Article on “Body” Building: Expanding Arkansas’s Standard for Holographic Wills
In times past, entirely handwritten documents represented the vast majority of holographic wills. These homemade testaments included dense pages of text that the drafter diligently memorialized by hand, carefully crafted letters with testamentary directions to the author’s loved ones, and unassuming notes tucked away in a drawer, perhaps with names, proportions, and shorthand property descriptions. If a probate court encountered a holographic testament, odds were that it resembled these traditional examples.
Today’s holographs can look quite different. Rather than scrawling testamentary wishes on a blank slate, modern testators might use a preprinted will form to record their last wishes, filling in blanks by hand and signing in the space provided. The vast library of forms that the Internet made available has only facilitated this trend. These hybrid documents have posed difficult questions for probate judges, generating a web of alternate standards for the required amount of handwriting in a holograph. The basic idea remains the same – the testator must handwrite the document, to some extent, and sign it. But states vary considerably beyond that basic framework, often with standards that boggle the mind to properly understand. Arkansas’ holographic will statute is no exception.
To properly draft a holographic will in Arkansas, a testator must handwrite “the entire body of the will” and sign the document. The struggle to derive consistent meaning from this language has generated precedent that is ambiguous at best and perplexing at worst. The latest appellate decision used conflicted reasoning to invalidate a hand-completed will form, finding that it failed the “body of the will” standard. Standing alone, the result in that case is by no means irrational. Certainly a court may reasonably construe “the body of the will” to exclude a document with intermingled printing and handwriting. But the court’s failure to precisely articulate its reasoning in reaching that decision raises a bevy of interpretive concerns moving forward, leaving judges and testators to wonder what, exactly, is the “entire body of the will?”
This lack of certainty, and apparent disfavor of preprinted will forms, poses both theoretical and practical problems. Layperson testators and probate courts lack guidance in determining which instruments qualify as holographic wills. Drafters lacking intricate knowledge of Arkansas wills law may draft ineffective testamentary dispositions, which undermines testamentary intent. At the same time, probate courts must decide whether to probate partially handwritten documents without the assistance of reliable precedent. This unenviable task promotes a more subjective judicial analysis, rather than objective application of law to fact, which may further cloud the case law.
The question, then, is how to clarify the existing standard in a manner that promotes optimal results and remains within the acceptable bounds of the statutory language. Given the rapid technological increases of recent decades, an ideal standard would account for preprinted forms and afford the judiciary flexibility in responding to advancements. This Article suggests that the approach most likely to have that effect is to broadly interpret the “body of the will,” a construction that would have two aspects. It would require testators to handwrite only their beneficiaries and the words describing the division of their property among those beneficiaries – i.e., the “body” of the will. And it would allow courts to consider non-handwritten portions – such as a will form’s printed language – as evidence that the decedent intended the document as a will.
This Article begins with a discussion of the background of holographic wills and the standards applied to the handwriting requirement. Next, it describes the ambiguous nature of the “body of the will” standard, as formulated in Sneed v. Reynolds and Meadows v. Ferrell, and summarizes alternative approaches to resolving the interpretive problems. It then outlines the contours of the proposed broad interpretation and provides reasons in support of its adoption.