The examples and perspective in this article may not represent a worldwide view of the subject. (April 2011) (Learn how and when to remove this template message)
A holographic will is a will and testament that has been entirely handwritten and signed by the testator. Traditionally, a will must be signed by witnesses attesting to the validity of the testator's signature and intent, but in many jurisdictions, holographic wills that have not been witnessed are treated equally to witnessed wills and need only to meet minimal requirements in order to be probated:
- There must be evidence that the testator actually created the will, which can be proved through the use of witnesses, handwriting experts, or other methods.
- The testator must have had the intellectual capacity to write the will, although there is a presumption that a testator had such capacity unless there is evidence to the contrary.
- The testator must be expressing a wish to direct the distribution of his or her estate to beneficiaries.
Holographic wills are common and are often created in emergency situations, such as when the testator is alone, trapped, and near death. Jurisdictions that do not generally recognize unwitnessed holographic wills will accordingly grant exceptions to members of the armed services who are involved in armed conflicts and sailors at sea, though in both cases the validity of the holographic will expires at a certain time after it is drafted.
Holographic wills often show that the requirements for making a valid will are minimal. The Guinness Book of World Records lists the shortest will in the world as "Vše ženě" (Czech, "everything to wife"), written on the bedroom wall of a man who realized his imminent demise and made a swift attempt to distribute his chattels before expiring. It clearly meets the minimum requirements, being his own work and no one else's. On 8 June 1948 in Saskatchewan, Canada, a farmer named Cecil George Harris who had become trapped under his own tractor carved a will into the tractor's fender. It read, "In case I die in this mess I leave all to the wife. Cecil Geo. Harris." The fender was probated and stood as his will. The fender is currently on display at the law library of the University of Saskatchewan College of Law.
Law in various jurisdictionsEdit
The following states recognize holographic wills made within the state, though witnessing requirements vary: Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Idaho, Kentucky, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, New Jersey, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming.
The following states do not recognize holographic wills made within the state, but recognize such wills under a "foreign wills" provision (i.e., the will was drafted wholly within, and in accordance with and is valid under the laws of, another jurisdiction): Hawaii, Iowa, Louisiana (which refers to it as a "foreign testament" provision.), Oregon, South Carolina, Washington, and Wisconsin.
Maryland and New York recognize holographic wills only if made by members of the Armed Forces. In both states any such will is void one year after that member's discharge from service “unless the testator … does not then possess testamentary capacity” under Maryland law (Md. Estates and Trusts Code Ann. § 4-103(b) (2013)) and for one year after the testator regains testamentary capacity under New York law (NY Est Pow & Trusts L § 3-2.2(d) (2012)).
Indiana and Missouri have no statutes making references to holographic wills.
All other states not listed do not recognize a holographic will in any instance.
Selected excerpts from state statutes in United States jurisdictions that recognize holographic wills: (NOTE: The list is not exhaustive)
- Louisiana – under the Louisiana Civil Code such a will is known as an "olographic testament," and must be proved by the testimony of two credible witnesses that the testament was entirely written, dated, and signed in the testator's handwriting.
- Texas – under the Texas Estates Code (which replaced the prior Texas Probate Code), "a will written wholly in the testator's handwriting is not required to be attested by subscribing witnesses." However, a holographic will can be self-proved at creation by the testimony of two witnesses, both of whom must be at least age 14 when the will was formed (similar to a regular will); in addition, "[s]uch a will may be made self-proved at any time during the testator's lifetime by the attachment or annexation thereto of an affidavit by the testator to the effect that the instrument is his last will; that he was at least eighteen years of age when he executed it (or, if under such age, was or had been lawfully married, or was then a member of the armed forces of the United States or of an auxiliary thereof or of the Maritime Service); that he was of sound mind; and that he has not revoked such instrument." But if the will was not self-proved, at probate "a will wholly in the handwriting of the testator may be proved by two witnesses to his handwriting, which evidence may be by sworn testimony or affidavit taken in open court, or, if such witnesses are non-residents of the county or are residents who are unable to attend court, by deposition, either written or oral, taken in accordance with Section 51.203 [of the Texas Estates Code] or the Texas Rules of Civil Procedure."
- Utah – upon clear and convincing evidence proof the decedent possessed intent to make a valid will, signed by the testator with material portions of the document in the testator's handwriting, and describing specific bequests with reasonable certainty. No witnesses required.
- Virginia – upon clear and convincing evidence proof the decedent possessed intent to make a valid will, signed by the testator, the will must be wholly in the handwriting of the testator (handwriting proven by at least two disinterested witnesses or the will was written in the presence of one disinterested witness if executed before 1922).
In the United Kingdom, unwitnessed holographic wills were valid in Scotland until the Requirements of Writing Scotland Act 1995 which abolished the provision; such wills written after 1 August 1995 are now invalid in England, Wales, Scotland, and Northern Ireland.
In popular literatureEdit
- Advanced Introduction to Private Law, by Jan Smits, page 109
- On Campus News, January 23, 2009: The Last Will and Testament of Cecil George Harris
- Laws on holographic wills by State
- "La. C.C.P. Art. 2888 (2011)".
- Or. Rev. Stat. § 112.255.
- Iowa Code § 633.283.
- "La. C.C.P. Art. 2883 (2011)".
- Texas Estates Code, Section 251.052.
- Texas Estates Code, Section 251.107.
- Texas Estates Code, Section 256.154.
- Utah Code Ann. § 75-2-502 (2011).
- Utah Code Ann. § 75-2-511 (2011).
- Utah Code Ann. § 75-2-513 (2011).
- Va. Code Ann. § 64.1-49.1 (2011).
- Va. Code Ann. § 64.1-49 (2011).
- Va. Code Ann. § 64.1-55 (2011).
- Wills and Probate: a consumer publication. London: Consumers' Association; p. 72