A holographic will is a handwritten will. Many states recognize holographic wills, though some do so only under certain circumstances. Part of a will’s validity is determined by certain formalities that must be observed in its formation and execution. Holographic wills tend to fail in states that strictly require wills to be witnessed at their signing.
The formalities involved in making a will generally serve two functions. First, they reinforce to the individuals involved in the process that an important, legally binding agreement is being made. Second, they make it easier for a court to later verify the authenticity of the will. Holographic wills present a unique challenge because they are usually not witnessed. Occasionally, letters in which an individual attempts to provide instructions about the disposition his property are presented as holographic wills.
Each state has its own requirements for wills, and there is even some variation amongst the states that permit holographic wills as to what’s required for their validity. At minimum, the will must be written in the hand of the testator. This prevents false wills purportedly dictated by the testator from being recognized, and prevents later handwritten additions or modifications by other individuals. A holographic will must also be signed and dated by the testator in her own handwriting. Some states require the entire will be in the testator’s hand, while others require this only of material provisions, or those which dispose of property.
A holographic will generally does not have to be witnessed because the presence of the will in the testator’s own handwriting authenticates it as her own wishes. But, for this same reason, emails and type-written holographic wills cannot be valid because they are not written and signed in the testator’s handwriting. If a holographic will is not witnessed, it cannot be a self-proving will in the states where such wills are recognized, because a self-proving will require affidavits from witnesses.
Interpreting Holographic Wills
Other than authenticity, one of the major concerns regarding holographic wills is interpretation. A formal will drafted by a lawyer usually uses clear legal terms that give the probate court instructions on how to dispose of the testator’s estate. A handwritten will that is not drafted by a legal professional is more likely to suffer from ambiguities or inconsistencies that pose problems during probate.