In a previous post, I addressed whether you need an attorney to draft your will. In it, I briefly discussed the handwritten will, otherwise known as the holographic will. In this post, I will provide a more in-depth discussion on the subject.
Requirements of the Holographic Will
A holographic will is a last will and testament written completely in the testator’s handwriting. To qualify as a valid will, the entire document must be in the handwriting of the testator and must be clearly marked as the testator’s “Last Will and Testament.” The testator must also sign the will. Many states, including Arkansas, recognize the validity of holographic wills and will thus allow their courts to probate them.
Holographic wills provide the easiest and cheapest manner of acquiring a will; after all, it doesn’t cost anything simply to write down your wishes on a piece of paper. They do, however, come with some significant risks. A lack of understanding of the will may result in a property distribution scheme contrary to your intent. In addition, a failure to provide for your entire estate or to describe your property accurately may result in some or all of your property passing down through the Arkansas intestacy statute.
Finally, the validity of a holographic will is more difficult to prove than that of a traditional will. Both the testator’s handwriting and intent must be established.
Whereas a will is normally signed by the testator in the presence of two witnesses, whose attestation can—if done correctly—easily prove the will’s validity, the validity of a holographic will is more difficult to establish. A court must be able to determine with certainty that the will’s handwriting is that of the testator before probating it. This will generally require the testimony of at least three people familiar with the testator’s handwriting and perhaps even a handwriting expert.
In addition, the testator’s intent must be clearly established. For a traditional will, the formalities associated with its execution and the presence of witnesses can easily establish that the testator intended the document to be his or her last will and testament. With a holographic will, however, it must be clearly established that the testator intended the document to be his or her last will and testament, not notes of his or her ideas for a will or simply some stray ramblings recorded in passing and quickly forgotten.
Difficulties in Probate
These issues create an extra burden when attempting to probate a holographic will. In addition, if the evidentiary burden of validity cannot be satisfied, the will could be rejected, and the testator’s property could be distributed according to the Arkansas intestacy statute.
The cinematic cliché of an isolated individual scrawling down last wishes while quietly awaiting death illustrates the quintessential purpose of the holographic will. Indeed, because of the difficulties such wills create, their utilization should generally be limited to such extreme circumstances.