Holographic Wills (aka handwritten Wills)
A holographic will is one where at least some of the text of the will is handwritten. The handwriting serves as evidence that the testator wrote the will; hence, holographic wills do not need to be witnessed. However, the lack of witnesses introduces some potential problems:
- fraud or undue influence;
- no witnesses to testify as to whether the testator had the legal mental capacity to write a will;
- whether the document was intended to be a will;
- the will may be indecipherable;
- because the handwriting may have to be verified by an expert witness and could be challenged, the cost of probate will be increased.
The law concerning holographic wills differs among the states:
- some states don't recognize holographic wills at all;
- others require that the entire will be in the handwriting (holograph) of the testator;
- while others require that significant portions and material provisions of the will be in handwriting;
- material provisions always includes provisions disposing of property, the creation of any trust, and the appointment of the executor.
- at least 1 state — Pennsylvania — doesn't require witnesses even if the entire document is printed, except for the required signature, of course;
- and Nevada allows electronic wills that don't require attestation, but must have both an electronic signature, which is an electronic image of the testator's handwriting and at least 1 authentication characteristic, such as an image of the testator's retinal scan or fingerprint, as well as other storage requirements.
The requirements of holographic wills to make them valid under the law differ somewhat from the Wills Act formalities that govern printed wills. Although all wills must be in writing, this requirement is met implicitly by the definition of the holographic will.
Some states require that a holographic will be dated, but many do not, including those states that have adopted the Uniform Probate Code (UPC). While a date may not be required, it would certainly behoove the testator to date the will, especially if the will is stored with other documents written by the testator or if the testator wrote multiple versions of his will. The date would help to decide which version of the will was the last one, which is the one that will be probated.
A holographic will must be signed by the testator. If the testator is unable to sign his name, then he could use any mark that is intended to be his signature. However, unlike witnessed wills, unwitnessed holographic wills cannot be signed by anyone else, since that would invite fraud.
Although most states don't require it, the will should be signed at the end of the document (subscribed), because there may be questions as to whether anything written after the signature was intended to be part of the will.
Some jurisdictions require that testamentary intent — the intent that the document is to be the last will and testament — be in the testator's handwriting. Some judges will even just look at the handwritten words to determine if there was a testamentary intent, and if testamentary intent cannot be inferred from the handwriting, they will invalidate the will.
The modern approach, expressed by UPC §2-502(c), is that testamentary intent can be handwritten, printed, or inferred from extrinsic evidence.
Invalidating Preprinted Forms
I can only speculate that the main purpose for requiring that testamentary intent be handwritten is to invalidate preprinted forms that are available in books or generated by software, since preprinted forms save money for the testator by eliminating the expensive fees of estate planning lawyers. Because most preprinted forms already have printed the testamentary intent part — and why not, since the same words can be used to signify testamentary intent for anyone — the testator reasonably believes that there is no need to write the purpose of the document. Preprinted forms can work fine for a small, uncomplicated estate, especially since someone with a small estate probably doesn't have money for lawyers. After all, lawyers make extensive use of boilerplate language in their documents (it works for them!) and still charge a hefty fee anyway.
My reasoning is based on the purported rationale that an extensive handwriting sample helps a handwriting analyst to determine whether the writing is actually the testator's. But since the will's longest components are the material provisions, and if they are handwritten, then why does the testamentary intent have to be handwritten, especially since most expressions of intent will be short: "This is my last will." Indeed, if a judge was really concerned about the lack of handwritten material to make a firm determination about whether the writing is actually the testator's, then she should just say so, but I don't see how the few words expressing testamentary intent will make a difference in any case, whence my conclusion that if a jurisdiction requires that testamentary intent be in handwriting, then its purpose is to invalidate preprinted wills, even when the preprinted will expresses testamentary intent and would otherwise be a perfectly valid will that distributes the testator's property according to his wishes.