The Risk of DIY Planning

A Holographic Will That Worked…But At What Cost?

by Rania Combs

After reading a post I had written on the risks of do-it-yourself estate planning, a skeptical reader commented that his friend’s situation contradicted my article.

His friend had written a will on a paper towel leaving his entire estate to his girlfriend. His friend’s ex-wife and three children contested the will to no avail. Despite the efforts of four lawyers arguing against its validity, the will was declared valid by the court. His friend’s wishes had been carried out by a basic, holographic will that was written without the help of an attorney.

But at what cost?

According to the Guinness Book of World Records, the shortest will consisted of three words – “All to wife” – written on the bedroom wall of a man who realized his death was imminent.

Holographic wills are also valid in Texas if the will is completely in the handwriting of the testator and signed by him or her. I’ve written about holographic wills before in my article “Requirements and Pitfalls of Handwritten Wills,” which you can read by clicking on the link.

But the fact that the will was upheld does not contradict my article about the inherent risks of do-it-yourself planning.

The dispositive scheme of the writer’s friend was quite simple: he wanted to disinherit his children and leave his entire estate to his girlfriend. But what if his girlfriend had died in an accident on the same day? Would he have wanted his estate to pass to his children? That’s what would have happened under Texas’ intestacy scheme.

While his dispositive scheme may have been simple, most people have unique circumstances that complicate their estate planning. These include factors such as being part of a blended family and wanting to provide for a current spouse and children from a previous marriage, having minor children, having a child with special needs or a drug problem, or having a taxable estate. Do-it-yourself estate planning in these situations is fraught with risk. For an example, read my article “Do It Yourself Estate Planning Disinherits Child.”

Finally, although the friend’s will was upheld in the court system, that happened only after a legal battle. Overwhelmingly, my clients are motivated to engage in estate planning so that their loved ones are able to settle their estates in the most cost-effective and expeditious manner.

From the reader’s comment, there seems to have been a protracted legal battle with four lawyers involved in which his friend’s children and ex-wife tried to contest the validity of the Will, most likely because of the form it was in. Would his friend have wanted his girlfriend to endure that legal battle?

The attorneys’ fees paid for representation in the will contest, not to mention the emotional toll on his girlfriend, was probably significantly more than any attorney in his area would have charged to advise his friend and draft a will that would have been less susceptible to a challenge.

Ultimately, the holographic will ended up being more costly than any attorney would have charged to draft a simple will.

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