Are Handwritten Wills and Instructions Enforceable?

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Princess Diana of Wales was one of the world’s most beloved celebrities – and one of the wealthiest.  Her tragic death in 1997 was world news. The majority of her estate, reportedly worth $40 million at the time of her death, was divided between Prince William and Prince Harry in her estate plan. 

However, Princess Diana also wrote a “letter of wishes” that directed her executors to give a number of personal effects to her godchildren. Those executors, her mother and her sister, went to court and had her letter of wishes ruled unenforceable. 

Holographic Wills – Sometimes Enforceable, Often Not

Princess Diana’s letter of wishes is similar to what’s known as a “holographic” will in the United States. In its most simple terms, a holographic will is a handwritten document which may or may not have to be signed. 

State laws vary on whether holographic wills can be enforced and how they must be prepared.  Approximately half of U.S. states allow them and those states that do require the matter to be probated. Some of the issues which frequently arise concerning holographic wills include:

·Validity. Did the decedent write the will? In contested cases, handwriting experts are often used to determine validity through comparison with prior handwriting samples.

·Undue Influence. Was the decedent unduly influenced to create the will? That’s difficult to prove – or disprove – as a holographic will does not have to be witnessed. In Minnesota, a will contestant must prove that the improper influence operated at the very time the will was signed and dominated and controlled its execution. If no witnesses are around, clearing this burden of proof becomes nearly insurmountable.

·Intentions. Does the will accurately describe the decedent’s intentions? Again, without witnesses (creating an actual last will and testament requires two in Minnesota), that becomes difficult to answer.

The question becomes – if you believe that no one will contest your holographic will, should you skip the lawyers altogether? The answer is NO.

Don’t Subject Your Wishes to Inquiry or Scrutiny

The whole purpose of creating a document, any document, which spells out your intentions upon death is to make it enforceable. Although last will and testaments still go through probate, they provide the court with a signed and witnessed document which is likely to reflect your intentions. Holographic wills are less likely to hold up in court and will be subject to a great deal more scrutiny.

The bottom line is that creating a will, a trust, or any other type of estate planning document is easy – when handled by an estate planning attorney. In effect, the process is simple and consists of having a conversation about your intentions, listing assets, and creating a legal document which will carry those intentions out. Unfortunately, Princess Diana’s godchildren received nothing. Don’t let someone else decide what you did, or did not, intend. 

Contact our office now and we’ll show you which types of estate planning documents are best for you and your goals.