A handwritten or holographic will is a will written entirely in the handwriting of the person making the will. Handwritten wills generally do not satisfy the requirements for a formally executed will, and thus, are generally invalid in the absence of a specific statute authorizing their use.
Holographic wills are valid in 26 of the 50 states. Two other states, Maryland and New York, allow handwritten wills written by members of the armed forces under limited circumstances. Additionally, while Connecticut, Hawaii, South Carolina, Washington, and Wisconsin, usually do not accept handwritten wills, these states will probate a handwritten will if the will was written and signed in a state where holographic wills are valid.
Legal requirements for handwritten wills
At a minimum, all states that authorize holographic wills require that all material provisions in the will be written in the handwriting of the person making the will and that the will be signed by the person making the will. Several states that recognize handwritten wills have some additional requirements that must be satisfied for a valid holographic will. For example, 6 states, Arkansas, Nevada, North Carolina, Tennessee, Texas, and West Virginia, require that holographic wills be entirely written in the handwriting of the person making the will. In these 6 states, a handwritten will may be invalidated if writing appears on the will that is not in the handwriting of the person making the will.
A few other states also require that a handwritten will be dated in order to be valid. In Nevada, for example, the date on which the will was signed must be written on the will in the handwriting of the person who made the will. In other states, such as California and Nebraska, the date that the will was signed can be established by extrinsic evidence if the date does not appear in the will.
One of the more interesting requirements for validity of holographic wills is found in North Carolina. In North Carolina, the handwritten will must be found in a safe deposit box or among the deceased person’s valuables in such a manner as to indicate that it was intended to be a will.
Admitting handwritten wills to probate
A person attempting to probate a holographic will must introduce evidence to prove the validity of the will. At a minimum, the person offering the will for probate must offer evidence proving that the material provisions of the will are written in the handwriting of the deceased person and that the deceased person signed the will. Additionally, in some states, the person offering the will for probate will need to offer evidence proving the date on which the will was signed and that the person writing the will intended for the writing to be a will.
The level of proof required varies by state. In Texas, for example, the person writing the will can attach an affidavit to the will stating that the document is intended to be a will, that the document has not been revoked, and that the person making the will is mentally competent to make the will. If the affidavit is attached, then no further evidence is required to admit the will to probate. If no such affidavit is attached to the holographic will, then the testimony of 2 witnesses is required to prove that the handwriting on the document is, in fact, the handwriting of the deceased.
Arkansas requires the testimony of 3 disinterested witnesses to prove that the handwriting and signature on the document are the handwriting and signature of the deceased. Similarly, Virginia requires the testimony of 2 disinterested witnesses to prove up the handwriting and signature on the document.
Holographic wills are valid in the following states: Alaska, Arizona, Arkansas, California, Colorado, Idaho, Kentucky, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, New Jersey, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming.
Holographic wills are invalid in the following states: Alabama, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Massachusetts, Minnesota, Missouri, New Hampshire, New Mexico, Ohio, Oregon, Rhode Island, South Carolina, Vermont, Washington, and Wisconsin.
Holographic wills are valid only when written by members of the armed forces in Maryland and New York.