives left alive that she isn’t as close with as her friends.

To avoid the sometimes-undesirable results of intestacy, one can make a will or pass his property along under a trust or some other non-probate form of succession. Many people are unaware of these latter options- but they are aware of the ability to make a will. The Wills Act formalities, however, are onerous in most states, typically requiring that the will be in writing, signed by the testator (the person who wants to dispose of the property), in the presence of two witnesses (which some jurisdictions require to be “disinterested”- people who do not have an interest in the property and who are not able to take under the will or intestacy), and also signed by the witnesses in the presence of the testator. (the “presence” requirement is often very literal and requires a careful choreography of watching and signing by all involved). Some states also have additional requirements. An attorney is typically needed to make sure that all of the requirements are met, a service that may be costly. Additionally, the process of creating a formal will must often be initiated and arranged well in advance of a death, making the creation of this document impossible or impracticable should a sudden illness or fatal injury occur.

Holographic wills, on the other hand, do not need to comply with the Wills Act. They do not need witness signatures or other formalities. In most cases, the holographic will need only be written in the testator’s own handwriting and signed by the testator. The will can be made instantly by the testator in response to a rapidly progressing illness or an accident that will quickly lead to death. In one case, a court even sent to probate a will that was scratched onto a tractor fender with a knife by a dying man. This will was written by a man whose legs and lower body were pinned by the tractor after an operational mistake caused him to become trapped in the mechanism. He knew that he was going to die from this freak accident and without any ability to summon help, he had no choice but to scratch his last will and testament onto the only surface in front of him- the tractor that was about to kill him. Without the validity of holographic wills, this man’s wishes would have remained unexecuted. While a situation such as that which occurred to the unfortunate farmer seems unlikely, sudden deaths, including from sometimes-silent illnesses such as heart disease, account for 180,000 to 450,000 yearly deaths in the U.S. Unless these individuals have already made wills when they were in good health, they will die intestate if they live in a state that does not recognize holographic wills.

Not having a holographic will as an option also harms people who cannot afford to spend money on a lawyer or cannot spare the time and attention it takes to follow all the steps of creating a formal written will. Recognition of holographic wills means greater accessibility of estate planning.  

While over 30 states recognize holographic wills, some of these states, such as New York, only recognize such wills when they are made by particular individuals in specific circumstances, such as by members of the US armed forces serving during a time of war. States that do not recognize holographic wills are removing an option to dispose of one’s property according to one’s own particular wishes, which may be quite different from the outcome under the laws of intestacy.

While there are many good arguments to oppose holographic wills (they may be worded in an imprecise or ambiguous way, the handwritten and unwitnessed nature can call into question their validity, they may be difficult to locate), I believe that all of these arguments are outweighed by the increase in accessibility of the will-creation process in general. Of course, a formal will written under the supervision of a lawyer and complying with all the Wills Act formalities will make for a smoother probate process than a handwritten will. But a handwritten will is better than no will at all. I believe that more states should make holographic wills valid, while making the public aware of the benefits of a formally written will, so that people who have the time and the means to get a better will can obtain one, while those who lack one or both of these resources still have a chance to make their wishes known before it is too late.

P.S.  But just in case you need a little guidance, try Professor Kohm's latest book, Estate Planning Success Just for Women at https://www.amazon.com/Estate-Planning-Success-Just-Women-ebook/dp/B0BXQR358J.