June 15, 2011

Holographic Wills

1. What is a holographic will? 

A holographic will is a will written, as least to the material provisions, in the testator’s handwriting and signed by the testator. 

2. Does California recognize holographic wills? 

Yes, California recognizes holographic wills. Prob C § 6111. 

3. Does a holographic will require witnesses or a date or both? 

A holographic will actually requires neither a date nor attestation by witnesses. Granted, it would be foolish to not date the will because if the holographic will is not dated and an inconsistent will exists, the probate court will consider the holographic will to be invalid invalid to the extent of the inconsistency unless it is shown that the holographic will was executed after the other will. Prob C §6111(b)(1). 

4. Does anybody write a holographic will? 

Yes, some people still write holographic wills, although this scant amount decreases over time because of the ubiquity of word processing software. I know of very few people who do not own a computer. 

5. Are holographic wills still relevant? 

Yes, an appellate court decision involving the validity of a holographic will of a Santa Clara County resident was rendered only a few years ago. Estate of Williams (2007) 155 CA4th 197. 

6. Are holographic wills ripe for fraud? 

Yes, as is the case for estate planning instrument, holographic wills are ripe for fraud but even more so on the account that no witnesses are present and no date is required. Even though a trust does not require witnesses, it is customary to have the settlor’s signatures notarized. Conversely, in the case of a holographic, neither law nor custom compels a testator to have the will be attested to by a third party. Thus, it is easy to try to pass off a holographic will as authentic when in fact it is a fake. 

7. What other problems are associated with holographic wills? 

As demonstrated by Estate of Williams, a seemingly half-baked testamentary document was admitted into probate because the testator had shown the requisite testamentary intent to write a will. Estate of Williams (2007) 155 CA4th 197. For example, the words "Last Will, Etc. or What? Of Homer Eugene Williams" appeared at the top of the document. The document was never signed by the testator as the top of the document was the only place where the testator’s name was found. Finally, the document only disposed of a portion of the testator’s estate.

The lesson from Estate of Williams is that a document which might shows some testamentary intent could be deemed a holographic will even though the testator might have intended it to be a rough draft. Since a holographic will can be completed in a few sentences, it is not very difficult to draft a holographic will. 

8. How long does a holographic will need to be? 

According to California case law, not especially long. In a famous California Supreme Court case (I read this case during law school) the following was the complete version of the testator’s valid holographic will. Estate of Russell (1968) 69 C2d 200.

Front side of small card:   "Turn the card
                                         March 18-1957
                                         I leave everything
                                         I own Real &
                                         Personal to Chester
                                         H. Quinn & Roxy Russell
                                         Thelma L. Russell"

Back side of small card:    My ($10.) Ten dollar gold
                                        Piece & diamonds I leave
                                        to Georgia Nan Russell.
                                        Alverata, Geogia”

The main reason for the case’s relevance is because “Roxy Russell” was the testator’s dog and outright gifts to an animal are void. Estate of Russell (1968) 69 C2d 200. If an animal owner wishes to leave property to their pet, they may do so through a pet trust. Prob C § 15212.