By: Rachel Campbell on January 30th, 2018

What is a Holographic Will in California?

If you are dealing with probate you may have heard this phrase. And if you’ve never dealt with probate, when you hear the phrase holographic you’re probably thinking this is something three-dimensional. Maybe it’s got rainbow colors? Well, it’s nothing like that.

It’s an old term that gets used in California for a written will and there are only a few requirements for a holographic will to be a valid will.

First, the material terms of the will have to be in the decedent’s handwriting. In other words, the person who passed away has to write this thing out. This doesn’t mean that every last letter in the will has to be in their handwriting but the material terms do so. If they’ve done something like they’ve gotten some kind of pre-printed form but they filled out more or less everything on it, including how they want things to pass that will likely pass muster as the material terms of the will

The second requirement is a decedent must sign the will. Here’s the thing about signing it: people who draft their wills often are not thinking entirely clearly. They’re certainly not doing good planning. It’s not all that unusual in my experience to find a signature in an odd place: it may be at the top of the page. Or all the terms may be on the front but the signature may be on the back. It doesn’t matter. As long as the signature is there that’s good enough. That will qualify as a holographic will and people who are used to hearing that wills in California have to have two witnesses. That is not a requirement for a holographic will. It doesn’t matter if it’s witnessed at all. What I just told you about the material provisions being in the decedent’s handwriting and the decedent signing it that is all that’s required.

People often ask, “But what about dating don’t you have to date a will?”

Well, it’s a good idea for holographic wills, but it’s not required. If the holographic will is not dated, there are some potential problems. The first of them is if there’s another will of the decedent (the person who passed away) and they have some will from some other time that is dated so we know when it’s from. Then we’ve got an un-dated holographic will. That first will is going to govern unless there’s some other way of proving that the holographic will came later. Put up against that sort of competition without independent proof, it’s the other will that’s going to prevail.

Here’s the other thing that comes up with un-dated wills: we find out that the person who died at some point before their death became mentally incompetent.

Well, if you’re mentally incompetent then any will that you create is an invalid will. If you have an un-dated holographic will then somebody’s going to have to offer proof as to when it was created, because if there’s even the possibility that it was created during a time that the decedent was mentally incompetent, it will be found to be invalid (assuming that there’s a will contest). Unless, there’s some kind of independent proof that the holographic will was created while the person was still mentally competent (or as people often say, when they still had their marbles).

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