May 26, 2020

Holographic Will

A holographic (i.e. hand-written) will is permitted in California provided the material provisions are in the testator's hand-writing (the person writing the will) and is signed by the testator. Probate Code §6111(a).

A recent unpublished appellate opinion focused on the signature's location in the holographic will.

The holographic will in question read:

"I Harry Edward Mitchell of [¶] Being Sound Man, Quit Claim my wife [¶] Debra Mitchell the house at [¶] 21600 Calle Degado Yorba Linda [¶] And all contents and cars [¶] At the residents."

The objectors of the will argued that the will was invalid primarily because it lacked a signature. The appellate court disagreed and held that the lack of a signature was not fatal to the will's validity. A prior case, Estate of Williams (2007) 155 Cal.App.4th 197, held that writing one's name at the top of the document satisfied the signature requirement if the document was otherwise complete. Similarly here, the testator had written his name at the top of the document and it was otherwise complete. While the will's verbiage was not grammatically sound, i.e. "at the residents," the tesator's intent was clear. The testator wanted to leave the majority (if not all) of his estate to his spouse.

Estate of Mitchell, Orange County Superior Court, Case No. 30-2017-00896904.   

If hypothetically the holographic will was invalid, Mr. Mitchell would have died intestate (without a will). Consequently, his community property would have been distributed to his surviving spouse, the petitioner in this matter. Probate Code §6401. Mr. Mitchell's separate property would have been distributed to his surviving spouse and his children, the objectors in this matter. Probate Code §6402.  

I should mention that this case had two variables which portend litigation, a step-parent/step-child relationship and a holographic will. In the case of the latter component, a holographic will does not require attestation. Thus, it is entirely possible that the testator can write their will privately whereby it is a complete mystery to everybody on earth. Naturally relatives and friends might hear about such a will, but there is no person who can definitively say that they saw the testator sign their will in their presence and they signed such document as a witness.