In accordance with the laws of most jurisdictions, any person with a sound mind and over the age of 18, can make a will. This document will state the process or means of allotting an estate, property, and resolving all claims of a deceased person. While most wills are typed or printed, there are also ‘holographic’ wills which means that it is handwritten. This type of will can be written years or perhaps moments before death, however the legality of the will itself could be an issue.
Last will and testament
As stated previously, a last will and testament is a legal document that states who the testator (person who the will belongs to) names to manage their estate and how the property will be divided up. At least two people who are not involved and have no interest in the contents of the will are needed to be witnesses and the will is signed as well as dated by the testator and witnesses. The document can be drafted by the testator alone or with the help of an attorney but it is usually printed or typed.
A holographic will, however, is a handwritten will that is made by the testator. These types of wills are still quite common and they differ from the regular will in that they may not need a witness. The handwritten will only needs to meet the minimum or basic requirements in order to be considered legal and treated as such.
To meet the requirements, evidence must be provided or it must be determined that the handwritten will was created by the testator. No one else can write the will for them and it must be in their own writing. Confirming this can be done by any witnesses that are present at the time of the writing or a handwriting expert that can match the will to samples of the testator’s handwriting. Similar to the normal typed will, the testator must also be of sound mind when the will is written. Since the writer was able to write the will it is usually assumed that they are of sound mind unless evidence is provided to disprove this assumption. Finally, the testator must express the wish to distribute their estate to the indicated beneficiaries. In one extreme case where a man was trapped and near death, he simple wrote ‘wife’ in blood on a surface. Because the blood could be verified as his own and he alone in the room, the writing was taken as a handwritten will that was made when of sound mind and everything was given to his wife.
Problems can arise concerning the validity of a handwritten will because not all jurisdictions accept it as legal. Some areas, states, and countries do not accept a handwritten will at all, while others may accept it with or without witnesses present at its creation and signing. Certain areas also have some specific restrictions that apply to handwritten wills. About 19 of the 50 States in the US consider an unwitnessed handwritten will valid as long as it meets the basic requirements.
In the case of the armed forces and sailors at sea, exceptions are granted for unwitnessed handwritten wills, but they are subject to a time limit. Also, some areas may accept handwritten wills despite not accepting wills of that type in their jurisdiction. This is known as the Foreign Wills Act and can be used to validate a handwritten will that was created in another state or area that does consider it valid.
Handwritten or typed?
While handwritten wills are accepted in many areas and may seem to be much simpler and less expensive than a regular typed will, they are not valid everywhere. Different areas have different laws concerning the legality of a handwritten will and having witnesses present during the creation and signing of the will increase the chance of it being valid in the area you are in but won’t provide an assurance that the will is valid. Before making a handwritten will, you should determine if your area accepts them and whether there are any restrictions. Unfortunately, this is not always the case if you are in an emergency situation. Therefore, it might be best to create a typed and witnessed will whenever you get the chance, because this will ensure that you have a valid will for the future that is accepted in all areas.