What Is a Holographic Will in California?
Any Will that has been written out by hand and signed by the testator is a Holographic Will; compared to the Will created by an Attorney which would be called a Statutory Will. These are traditionally created in emergency situations, such as when the Will maker is alone and close to death or for some other reason unable to do a proper Statutory Will at that time. A Holographic Will should be seen as a temporary solution, not a permanent solution. One famous example concerns Cecil George Harris, a Saskatchewan farmer who, seriously injured and trapped beneath an overturned tractor, scratched his dying wishes onto the fender. The fender was reviewed by the court and stood as his Will. While few Wills are made in such extreme circumstances, the Harris fender raises a key point about Holographic Wills – they don’t need to follow the “usual” rules for Will making.
What Are the Rules for Writing a Holographic Will in California?
There are only four requirements for a Holographic Will to be valid in California:
- The Will must be made in the Will maker’s handwriting, either entirely or as part of a commercially printed “fill in the blanks” form Will
- The Will maker must intend the document to be a Will
- The Will maker must understand what he is doing
- The Will maker must sign the Will with his usual signature.
- Dating the document, although not required by law Will ensure that this writing is the latest of the potential Wills or Writings that may be proffered at time of death.
The relevant legislation is found in the California probate code section 6111. As long as the Will meets the four requirements, it should be valid.
Does a Holographic Will Need Witnesses?
While you definitely need two witnesses for a Statutory Will, you don’t need any witnesses for a Holographic Will to be valid. This makes sense in emergency life-and-death situations, there simply isn’t the time for such formalities. That’s not to say that your Will can’t have witnesses, however. If you’re able to have two independent people, who are not beneficiaries, witness your signature and add their own signatures and information, then you should definitely take that opportunity. The role of a witness is to confirm that the Will has been signed by the person making it, that she seemed to be aware of what she was doing, and that no one who stood to inherit was exerting any influence over the Will maker. The court might ask the witnesses to testify to these matters if anyone challenges the validity of the Will.
Does a Holographic Will Have to Be Dated?
Ideally, a Holographic Will should be dated, but you do not have to do this for the Will to be valid. There are, however, some potentially serious problems if you forget to write a date in the Will. The main relates to duplication. If the deceased has left another Will from some other time and the second Will is dated, you have no way of proving which Will is the most recent. Most times, there are no witnesses who can testify when the Holographic Will was made. Unless there’s independent proof that the Holographic Will is the correct Will, then the dated document Will prevail.
What About Issues of Competence?
The other problem with undated Wills is a situation in which you find out that the person who died became mentally incompetent at some point before her death. When you are mentally incompetent, any Will that you create is automatically invalid. If there’s even the slightest possibility that the deceased made the Holographic Will during a time when he was mentally incompetent, then someone could contest the Will on the basis that the testator was not of sound mind when it was written, or was somehow tricked into writing it.
What Are the Rules Regarding Testamentary Intent?
Testamentary intent is the legal way of saying that you knew what you were writing and intended the document to stand as your last Will. One of the main ways a Holographic Will can be contested is if there’s no clarity on this point. For example, does the document look like a Will, or is it just some notes the testator was making before making a formal Will? Is the Will illegible or riddled with crossings out and amendments? Is there something else on the surface of the paper that the Will is written on besides the Will? Ideally, the document Will contain the words “this is my last Will” or a similar phrase. If it does not, the court may look more closely at the issue of testamentary intent.
What Happens if Someone Challenges the Will?
If the Will is clear and legible, the deceased’s family is happy with it, and everyone believes that it represents the last wishes of the deceased, then there should be no problem. It’s only if someone challenges the validity of the Will that the probate court Will take a closer look. Generally, any family member or other interested person can contest the Will if they are not satisfied with the inheritance or they think there’s a problem with the Will’s