California defines a holographic will as a handwritten will that is dated and signed by the person writing the will. A holographic will is valid in California. It can be witnessed, but does not have to be. It does require that the signature and the material provisions be in the testator's own handwriting.
A general statement of testamentary intent in a holographic will can be set forth in the testator’s handwriting or as part of a commercially printed form will. The testator is the person giving away property upon their death, and the people or entities who receive the property are called beneficiaries.
What Is a Will?
A holographic will is one type of will that is recognized in California. California law defines a will as a legal paper that sets out a person’s wishes about what will happen to their property after death. California law requires that a testator be 18 years of age or older. California Probate Code provides that a standard California will must be signed by the testator or in the testator’s name by some other person in the testator’s presence and by the testator’s direction or by a conservator pursuant to a court order to make a will.
A standard will must be witnessed by at least two persons and signed during the testator’s lifetime by them. Each of them, being present at the same time, must have witnessed either the signing of the will or the testator’s acknowledgment of the signature of the will. The witnesses must understand that the instrument they sign is the testator’s will.
If a standard will is not executed in this manner, it will be treated as if it were executed in compliance with these rules if the proponent of the will established by clear and convincing evidence that at the time the testator signed the will, they intended the document to be their will. A will that does not comply with the above requirements may be valid as a holographic will.
Further Requirements for Holographic Wills
If a holographic does not contain a statement about the date that it was executed, this omission can result in doubt as to whether the provisions of the holographic will or the inconsistent provisions of another will are controlling. The holographic will may be invalid to the extent of any inconsistencies with another will. The exception is if the time the holographic will is executed is established to be after the date of the execution of the other will.
Lack of Testamentary Capacity
Testamentary capacity is defined as mental competence to make a will. A person is not mentally competent to make a will if at the time they make the will, they do not have sufficient mental capacity to understand the nature of the testamentary act (the giving away of property); understand and recollect the nature and situation of their property; and remember and understand their relations to living descendants, spouse and parents, as well as those whose interests are affected by the will.
An individual is also not mentally competent to make a will if they suffer from a mental health disorder with symptoms that include delusions or hallucinations. The delusions or hallucinations must result in the individual’s devising property (giving away property through the will) in a way, that except for the delusions or hallucinations, the individual would not have done. If it is established that a testator lacked testamentary capacity at any time during which the will might have been executed, the will is invalid unless it is established that it was executed at a time when the testator was of sound mind and had testamentary capacity.
Creating a Holographic Will
A testator can create a holographic will by handwriting a document that states who they are, what property they are giving away and the beneficiaries of the property. It is a good idea to number the pages of a holographic will and put them in order. Further, it is a good idea to consult an attorney who specializes in estate planning to aid in drafting the will.
The testator should not create a will with provisions that are inconsistent, and should write the will in a way that is clear. Further, the testator should reference all the property that they possess. The testator should use their best handwriting to write a holographic will. This is important because poor handwriting could be seen as vagueness or ambiguity, leading to a dispute between beneficiaries.
Pros and Cons of Holographic Wills
Since California recognizes a holographic will to be as valid as a standard will, the pros and cons of a holographic will are of minor importance. The main disadvantage of a holographic will is that the handwriting could be misunderstood or unclear. This would lead to the will not being interpreted correctly. The advantage of a holographic will is that it is easier and cheaper for the testator to create this type of will than a standard will.
Tips for Holographic Wills
A holographic will should be written entirely in the testator’s handwriting. The testator should not use preprinted forms, logos or letterheads. Another party should refrain from writing anything else or filling in any blanks on the will. It is important that a holographic will be written on plain paper without stains, watermarks or designs. The presence of such inclusions could cause the testator’s words to be misinterpreted.
Revocation of a Last Will and Testament
A testator can revoke a will, including a holographic will, by creating a subsequent will that revokes the prior will in part, in whole or by the presence of an inconsistency. A testator can also revoke a will by burning, tearing, canceling, obliterating or destroying the will, with the intent and for the purpose of revoking it. Either the testator or another person in the testator’s presence and at their direction can revoke the will.
A will executed in duplicate or any part of it is revoked if the testator or a person acting in their presence and at their direction burns, tears or destroys the will with the intent and for the purpose of revoking it. Unless a will expressly provides otherwise, if after executing a will, the testator’s marriage is dissolved or annulled, the dissolution or annulment revokes a disposition of property made by the will to the former spouse.
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.