Senior Voice -

By Kenneth Kirk
For Senior Voice 

Oh no! Another holographic will

 

June 1, 2019



Seated across the desk from me is the dejected widow. Arrayed around her are her children, there to give support. The mood is sad, as it always is in the days after a husband and father has died.

“I’m very sorry to hear of your husband’s passing,” I say, “please tell me what I can do to help.”

She sighs. “Apparently there were some assets which were just in my husband’s name. I understand we’ll have to go through probate. Can you tell us how to do that?”

“Certainly,” I say, then ask a key question: “Did he have a will?”

“He did,” she says, brightening just a little, and hands me the papers.

I now have two pieces of paper in my hand. The document is obviously printed out from a computer, in typical Courier font, single spaced, and beginning with “I hereby make the following as my last will and testament”. After that there are quite a few details as to who should get what and who the executor should be, and then at the end, his original signature, and a notary’s signature and stamp.

I am about to have to tell some very sad people some even sadder news.

This isn’t a valid will.

For a will to be acceptable to the court, it has to be one of two types. It can be a witnessed or “regular” will, or it can be holographic. Normally a will has two witnesses who have signed after the testator. Alaska law says that this is what is normally required for a will. Oftentimes a will also has a notary who has verified the identities of the testator and the witnesses. This is called a “self proving affidavit” and it is very useful, but it is not an actual requirement. The key requirement for a regular will, is that it was signed in front of two witnesses.

Not signed in front of a notary. Signed in front of two witnesses. The notary is a helpful extra, but the will still requires two witnesses. And this gentleman’s will was not signed in front of two witnesses.

The other kind of will is called a holographic will. For a will to be valid as a holographic will, it does not have to be signed in front of two witnesses. It has to be clear that the person intended it as a will, and it has to be signed. But the key to a holographic will is that the “material portions” have to be written in the testator’s own hand. Parts of it can be typed, but the main, substantive portions of the will have to be written by the testator (or printed by hand by the testator, for those of you who still realize there is a difference. But since this particular set of laws does not distinguish between handwriting and hand-printing, I won’t either).

The will this dear lady has just handed me, is not written in her husband’s hand. He signed it, but the material portions are typed. Under Alaska law, and in fact under the laws of most states, it is not a valid holographic will. And since it does not qualify as a regular witnessed will, either, it is completely useless.

At this point some of you might be scratching your heads, thinking that you have heard of cases where someone, for instance, wrote out a will in crayon on the back of a brown paper bag, and it was accepted by the court. Yes, it likely would be. If the material portions were written in the testator’s own hand, and it was signed, it would count as a valid will. Crayon or otherwise.

Mind you, I am not recommending you have a holographic will. I have seen a lot of them, and most have at least something wrong with them. Writing a will, even a fairly simple one, is an art. For example, most people don’t know that “property” can either refer to real estate, or to assets in general. Oftentimes people don’t adequately account for all of the possibilities. For instance, an heir could die before them, or the person they chose as executor might not be able to accept the position, or there might be unexpected debts which change the size of the estate. Or any number of other contingencies that people don’t often think of.

But if you have a holographic will, at least you have a will. Which is more than this lady in my office has.

I hate to be the bearer of bad news.

Kenneth Kirk is an Anchorage estate planning lawyer. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult a professional who can take all the facts into account, and then put something together which will not be in crayon.

 
 

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