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Holographic Wills: The “Cocktail Napkin”

On Behalf of | Apr 12, 2023 | Firm News

I received a call today from a woman who was concerned about what seemed to be a will.  The will in question, she assured me, was written on the tiniest scrap of paper ever.  Could this be an actual will she asked?  Would this be a valid will?  I immediately flashed back to my law student intern days.

Years and years ago, let’s not discuss how many years ago it was, I was a student interning at the probate court.  A file, among a stack of files, was left on my desk.  The file included a Petition to Probate a Will with Letters Testamentary.  My job was to review the file and produce what were called blue notes, now often referred to as calendar notes.  As I reviewed the file, I could find no will.   How could this be, the petition clearly stated a will was being probated.  The other unusual aspect of this file was that it included the month of December from a Norman Rockwell calendar.  Being born in Massachusetts and living in Western Mass for a good portion of my childhood, Norman Rockwell was kinda a big deal.  A field trip to the Norman Rockwell Museum was the highlight of the school year.  But what was December doing in a probate file!? Spoiler alert….it was the WILL.  I’m sure Mr. Rockwell would not have anticipated his artwork taking on this expression, but I’m convinced he would have gotten a kick out of it.

Yes, the month of December was a will.  In various boxes people’s names were handwritten and specific items were given, or a person in charge of the estate was listed, different disposition were provided and at the bottom of the calendar the decedent had signed her name and added a date next to her signature. Viola the Norman Rockwell Month of December was a Holographic will!

California Probate Code Section 6111 states the following:

(a) A will that does not comply with Section 6110 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.

(b) If a holographic will does not contain a statement as to the date of its execution and:

(1) If the omission results in doubt as to whether its provisions or the inconsistent provisions of another will are controlling, the holographic will is invalid to the extent of the inconsistency unless the time of its execution is established to be after the date of execution of the other will.

(2) If it is established that the testator lacked testamentary capacity at any time during which the will might have been executed, the will is invalid unless it is established that it was executed at a time when the testator had testamentary capacity.

(c) Any statement of testamentary intent contained in a holographic will may be set forth either in the testator’s own handwriting or as part of a commercially printed form will.

In the instant case, the details contained, the instructions given, the signature, the date and the handwritten nature of the document complied with section 6111 of the Probate code, making it a valid holographic will, which was admitted and probated.  Easy simply and straight forward.

Now, is the Holographic will the best option, no.  Many of these handwritten documents do not pass the test.  They do not show the intention of the testator to create a will. There is insufficient information or maybe the decedent lacked capacity.  It is always best to seek the advice of an attorney and have a formal will drafted, many times in conjunction with a Trust.  But this one worked and it was a pretty interesting case to research as a law clerk and certainly one of the many interesting aspects of this area of law.