Sep 27, 2007

Handwritten Wills Beg for Family Arguments

Recently, a family in California learned the hard way that leaving a holographic will -- a will written by hand -- can cause a heap of trouble. When Homer Williams passed away, he left no formal will - but he did leave a notepad in the top drawer of his desk on which he had written " Last Will etc. or What? of Homer Eugene Williams."

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Underneath that, he wrote his address, he named his step-daughter and sister-in-law to be his executors, and he named his step-daughter have power of attorney. He left "all my collectibles" to his nephew and wrote that he wanted his step-daughter "to be able to live in the house as long as she wants before putting it up for sale." Although he mentions his step-daughter three times, he never mentions his biological children who - to no surprise - claimed that their father died without a will. Also to no surprise, the step-daughter wanted the notebook pages admitted to probate as his will. Holographic will standards are lax. It may seem unlikely that notes jotted down in a notebook could serve as someone's will, but the requirements for holographic wills are quite lax. In California, where Williams lived and died, a holographic will is valid if the signature and material provisions are in the handwriting of the will-maker. That's it. The signature doesn't have to be at the end and it doesn't have to be in a particular form - it doesn't have to match other signatures and it doesn't have to be at the end of the document. No specific words are or actions are required. The whole document could literally just be a few lines written on the back of an envelope.

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Why do we need formal wills? So what's the problem, why shouldn't we all just write wills on a legal pad and leave it in the top drawer of our desk? The case at hand shows us why: No one will ever really know if Williams intended that paper to be his will. On one hand, you can hardly believe that he intended his notes be the final word on his estate. The title contained a question mark, he doesn't mention the majority of his property, he didn't sign or date it, and the next entry in the notebook was a list of movies. On the other hand, he left no other formal will, so this is the only written clue as to what he wanted. Also, the facts of the case indicate that Williams was much closer to his step-daughter than his biological children. So instinctively, you want the pages in the notebook to be his will -- because at least then she'll get a little something for the last 17 years she spent caring for him. Fortunately for the step-daughter, the court found that the pages of William's notebook met the requirements for a holographic will and it admitted them into probate. But the reality is that no one will ever really know what Williams wanted -- because he never officially made his will. And the notes that he did leave spawned an extensive legal battle that cost his family lots of time and lots of money, for an outcome that, though perhaps just, still leaves you wondering. So here's the bottom line: A handwritten will may seem like a good idea because it is simple and easy to make. But only a formal will - typed, signed and witnessed - clearly indicates to your loved ones (and the court) that you've made a thoughtful and final determination about who should receive your estate.

To learn more about wills and what makes them legal, see Nolo's Wills area.