What is a Holographic Will?

What would be on your mind if you were trapped, alone and near death? If you did not answer, “my last will and testament,” then either you already have a will or you don’t have enough assets to worry about. Being in a situation where you are near death hardly allows a valid will to be written – which is one reason why you might think about getting one together now instead.

With that said, a will written in your handwriting at the last minutes of life may be valid. These wills, called “holographic wills,” are written in hand and signed by the writer, or testator. Also, there must be evidence that the testator actually created the will, which can be proved through the use of witnesses, handwriting experts or other methods (you can die with the will and pen in your hand).

Other criteria include the evidence that the testator had the intellectual capacity to write the will and that the testator expressed a wish to direct his or her estate to beneficiaries. In most cases, the presumption exists that if the testator could write the will under duress, then that testator had intellectual capacity. So, the warning here is to be explicit about the identity of beneficiaries.

Holographic wills need not be signed if the relationship to the beneficiary is noted in some states. In other states, such as California, holographic wills are not recognized if a date is missing. Although almost half the U.S. states accept holographic wills, other problems may occur. If you live in Rhode Island and die in Alaska, for instance, the holographic will is accepted in the latter state, but not in the former state.  In this case, your will may not stand. However, if you live in Connecticut or Hawaii – states that do not recognize holographic wills – but you die in Virginia or any other state that recognizes holographic wills – then your holographic may be accepted in Connecticut and in Hawaii.

In some cases, the holographic will may be better than no will at all. While most states do not accept last wills and testaments without two witnesses’ signatures, the holographic will currently may be accepted without witnesses at time of death in the some states; however, each state carries its legal criteria (see Lawcheck Wills and Estates for details).

In one case in Canada in 1948, a farmer named Cecil George Harris set out with his tractor in his fields near Rosetown. About an hour later, Harris accidentally put his tractor in reverse while making some adjustments. The tractor moved backwards and trapped Harris between the tractor and another piece of equipment, pinning his left leg under the rear wheel. Harris remained trapped for almost twelve hours until he was found by his wife and taken to hospital where he later died from his injuries. Although conscious until the time of his death, Harris made no mention of the will he etched on the tractor fender using his pocketknife.

It wasn’t until days later that neighbors noticed an inscription on the fender: “In case I die in this mess, I leave all to the wife. Cecil Geo Harris.” The fender was removed from the tractor and determined by the courts to be a valid holographic or handwritten will.  The etched fender remained on file at the Kerrobert Courthouse until 1996, when it was turned over to the University of Saskatchewan College of Law for the purposes of public display.

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