What Makes a Handwritten Will Valid?
What Makes a Handwritten Will Valid?
Did your late loved one live in California and leave a handwritten will? Are you unsure whether it’s valid? Let’s talk about how what makes a handwritten will valid.
A handwritten will is also called a holographic will in California. That sounds a little funny and many people hear holographic and think this must be a Star Trek or Star Wars reference. I don’t know why a handwritten will is called a holographic will but it is.
There are only two requirements in California for a holographic will to be valid.
1. The handwritten will must be signed by the testator
This first requirement is really that simple. The signature can be at the end of the will, the top of the page, or any other place on the will. The contents of the will can be on the front of the page and the signature can be on the back of the page. It doesn’t matter. The testator just has to sign it.
2. Material provisions must be in the testator’s handwriting.
There isn’t a precise definition of material provisions. Nearly every holographic will I have seen is entirely written by the testator, which makes it valid, or nearly the entire thing is typed except for the testator’s signature, which makes it invalid. If you have a rare situation in which some is typed and some is handwritten, then check to see if the dispositive provisions and the person nominated to serve as executor are written by hand.
A Common Misconception about Holographic Wills
A holographic will does not have to be dated. But you have two potential problems if it isn’t.
1. If the testator became incompetent before death, then there is a presumption it was written during that time
That period of incompetence doesn’t have to be any particular length of time. There are kidney and vascular conditions that can render a person incompetent, but they can also be successfully treated and the testator will return to competence. There are also permanent conditions like dementia. It doesn’t matter which it is, if the testator was ever incompetent the presumption applies. If you want the will admitted, then you will have to prove it was written while the testator was competent.
2. A dated will takes precedence unless there is a way to prove the holographic will came later
It’s unusual, but not unknown, for an updated holographic will to compete for admission to probate with another will. But it’s not unknown. In this situation, you will have to produce evidence the holographic will was created after the competing will, in order to get the holographic will admitted to probate.
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