WHAT IS A HOLOGRAPHIC INSTRUMENT?

WHAT IS A HOLOGRAPHIC INSTRUMENT?

Handwritten Will:

The term holographic instrument is typically used to reference a handwritten will – that is, a will in the testator’s handwriting instead of being typed out in a more traditional fashion. California considers holographic wills valid under certain circumstances. Often wills that are handwritten are created when an individual is nearing death and does not have access to attorneys or witnesses.

Requirements of a Handwritten Will:

Soundness of mind is required to show that one is aware of the scope and consequences of their actions. It should be clear that the writing memorializes the testator’s intent that the holographic instrument is intended to be the individual’s formal will, and not merely thoughts or ideas jotted on paper.

In addition, the holographic instrument must be in the testator’s handwriting. The premise here is that people familiar with the testator’s handwriting could and would verify that the document was in fact drafted by the testator.

Last, the holographic instrument should be signed by the testator. It should be noted that California does not require a testator to have their signature witnessed, or notarized. However, having non-interested witnesses (meaning witnesses who do not stand to benefit from your estate) is typically a best practice to avoid heirs contesting the terms or procurement of the instrument.

Handwritten Trust Amendment:

One may wonder if a trust may be amended by a handwritten note. In short, yes, California does allow trust modifications by holographic amendment.

Probate Code Section 15401 sets forth two methods for trust revocation, and Probate Code section 15402 governs trust modification.

Probate Code Section 15401(a) provides in substance that a trust may be revoked either (1) by compliance with any method of revocation provided in the trust instrument, or (2) by a writing, other than a will, signed by the settlor or any other person holding the power of revocation and delivered to the trustee during the lifetime of the settlor or the person holding the power of revocation.

Probate Code Section 15402 provides in substance that unless the trust instrument provides otherwise, if a trust is revocable by the settlor, then the settlor may modify the trust by the procedure for revocation. In other words, a holographic writing is typically a valid method of modifying a revocable trust.

Requirements of a Handwritten Amendment:

Unless a trust instrument provides an exclusive method of modifying or revoking a trust, a trust may be modified by any writing, including handwritten, so long as it is signed and delivered to the trustee.

Interlineations, meaning text or writing inserted between the lines of a pre-existing document, have been held to be valid in California so long as the settlor of the trust making revisions signs the document he or she is modifying. Conversely, holographic interlineations have been held as invalid by California courts when the settlor fails to sign the document in question.

In cases when the settlor is also the acting trustee, California courts have held that a settlor has in fact delivered the holographic instrument to him or herself as trustee when making the modifications as settlor.

WHAT MAKES HOLOGRAPHIC INSTRUMENTS CHALLENGING?

Disputes In Probate Court:

Although holographic instrument requirements appear to be simple in form, they are often subject to disputes in probate court.

When administering estates with governing holographic instruments, it is not uncommon for heirs to question (1) whether the document is in the testator’s actual handwriting, (2) if there was pressure from another party as to the contents of the handwritten document, and (3) the mental capacity of the testator.

Unanticipated Administration Costs:

When an individual executes a holographic instrument, it is typically done with very specific intent and hope that an individual’s heirs and loved ones will be taken care of and can avoid the need for court intervention.

However, even when undisputed as to the execution, form and capacity of a testator, it comes as no surprise that holographic instruments may become the subject of fierce disputes among heirs, especially as to the interpretation and integration of the holographic provisions into the existing estate planning framework.

We have many cases where words used by a testator either have multiple interpretations, or simply contradict other instructions left by the testator. The disputes that arise from these sorts of matters often require court intervention to address, which can become very costly to both the estate and heirs.

Conclusion:

Putting a thoughtful and integrated estate plan in place is paramount to taking care of loved ones and ensuring your wishes are carried out exactly as you desire. Our estate planning attorneys are here to assist with clarifying and refining your wishes in addition to addressing desires that can potentially contradict or thwart one and other.