The Holographic Will

A holographic will is one written entirely in the testator’s own handwriting. Arkansas recognizes them, but proving handwriting and testamentary intent at probate is harder than proving a witnessed will — so they belong only in genuinely emergency circumstances.

In a previous post, I addressed whether you need an attorney to draft your will. In it, I briefly discussed the handwritten will, otherwise known as the holographic will. In this post, I will provide a more in-depth discussion on the subject.

Requirements of the Holographic Will

A holographic will is a last will and testament written entirely in the testator’s handwriting. Under Arkansas law (Ark. Code § 28-25-104), the entire body of the will, including the signature, must be in the testator’s handwriting, and the document must reflect testamentary intent. Many states — Arkansas among them — recognize holographic wills and allow their courts to probate them, although the specific requirements vary by jurisdiction.

Risks

Holographic wills provide the easiest and cheapest manner of producing a will; after all, it doesn’t cost anything to write your wishes down on a piece of paper. They do, however, come with some significant risks. A lack of understanding of testamentary doctrine may result in a property distribution scheme contrary to your intent. A failure to provide for your entire estate or to describe your property accurately may result in some or all of your property passing under the Arkansas intestacy statute.

Finally, the validity of a holographic will is more difficult to prove than that of a witnessed will. Both the testator’s handwriting and the testator’s intent must be established.

Establishing Handwriting

Whereas a witnessed will is signed by the testator in the presence of two attesting witnesses — whose attestation can, if done correctly, easily prove the will’s validity — the validity of a holographic will is more difficult to establish. A court must determine with certainty that the will’s handwriting is that of the testator before probating it. Arkansas requires the testimony of at least three credible disinterested witnesses familiar with the testator’s handwriting (Ark. Code § 28-40-117), and a handwriting expert may be needed in close cases. If you later decide that a holographic will no longer reflects your wishes, you should be aware of the proper procedures for revoking a will.

Establishing Intent

The testator’s intent must also be clearly established. For a traditional will, the formalities associated with its execution and the presence of witnesses can easily establish that the testator intended the document to be his or her last will and testament. With a holographic will, by contrast, it must be clearly established that the testator intended the document to be a will — and not, for instance, notes about future estate planning, drafts, or stray ramblings recorded in passing and quickly forgotten.

Difficulties in Probate

These issues create an extra burden when attempting to probate a holographic will. If the evidentiary burden of validity cannot be satisfied, the will could be rejected and the testator’s property distributed under the Arkansas intestacy statute.

The cinematic cliché of an isolated individual scrawling down last wishes while quietly awaiting death illustrates the quintessential purpose of the holographic will. Because of the difficulties such wills create, their use should generally be limited to such genuinely extreme circumstances.

Disclaimer: This post is for informational purposes only and is not legal advice. Holographic-will requirements vary significantly by state, and the evidentiary rules for proving handwriting and intent at probate are highly fact-specific; consult a qualified probate attorney about your situation.

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