Staff Reporter (2019 – 2020)
What is a holographic will?
In Texas, a holographic will is defined as a will that was written entirely in the handwriting of an individual, known as the “testator,” that was not witnessed by others.1 The definition of a holographic will is exactly as it sounds: it is physically handwritten by the testator.
Believe it or not, a holographic will can be handwritten on any instrument, such as the back of a business card, a page of hotel stationery, a napkin, an envelope, or a piece of scratch paper. In fact, there is a famous case from 1948 in which a farmer from Saskatchewan became pinned under his tractor. Fearing his death was near, he scratched the following into the fender of the tractor with a pocketknife: “In case I die in this mess I leave all to the wife. Cecil Geo Harris.”2 The farmer died shortly thereafter, and the fender he scratched his dying wish into was offered to probate. Ultimately, the court determined the etching was a valid holographic will.3
No matter the instrument, whether a business card or hotel stationery, additional non-handwritten material does not invalidate a holographic will as long as such words are not necessary to complete the will in holographic form and do not affect its meaning.4 In such cases, a court will essentially pretend that the extra writing is not there—ignoring the hotel stationery’s logo or the business card’s print to focus only on the author’s handwriting. Typically, holographic wills are written in emergency situations, such as right before a patient enters surgery, when in imminent danger of death like the farmer above, or a soldier fighting on the battlefield. As strange as it may seem, sometimes suicide notes can also be offered for probate as holographic wills.5
Are there legal requirements necessary to make a holographic will valid?
In order for a will to meet the formalities of a traditional or “attested” will, it must meet certain criteria: (1) be in writing; (2) be signed by the testator (the person whose property is being passed down in the will); and (3) be attested by two or more credible witnesses who are at least 14 years of age and who signed as witnesses in the testator’s presence.6 However, a holographic will that was written wholly and solely in the testator’s handwriting falls under an exception to this rule, as it does not require the will be attested by witnesses.7 If a holographic will was attested by subscribing witnesses, this could invalidate the will as being wholly in the testator’s handwriting. If the signatures do not affect the meaning of the will and “the essential parts of the instrument are in the handwriting of the testator,” the probate judge may decide to admit the will to probate.8
A valid holographic will must also be written by a testator with both legal capacity and testamentary capacity at the time the will was written.9 A testator has legal capacity if he or she meets one of the following three elements: (1) is at least 18 years of age; (2) is or has been married; or (3) is a member of the armed forces.10 A testator has testamentary capacity if the testator: (1) understands the nature of the act of making a will; (2) knows the nature and character of his or her property; (3) knows the objects of his or her bounty; and (4) understands the disposition he or she was making.11 Essentially, a person has testamentary capacity if she knows she is making a will, knows what property she owns, knows what goals she has in making her will, and knows where the property will go under her will.
There is no requirement that a holographic will be signed at a particular time or even be dated. Legally, a holographic will is no greater or lesser than a formal attested will; it may cancel or “revoke” any prior will, and it may act as an amendment or “codicil” to a formal will or other holographic will.
Can a holographic will be offered to the court for probate?
Texas courts accept holographic wills into probate; however, there are more challenges than if the testator had executed a formal will or a self-proved will, which is a will that has a statement from the testator that he or she had the capacity to make his or her will. In order to prove that the testator did, in fact, write the holographic will being offered for probate, sworn testimony of two witnesses to the testator’s handwriting is required, either in open court or, if the witnesses are not residents of Texas, by oral or written deposition in accordance with Texas Rules of Civil Procedure.12 The purpose of these two witnesses is to confirm that it was truly the testator who wrote the holographic will. However, if the holographic will being offered for probate was self-proved, the sworn testimony of two witness is no longer a requirement. A holographic will may be self-proved during the testator’s lifetime by adding an affidavit as an attachment that states (1) the instrument is the testator’s will; (2) the testator is over the age of 18; (3) of sound mind; and (4) the testator has not revoked the will.13 While self-proved wills are very common for formal attested wills drafted by a lawyer, a self-proved holographic will is very rare.
What are some common issues when making a holographic will?
The biggest issue when admitting a holographic will to probate is whether the instrument written by the decedent was intended to be a will (written with the intent to transfer property upon the author’s death or “testamentary intent”) or instead was simply a memorandum that may have been found on a desk or in the drawer of a nightstand (written without required testamentary intent). Many holographic wills fail to address typical concerns that are covered by a properly drafted will (prepared by a lawyer), including naming guardians, providing for independent administration, and affirming legal and testamentary capacity at the time the will was written. Other common issues that arise with a holographic will include illegible handwriting, inconsistencies of the true intent of the testator, failure to dispose of all of the author’s property, or failure of the testator to understand the full meaning of common terms found in wills, such as “share and share alike.”
At first glance, a holographic will may seem simple and inexpensive, as all it entails is a mere pen and a piece of paper to handwrite final wishes. However, the probate process for a holographic will may be very expensive and time consuming due to the additional requirements necessary to prove the testator’s handwriting, as well as emotionally challenging in the event the holographic will is contested. It is always a good idea to seek an attorney when making a will so that true intentions and validity requirements are met to the fullest extent possible.
1 Tex. Est. Code Ann. § 256.154.
2 Jessica Brown, Dying Saskatchewan Farmer’s Will Goes Down in History, Global News (Oct. 28, 2013, 7:33 AM), https://globalnews.ca/news/926746/dying-sk-farmers-will-goes-down-in-history.
4 Maul v. Williams, 69 S.W.2d 1107 (Tex. Comm’n App. 1934, holding approved).
5 Tex. Est. Code Ann. § 201.061.
6 Tex. Est. Code Ann. § 251.051.
7 Tex. Est. Code Ann. § 251.052.
8 Kramer v. Crout, 279 S.W.2d 932 (Tex. App.—Waco 1955, writ ref'd n.r.e.); Price v. Taliaferro, 254 S.W.2d 157 (Tex. App.—Fort Worth 1952, writ ref'd n.r.e.).
9 Tex. Est. Code Ann. § 251.001.
11 Stephen v. Coleman, 533 S.W.2d 444 (Tex. App.—Fort Worth 1976, writ ref’d n.r.e.).
12 Tex. Est. Code Ann. § 256.154.
13 Tex. Est. Code Ann. § 251.107.