Execution of Holographic Wills Flashcards
What is a Holographic Will
A will is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.
What if a Holographic Will is Undated?
It is invalid if undated, AND:
- Inconsistent with the provisions of another will (invalid only to the extent of the inconsistency) UNLESS the time of its execution is established to be after the date of execution of the other will.
OR
If the testator lacked testamentary capacity at any time during which the will might have been executed, UNLESS it is established that it was executed at a time when the testator had testamentary capacity.
When to Use Holographic Wills Analysis
A will that does not comply with P.C. § 6110 [Attested Wills] is valid as a holographic will, whether or not witnessed, if the signature and material provisions are in the testator’s handwriting.
o Steps of analysis:
i. First, is the will valid under P.C.§6110?
ii. If not, does it qualify under P.C.§6111?
What Are the Requirements of a Valid Holographic Will
- The testator’s signature must be in their own handwriting
- Can be the testator’s full name, nickname, initials, or any other “signature” that indicates that the testator intended to sign the document and that the testator normally signs documents in that way. - All material provisions in the will must be in the testator’s handwriting
- Includes any dispositive gifts under the will; any
designation of beneficiaries; any designation of an
executor or guardian.
- If certain terms and signature/date are noticeably written in different handwriting, it is an invalid holographic will because the material terms or the signature is not in the testator’s handwriting. - Testamentary intent
- The testator must intend for the document to be the testator’s will.
When is a Holographic Will Invalid
Undated + Inconsistent
Lack of Capacity
How Can the Date of a Holographic Will be Proven
Extrinsic evidence.
When presented with two or more purported holographic writings, if the proponent of one of them cannot prove that holographic writing’s date, then whichever document is dated controls
HYPO: A Will dated 11/15/06 gives car to A; jewelry to B; stock to C. Undated will gives car to A; jewelry to D; stock to E. Which controls?
If you can prove that the undated will was executed after 11/15/06 will, the undated will it controls, otherwise the 11/15/06 will controls.
Multiple Undated Holographic Wills
If there are no inconsistencies between the wills, both wills are valid.
If inconsistencies exist, and you don’t know which will came first, the inconsistent terms cancel each other out.
How does that “cancelled out” property get distributed?
- CHECK: but guessing we go back to last dated/ valid will or intestacy
Testamentary Capacity and Holographic Wills
If it is established that the testator lacked testamentary capacity at any time during which the will might have been executed, the will is invalid UNLESS the proponent of the will proves that the testator had capacity when the testator executed the will (burden shifts)
Any statement of testamentary intent contained in a holographic will may be set forth either in the testator’s own handwriting or as part of a commercially printed
form will (e.g., “I hereby declare this as my will,” “I am of
sound mind” can be printed as part of a commercially
printed form.)
BUT the remainder of the material terms must be in the testator’s handwriting.
What is a Tractor Fender Will?
Holographic wills that are written “in extremis” (when the testator is close to death) with whatever materials are at hand.
Can written on napkins, envelopes, address books, egg shells, walls, furniture, and a tractor fender.
In re Estate of Williams
Handwritten will made by decedent, not conventional format
- “Writing” can mean handwriting
- Testamentary intent?
○ It says “last will”, “my estate”, he gives people things
§ BUT doesn’t distribute everything
○ Court thinks this is sufficient, holographic wills do not need to dispose of everything - No date
○ They figure out when it was drafted based on the value of the house given in the will
What is a Codicil
A separate document that amends the will
Requirements of a valid codicil
Must conform to the same rules as wills concerning testamentary capacity, intent, and formalities of execution.
Wills Executed Outside of CA
A written will is validly executed if its execution complies with any of the following:
(a) The will is a valid attested or holographic will
(b) The execution of the will complies with the law at the time of execution of the place where the will is executed.
(c) The execution of the will complies with the law of the place where the testator, at the time of execution or at the time of death, is domiciled, has a place of abode, or is a national.
