I’ll Know a Holographic Will When I See One

Few things in probate and estate law make for better stories than the odd cases that involve handwritten, or “holographic” Wills.  The facts and circumstances are often too good not to pass along to friends or colleagues.  Typically, the tale is cautionary, and the moral is that everyone should have a Will, and everyone should have a lawyer help him or her prepare it.  Holographic Wills are perfectly acceptable in Texas, but they can often cause far more trouble than they save.

The acceptability of holographic Wills is actually an exception to the general rule that two witnesses must attest a Will.  If the Will is “wholly in the handwriting of the testator,” the witness requirement is waived, and the Will can be admitted to probate simply upon proof of the handwriting.  That’s about where the law’s uniform guidance stops, and what has followed is a history of cases across Texas that demonstrate the critical importance that unique circumstances can play in these cases.

First, there is the form of the handwritten document, if the Will is even on a document.  Among a long variety of other things, Probate Courts in Texas have admitted Wills scrawled by the testator’s hand upon greeting cards, grocery lists, post-it notes, suicide notes and one particularly gruesome case involving a Will written on a wall in blood (later proved up through photographs.)  It has been said, “In Texas, you can probate a watermelon,” and the fact that no form requirement exists should be proof enough.

The inquiry that most of these holographic Will cases turn on is the intent drawn from the words that the testator chose.  The Will, whether written on a greeting card or (somehow) on a watermelon, must demonstrate what is referred to as “testamentary intent.”  That is, the Will must evidence a desire that the testator intended for the Will to operate as a Will – as an instrument to take effect at death and dispose of his or her property.  So many times, outlines of Wills to be drawn up later, or instructions to others, are offered for probate and denied because they lack this critical element.

Truly, holographic Will cases offer some of the most interesting fact patterns that probate litigators can encounter.  Texans should take some comfort in the fact that their testamentary designs can still be applied even if they never formalize them into a fancy typewritten document.  But the better practice, to avoid the multitude of pitfalls associated with holographic Wills, is to invest the time and money to get the job done right.