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Handwritten Wills Often Lead to Legal Problems

The legal requirements for making a valid will in California are straightforward. A will should be in writing and signed by the testator (the person making the will) in the presence of at least two witnesses. Ideally the will is typewritten and signed on the last page. Many estate planning lawyers will also have their clients and the witnesses initial each page of the will, just to make sure there is no doubt as to the authenticity of the entire document.

Alaska Follows California’s Lead on Signature of Handwritten Wills

Most modern wills are typewritten, usually by the office of an experienced estate planning attorney who specializes in preparing such documents. Still, some people decide to write their own wills. Such documents often do not conform with the witnessing requirements of California law. Does that mean these wills are invalid?

Not necessarily. California does recognize what are known as holographic wills. “Holographic” refers to a will that is in the testator’s own handwriting. A holographic will must still be signed by the testator but it does not have to be witnessed so long as all of the “material provisions” are in the testator’s handwriting.

While legal, holographic wills often prove problematic. Family members may challenge a handwritten will as a forgery and tie up the testator’s estate in court for months or even years. Obviously this undermines one of the main reasons people make a will in the first place, which is to avoid potential litigation over their estate.

For example, the Alaska Supreme Court recently addressed a situation where a purported holographic will was signed at the beginning of the document rather than end. The Alaska courts apparently had not previously considered whether such a will was valid. The testator in this case left a handwritten document specifying the distribution of her property after her death. After the testator died, two of her grandchildren contested the will, in part alleging that their grandmother’s signature was not genuine.

The Alaska Supreme Court noted that state’s law governing holographic wills was “nearly identical” to that of California. In a 1952 case, the California Supreme Court said a holographic will was valid even though the testator’s name “only appears in the body of the instrument” and lacked a traditional signature at the end. The Alaska Supreme Court applied similar reasoning to uphold the validity of the holographic will in the present case, rejecting the grandchildren’s contest.

Get Help With Your California Will

It is always a good idea to work with a qualified San Diego estate planning lawyer when making or revising a will. You may think writing your own will saves time and money, but the reverse is more likely. Holographic wills often omit key language that can make it difficult for a court to interpret its terms. The more your will conforms to traditional legal standards, the less likely there is to be a contest.

If you have any questions or concerns regarding wills, contact the Law Office of Scott C. Soady to schedule a consultation today.

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