A handwritten Last Will and Testament is referred to as a holographic Will, which is also by the individual making it. Holographic wills are often written in emergency situations such as when the individual is facing death. Because of the circumstances, they are not usually signed in the presence of witnesses. Sometimes, they are not even dated.
A holographic will differs from a regular Last Will & Testament. A regular Will is usually drafted by an attorney, typed, and signed by the individual in the presence of witnesses who can verify that the individual had the capacity to make a will. The witnesses to the Will usually sign it as well, and all sign in the presence of a notary who takes their oath regarding the facts they witnessed. These formalities ensure a Will is easily read, the individual has the capacity to execute it, and that it was the individual’s expression free of influence or duress.
All states have specific requirements that ensure a Last Will and Testament is a valid expression of an individual’s last wishes, including a required number of witnesses as well as acceptable language making admission of the Will to the official probate process easier.
Some states recognize holographic Wills as long as they meet certain criteria that provide evidence that the Will is the valid last wishes of a decedent. These include 1) independent verification that the handwriting is that of the individual; 2) circumstances that would lead the individual to believe he/she was facing imminent death or trapped in a situation that one would not likely survive; and 3) that the individual knew his/her family and property.
Not all states recognize holographic Wills. In those states, all Wills, regardless of how they are written by must meet specific witness requirements. In Florida, for example, a will must have two witnesses regardless of whether it is hand-written or typed, or prepared by an individual or attorney.
In states that do not accept holographic Wills, there may be circumstances in which a holographic Will created in another state can be treated as a valid Last Will and Testament. However, that determination depends on the law of the state in which it was written. The process for getting it recognized as a valid Will may require extensive evidence and could be a costly legal undertaking.
To be sure your Will is valid, consult an attorney about the requirements for a valid Last Will & Testament.
Have you had a similar experience in your family?
