A Holographic Will That Worked…But At What Cost?
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. The holographic will that his friend wrote without the help of an attorney had carried out his wishes.
But at what cost? The fact that the Court upheld the holographic Will does not contradict my article about the inherent risks of do-it-yourself planning.
What is a Holographic Will?
According to the Guinness Book of World Records, the shortest will consisted of three words: “All to wife.” A man who realized his death was imminent wrote those words on a bedroom wall.
States have different requirements for what constitutes a valid holographic Will. For example, a holographic wills is valid in Texas if the will is completely in the testator’s handwriting and signed by the testator. However, in North Carolina, in addition to being wholly in the testator’s handwriting and signed by the testator, the Will must also be found:
- among the Testator’s valuable papers or effects;
- in a safe-deposit box or other safe place that the Testator controls; or
- in the custody of an individual or entity tasked by the Testator with keeping the Will safe.
I’ve written about holographic wills before in my article “Requirements and Pitfalls of Handwritten Wills.”
Estate Planning Complexities
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 laws of intestacy.
While his dispositive scheme may have been simple, many 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.”
The Cost of DIY Planning
Finally, although the court upheld his friend’s Will, 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 cost of attorneys’ fees his girlfriend paid to defend the Will, not to mention the emotional toll it took on her, 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.
This article was originally written on September 17, 2012, and updated on September 5, 2021.