This post is for you if:
You are considering handwriting your will, and you want to know how; or
Someone has passed away, and has left you property in a handwritten will, and you want to know if the will is valid.
Are Handwritten Wills Valid?
The short answer is: YES, handwritten wills are valid. A handwritten will is also called a holographic will. The Oklahoma statute on holographic wills says:
A holographic will is one that is entirely written, dated and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of this State, and need not be witnessed.
Note what this statute means: If you handwrite a will, and the entire will is in your handwriting, and you sign and date the will, then the will is valid in Oklahoma. Most wills need to be witnesses by at least two people; a holographic will need not be witnessed. You also do not need to have a holographic will notarized, for the will to be valid.
This also means: If someone has passed away, and left property to you in a handwritten will, and their will complies with the holographic will statute above, the will is valid. To obtain ownership to the property the will devises to you, you will have to go to probate court. In probate court, you will have to probate the will in the same manner as if you would probate any other will.
In some cases, people have written letters in which they have said they wanted someone to inherit their property after they died, and courts have ruled that a handwritten letter could be probated as a valid holographic will. In one will-known case, the television personality, Charles Kuralt, wrote a letter to his mistress, telling her that he wanted her to inherit property that he owned in Montana. The Court held that Mr. Kuralt’s letter was a holographic will, and thus the mistress could inherit the property. Because a handwritten letter may be probated as a holographic will, you may have written a will without even knowing it.
Should you write a holographic will?
My short answer to this question, is NO. Elsewhere on the blog, I have explained why you should not act as your own lawyer, and, in particular, why you should not draft your own will. The Oklahoma laws regarding wills are very complex, and, if you draft a will yourself, you may put your heirs through enormous heartache if you do not draft the will properly. Even though a holographic will is valid, a holographic will could result in property being distributed in a way you do not want, if the will does not contain certain language that specifically applies to your situation.
The only circumstance, in which I would advise anyone to draft a holographic will is: If you feel that your death is imminent, and you do not have time to consult a lawyer and have your lawyer draft a professionally prepared will before you die. If you survive your illness, you should then consult a lawyer and ask him to draft a will for you.
If you write a holographic will
If you are in a situation where death is near (or if you decide to ignore the advice I’ve given in this post) and you draft a holographic will, I would recommend that you take the following steps, and insert the following provisions in your will:
1. If you have children, mention ALL of your children by name in the will, even if you do not intend to leave property to your children.
2. If you have children who have died before you, and these children have children, mention these grandchildren by name in the will, even if you do not intend to leave property to these grandchildren.
The reason for the above two provisions is: a state statute says that, if you omit children, or children of deceased children, in your will, then the omitted children, or children of deceased children, have the right to inherit the same portion of your property they would inherit if you died without a will. (Some persons, in drafting wills, leave one dollar to their children, to get around this law.)
3. Include language in your will that says, “I declare this to be my last will and testament.” This will remove all doubt that you actually intended the document to be your will.
4. Include language in your will that says, “I revoke all previous wills and codicils.” That way, if you have drafted a will before, this language will help you avoid the problem of having two valid wills in existence at the time of your death. Because (as I explained above) people have written wills without even knowing it, using such language is a must.
5. If you plan on leaving property to someone who is not a family member, or, if you plan on leaving a disproportionate share of your property to a family member and a less proportionate share to another family member, there is a possibility that other family members could challenge the validity of the will on the grounds that you were not of sound mind, or that someone unduly influenced you. To avoid this outcome, video yourself writing and signing the will, to remove questions of mental incapacity or undue influence. With cell phone video technology, creating such a video should be a simple task.
6. Describe all of your property precisely, and describe each heir precisely, so that a person (such as a judge) who does not know you or your family, will be able to tell who and what you are talking about. For example, don’t write, “I’m leaving property to my hunting buddy John”; instead state John’s first and last name, and precisely tell who John is. Don’t say “I’m giving away my car”; rather list the make, model, and year of the car.
7. Don’t refer to other writings in your will. Don’t say, “I’ll give away the property that I list in ________________.” Describe all of the property precisely in your will.
8. Be careful about referring, in your will, to external facts. For example, don’t say “I give away the household items on which I place Post-It Notes.” The reason you should not make statements such as this, is: someone else can easily place Post-It Notes on household items. That other person could then manipulate the outcome of the probate. If you refer to external facts, refer to facts that cannot easily be manipulated, for example: “I leave property to the sons who survive me.”
Please note that, the above steps do not guarantee that you will avoid the problems that often arise in holographic will cases. Because Oklahoma will law is so extensive, there are literally thousands of different scenarios that a holographic will can create, and it is impossible to list all the steps you can take to avoid the more problematic cases. That is why I urge you to retain a lawyer to draft a will, rather than write a holographic will yourself.
Comments