It’s not common, but executors sometimes come across a handwritten will, signed by the deceased person but without any witnesses' signatures. You might not even recognize the document as a will at first—but if, on closer inspection, it reads like a will, you may have what lawyers call a “holographic will” on your hands.
Is it legally binding? The answer generally depends on which state the deceased person lived in when he or she created the will.
The first question to ask is whether or not the document you’ve found was really meant to be a will. The person might just have been making some notes, in preparation for writing a real will. Look for evidence that the writer intended the document to serve as a will, including:
Every state has its own rules about what makes a will valid and enforceable after a death.
If the deceased person was a resident of one of the states below, a handwritten, unwitnessed will, called a holographic will, can be admitted to probate.
Some other states allow a holographic will to be probated if it was valid under the law of the state where it was signed. For example, if someone wrote and signed a holographic will in Oklahoma, and then moved to New Mexico, a New Mexico probate court would accept the holographic will if the will met the requirements of Oklahoma law when it was signed.
Finally, if the circumstances were unusual—the deceased person was a soldier at war or a sailor at sea when the will was made—Maryland, New York, and Rhode Island allow holographic wills. But state law provides that the wills become invalid soon after discharge from the military or return to land.
After the person who wrote the will has passed away, it’s more difficult to prove the validity of a holographic will in probate court. The whole point of having witnesses watch someone sign a will, after all, is so that if there’s any question about the will’s validity, the witnesses can come to court and testify. They can state that they heard the person say the document being signed was his or her will, and that the person seemed aware of what he or she was doing and was not under the undue influence of someone hoping to inherit.
If you’re an executor submitting a holographic will to probate, you must show:
The entire will, or at least all the significant parts, is in the handwriting of the deceased person. That means a fill-in-the-blanks will form isn’t valid if the important parts—the clauses that leave property—are preprinted. There must be evidence that the handwriting and signature are in fact those of the person who has died. This may be supplied by the testimony of people who were familiar with the person’s handwriting, or if there is an argument over the will’s validity, by an expert in handwriting analysis.
The person intended the document to serve as a will. That’s usually shown by the language of the document itself, as discussed above. It might also be useful to have testimony from others, if the deceased person told them about the will.
Some states also require that the will must be dated as well as signed.
If you’re dealing with a handwritten will, talk to an experienced probate lawyer. Handwritten wills can raise all kinds of questions about the intent of the deceased person, and you’ll want legal advice about the best way to proceed.