17 Jun IS THE HANDWRITING ON THE WALL A VALID WILL?
If a will written on the fender of a tractor or on the back of a photo or even a blank piece of paper with indentions could be considered valid by a court, could your handwriting on a wall be considered a valid will? It probably depends on where you live – and the laws may continue to evolve with technology.
Some of the strangest situations where courts validated handwritten (also known as holographic) wills include the following:
The Blank Sheet Will
A California court admitted as a will a blank piece of paper of a blind person who did not realize that her pen had run out of ink. A handwriting expert was used to determine it was the blind woman’s will by the indentions by the pen on the paper.
The Fender Will
A farmer who was trapped under the left rear wheel of his tractor, wrote “In case I die in this mess, I leave all to my wife” on the left fender of his tractor. The Canadian court found this to be a valid holographic will.
The Suicide Note Will
A Michigan man wrote a suicide note which he dated and signed that also indicated how his assets were to be distributed upon his death and to whom. The man took his life with his blood splattered upon the document. The court validated the holographic will.
The Trench Will
A British court validated the handwriting on the back of a photo of his girlfriend which stated, “In the event of my death, I leave all my effects and money to this young lady” as a holographic will. It was written while he was in a trench in World War I.
The Petticoat Will
The judge of an old California case validated as a handwritten will the writing of the testator (who was on his death bed) on a white petticoat of a nurse of the testator. When a blank piece of paper couldn’t be found, the testator wrote on the petticoat that everything (other than $10,000 to each of the two nurses who were witnesses) was to pass to his grand-niece. Although the handwriting on the petticoat was admitted as a will, the bequests to the nurses were invalidated since a witness can’t be a beneficiary.
The Cell Phone Will
Although not a holographic will, a court in Australia admitted an unsent text message on the cell phone of the deceased as a valid will. The message disinherited his estranged wife (all went to his son). There were no witnesses when he wrote the text and was unsent when he died. This would not likely be successful in Texas.
Texas has certain requirements for a handwritten will or holographic will to be valid including the following:
- Solely in the handwriting of the testator – (the person who intends to describe how their assets are to be distributed after death).
- Testamentary intent – the handwritten document must show it was the testator’s intent on how his or her property is to be distributed on his or her death.
- Testator has legal capacity – (a) at least 18 years of age; (b) is or has been married; or (c) is a member of the armed forces.
- Testator has testamentary capacity – the capacity to know he or she is making a will, knows what he or she owns and where he or she wants the property to go after death.
- Proof of two witnesses as to handwriting of testator.
- Testator must sign the Will.
Notwithstanding the cases mentioned, preparing a handwritten will is often a trap for the unwary. Even if valid, it usually results in more legal expenses due to additional proof requirements, as well as an increased likelihood of invalidity and failure to address numerous issues that an estate planning attorney would be aware.
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