What Is A Holographic Will?
I’m Brad Woodall from probateresource.com. Today, I’m continuing our video series focused on topics specific to Tennessee. I’m here with my friend April Jackson, a probate and estate attorney based in Nashville, Tennessee. We’re discussing various aspects of probate in Tennessee, and today’s specific question is about holographic wills.
First, let’s define what a HOLOGRAPHIC WILL is.
I love the idea of a recorded will, but I want to clarify some details.
A holographic will is one that you create in your own handwriting or in the handwriting of someone you love. To be valid, it should be dated and signed by the person who wrote it. Those are the only requirements for writing your own will.
In Tennessee, if you have handwritten your will, there are several steps you can take to make it easier to probate. First, treat it like a standard will by attaching a page that contains specific language confirming that witnesses were present when you signed it. This page should state that everyone was in the same place at the same time and that the witnesses heard you say, “This is my will; will you be my witness?”
It’s important that these witnesses are not related to you, do not stand to inherit from you, are over 18 years of age, and have the legal capacity to serve as witnesses. If you follow these guidelines and have witnesses for your will, it will be treated like a traditional will.
The Role of Witnesses and Affidavits
To admit the will to probate, you will need affidavits from those witnesses if they were present. Normally, for a typed will, witnesses will sign the will alongside the will maker, and there will be a separate affidavit that is notarized for court submission.
If you do not have witnesses for your handwritten will, either you, your attorney, or your family will need to find two individuals who can testify in court that the handwriting is indeed yours. In today’s world, where we communicate mostly through emails and texts, it can be challenging to identify handwriting, as many people, including my friends, don’t write by hand as often anymore.
To validate a handwritten will in court, you need individuals who can testify to their familiarity with the person’s handwriting. They should be able to confirm that the handwriting in question is indeed that of the individual and that they had the mental capacity to write it at the time it was created. While it is entirely possible to write your own will by hand, the challenge lies in getting it approved during the probate process.
Brad:
Yes, that’s right. More often than not, we encounter people who call us wanting to sell a property. They usually say something like, “Dad had a will.” From experience, I know it’s important to see Dad’s will before proceeding down this path. Once I review it, I often find myself thinking, “Oh my gosh, I hate to break it to you, but this probably isn’t going to work.” In those cases, I usually recommend they consult with my attorney, who can explain the issues.
We’ve dealt with similar situations frequently. For example, I mentioned to you earlier that there was one case where we needed to contact the witnesses of a will. Fortunately, both witnesses were still alive and had valid phone numbers listed. They were able to verify their signatures and sign an affidavit for us.
It’s interesting that you brought up the witnesses. For my own will, my witnesses were one of the employees at the UPS store and a lady who happened to be standing at the counter. I made sure to get their information since I went to the UPS store to have my will notarized and everything.
Things To Consider For A Handwritten Will
It’s important to understand that while I can handwrite a will, there are some considerations I need to keep in mind. For instance, I have to think about who will actually come to court and confirm, “Yes, I recognize April’s handwriting.” This can place a burden on my family and friends, making things more complicated for the attorneys involved, which can lead to higher costs.
What you really want to ensure is that witnesses can sign to confirm they saw me sign the will, verifying that everyone was present in the same place at the same time. They would also sign a separate affidavit stating that they witnessed my signature on the will, which is where a notary becomes essential.
While it is not impossible to proceed without these elements, having them makes the process smoother and more straightforward.
Brad:
Validating Your Handwritten Will in Court
The court must approve it. If the court does not approve the will, particularly if it includes provisions that are not in alignment with the laws of intestate succession, then the court may deem it invalid. In such cases, you would have to adhere to the laws governing intestate succession.
Yes, that has happened before. This is a common question—many people ask about the validity of handwritten wills, often without using the term “holographic will.”
I truly appreciate your time, April. If anyone is interested in checking out our other videos with April regarding Tennessee law, you can find those at probateresource.com/tennessee or on our YouTube channel, where we have a dedicated playlist for Tennessee-related content.
Thank you, April, for your time. If you have any questions specific to Tennessee or if there’s something we didn’t address, feel free to check out our other videos. For more specialized inquiries about probate or estate matters in Tennessee, April is the expert you should consult.