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Litigating Holographic (Handwritten) Wills

A holographic will is very simply a document expressing testamentary intent written in the handwriting of the individual, or even more simply, it is a handwritten document that states what should be done with a person's property after their death.

The requirements for a holographic will are very basic: it has to be in the handwriting of the testator (the person to whom it relates) and express a desire to do something after death with that person's property.

It would seem on first inspection that there are not many effective ways to fight the probate of such a handwritten will. That would be a mistaken impression and one that often keeps individuals from successfully litigating the probate of such a document, that is keeping the document from being used as the final will of the individual.

You may find yourself asking why one would want to keep such a document from being the final will that the court acts upon? There are many reasons, a beneficiary might inherit more under the intestacy laws (the laws of inheritance where there is no will) , or, a previous will might provide a better inheritance scheme. If, for example a child was disinherited by such document they would certainly want to object to it being used. In any event this post is about the methods of fighting against such documents.

Testamentary Capacity - Duress, Fraud, Mistake and Undue Influence

The first and always applicable way of litigating any probate action ​​is alleging that the testator, the person who died, did not have testamentary capacity in creating their holographic will. A review of our blog post, Testamentary Capacity Should Always Be Alleged provides more in depth information. In any case we will briefly cover some of the ways in which an otherwise valid will can be undone by testamentary capacity.

Duress is essentially the confinement of a person or the property of the person in a or of a relative. A sad, but often seen example, is the taking of the car keys or other transportation abilities away from an elderly person and refusing to provide them until a signature or other agreement is obtained. Such actions are most often seen in other contexts, for more information read our post Financial Elder Abuse Overview.

Fraud is another one that most people know. The simplest example is telling a person they are signing a receipt but really its a contract. Such simple fraud is not often seen in holographic will disputes as the material provisions of the will have to be in the hand of the testator. More subtle fraud is more likely.

If, in order to receive a benefit under a holographic will, a person stated a fact that they knew to be untrue or that they had no basis for belief and that affected the will that would constitute fraud. For example, an email to an elderly person stating that their child owed them money, or that a person that they would leave their money to has died (by the way such actions may also be the grounds for a claim of Tortious Interference With Expectancy of Inheritance).

Mistake is fairly self-explanatory. This is a mistake about a fact, for example, an elderly person may have forgotten that one of their siblings had children, or may be confused about the function of certain laws.

Undue influence is another one that is commonly alleged and often proven. Many actions can fall under the category of undue influence, and it is commonly defined as using your relationship to take advantage of someone, taking unfair advantage of a person's "weakness of mind", or taking unfair advantage of someone's necessities or duress.

Finally, one issue that usually is involved in all of the others is the mental state of the individual. That is, the person writing the will may be suffering from mental illness, from actual illness, may have been on medication, be senile, or otherwise not have the wherewithal to actually understand what they were doing. It is surprising how often such things occur, for example, an individual suffering from severe dementia with no access to a telephone managing to request and sign a trust document from an attorney, such an example is the perfect time to allege a pure lack of capacity. Read our posts Lack of Capacity and Late-In-Life Wills for more information on capacity.

The burden of proof can make the difference in such cases. The party that is presenting the holographic will to the court has the burden of proving that the person actually executed it - we will talk more about this later when we discuss handwriting. The party that is fighting the will on testamentary or other capacity grounds has the burden of proving those facts.

Signature Requirements - Location and Expression

A signature of the testator is required in order for a holographic will to be valid. If there is no signature the will is not valid. Whether a signature is on the document should be simple but, unfortunately is not. A signature can be found on any part of the document, for example, at the top of the document. Another place that it may be found is in the body of the document, imagine for example that somewhere in the body of the document, say the third line, the following is written by a Mr. John Doe:

"Jane Doe, granddaughter of myself, Mr. John Doe, shall inherit the family house."

Is the written name of the person executing the document in their own hand a signature, that is in the above where Mr. John Doe writes his own name is that considered a signature? The answer here is maybe not. If the will completely disposed of all of the property then yes, if it did not then possibly no.

In order for a signature to make a valid holographic instrument it must be made with the "intention of authenticating or executing the instrument as his will." (See Estate of Kinney, 16 Cal.2d 50, 53.) In such cases the court tends to look a variety of facts in order to determine if the will is the final and complete expression of the decedent.

A good practice with holographic wills is to always review the original document. The original document is put on file with the court. In most cases a scan of the document is what everyone works off of. However, the scan is likely to miss incredibly important details of the original document that can have an effect on the outcome of any litigation. For example, whether there is evidence of a back page based on ink seep, whether the document was penned using multiple instruments based on ink color, what type of paper was it written on - a scan of a napkin may look similar to that of heavy-weight paper. All of these are factors that can either help to prove up the will or that can be used as evidence against it.

Material Provisions Must Be In The Testator's Writing

Often the simplest issues are overlooked, for example, the question should always be asked, is the will in the testator's handwriting? Imagine this scenario, your great uncle dies and you are named in the holographic will as receiving $5,000, but a prior will left you stock valued at $650,000. Now you receive a notice that a holographic will is attempting to be probated by a cousin, you look at the document but do not know the handwriting of your great aunt and there is a declaration that says that the writing is truly hers that has been executed under the penalty of perjury.

The biggest mistake you can make at that point is to do nothing to make sure that the handwriting is actually from the person claimed. This is a first, and often overlooked, step . It is often overlooked because people are generally honest and believe the same of others. What should be done is to gather handwriting samples of the testator and have an expert compare the samples to the instrument at issue. If there are inconsistencies the expert will track them down and you may end up with an expert opinion that the so-called holographic will was actually written by someone else.

In the example above a quick and inexpensive procedure could make the difference between a $5,000 bequest and a $650,000 bequest.

What is, or is not, a material provision is a matter of argument. The court has decided few cases on the issue and there is no bright-line rule. For example, does a list of family members living constitute a material provision, or do only sections relating to a testamentary action constitute material? A good rule is that if any portion related to inheritance is not in the handwriting of the testator then it should be argued that the will is not valid.

Post Hoc Alterations and Interlineations

Imagine you are looking at the holographic will from our Mr. John Doe example above. There is that same passage but in this example it has been crossed out:

The line through it is a post hoc (after the will was originally executed) alteration, what we call an interlineation. In the above example there is no signature or initials to identify if the testator made the change. As described above, the party probating the will - attempting to have it deemed valid - has the burden of proof of due execution. How are they going to prove that the above example was executed by the testator? Just looking at this example they are not, but other facts can assist in doing so, for example was the house sold? Was the will dated? Was a later date added? All in all it ends up being a factual inquiry but it can be sufficient to have the will invalidated.

Testamentary Intent, Was It Meant to Be A Will?

Another argument that can be made against an alleged holographic will is that it was not meant to have any effect. There are a number of documents that may be written by a testator that can look like a will but are not executed with testamentary intent:


-a draft of a contemplated will

-a description of a plan for a future will

-asset tracking for purposes of a current will

-a letter

-a promise

A court determines whether there was any testamentary intent by looking at all of the facts. If you are defending against such an attack you want to muster all the reasons why there was testamentary intent, the document itself being the strongest fact, which is why the signature issue is so important. If you are fighting against the document becoming a will then you want to show the opposite, that it was not meant to be a final will but is some other type of document.


There are a number of pitfalls for those attempting to probate a holographic will and, if you are attempting to have the probate denied, there are a variety of allegations and factual inquiries that should be made. No matter which position you find yourself in it should be remembered that it is not certain and that the party that presents the best facts should win. Winning on this issue is all about preparation and the determination can occur quickly if you do not take proactive steps as an objecting party, on the other side, as the party supporting probate the more you have at the beginning the better your chance of success.


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