The Dangers of Holographic (Handwritten) Wills

There are two types of wills: (1) holographic and (2) non-holographic. Non-holographic – or typed, witnessed and attested wills – are the most common and the type that people are most familiar with. A holographic will is a will written entirely in the handwriting of the testator and signed by that individual. It does not require witnesses to its signing, which many may find appealing. However, this presents dangers in and of itself. When probating, or recording, a holographic will in a Virginia court, there must be at least two people who can testify that the document is written in the person’s handwriting. If there is no one that is familiar with the individual’s handwriting and that can testify that the document was written by that person, it may not be admitted by the court as a valid document.

Additionally, the terms of a holographic will are often ambiguous. Though a testator may use a word or phrase with a certain meaning in mind, the failure to make such a meaning explicit and clear can create probate problems for those attempting to interpret the document after the testator’s passing. The testator may have thought that the writing was completely clear as to his wishes, however, most handwritten documents are short and bare leaving many unanswered questions. For instance, suppose a holographic will leaves the testator’s estate to his favorite nephew, without naming that nephew, or to “John,” when there are two or more family members named John. The testator surely knew who his favorite nephew was or which John he was speaking of but others interpreting the document may have no way of knowing.

Another issue is that holographic wills often fail to name an successor executor or contingent beneficiaries in the event that the named executor and/or beneficiaries are no longer living. What happens if the person you want to inherit your property predeceases you? Who do you want to oversee the handling of your estate? These are all critical questions that holographic wills ordinarily do not address. 

Finally, as noted above, holographic wills usually go through a more complex probate process than normal wills. For instance, the authenticity of a handwritten document may be called into question. Many holographic wills do not have witnesses to their creation, giving no proof that the testator wrote it. Legibility can also be an issue with handwritten wills. If these issues cause disagreement among potential heirs, a hearing in court will decide the distribution of the assets and belongings. 

These are just a few of the pitfalls and dangers to using holographic wills. To ensure that your will is admitted to probate and that your estate passes to those that you intend, it is best to have a non-holographic will with two witnesses to the execution of the document. Additionally, a  self-proving affidavit signed by the testator, two witnesses and a notary is usually attached to the back of the will to ensure that the will is accepted by the appropriate court as a valid legal document.

ASK THE ATTORNEY

Client: Are all financial planners the same?

Attorney: No! Be wary of people who call themselves financial planners who appear more interested in selling you specific financial products at the expense of your real needs and goals. A genuine financial planner can help you address a variety of financial needs, not just investments, insurance or taxes. Moreover, not every financial planner is a CERTIFIED FINANCIAL PLANNER. CFP professionals have an ethical obligation to act in your interest.

ASK TEDDY

Hook Law Center: Teddy! Have you heard of Wally the Walrus?

Teddy: I have! And what an amazing summer adventure he appears to be having, albeit unusual for walrus’s! Wally’s adventures around the British Isles began on March 14, when a 5-year-old girl walking with her father first spotted the blubbery guy plonked down on the rocks of Valentia Island in County Kerry, Ireland. At the time, a marine biologist speculated that the animal had fallen asleep on a drifting iceberg. Can you believe it! From there, Wally headed south for warmer waters and has been spotted around France, Spain and Wales before spending six weeks on the Cornish coast. Now that’s what I call a European vacation!

Walruses are only rarely spotted so far south of the Arctic Circle, where they typically hunt for shellfish in shallow water and rest on nearby beaches and icebergs. The first-ever recorded walrus sighting in Ireland occurred in 1897. In the more than 120 years since then, fewer than two dozen additional walruses have been spotted in Ireland. Wally is believed to be from Norway.