The handwritten will
California law allows handwritten wills to be valid as, “holographic wills” if they meet the requirements of section 6111 of the Probate Code. That a person can informally write a handwritten will means that anyone who is unable, for any reason, to see an attorney in a timely manner can nonetheless legally express their testamentary intentions in an enforceable holographic will. That approach, however, is not without its risks.
To be valid, the signature and the material provisions of a holographic (handwritten) will must be in the handwriting of the testator (will maker). That is, either the testator handwrites the entirety of the holographic will or the testator fills in (completes) the material provisions on a pre-printed stationary will form.
Unlike a trust, a will cannot be oral: A spoken declaration of testamentary intent is not a valid, enforceable will. An oral trust, however, can be valid and enforceable, if its oral terms can be proven. Nevertheless, the standard for establishing a trust, like executing a will, is always to state the trust in writing.
Unlike a standard attorney drafted will, that must be witnessed by two persons during the testator's lifetime, a holographic will does not have to be witnessed at all. That is, the testator can simply write, date and sign a written will document. In addition, the will must show testamentary intent, that is, show that the will maker is intending to make a will (e.g., I hereby declare this to be my last will and testament).
In addition, the holographic will should, of course, be dated. If the will is undated then this may result in problems with enforcing the undated will. Such as, if there is another will offered for probate, that is dated, then California law provides that the undated handwritten will is negated to the extent that there are any inconsistent terms, as if the handwritten will had been signed before the dated will (Probate Code section 6111(b)(1)).
Also, “if it is established that the testator lacked testamentary capacity at any time when the will might have been made then the will is invalid unless it is established that it was executed at a time when the testator had testamentary capacity.” (Probate Code section 6111(b)(2)).
A shortcoming with the “do it yourself” hand written will (that is not even on a pre printed form) is that the testator may not know how to properly write a handwritten will. For example, the testator may not know about waiving the bond requirement for an executor to be appointed as personal representative. Sometimes the bond premium is prohibitively expensive given the proposed executor's credit worthiness. A testator, however, can waive that requirement. Another problem is that the testator may neglect to include alternative beneficiaries in the event that the named (intended) beneficiaries do not survive to inherit.
If the meaning of some portion or all of a will, whether holographic or standard will, is unclear, then so-called extrinsic evidence (e.g., written or testamentary evidence that is outside of the written will) can be offered to help resolve what is otherwise unclear in the will. Naturally, if a will is unclear and extrinsic evidence becomes necessary, then this situation may likely result in a dispute and a will contest.
A handwritten will, however, can be very helpful when a person is unable to see an attorney in a timely manner. Consider someone who does not expect to live long enough to make their appointment with their estate planning attorney. That person may reasonably decide that a handwritten will is their best available option. Also, consider someone who is travelling and similarly wants peace of mind, that person may also want to write a handwritten will as a temporary measure.
The foregoing brief discussion is not legal advice. Consult a qualified attorney for guidance. Dennis A. Fordham, attorney, is a State BarCertified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at Dennis@ DennisFordhamLaw.com