Hand Write Will Ask You? Yoda Think Not: The Question of the Holographic Will

Since my second son was born last week I’ve needed time to sit back and just “veg” out.  So I have been doing what any reasonable parent would do, I have been watching Star Wars: The Clone Wars to help me shut out the insanity and over-exhaustion.  But it also reminds me of an estate planning question I hear a lot: What would happen if I write my will in my own handwriting?

A Will Written In Your Own Handwriting Is Called A Holographic Will.

When most people hear the term holographic will, they have flashbacks to Star Wars or Star Trek and those nifty 3D light-created images of Princess Leia or Captain Kirk. A holographic will does not, unfortunately, involve any alien technology. It’s quite the opposite, actually. Instead, a holographic will is a homemade will written out by an individual without assistance from an attorney. Holographic wills can be remarkably simple documents. But unfortunately, their simplicity often makes them vulnerable to disputes and contests, so really, they should be avoided at all costs.

One of the most famous holographic will cases involved a farmer named Cecil George Harris. He was on a tractor tending to his fields when he suffered a life-threatening injury. Unable to call for help, he feared he might quickly succumb to his wounds and worried about what would happen to his wife. In a moment of lucid thought, he carved into the tractor’s steel fender In case I die in this mess I leave all to the wife. Cecil Geo. Harris. That was it. Nothing more. Mr. Harris did, unfortunately, die and a court declared the tractor fender to be a valid will.

This is a great story and it’s completely true. Mr. Harris’ quick thinking aside, however, it’s not wise to wait until you’re facing imminent danger before drafting a will. While holographic wills are valid in New Jersey (as long as they are hand-written and signed by the decedent)*, they often lead to the following problems:

• First, holographic wills create ambiguities. An individual may know exactly what he or she means when writing down last wishes, but a probate court will have to understand it as well. Ambiguities in the will can create major headaches and confusion, leading to disputes between beneficiaries.
• Second, a holographic will might not dispose of your entire estate. For example, you might leave certain assets to your intended beneficiaries, but leave out assets not currently on your mind. Those assets would then be subject to state law, rather than your own wishes.
• Finally, holographic wills often do not name contingent beneficiaries. What if the person you intended to benefit from your estate predeceases you by a few days, or even minutes? For example, what if Mr. Harris’s wife tried to rescue her husband, was injured in the process and died? Mr. Harris’ will would then have been meaningless.

For these reasons, estate planning attorneys discourage the use of holographic wills. With professional help, you can craft a will that carefully and clearly sets forth your wishes and offers maximum protection for you and your beneficiaries.

For assistance creating an estate plan in Springfield or in Union County, NJ, email Alec Borenstein, Esq., a partner with the firm, at alec@bmcestateplanning.comor call 908-236-6457.  Alec is not a Jedi Master yet, but he is working on it.

*In New York, A Holographic Will is considered a valid Will ONLY in the limited circumstance where it is made by certain members of the U.S. armed forces while serving in a conflict or by another person who serves with or accompanies the member of the armed forces.  Such a Will must be entirely in the handwriting of the testator to be valid. Such a Will becomes invalid after 1 year after he or she ceases serving with the armed forces. (NY Law EPTA Section 3-2.2)