One of the conveniences of drafting a will is knowing that you can handwrite one yourself. With just one caveat, only about half the states recognize a handwritten as valid. A holographic will is a will that has been written by hand by the person that is establishing the will, known as a testator. A holographic will is different from a standard will because it is typically neither notarized nor signed by two witnesses and handwritten.
Not all states allow or recognize holographic wills, even in the states where holographic wills are recognized, they have to conform with certain standards. For example, the holographic will must be handwritten by the testator themselves, while the testator has the necessary mental capacity, and signed by the testator at the end of the will. Signing at the end is a crucial step for any will to be legally recognized, as disputes often arise over the identity of the signatory. In such cases, people familiar with the testator’s handwriting as well as handwriting experts are often invited to testify in probate courts regarding the validity of the signature and the handwriting itself.
Only a handful of states recognize holographic wills. While some states do not accept holographic wills, they accept holographic wills made in other states, where they are legal – under foreign wills provisions. Additionally, in New York, for example, holographic wills are recognized only if they are made by members of the Armed Services.
Is a Holographic Will Valid in Florida?
A holographic will that is not notarized or made in front of two witnesses is not recognized in Florida. However, if a will is handwritten but is signed by two present witnesses – it is considered a valid will. A will must always be signed by the testator, at the end of the document, in the presence of two attesting witnesses, to be valid in Florida. The Supreme Court of Florida has stated in Allen v. Dalk that: “an unsigned will is no will; a will with the testator’s signature omitted does not comply substantially with the Wills Act.”
The same applies to already created wills where you wish to make changes to. Crossing out provisions and adding different language in your own handwriting will not constitute as valid and a holographic will is considered to have been created. These circumstances are tricky, because even though the change to the existing will may seem minor, the amendment is not proper and will open the doors to invalidity. The proper and correct way to make changes to your valid will is by making what’s known as a codicil. A codicil is a formal way of creating an amendment to a will, while adhering to all will formality laws in Florida.
How do I Write a Holographic Will?
Any will, including a holographic will, should be written by someone over eighteen (18) years of age, while being of “sound mind and judgement” and having the purpose of making the will the “their last will and testament.”
We caution against creating your own holographic will in Florida. The Florida Wills Statute is comprehensive and requires many factors for a will to be considered valid. We suggest speaking to an attorney before creating a will on your own.
Consulting your Attorney First
Any time you wish to draft a legal document without seeking legal counsel, although this is not recommended, it is best practice to always consult with an attorney first. This way, when you are self-drafting, an experienced lawyer in the field will be able to advise you as to which formalities you should be meeting and including in your handwritten will. With that being said, it should be reiterated that the will statute is extremely widespread in terms of meeting all and various requirements. Therefore, your will is a powerful and important document that should be made with the intent of adhering to proper procedures and in full compliance. An experienced estate plan attorney can help you achieve that.
Wills are open to validity contests as there are many instances that can set-off an invalid will. Common will challenges include not only duress, forgery and fraud, but defects in execution as well, this includes not meeting proper will formalities in order to validly hold up in a Florida court.