The Case Against Holographic Wills

RichardLewis Brown (Professor of Law, University of Nevada, Las Vegas)has published TheHolograph Problem–The Case Against Holographic Wills, in 74 Tenn. L. Rev.93 (2006).

Here is the introduction:

Holographic wills are a problem onseveral different levels. They are a problem to the coherence of the law ofwills, to the decedents who have relied on them to guide the distribution oftheir estates, and to the court systems that must grapple with their chronicissues of validity and interpretation. This Article details the failings of holographicwills and argues that they should be excised from the law of wills.

Holographic wills are entirely orlargely in the handwriting of the decedent. Yet the term “holographic will” isnot simply descriptive of the form of the will or whether it is handwritten,typed, or printed. Rather, it is a term of considerable legal significance. Injust over half of the states,  a willthat qualifies as a holographic will can be admitted to probate withoutattestation.   As a result, statutes that authorizeholographic wills create an exception to the nearly universal rule that a validwill must be witnessed.  Holographic willstatutes are not simply anachronisms fading quietly out of favor. In fact, overthe last half-century, there has been a modest increase in the number of statesauthorizing holographic wills.  In thesestates, a motley parade of home crafted documents have been admitted toprobate, ranging from hand completed pre-printed will forms,  to excerpts from the most casual of letters,  to a handwritten note on the back of areceipt, to informal notes,  to eight handwritten words on the back of agreeting card,  to a handwritten marriagecontract.  More troubling, similarlyartless instruments that almost certainly were intended by their creators to bevalid wills have been denied probate.

Why do many states authorize thecreation of such problematic wills? The announced purpose is to allow for thecreation of valid wills by those who are unable or unwilling to obtain theprofessional assistance of a lawyer.  Butin doing so, holographic will statutes have constituted a legislativeinvitation to create homemade wills. Therein lies the fundamental problem withholographic wills; they are invariably homemade, either in whole-as in thecommon case of a totally handwritten will, letter, or memorandum that issubmitted for probate as a holographic will-or in part-as in the common case ofhandwritten entries on pre-printed will forms. Because they are invariablyhomemade, holographic wills present a range of chronic and unnecessaryproblems.

Part II of this Article placesholographic wills in the context of the broader law of wills, including a briefdiscussion of the goals of the law of wills, the functions of the requiredformalities of execution, and the evolving movement toward “deformalizing” thelaw of wills. This is most notably evidenced by the development of thesubstantial compliance doctrine and the dispensing power. Part III outlines andprovides examples of significant problems inherent in holographic wills,including their susceptibility to invalidationand frequent issues ofinterpretation. Part IV focuses on the central weakness of holographicwills-the fact that they are invariably homemade, drafted by amateurs withoutprofessional advice, and executed without any formalities. Part IV, furtherargues that by encouraging the creation of such problematic testamentaryinstruments, statutes that authorize holographic wills undermine the ability oftestators to effectuate their testamentary intentions. Finally, Part V makesthree proposals: First, that statutes authorizing holographic wills berepealed; second, that states avoid the unnecessary invalidation of imperfectlyexecuted wills-including handwritten, un-witnessed wills that are unlikely tobe completely eradicated by the repeal of holographic will statutes-by adoptingthe substantial compliance doctrine or the dispensing power; and, third, thatstate legislatures and the practicing bar provide more satisfactory mechanismsthan holographic wills for lawyer-resistant testators who currently useholographic wills.