Whether we all have created one or not, we all know the importance of a will. If there is no will put in place, it can leave many questions for your survivors to handle. However, even if a will has been drafted, there may be situations that we have not considered. Maybe your loved one was still in the process of writing out their will when they unexpectedly passed away. Does an unfinished will still count in probate court?
How wills are presented
Almost all wills are created by an attorney. When you consult with an attorney to create a will you are dotting all of your I’s and crossing all of your T’s, meaning you will reduce the chances of making a mistake.
At your meeting with the attorney, be sure to have a list of items you want included in your will, who you want named as guardian of your minor children, who is to receive assets upon your death, what is to happen should you become incapacitated, and your final burial wishes.
The attorney will draft an initial version for you to review. If you are happy with what is presented, you can sign the will along with your spouse in front of a witness. The witness is typically provided by the attorney.
However, some people decide that they do not need an attorney to create a will. If you decide to draft a will on your own, without the help of an attorney, it is deemed a holographic will.
What is a holographic will?
Holographic wills are wills that are an alternative to wills drafted by lawyers. Unlike a simple will, a holographic will does not have witnesses or notarization. Unlike a drafted will, a holographic will is entirely handwritten by the testator, or the person who created the will. With most holographic wills, all that needs to be demonstrated is that the testator wrote the will and was of sound mind when they did so. This may be beneficial for the testator, but it is typically a nightmare for their beneficiaries in probate court, for a few reasons
The testator’s handwriting
With holographic wills, several validity issues can come up. One of the main ways to determine the validity of a holographic will is to examine the testator’s handwriting. Probate courts use handwriting experts or people who are familiar with the testator’s writing to determine whether the testator was the one who signed or wrote the will.
It can be very easy for people to forge a testator’s signature or portion of a will, especially if the person’s handwriting was poor. That is why many probate courts require the existence of a signature, even with holographic wills. The courts also require the holographic will to be completely handwritten, as opposed to half-handwritten and half-typed up.
The testator’s intent
The testator’s intent is another issue that probate courts consider with holographic wills. Sometimes it is hard to determine your loved one’s wishes from a holographic will. Your loved one could have been writing down future changes or notes in reference to their will. However, if those notes were not clearly defined as notes, the courts can misinterpret them as wishes in the will.
The testator’s mental capacity
Another factor that the courts will use to determine the validity of a holographic will is the testator’s mental capacity at the time the will was handwritten. This is crucial in probate court. It must be demonstrated the testator was mentally capable of writing a will with their own sound mind.
If the testator was not in their right frame of mind when they were writing their will, the courts will not consider the will valid. This includes instances where the testator was influenced under undue circumstances to draft a will.
The testator’s wishes regarding their personal property
Determining the testator’s wishes about their property is one of the most difficult things to prove with holographic wills. There may be provisions in your loved one’s will that the courts do not deem valid. There may be certain provisions that your loved one forgot to include in their will. Unfortunately, it is not until your loved one has passed that this information is usually discovered. The lack of clarity with the testator’s wishes can affect whether their personal property will be divided fairly.
Other challenges with holographic wills
Other challenges that come with holographic wills are difficulties with witnesses and misinterpreted statements. To validate the testator’s holographic will, several witnesses will have to be brought into court. This can cost the testator’s estate time and money in the long run. The language that the testator uses in their will can also confuse the judge.
Testators who write holographic wills often write them in a way that is understandable to them and their loved ones only. Unfortunately, judges will not take the time to decipher what the testator actually meant. They will adjust the will and divide the personal properties based on what they believe to be fair.
Critical portions of a holographic will
Although Texas is a state that recognizes holographic wills, you and your loved one want to make sure that your will is as valid as possible. You do not want to leave any stones unturned in your will or want your loved ones guessing about your intentions. Ensure all critical information is included in your will, including:
- The property you want to pass on
- The beneficiaries that you want to reward
- A simultaneous death clause (if you and your loved one die in the same event or accident)
- Your signature
How a San Antonio attorney can assist in writing a will
You can help validate your loved one’s holographic will by reaching out to a lawyer. A lawyer can help you prove the validity of your loved one’s handwriting and assess whether your loved one was mentally competent enough to draft their will. There are many challenges that come with proving whether your loved one’s will is valid. An experienced lawyer knows the right type of witnesses and information to present credibility for the testator.
If you or a loved one have drafted a holographic will, ensure it is legitimate in the eyes of the law. At Grable Grimshaw PLLC, our San Antonio attorneys can help with drafting and clarifying your will and estate plan. To schedule a consultation, call 210-761-5687, or submit our contact form at your convenience.