Pen and Ink May Do for a Valid Will

Pen and Ink May Do for a Valid Will – More commonly known as holographic wills, handwritten wills are often implemented during emergency situations, namely when death is looming and an attorney is nowhere near. Handwritten wills existed prior to the use of wills typed with the help of computers and typewriters. While handwritten wills might sound outdated, testators have drafted wills by hand both before and after technology entered the scene.

But who would choose to opt for a handwritten will when typed wills are faster and easier to create? It all comes down to certain contingencies, of which a few come to mind:

• A medical emergency, such as a heart attack.
• A freak incident or accident.
• A soldier injured on the battlefield.
• A hiker, camper or adventurer who gets lost in nature.
• An airplane crash victim.
• A sunken ship survivor.

Plus, while handwritten wills might not be everyone’s first choice, they are legal in approximately half of the United States. They do not have to be written in a specific way nor do they need to follow a certain formula in order to be valid.

The mess of Cecil Harris

On June 8, 1948, a Saskatchewan farmer named Cecil Harris established an unforgettable legacy and set up a long-term legal precedent after becoming trapped beneath his tractor without the ability to call anyone for help. When he realized he was in a life-or-death situation, Harris’ focus was on his concerns for his wife and her future, which compelled him to use his pocketknife to carve his will into the fender of his tractor. His legible carving stated, “In case I die in this mess, I leave all to the wife. Cecil Geo Harris.”

Harris was trapped for a total of 10 hours, at which point he was finally rescued by his neighbors and taken to a nearby hospital. Despite being saved by those in his community, Harris passed away after receiving medical attention. He never said anything about the fender to anyone; it was discovered posthumously, at which point the fender into which his will was carved ended up being transported to the court that was handling his estate.

As it turned out, Harris had created a viable testament that held up in court, and the court permitted the fender to be admitted as proof of his wishes, leaving his estate in the hands of his wife as an inheritance.

Luckily, Harris lived in Saskatchewan, which is a place that accepts handwritten wills. Had he resided in British Columbia or various other Canadian provinces, Harris’ fender-carved will might not have been submitted as a form of holographic evidence.

The necessary elements

When it comes to drafting handwritten wills, each individual state will have its own rules regarding the necessary elements of such a will, but generally speaking, here are some examples of what you should expect to provide: 

• Your name.
• Your residence.
• Proof that you are of sound mine and rational.
• Information denoting your intention of an estate transfer in the event that you die.
• Intention for the handwritten will to override and void preexisting or prior wills.
• Items that you wish to be bestowed upon beneficiaries, including property, money, bank accounts, stocks, bonds, heirlooms and personal possessions.
• Your signature.
• The date.  
• A residuary clause regarding all other remaining property.

Laws will vary from one state to the next. As for soldiers and sailors, a holographic will becomes invalid once the individual returns home from his or her military service. In certain jurisdictions, the will must be handwritten in its entirety, while other states only require the material possessions section to be handwritten.

This is a type of distinction that can be applied to those using printed forms and merely filling in the blank spaces. Additionally, there are certain courts that will also be open to receiving a letter that expresses the authentic yet handwritten intent of an individual to transfer property to another person without requiring the letter writer to have a fully crafted will.

However, this is not the case for all courts, as many others will want to ascertain the fact that the request is intended to act as an official will as opposed to a brief and unofficial memo for future use.

Are there drawbacks?

Handwritten wills are typically designed to be used in urgent situations; they are not usually advisable under normal circumstances. There is also the additional risk that a handwritten will might not be legally binding.

Among the many drawbacks of handwritten wills is the possibility that they are particularly more likely to be contested than are typed wills. Additionally, handwritten wills are required to be drawn up within a jurisdiction that deems them valid. That said, there is the potential that a court of law will still accept a handwritten will under a foreign will provision if the will has been written in a state where holographic wills are legal and accepted.

Furthermore, handwritten wills might not be easy documents to prove in terms of legalities. This has a lot to do with the potential for the writing to be too vague or essentially illegible. The court might also have to request that someone who is familiar with you and can read your handwriting with ease do so. This could potentially entail hiring a handwriting expert.

As mentioned, even if the handwriting is legible, the details within a handwritten will could be incomplete, ambiguous or contradictory, all of which could result in undesirable delays and family-related discord as family members await the outcome.

Nevertheless, your written words could still be upheld in the end, just as the declaration engraved into the fender of Harris’ tractor was. In fact, if you ever wish to see his pocketknife and fender in person, they are on display in the University of Saskatchewan’s College of Law’s Law Library.

Even so, you may not be able to write your wishes down like Harris did, so it is better if you don’t take any chances! Look into what is required of you in the state you call home and consult with an attorney who can ensure that your will is both valid and fully executed.

Copyright, 2022

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William Hayes

As an attorney in private practice in Los Angeles County, California William Hayes provides extensive estate and tax planning services to individuals and businesses in Los Angeles, Pasadena, Glendale, Burbank and surrounding communities. Attorney Hayes’ primary focus is to help clients avoid probate, protect their assets, and provide for the security of their loved ones with a well-crafted estate plan. He believes in giving each client the time needed to explain his or her needs and wishes and then dedicates his efforts toward making the client’s desires clear in their final estate plan.

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