Estate planning often involves the creation of Wills, with many people familiarizing themselves with traditionally drafted documents by attorneys. However, there’s another type of Will – the holographic will. In this blog post, we’ll delve into what a holographic will is, highlight its unique characteristics, and explore how to probate a holographic will in New York.
What is a Holographic Will?
A holographic will is a handwritten document that is entirely drafted, dated, and signed by the testator (the person making the will) without the presence of witnesses. This unique form of testamentary document is distinguished by the testator’s own handwriting, often found in personal diaries, notebooks, or any piece of paper.
A holographic Will is valid only if made by a member of the armed forces of the United States while in actual military service during a war, whether declared or undeclared, a person who serves with or accompanies such armed service during war or other conflict, or is a mariner at sea.
In one case, a holographic instrument was denied probate where it was executed in New York State at a time in which the decedent was not a member of the armed forces, and the will was not witnessed
Key Characteristics of a Holographic Will:
1. Handwritten by the Testator: The holographic will must be entirely written in the testator’s own handwriting. Typed or printed sections, even if integrated into a handwritten document, might invalidate the holographic will.
2. Testator’s Intent: The document must clearly express the testator’s intention to create a will, outlining the distribution of assets and any other pertinent instructions.
3. Date and Signature: It is essential for the holographic will to be dated and signed by the testator. In New York, additional formalities may be required, such as specific language indicating the testator’s intent to create a valid will, as outlined in EPTL 3-2.2.
Advantages of Holographic Wills:
1. Simplicity: Holographic wills are often simpler and more cost-effective to create compared to formal wills, which may involve legal fees and more extensive formalities.
2. Flexibility: Testators have the flexibility to draft their will in any location, without the need for witnesses or notaries.
Considerations and Challenges:
1. Legibility and Interpretation: Challenges may arise if the handwriting is difficult to read or if the testator’s intent is unclear, potentially leading to disputes and legal challenges during the probate process.
2. Legal Validity and EPTL 3-2.2 in New York. Understanding the legal validity of holographic wills in New York is crucial. The Estates, Powers and Trusts Law (EPTL) Section 3-2.2 governs holographic wills in the state, setting forth specific requirements for their validity. Familiarity with these legal provisions is essential for ensuring the holographic will meets statutory requirements in New York. Holographic Wills can be and are denied probate if there is not strict compliance with EPTL 3-2.2
3. Witnesses and Formalities: Even in jurisdictions accepting holographic wills, some testators may choose to include witnesses to enhance the document’s credibility and reduce the likelihood of disputes. The only time that witnesses can be dispensed with when preparing a holographic Will is when the testator is in combat or at sea.
Probate of A Holographic Will is Difficult.
In order to probate a holographic Will, you must demonstrate strict compliance with EPTL 3-2.2. You must prove that the testator, at the time of the execution of the Will, was a member of the armed forces of the United States while in actual military service during a war, whether declared or undeclared, a person who serves with or accompanies such armed service during war or other conflict, or is a mariner at sea.
If the testator does not fall into any of those categories, the handwritten and unwitnessed will is going to be denied probate.
Not Every Handwritten Will is a Holographic Will
In one case, Testator tried to execute a handwritten Will during COVID-19 when he was hospitalized. A handwritten instrument dated March 18, 2020, was offered for probate leaving the decedent’s entire estate to her niece.
The purported will did not contain the signature of any witnesses but was notarized. The court addressed whether the instrument could be admitted to probate as a holographic will. The court noted that pursuant to EPTL 3-2.2, a holographic will is one written entirely in the handwriting of the testator and is not executed with the formalities of EPTL 3-2.1, and that such a will is valid only if made by a member of the armed forces of the United States while in actual military service during a war, whether declared or undeclared, a person who serves with or accompanies such armed service during war or other conflict, or is a mariner at sea.
The Court decided that a testator who was in the hospital during COVID-19 did not satisfy any of the requirements of the statute.
Although petitioner argued for the court to permit the instrument’s admission to probate under exigent circumstances, the Court refused and held that it did not have the authority to essentially amend the holographic will statute (EPTL 3-2.2) to add a new and ill-defined cohort of persons eligible to so execute a will.
Conclusion:
While holographic wills offer a straightforward and accessible option for estate planning, it’s imperative for individuals in New York to be aware of the legal requirements outlined in EPTL 3-2.2.
Seeking professional legal advice can help ensure the holographic will is valid, reducing the risk of complications during the probate process. Whether opting for a holographic will or a formal will, thoughtful estate planning remains a critical step in securing the future and ensuring the intended distribution of assets.
For more information, please contact NYC Probate Litigation, Guardianship, NYC Probate and Estate Planning attorney Regina Kiperman:
Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com
Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
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