Living Will Testaments
Holographic will versus Last Will & Testament?
My brother has a Last Will & Testament written in 4/02 leaving ALL property to a particular person, a previous significant other, (whom he has had little to no contact with in the past 3 years). My brother commited suicide recentley leaving behind a holographic will that was written in his own writing, that is dated and signed. This holographic will names beneficiaries, including myself (I am his only living next-of-kin). Question is this: Does this holographic will take precedence over his prior legally written Last Will & Testament?
There’s really more than one question here, and will be controlled by the law of the state where the estate is to be probated, so I can’t give you any definite answers, just illuminate the subject a little bit.
The two broad concerns regarding the will being valid at all are form and capacity.
The laws on the form of holographic wills are usually fairly generous, and probably only require that it unquestionably show the intent to create a will, be reasonably legible and comprehensible, ENTIRELY in the testator’s handwriting, and signed. The date probably isn’t strictly necessary, but helps establish which of two documents is the more recent. Witnesses probably are not necessary, although you may need one or more people to swear that it is, in fact, his handwriting.
The other is more difficult, and is the question of mental capacity. If the suicide was not long after the writing of the will, that may or may not be considered evidence of a lack of mental capacity. I haven’t researched this subject previously, so I can’t say without knowing the state and researching cases dealing with the question.
If capacity is a problem, the holographic will may be invalid as a will, and still be considered as a valid revocation of the prior will, leaving the estate’s disposition to be determined by the laws of intestacy.
In other words, you need a lawyer. It’s not a question of which of two wills controls, it’s a question of whether or not EITHER is operative.
Aaron Futterman on Last Will and Testaments (Part 1 of 2)
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