In California, you could create a holographic will, but it is best to avoid them for several important reasons. These handwritten wills must meet many legal requirements to be valid – leaving plenty of room for mistakes – and they may be easier to challenge in court.
Many Legal Requirements for Holographic Wills
California law mandates that holographic wills meet certain standards to be considered valid. Typical, typed or printed wills have to be properly witnessed and must be made when the testator has capacity. Sometimes, people decide to handwrite wills and not have them witnessed in accordance with the laws for typical wills. But the law allows assets to be distributed according to a holographic will if the signature and the material provisions are in the will maker’s handwriting. If the holographic will does not contain information about its execution date, then:
- The holographic will is invalid to the extent of any inconsistency with another will unless the court can establish that the holographic will’s execution date is after the other will’s execution date; and
- If the will’s creator lacked testamentary capacity at any time during the period when the holographic will might have been signed, then the holographic will is invalid unless the court can establish that it was executed at a time when the testator did have testamentary capacity.
Although a will is holographic if the signature and material provisions are handwritten by the will’s creator, it can also contain printing (as with a commercially printed form will). Sometimes people use form wills and write in full sentences or cross out and add in information in the margins, so that law takes that into account.
Challenges to Holographic Wills
Holographic wills may be more subject to challenge in probate court because they are handwritten. They may contain words that are difficult to read or unclear contradictions. They also may be challenged due to their inconsistency with another will that is not handwritten.
Further, handwritten wills that were not witnessed face challenges of fraud, deception, or lack of capacity. The person making the will may have been deceived into copying a document or adding a signature without reading the will. Or the will maker might not have had the ability to understand what he or she was writing or signing. All of these issues can lead to lengthy probate court battles, so having a will prepared by a professional and properly witnessed is a better option.
Want to make your will? Look to Janet Brewer, Esq. for thorough and thoughtful estate planning advice. Janet’s more than 20 years of legal experience will give you confidence and peace of mind. To schedule a “Get Acquainted” meeting, visit Janet's website or call her office at (650) 469-8206.
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